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Nicholia v State (10/12/2001) ap-1769
Nicholia v State (10/12/2001) ap-1769
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HENRY T. NICHOLIA, )
) Court of Appeals No. A-7660
Appellant, ) Trial Court No. 4FA-99-282 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1769 October 12, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Gary L. Stapp, Fairbanks, for
Appellant. Kenneth M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Henry T. Nicholia was accused of committing a burglary and
a sexual assault in June 1998. At Nicholia's trial, the primary
issue was the identity of the burglar/rapist. To prove that
Nicholia was the culprit, the State offered evidence of two prior
sexual assaults committed by Nicholia, one in 1990 and the other in
1992. The trial judge concluded that Nicholia's conduct during
these prior assaults was sufficiently distinctive, and sufficiently
similar to the conduct of the rapist in the current case, that
evidence of these prior assaults was admissible under Evidence Rule
404(b)(1) to prove that Nicholia was the perpetrator of the current
sexual assault. On appeal, Nicholia challenges the trial judge's
ruling.
We conclude that evidence of the 1992 assault was properly
admitted under Rule 404(b)(1), but evidence of the 1990 assault
should have been excluded from Nicholia's trial. Nevertheless, we
conclude that this error did not affect the jury's decision, and we
therefore affirm Nicholia's convictions.
The facts of the current case
D.N., a single Native woman, was raped in the village of
Tanana in the early morning hours of June 30, 1998. She identified
her assailant as Henry Nicholia. Nicholia is D.N.'s first cousin;
they have known each other all their lives.
The night before, D.N. had bumped into Nicholia while
walking home from work. D.N. invited Nicholia to come back with her
to the home of April Folger, where she was house-sitting. Nicholia
helped D.N. with some cleaning, and then the two of them drank wine
and talked.
After about two hours, D.N. told Nicholia that she had to
go to bed. Nicholia asked if he could sleep on the couch, but D.N.
said no, because it was not her house. Nicholia left at about 1:00
a.m. without argument. D.N. locked up the house and went to bed.
D.N. awoke around 5:30 a.m. when she heard a noise inside
the house. A few moments later, Nicholia appeared in the bedroom
doorway. He rapidly approached the bed and pinned D.N. face down,
covering her head with a pillow. Nicholia then removed D.N.'s
clothes and raped her.
When Nicholia finished, he climbed off of D.N., threw her
clothes at her, and called her a "worthless bitch". He then went
into another room and apparently fixed himself a drink. Meanwhile,
D.N. was hiding under a sleeping bag. Nicholia returned to the
bedroom, kicked her, and called her a "fucking bitch" and a "worthless
bitch".
Nicholia left the room once more, and D.N. hurriedly
dressed herself. When Nicholia returned to the bedroom again, the
cousins struggled briefly. Then Nicholia left the room a third
time. D.N. seized this opportunity to jump out of a window and run
to the nearby home of a village police officer, where she reported
the rape.
Although D.N. unhesitatingly identified Nicholia as her
assailant, the State was unable to produce physical evidence linking
Nicholia to the rape no DNA, no hair, no fibers. At trial,
Nicholia's attorney relied on this lack of physical evidence to
argue that the State had failed to meet its burden of proving beyond
a reasonable doubt that Nicholia was D.N.'s attacker. The defense
presented an expert witness who explained how D.N., traumatized by
the assault, might be honestly mistaken when she identified Nicholia
as her attacker.
To bolster D.N.'s identification of Nicholia, the State
introduced evidence of two prior sexual assaults perpetrated by
Nicholia.
The 1990 sexual assault
Fifteen-year-old H.E. was in Fairbanks attending the 1990
World Eskimo-Indian Olympics. Her cousin, Edward E., was competing
in the games and was staying with his girlfriend in a University of
Alaska dormitory. After a night of partying, H.E. asked Edward if
she could go to sleep in his dormitory room. Edward agreed.
At around 8:00 a.m., the building's fire alarm went off.
H.E. slept through the alarm. Edward left the room and went
outside, but he did not rouse H.E. because he was pretty sure that
it was a false alarm. When Edward left the room, he closed the door
but did not lock it.
As Edward was headed outside, he spied Nicholia in the
hallway. Nicholia appeared to have been drinking.
Edward and his girlfriend came back to the room some 30
minutes later, after University officials told everyone that there
was no fire and that it was safe to re-enter the dormitory. But
when they tried to enter the room, they found the door locked. When
Edward knocked on the door, he heard Nicholia's voice telling him
to go away. Edward continued to demand entry, and Nicholia
eventually opened the door. Edward saw that Nicholia's belt buckle
was undone. Nicholia left the room, but he hung around the
dormitory.
As soon as Nicholia was gone, H.E. told Edward that
Nicholia had sexually assaulted her. According to H.E., she
awakened to find that her clothes had been removed; Nicholia was on
top of her, engaging in sexual intercourse with her. Nicholia
stopped and climbed off H.E. when Edward knocked on the door.
H.E. is an Alaska Native. She was born in Tanana and
raised in Galena. She knew who Nicholia was because she had met him
about one year before. However, H.E. chose not to pursue criminal
charges because she did not want to endure a court proceeding.
The 1992 assault
L.L., a 26-year-old Alaska Native woman, testified that
Nicholia broke into her house and sexually assaulted her. This
incident occurred in Tanana in 1992. L.L. awoke around 5:00 a.m.
to find Nicholia kneeling at the side of her bed. Nicholia pushed
a pillow onto L.L.'s face and began pulling off her nightgown.
Nicholia had been drinking; he smelled of alcoholic beverages.
L.L. had known Nicholia all her life. She vigorously
resisted his attack. When L.L. began yelling loudly and hitting
Nicholia, he broke off his sexual assault. Nicholia got up and told
L.L. that he was leaving. He went into another room and put on his
shoes. Then Nicholia asked L.L. if he could use her telephone.
Nicholia eventually left the house, but he came back a little later
for some cigarettes. As he left L.L.'s home again, Nicholia called
L.L. a "fat bitch". (L.L. weighed 104 pounds.)
As a result of this incident, Nicholia was convicted of
first-degree burglary and attempted second-degree sexual assault.
Analysis of these other assaults under Evidence Rule
404(b)(1)
The trial judge admitted evidence of Nicholia's two prior
sexual assaults under Evidence Rule 404(b)(1). Rule 404(b)(1)
declares that evidence of a defendant's other wrongful acts can not
be admitted to establish the defendant's character, but such
evidence can be admitted for other purposes. Here, the trial judge
ruled that Nicholia's prior sexual assaults tended to prove his
identity as the person who assaulted D.N. in the present case.
The evidence offered by the State (evidence that Nicholia
had twice before committed sexual assaults) obviously tended to
prove Nicholia's character. That is, the evidence tended to prove
Nicholia's propensity for committing sexual assault. If that were
the only relevance of this evidence, Rule 404(b)(1) would require
its exclusion.
But Rule 404(b)(1) authorizes the admission of evidence
of a defendant's other wrongful acts if that evidence tends to prove
"identity". The difficulty lies in determining where "character" ends
and "identity" begins.
In a common-sense way of speaking, Nicholia's character
for committing sexual assault tended to prove his identity as D.N.'s
assailant. If Nicholia is disposed to commit rape, this fact makes
it more likely that he is the person who sexually assaulted D.N..
But Evidence Rule 404(b)(1) categorically bars this inference and
this theory of admissibility. Evidence of a defendant's other
sexual assaults can not be admitted to prove "identity" unless that
evidence establishes more than simply the defendant's propensity to
engage in sexual assault. As our supreme court explained in Coleman
v. State, 621 P.2d 869 (Alaska 1980), the question is whether the
defendant's prior sexual assaults are so distinctive that, aside
from showing the defendant's bad character, they independently tend
to establish the defendant's identity as the perpetrator of the
crime being litigated. [Fn. 1]
In Coleman, the supreme court did not insist that the
defendant's prior crimes be so distinctive as to represent his
"signature" so distinctive as to practically identify the defendant
from among all other potential culprits. Rather, the court asked
whether, under the totality of circumstances, the other sexual
assaults bore a striking enough similarity to the crime being
litigated that they took on a probative aspect above and beyond the
fact that the defendant might be a repeat rapist. [Fn. 2]
Nicholia's 1992 assault on L.L. meets this test. L.L.,
like D.N., was a young Native woman who had known Nicholia all her
life. L.L. testified that Nicholia had been drinking. Nicholia was
drinking with D.N. just hours before she was assaulted. Nicholia
broke into L.L.'s house in the early morning, came into her bedroom,
and used a pillow to cover her face before he began removing her
clothes. These facts match the conduct of D.N.'s assailant. L.L.
lived alone with her two-year-old son, and after Nicholia ended his
attack, he hung around her house for a time. D.N. likewise had no
other adults living with her, and her assailant engaged in similar
behavior hanging around the house after the assault was over.
Finally, before Nicholia left L.L.'s house, he called her a "fat
bitch". D.N.'s assailant used similar language, calling her a
"worthless bitch" and a "fucking bitch".
Given these similarities between Nicholia's 1992 assault
on L.L. and the facts of the current case, we uphold the trial
judge's decision to allow the State to introduce evidence of the
1992 assault.
We reach a different conclusion, however, with respect to
Nicholia's 1990 assault on H.E.. The assault on H.E. contains
certain similarities to the assault on D.N.: both victims were
young Native women, and both were attacked while they were sleeping.
In addition, Nicholia had been drinking before both assaults. But
H.E. was not living alone; rather, she was temporarily left alone
because of the fire alarm. (Her cousin and his girlfriend returned
to the room within 30 minutes.) H.E. was not attacked in the middle
of the night; rather, Nicholia assaulted her between 8:00 and 8:30
in the morning, at a time when other people were awake and engaged
in daily activities in the near vicinity. Moreover, Nicholia did
not use a pillow to subdue H.E., nor did he call her names, nor did
he linger in her presence following the assault.
Given these significant differences between Nicholia's
1990 assault on H.E. and the facts of the current case, we conclude
that the trial judge abused her discretion when she allowed the
State to introduce evidence of the 1990 assault. The 1990 assault
was relevant, but only because it tended to establish Nicholia's
propensity to commit rape. The evidence was therefore barred by
Rule 404(b)(1).
Does this error require reversal of Nicholia's
convictions?
The State's evidence of Nicholia's 1992 assault on L.L.
was properly admitted, but the State's evidence of Nicholia's 1990
assault on H.E. should have been excluded. The remaining question
is whether Nicholia's convictions for burglary and sexual assault
should be reversed because the jury improperly heard evidence of the
1990 assault.
This court faced a similar problem in Lerchenstein v.
State, 697 P.2d 312 (Alaska App. 1985). Lerchenstein was charged
with murder and three counts of assault arising from an encounter
at a service station in which he threatened several people with a
handgun and ultimately shot and killed one of them. [Fn. 3] At
Lerchenstein's trial, the State introduced evidence of
Lerchenstein's aggressive and erratic behavior on various occasions
during the two days leading up to the shooting. [Fn. 4] This court
concluded that some of this evidence was admissible for non-
propensity purposes, but the remainder should have been excluded
under Evidence Rule 404(b) (now renumbered as Evidence Rule
404(b)(1)). [Fn. 5] We then had to decide whether the error in
admitting this portion of the evidence required reversal of
Lerchenstein's convictions.
We ultimately concluded that the evidentiary error did
require reversal of Lerchenstein's convictions. [Fn. 6] We rested
this conclusion primarily on the fact that, among the State's
evidence of Lerchenstein's various wrongful acts, the improperly
admitted evidence carried the most potential for unfair prejudice.
[Fn. 7] We acknowledged that the trial judge instructed the jurors
regarding the limited purpose for which the evidence could be used,
specifically cautioning the jurors not to view the evidence as proof
of Lerchenstein's general propensity for threatening or assaultive
behavior. [Fn. 8] Normally, such a cautionary instruction is
presumed to be effective in deterring a jury from improper
consideration of evidence. [Fn. 9] But in Lerchenstein's case, the
improperly admitted evidence went directly to the major disputed
issue in the case, and its potential for unfair prejudice far
outweighed its non-propensity probative value. Given these
circumstances, we concluded that we could not be sure that the
jurors had obeyed the judge's cautionary instruction. [Fn. 10]
We now apply a similar analysis to Nicholia's case.
First, we note that the trial judge gave the jurors a
detailed cautionary instruction regarding proper and improper uses
of the evidence of Nicholia's prior sexual assaults. The judge told
the jurors that this evidence could not be considered for the
purpose of proving that Nicholia "[was a person] of bad character"
or that he "[had] a disposition to commit crimes." Instead, the
judge said, the jurors could consider this evidence "only for the
limited purpose of determining if it tends to show a characteristic
method, plan or scheme in the commission of criminal acts similar
to the method, plan or scheme used in the commission of the offense
in this case", thus potentially "show[ing] the identity of the person
who committed the crime ... of which the defendant is accused." The
judge flatly told the jurors that they "[were] not permitted to
consider [this] evidence for any other purpose."
Second, we note that, unlike the situation in
Lerchenstein, the improperly admitted evidence (the evidence of
Nicholia's 1990 assault on H.E.) was not the evidence that most
undercut Nicholia's defense. Rather, the State's evidence of
Nicholia's 1992 assault on L.L. was the more powerful evidence of
Nicholia's identity as D.N.'s assailant because, as we explained
above, Nicholia's behavior during that 1992 assault was so similar
to the behavior of the person who attacked D.N.. The evidence of
Nicholia's assault on H.E. contributed less to the prosecution's
case for precisely the same reasons that it should not have been
admitted: because the assault on H.E. differed in several important
respects from the attack on D.N..
In fact, during her summation to the jury, Nicholia's
attorney focused on the many differences between the assault on H.E.
and the assault on D.N.. After enumerating these differences, the
defense attorney then reminded the jurors of the trial judge's
cautionary instruction: unless they found the two assaults so
similar as to reveal a common plan or scheme, they were barred from
using the evidence of Nicholia's assault on H.E. for any purpose.
Third, Nicholia's defense of mistaken identity was
colorable but not strong. As already described, Nicholia did not
take the stand to deny the assault, but he presented the testimony
of an expert witness who explained how the victim of an assault or
other traumatic event might make a mistake when identifying their
attacker. In a case where the victim did not know their attacker,
this testimony could conceivably lead to an acquittal. But D.N. had
known Nicholia all her life. Moreover, D.N. had ample opportunity
to observe her attacker both during the sexual assault and
afterward. As explained above, D.N. testified that Nicholia
remained in her house (or, rather, April Folger's house) for a long
time after the rape ended. He went into another room, fixed himself
a drink, then came back to the bedroom to kick D.N. and yell at her.
Following this renewed assault, Nicholia left D.N. alone, but he did
not leave the house. After D.N. dressed herself, Nicholia returned
to the bedroom, and the two cousins struggled again, face to face.
Given D.N.'s life-long acquaintance with Nicholia and her
repeated opportunities to observe him during and after the assault,
and given L.L.'s testimony describing a strikingly similar sexual
assault committed by Nicholia, we conclude that the testimony about
the assault on H.E. did not substantially alter the strength of the
State's case.
We acknowledge that evidence of a defendant's other crimes
can pose a high risk of unfair verdicts. Knowing that a defendant
has committed other crimes, jurors may be tempted to convict the
defendant for past deeds rather than insisting that the State prove
its present charges beyond a reasonable doubt. We do not intend to
downplay that risk. But in Nicholia's case, we conclude that the
improper evidence did not appreciably affect the jury's verdicts.
[Fn. 11] The jurors properly heard evidence of Nicholia's 1992
assault on L.L. evidence that was more damaging to Nicholia's
defense than the improperly admitted evidence concerning the 1990
assault on H.E.. And the trial judge expressly instructed the
jurors to disregard the assault on H.E. if it did not bear
sufficient similarity to the assault on D.N. in the present case.
Under these circumstances, we conclude that the admission of the
evidence concerning Nicholia's assault on H.E. was harmless error.
Conclusion
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
See id. at 875. Also, see our extended discussion of this
point in Smithart v. State, 946 P.2d 1264, 1272 (Alaska App. 1997),
rev'd on other grounds, 988 P.2d 268 (Alaska 1998).
Footnote 2:
See Coleman, 621 P.2d at 875.
Footnote 3:
See id. at 313-14.
Footnote 4:
See id. at 314-15.
Footnote 5:
See id. at 318.
Footnote 6:
See id. at 319.
Footnote 7:
See id. at 318-19.
Footnote 8:
See id. at 318.
Footnote 9:
See id. at 318; Roth v. State, 626 P.2d 583, 585 (Alaska App.
1981).
Footnote 10:
See Lerchenstein, 697 P.2d at 319.
Footnote 11:
See Love v. State, 457 P.2d 622, 632 (Alaska 1969) (in cases
of non-constitutional error, the test for reversal is whether the
error "appreciably affect[ed] the jury's verdict").
