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Carpentino v. State (01/04/2002) ap-1781
Carpentino v. State (01/04/2002) ap-1781
NOTICE
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL A. CARPENTINO, )
) Court of Appeals No. A-7659
Appellant, ) Trial Court No. 4FA-99-283 Cr.
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1781 C January 4, 2002]
)
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Ralph R. Beistline, Judge.
Appearances: Michael D. Dieni, Assistant Public Defender, and
Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Ben M. Herren, 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.
Michael A. Carpentino was indicted on several counts of sexually abusing
an eight-year-old girl. At Carpentino's trial, the superior court allowed the State to
introduce evidence that Carpentino had once gotten into bed with the girl's older brother
and had sexually abused him. The superior court also allowed the State to introduce
evidence that on another occasion Carpentino brought another sibling, a three-year-old
girl, into his bed. (The State did not assert that Carpentino had abused the three-year-
old.)
The superior court ruled that this evidence was admissible under Alaska
Evidence Rule 404(b)(1) to show Carpentino's "scheme" or "plan" to get into bed with
young children. We conclude that this evidence should have been excluded because its
only real relevance was to show (or suggest) that Carpentino had twice sexually abused
other victims, and that he was therefore the type of person who was more likely to have
committed the acts of sexual abuse charged in the indictment. Rule 404(b)(1) prohibits
the introduction of evidence of a person's other crimes for this purpose. Because we
believe that the jury's verdict was likely influenced by this evidence, we reverse
Carpentino's convictions.
Factual background of this case, and description of the challenged
evidence
In 1998, eighteen-year-old Michael A. Carpentino lived with a family in
North Pole. He was treated like a member of the family: he had his own room, he
shared in the household chores, and he helped care for the family's children. In 1999,
Carpentino was accused of sexually abusing V., the eight-year-old daughter in this
family.1 The Fairbanks grand jury returned a seven-count indictment charging
Carpentino with various acts of sexual penetration and sexual contact with V..
At trial, the State asked Superior Court Judge Ralph Beistline for
permission to introduce evidence that Carpentino had once sexually abused V.'s brother,
eleven-year-old B.. In voir dire examination, B. testified that Carpentino climbed into
bed with him one night after explaining that he had no blankets for his own bed. B. fell
asleep beside Carpentino, only to awake later and find that Carpentino was fondling his
genitals. B. ordered Carpentino to get out of his room. Carpentino left; but before he
did, he told B. that if B. revealed what had happened, he would kill B. and his family.
The State suggested that B.'s testimony was admissible under two
rationales. First, the State argued that B.'s testimony was admissible under Evidence
Rule 404(b)(1) because it tended to prove that Carpentino had a plan or scheme to get
into bed with young children C thus purportedly corroborating V.'s account of how
Carpentino enticed her into his bed. Second, the State argued that B.'s testimony was
admissible under Evidence Rule 404(b)(2) because it tended to prove that Carpentino
had committed a similar type of sexual abuse on another child victim who was similar to
V..2
Judge Beistline ruled that B.'s testimony was not admissible under Rule
404(b)(2), apparently because he was not convinced that B., an eleven-year-old boy, was
a victim "similar" to V. (an eight-year-old girl). (Similarity of the victims is required by
Rule 404(b)(2)(iii).) Nevertheless, Judge Beistline ruled that B.'s testimony was
admissible under Rule 404(b)(1) because it tended to prove that Carpentino had a plan or
scheme to get into bed with the children. The judge therefore allowed B. to repeat his
testimony in front of the jury.
Later in Carpentino's trial, the State called the children's mother, M.. Over
defense objection, the State asked Judge Beistline for permission to have M. testify that
her three-year-old daughter, S., announced one day that she had been allowed to sleep in
Carpentino's bed.
The prosecutor did not suggest that Carpentino had sexually abused S. in
any way. Instead, the prosecutor argued that evidence of this incident was likewise
admissible under Evidence Rule 404(b)(1) because it tended to prove Carpentino's
scheme or plan for gaining access to the children in bed. Judge Beistline agreed with this
analysis, and he therefore allowed the jury to hear M.'s testimony on this subject C "not
to prove that [Carpentino] did anything to any other child", but "to show [his] plan and
scheme of access to [the] children's bed[s], [thus] corroborat[ing] [V.]".
Why we conclude that the challenged evidence should not have been admitted under
Evidence Rule 404(b)(1)
Evidence Rule 404(b)(1) bars the admission of evidence of a defendant's
other crimes if that evidence is introduced for the sole purpose of proving that the
defendant is a person who, by nature, engages in such wrongful acts and who
consequently could be expected to behave the same way during the occasion being
litigated.3 In Carpentino's case, Rule 404(b)(1) would prohibit the State from
introducing evidence that Carpentino had sexually abused children other than V. if this
evidence was solely relevant to showing Carpentino's propensity to sexually abuse
children.
At trial, the State argued that B.'s testimony and M.'s testimony was not
excluded by Rule 404(b)(1) because this testimony was not being offered to prove
Carpentino's desire to sexually abuse other children in the family. Rather, the State
contended, this testimony was relevant to establish Carpentino's "scheme" or "plan" to
get into bed with the children, thus corroborating V.'s testimony that Carpentino sexually
abused her while they were in bed together. According to the State's theory, it did not
matter what Carpentino intended to do once he got into bed with the children; his act of
getting into bed with them was the important thing.
But this explanation strains credulity. If Carpentino's motive for getting
into bed with B. and with S. was truly irrelevant, then Carpentino's act of once sharing a
bed with young children under his care would seem to be irrelevant too. If Carpentino
spent one night in the same bed as B. because he was cold or, indeed, for any other
reason unrelated to sexual activity, this would be irrelevant to the charge that Carpentino
sexually abused V..
An analogous situation would be presented if a defendant was charged with
bringing a woman home from a date and then raping her. Evidence that the defendant
had brought other women home from dates would be irrelevant unless there was reason
to conclude that the defendant's conduct on these other occasions was preparatory to
other acts of rape.
Likewise, the mere fact that Carpentino spent one night in bed with three-
year-old S. adds nothing to the State's case if Carpentino's conduct was not related to
sexual activity. Carpentino's conduct becomes relevant only if it is seen as a prelude to
sexual abuse. And because the State's evidence pertaining to B. and S. was relevant only
if it was viewed as prelude to sexual abuse, that evidence should have been excluded
under Rule 404(b)(1).
This court addressed and rejected a similar Rule 404(b) problem in Velez v.
State, 762 P.2d 1297 (Alaska App. 1988). The defendant in Velez was accused of date
rape C of inviting a woman out, then using threatening words and/or behavior to coerce
her into having sex with him. At trial, the State offered testimony from two other women
that Velez had engaged in similarly coercive behavior when they dated him.
The State's argument for admission of this evidence paralleled the argument
that the prosecutor employed in Carpentino's case: that is, the State contended that
evidence of Velez's conduct toward the other women was admissible under Evidence
Rule 404(b)(1) because it tended to show Velez's pattern of behavior, thus corroborating
the account of the victim named in the indictment.
This court rejected the State's argument because the purported
corroborative value of the testimony implicitly rested on the inference that Velez had a
propensity to sexually assault his dating partners:
[This] issue turns on whether, and to what extent,
Velez engaged in coercive behavior or engaged in conduct
likely to induce fear in his victim if she denied his request for
sexual intercourse. Velez's activities with other women were
marginally relevant to show how he conducted himself with
each of his victims, and to that extent corroborated their
testimony about his conduct with them, but this is pure
propensity evidence, absolutely forbidden by Evidence Rule
404(b). Thus, the state cannot offer evidence that Velez
coerced [other women] to support an inference that he had a
disposition to force his affections on unwilling women, and
then [ask the jury to] infer from that disposition that he
forced his affections on G.J. [the victim named in the
indictment]. Despite its relevance, this evidence is absolutely
precluded [by Evidence Rule 404(b)].
Id. at 1303-1304 (citations omitted).
In response to Velez and similar decisions construing Evidence Rule 404(b),
the legislature amended the rule. The legislature placed the original text of Rule 404(b)
into a new subsection (1), and it expanded the rule by adding two new subsections,
404(b)(2) and (b)(3). Subsections (b)(2) and (b)(3) Aauthorize the introduction of
evidence concerning the defendant's other [acts of sexual assault or abuse] even though
that evidence would otherwise be barred by Rule 404(b)(1).@4 But Velez continues to
govern the admissibility of this evidence if is offered under Rule 404(b)(1).
In Carpentino's case, the challenged evidence was offered under Rule
404(b)(1), and the State's theory of admissibility rested on an implicit assertion
concerning Carpentino's sexual propensities. The fact that Carpentino spent one night in
the same bed with B., or that he spent one night in the same bed with S., would
corroborate V.'s account of the sexual abuse only if the jurors inferred that Carpentino
was planning to sexually abuse V.'s two siblings.
And, in fact, the State's appellate attorney appears to have recognized this
problem C because, on appeal, the State adopts a different approach to this evidence.
Instead of arguing that Carpentino's motive for spending a night in bed with the children
was irrelevant, the State now explicitly argues that Carpentino's conduct should be "seen
as [two] individual examples or manifestations of a general design or plan devised by
Carpentino ... [to use] his position as live-in babysitter to create situations in which he
was in bed with the children [under his care]."
Relying on Soper v. State, 731 P.2d 587 (Alaska App. 1987), the State
argues that its evidence was admissible under Rule 404(b)(1) to prove Carpentino's
"lewd disposition" to sexually abuse V. and her two siblings. But Soper does not support
the State's argument. In fact, Soper rejects the State's interpretation of the "lewd
disposition" exception to Rule 404(b)(1).
In Burke v. State5, the Alaska Supreme Court recognized a limited "lewd
disposition" exception to Rule 404(b)(1)'s general ban on proving character through
evidence of other wrongful acts. Under this exception, which applies in prosecutions for
sexual assault or sexual abuse of a minor, the State is allowed to offer evidence that the
defendant engaged in other sexual assaults on, or sexual abuse of, the same victim.6 The
issue in Soper was whether this "lewd disposition" exception also allows the State to
introduce evidence that the defendant sexually assaulted or abused the victim's siblings.
The defendant in Soper was charged with sexually abusing one of his
daughters. The State presented testimony from the victim's two older sisters that Soper
had sexually abused both of them until they finally ran away from home.7 This court
ultimately concluded that this evidence was admissible, but not because the Burke "lewd
disposition" exception always encompasses a defendant's sexual misconduct with the
victim's siblings. Rather, this court held that the testimony was admissible because the
evidence tended to prove that Soper engaged in a distinctive and repeated pattern of
abusive behavior with each of his daughters:
[W]e are satisfied that the limited exception for lewd
disposition recognized in Burke should be extended to cover
the testimony of the complaining witness' sisters who were
allegedly seduced under substantially similar circumstances
at roughly the same age as the complaining witness. We
stress that it is membership in a limited class of individuals
having highly relevant common characteristics that serve[s]
to differentiate the testimony in this case from that offered in
Bolden, Pletnikoff, and Moor [cases where this court held that
evidence of other sexual offenses should not have been
admitted]. As the state points out, the prosecution's witnesses
did not accuse Soper of isolated incidents of sexual abuse.
Each testified to a continued pattern of sexual abuse taking
place over a substantial period of time. Each was seduced at
approximately the same age, under virtually identical
circumstances. While some of the incidents appear remote
when viewed in isolation, the common experiences of each of
these young women establishes a striking pattern of behavior
that seems to occupy the middle ground between evidence of
character ... and habit[.]
Id. at 590.
The evidence in Carpentino's case does not meet
this standard. Instead of a "continued pattern of sexual abuse
taking place over a substantial period of time", the State
offered evidence of one or two "isolated [instances] of sexual
abuse". Instead of detailed, inter-corroborating descriptions
of how and where the abuse was initiated and accomplished,
the State's evidence in Carpentino's case was pertinent to V.'s
allegations only in that the alleged sexual abuse took place in
a bed and involved one of V.'s siblings.
In short, Soper does not support the State's
argument that its evidence was admissible under the "lewd
disposition" exception to Evidence Rule 404(b)(1). To the
contrary, the evidence presented in Carpentino's case fails to
meet the criteria for the limited expansion of the "lewd
disposition" exception recognized in Soper.
Moreover, even if it might be argued that the
evidence concerning V.'s brother and sister had some slight
relevance outside the propensity ban of Rule 404(b)(1), that
small probative value was greatly outweighed by the
evidence's potential for unfair prejudice. Even though B.'s
testimony was ostensibly admitted for the sole purpose of
showing that Carpentino got into bed with another child, B.
expressly testified that Carpentino had sexually abused him.
Moreover, in addition to describing the act of sexual abuse,
B. testified that Carpentino threatened to kill him if he
revealed what had happened. These aspects of B.'s testimony
went far beyond the superior court's rationale for admitting
the testimony. Once the jurors heard B.'s accusations of
sexual abuse and death threats, we do not believe that the
jurors could disregard these accusations and focus solely on
the limited assertion that Carpentino once got into bed with
B..
We therefore conclude that Judge Beistline
abused his discretion when he admitted the State's evidence
under Evidence Rule 404(b)(1).
Why we conclude that the challenged evidence should not
have been admitted under Evidence Rule 404(b)(2)
As an alternative rationale for admitting the
evidence, the State renews its contention that the evidence
was admissible under Evidence Rule 404(b)(2). Rule
404(b)(2) declares that, in prosecutions for sexual abuse of a
minor, the State is authorized to present evidence that the
defendant has sexually assaulted or abused other minors if (i)
the other acts occurred within the 10 years preceding the
charged act, (ii) the other acts are similar to the charged act,
and (iii) the other victims are similar to the current victim.
As explained above, Judge Beistline rejected the
State's contention that its evidence was admissible under Rule
404(b)(2). However, an appellate court can uphold a trial
court's ruling on any basis revealed by the record, even when
the trial court expressly rejected the legal reasoning that the
appellate court ultimately finds persuasive.8 Thus, the State
is free to argue that Judge Beistline should have admitted the
disputed evidence under Rule 404(b)(2).
But the admissibility of the State's evidence
under Rule 404(b)(2) involves questions of fact. To establish
that the evidence was admissible under Rule 404(b)(2), the
State was obliged to show that Carpentino's conduct toward
V.'s siblings was (or could reasonably be interpreted to be)
sexual abuse, that this abuse was similar to the abuse inflicted
on V., and that V.'s siblings were "similar" victims to V.
herself.
With regard to the evidence involving V.'s little
sister S., the prosecutor expressly disavowed any intention of
suggesting that Carpentino had sexually abused the three-
year-old. The prosecutor told Judge Beistline that the
evidence pertaining to S. was being offered solely to show
that Carpentino had induced the child to get into bed with
him (for reasons that were either unknown or irrelevant).
This being so, the State failed to present a prima facie case
for one of the primary foundational facts required by Rule
404(b)(2) C that Carpentino's conduct with S. was "similar to
the offense charged".
The problem is different with respect to the
evidence involving V.'s brother B.. In his testimony, B.
stated that Carpentino fondled his genitals C an act that
clearly qualifies as sexual abuse of a minor. But here, the
State's problem was to prove that eleven-year-old B. (a boy)
was a victim who should be deemed "similar" to eight-year-
old V. (a girl).
The State argues that B. was similar to V.
because both children "were pre-pubescent siblings ... living
together in the same household unit" and because
"Carpentino, as the live-in babysitter, had [both children] in
his charge." The State concedes that there were some
"obvious dissimilarities" between the children, but the State
points out that Rule 404(b)(2) calls for similarity, not
"absolute unity of identity".
It is true that Rule 404(b)(2) requires only that
the acts of abuse and the victims be "similar". But a trial
judge's decision as to whether this required similarity is
present will obviously turn on the specific facts of the case.
In Bohanon v. State9, we discussed the related issue of
whether a defendant's prior crime was too "remote" to be
admissible. We concluded that
the "remoteness" of a prior crime does not hinge simply on a
chronological calculation. A trial judge's determination of
"remoteness" also involves a weighing of the circumstances
surrounding the two incidents (the prior one and the charged
one), an identification of the factors common to the two
incidents, and an assessment of whether the probative value
of these connecting factors is likely to appreciably diminish
with the elapsed time.
Id. at 602.
Likewise, a trial judge's determination of
"similarity" under Evidence Rule 404(b)(2) will rest on the
judge's appraisal of the particular circumstances surrounding
the two incidents, the judge's identification of the factors that
the two incidents have in common and the factors that
distinguish the two incidents, and (finally) an assessment of
the relative importance of these common and distinguishing
factors. An appellate court should disturb the trial judge's
assessment only if it constitutes an abuse of discretion.
In Carpentino's case, Judge Beistline ultimately
ruled that the evidence of Carpentino's assault on B. did not
qualify for admission under Evidence Rule 404(b)(2) because
B. was not a sufficiently similar victim to his sister V. This,
however, was not Judge Beistline's original ruling.
When this issue first arose, the prosecutor
declared that the State was ready to present an expert witness
who would testify that sex offenders often target all the
children in a family, regardless of sex or age C thus
suggesting that there was good reason to view B. and V. as
A"similar" victims. Based on this offer of proof, Judge
Beistline initially ruled that the State's evidence pertaining to
B. was admissible under Rule 404(b)(2).
But when the State failed to produce this expert
witness at trial, Judge Beistline reversed himself and ruled
that the evidence was not admissible under Rule 404(b)(2).
Although Judge Beistline did not offer a detailed explanation
of his action, the obvious inference is that the judge had
doubts as to whether an eleven-year-old boy was a
sufficiently similar victim to an eight-year-old girl. Without
the State's promised expert testimony, the judge resolved
these doubts in favor of Carpentino.
In the State's brief to this court, the State offers
some colorable reasons why Judge Beistline should have
viewed B. as "similar" to his sister V.. But we can not say
that the judge abused his discretion when he concluded that
the dissimilarities between these two children outweighed the
similarities. We therefore reject the State's contention that
the testimony pertaining to B. was admissible under Rule
404(b)(2). As an appellate court, we can only adopt an
alternative rationale for admitting this evidence if the
rationale is obvious from the record. Here, it is not.
Why the improper admission of this evidence requires reversal of
Carpentino's convictions
When evidence is improperly admitted at a criminal trial, we
must decide whether that evidence "appreciably affected" the jury's verdict.
If so, the verdict must be reversed.10
Here, the jury improperly heard evidence that Carpentino had
sexually abused V.'s brother and that Carpentino had threatened the boy
with death if he revealed the abuse. The jury also heard evidence strongly
suggesting that Carpentino either had sexually abused V.'s three-year-old
sister or was preparing to.
The State's case was not overwhelming; the jury acquitted
Carpentino of three charges out of seven. This split decision suggests that
the jurors believed the case was close. Their decision to convict
Carpentino of four of the charges might well have rested heavily on the
evidence that Carpentino had abused two other members of the same
family. Under these circumstances, we must reverse Carpentino's
convictions.
The judgement of the superior court is REVERSED.
Carpentino is entitled to a new trial.
1 The initials used in this opinion are arbitrary; they are not abbreviations of people's
names.
2 Alaska Evidence Rule 404(b)(2) states that in prosecutions for sexual abuse of a
minor, "evidence of [a defendant's] other acts ... toward ... another child is admissible if ... the
[defendant's other] offenses (i) occurred within the 10 years preceding the date of the offense
charged; (ii) are similar to the offense charged; and (iii) were committed upon persons
similar to the prosecuting witness."
3 See Smithart v. State, 946 P.2d 1264, 1270-71 (Alaska App. 1997), reversed on
other grounds, 988 P.2d 583 (Alaska 1999).
4 Wardlow v. State, 2 P.3d 1238, 1246 (Alaska App. 2000) (quoting Clark v. State,
953 P.2d 159, 163 (Alaska App. 1998)).
5 624 P.2d 1240 (Alaska 1980).
6 See id. at 1248-1250.
7 Soper, 731 P.2d at 589.
8 See Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961); Millman v. State, 841
P.2d 190, 195 (Alaska App. 1992).
9 992 P.2d 596 (Alaska App. 1999).
10 Love v. State, 457 P.2d 622, 629-632 (Alaska 1969).
B16B 1781
