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Strumsky v. State (5/9/2003) ap-1875
Strumsky v. State (5/9/2003) ap-1875
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 attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MARK C. STRUMSKY, )
) Court of Appeals No. A-
8098
Appellant, ) Trial Court No.
3AN-S00-10911 CR
)
v. ) O P I N
I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1875 May 9,
2003] )
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Christine S. Schleuss,
Anchorage, 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.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
A jury convicted Mark C. Strumsky of three counts of
second-degree sexual abuse of a minor.1 Strumsky argues that the
superior court erroneously admitted hearsay testimony of the
victims complaints to a friend, a teacher, a school nurse, and
the detective who investigated the case. He also argues that the
superior court improperly barred him from presenting evidence to
show the proper context of Strumskys admission that the victim
would not lie.
From our review of the record, we conclude that the
superior court did not prevent Strumsky from presenting evidence
showing the context of his admission that the victim would not
lie. We also conclude that the victims statements to third
parties were admissible. Therefore, we affirm Strumskys
convictions.
Background facts and proceedings
In October 2000, Laurie Craft, a teacher at Ocean View
Elementary School, showed her class a video about inappropriate
touching. Ten-year-old C.B. approached Craft, told her
[S]omebodys been touching me, and then began to cry. C.B. told
Craft the neighbor was touching her. Craft took C.B. to see
Chris Boone, the school nurse.
C.B. told Boone her neighbor Mark had touched her top
and bottom, four or five times. Boone testified that C.B. was
very upset and sobbing. As required by law, Boone contacted the
Division of Family and Youth Services.2
Detective Michelle Bales of the Anchorage Police
interviewed C.B. on October 19, 2000. C.B. was not upset or
crying. C.B. identified her next-door neighbor, Strumsky, as her
abuser. She told Bales that Strumsky abused her three separate
times in his home. According to C.B., Strumsky fondled her
breasts twice in two of the incidents and during the third, put
his hands down her pants and fondled her genitals. C.B. reported
that she had told her friend, C.K., about the abuse.
Bales obtained a Glass warrant3 to record conversations
between C.B.s father and Strumsky. C.B.s father contacted
Strumsky by telephone and in person. During the recorded
conversations, Strumsky repeatedly denied any misconduct with
C.B., but when asked by C.B.s father if C.B. was lying, Strumsky
responded: No, [C.B.] doesnt lie.
The grand jury indicted Strumsky on three counts of
sexual abuse of a minor.
Were C.B.s out-of-court statements to others
inadmissible hearsay?
Moments before the jury was brought in for opening
statements, Strumskys attorney told Superior Court Judge Larry D.
Card that he objected to the expected testimony of C.K., the
twelve-year-old friend of C.B.s who was scheduled to testify.
The prosecutor told the judge that C.K.s testimony was admissible
under Greenway v. State4 because it was a first complaint about a
sexual assault. Judge Card indicated that C.K.s testimony would
be admissible if the State showed it was a first complaint.
Strumsky then questioned how Crafts or Boones testimony about
C.B.s reports would be admissible if C.K. heard the first
complaint. The prosecutor responded that she expected to offer
Crafts testimony to explain why Craft took C.B. to the nurse.
Judge Card observed that this appeared to be a non-hearsay
purpose for the evidence. The prosecutor was not sure whether
Boone, the school nurse, would be called and the court did not
discuss her testimony further except to note that it appeared
that the nurses testimony would not be part of the States opening
case. The State described C.B.s interview with Detective Bales
as a detailed report. Judge Card described it as an interview
but did not discuss her testimony further. The parties agree
that this brief discussion was sufficient to preserve a hearsay
objection to testimony from C.K., Craft, Boone, and Bales.
In the States opening statement, the prosecutor said
she expected to call C.B., C.K., Boone, Craft, and Bales as
witnesses. The prosecutor told the jury to pay particular
attention to C.B.s testimony because, really, the case does rest
solely on her report[.]
For his part, Strumsky said that the case would be a
swearing contest. That means you are going to have one person
swearing to one thing, and one person swearing to another, with
only other peripheral evidence. Strumsky then predicted that he
would show that C.B.s credibility was questionable: [B]ased on
her other sworn statements and unsworn statements, that were
taped, these are the types of inconsistencies that I expect to
come up in her testimony. Strumsky then described a laundry list
of inconsistencies in C.B.s previous statements, including where
the abuse occurred, when the abuse occurred, and how many times
the abuse occurred.
C.B. was the first witness called. She testified that
Strumsky had fondled her breasts under her clothes two different
times. She also testified that a third time, Strumsky squeezed
her breasts, unzipped her pants, and rubbed her private parts
(her term for her genitals) underneath her clothes by moving his
hands back and forth. C.B. said that her friend, C.K., was the
first person she told about Strumskys conduct. She contacted
Craft after seeing the safety video at school about good and bad
touching, and then spoke to Boone, the nurse, about what
happened. She also spoke to Bales after telling her parents.
Strumsky cross-examined C.B. by pointing out
inconsistencies in her interview with Detective Bales, her grand
jury testimony, and the testimony she had just offered to the
court. Strumsky questioned her repeatedly about the difference
between a truth and a lie. He asked her several times if she had
told the truth when she talked to C.K. and Detective Bales. He
asked her if the nurse would lie about C.B.s report. Strumsky
asked if she had told ten or fifteen different stories about the
abuse.
C.K. was the next witness. C.K. testified that C.B.
told her during the summer that P.S.s father (the defendant) was
touching her from the waist down in inappropriate places. Under
Greenway, a victims first report of a sexual assault is
admissible.5
The permissible scope of first-report evidence is
discussed in several cases. In Greenway, the first-report
evidence included the victims complaint to her mother shortly
after the July sexual assault and her complaint to a school
counselor after school started in September.6
We first discussed the appropriate scope of this
evidence in Nitz v. State.7 In that case, the pre-adolescent
victims mother and a neighbor asked the victim whether anyone was
abusing her.8 The victim identified her stepfather as the
perpetrator of several acts of abuse.9 We ruled that under
Greenway, a trial court could allow a witness to testify about
reasonable details included in a first report, particularly when
the identity of the perpetrator was not an issue.10
In Nusunginya v. State,11 two witnesses testified about
a childs complaint of sexual abuse by her father: the victims
ten-year-old cousin and the victims aunt, who the victim told two
days after she told the cousin.12 We upheld the admission of the
victims statement to her cousin as a first complaint, noting that
it did not provide any significant detail beyond the identity of
the perpetrator.13 We validated the discussion in Nitz that
recognized the trial courts discretion to allow admission of
details of a first complaint so that a jury may obtain a fair
understanding of the context in which the complaint was made.14
We noted that there were no witnesses to the assault and very
little evidence for the jury to consider.15 The cousins
testimony, which went no further than that of the victim who had
already testified, provided a context in which the complaint
could be viewed.16
These same considerations appear to apply to the
testimony of Craft and, perhaps, Boone. In Greenway, the court
upheld the admission of the victims complaint to the school
counselor.17 This complaint resulted in official action, as did
C.B.s contact with her teacher who immediately brought C.B. to
the nurse. Both the teacher and the nurse testified at the trial
after C.B. had testified, and neither witness provided
significant detail of C.B.s statement beyond a potential
identification of Strumsky. According to Craft, C.B. identified
the neighbor and, according to Boone, C.B. said her neighbor Mark
had touched her. Both Craft and Boone described C.B.s demeanor
when she was reporting the problem: C.B. was crying and sobbing.
Even if Crafts and Boones testimony was not admissible
under Greenway, we must evaluate whether their testimony is
admissible as a prior consistent statement, a rationale adopted
by Judge Card during trial. In Nitz, we addressed the
admissibility of prior consistent statements in cases involving
sexual abuse of children.18 We found reversible error in that
case because we concluded the trial court erroneously admitted
hearsay statements of the victim as prior consistent
statements.19 We expressed particular concern about the
prejudice caused when the State calls several witnesses who
repeat the victims out-of-court complaint:
[W]here a parade of witnesses is allowed to
offer evidence of prior consistent statements
before the victim testifies and is impeached,
the jury may be tempted to substitute the
credibility of the third-party witnesses for
the credibility of the victim. Because the
third-party witness will often be viewed as
accepting either implicitly or explicitly
the facts asserted in the victims prior
statements, allowing them to testify and to
present evidence of the prior statements out
of order before the jury is able to discern
that the legitimate purpose of the evidence
is to counter an attack on the victims
credibility openly invites the jury to
accept the witness view of the victims
credibility before the victim even testifies.
This class of prejudice is particularly great
and is particularly susceptible to abuse in
cases such as the present one: here, the
evidence of guilt consisted almost entirely
of the testimony of an unsophisticated and
relatively inarticulate child; her prior
statements were presented to the jury through
a series of articulate adult witnesses, whose
ranks included credentialed professionals
with extensive experience in dealing with
sexual assault cases.[20]
We noted that, under the traditional approach of Evidence Rule
801(d)(1)(B), a witnesss prior consistent statement is admissible
only under the limited circumstances of rebutting a charge of
recent fabrication or improper influence or motive, and only when
the prior statement was made before the witnesss motive to
testify falsely first arose.21
But we expanded the scope of admissibility for prior
consistent statements in cases involving sexual abuse of
children. While retaining the traditional rule against the
admission of a witnesss prior consistent statements until after
that witness had testified and been impeached, we held that prior
consistent statements could be admitted even when they were made
after the witnesss motive to testify falsely had already
arisen.22 Under Nitz, admissibility is predicated on an initial
determination that the prior statement, regardless of when it
arose, is actually relevant to rebut an express or implied charge
... of recent fabrication or improper influence or motive.23 In
addition, the probative value of the evidence must outweigh its
potential for prejudicial impact.24 Finally, if the out-of-
court statement was made after the witnesss alleged motive to
testify falsely had already arisen, the prior statement may be
considered only for the limited purpose of determining the
credibility of the witness.25
Here, C.B.s statements to Craft and Boone, as well as
her out-of-court statements to Bales, are admissible under the
Nitz rationale of prior consistent statements from child sexual
abuse victims. C.B. was the first witness in the case, and as
Strumsky announced in opening statement, he attacked her
credibility with several references to her prior statements.
Although Crafts, Boones, and Baless testimony about C.B.s prior
consistent statements was only admissible for the limited purpose
of determining C.B.s credibility, Strumsky did not request such a
limiting instruction from Judge Card. Even so, the thrust of the
States argument to the jury was that C.B.s out-of-court
statements were useful to evaluate the credibility of her
testimony. Furthermore, unlike the relatively inarticulate
victim in Nitz, the transcript of C.B.s testimony reflects an
articulate child who responded well to complicated questioning,
and, if she did not understand the vocabulary or the concepts
used by the lawyers, she requested clarification.
Our review of the record also shows that Judge Card
could properly conclude that the probative value of the prior-
consistent-statement evidence outweighed its prejudicial impact.
Accordingly, we conclude that Judge Card did not abuse his
discretion when he admitted C.B.s prior consistent statements.
Did the superior court bar Strumsky from placing his
admission in context? While Detective Bales recorded
Strumskys conversation with C.B.s father, Bales heard C.B.s
father ask Strumsky whether C.B. was lying and Strumsky
responded, No, [C.B.] doesnt lie. At trial, Bales testified that
she heard this exchange. The State also played that portion of
the tape recording. Strumsky objected and maintained that the
entire recording should be played to the jury. Judge Card
conceded that Strumsky was entitled to show some context.
Strumsky reiterated that he was entitled to play the entire
recording of the conversation. Because he consistently denied
any misconduct with C.B. during the conversation, Strumsky argued
that the jury would draw an unfair inference if they heard only
the single question and answer in isolation.
Evidence Rule 106 states that when one party introduces
a part of a document or recording, an adverse party may require
the introduction at that time of any other part or any other
writing or recorded statement which ought in fairness to be
considered contemporaneously with it.26 The commentary to
Evidence Rule 106 explains that an adverse party had the right,
at common law, to introduce the remaining relevant portions of
the document. The significant language in Rule 106 is the phrase
at that time:
[When a substantial amount of] time
elapses between the offer of part of a
statement and the offer of the remainder, the
jury may become confused or find it difficult
to reassess [the] evidence that it ... heard
earlier in light of [the] subsequent
material. Rule 106 creates a right to require
immediate admission of ... all relevant
portions. It is designed to enable one party
to correct immediately any misleading
impression created by another party who
offers part of a statement out of
context.[27]
We discussed Rule 106 in Stoneking v. State.28 We
stated:
The limited purpose of A.R.E. 106 is to allow
a party to admit omitted portions of a
partially admitted statement only when and
only to the extent that the omitted portions
are necessary to provide context to the
admitted portions, or to explain or clarify
them. The rule does not make admissible
statements that would otherwise be
inadmissible; it is meant only to allow
contemporaneous admission of evidence that
would ordinarily not be admissible until
later stages of the trial.[29]
In this case, Strumsky asserted that throughout his
conversation with C.B.s father, he never admitted abusing C.B.
In order to provide the context of his statement and to explain
his comment about C.B.s truthfulness, Judge Card recognized that
he should be permitted to play some portion of the recording.
Even though the purpose of the rule is to admit the evidence to
explain the admission or to provide context, Judge Card ruled
that Strumsky would not be permitted to play any of the recording
until Strumsky testified in his own case.
Nothing in Evidence Rule 106 requires that a defendant
testify when a defendant requests, in fairness, to admit
additional portions of a recorded statement to provide context or
an explanation of an admission. As the commentary to the rule
indicates, the rule requires the immediate admission of all
relevant portions. Nonetheless, Strumsky took the stand and
explained the context of the tape recording. Without objection,
Strumsky testified that C.B.s father asked him repeatedly whether
he had touched C.B. and that he consistently denied it.
However, after Strumsky took the stand, he did not ask
Judge Card to play all or part of the recording to explain or
show the context of his admission. Strumsky asserted other
reasons that the tape might be played: during a portion of the
conversation with C.B.s father, the two mentioned sexual
misconduct in the church C.B.s family attended. But Judge Card
pointed out that speculative evidence about other perpetrators
was not a sufficient reason to play the entire tape.30 At the
end of Strumskys direct testimony, the prosecutor asked the court
under what conditions Strumsky could play the tape. The court
told Strumsky that he could admit relevant portions of the tape.
But Strumsky did not seek to admit the recording or any portion
of it and Judge Card did not deny Strumskys request to play the
tape. Because Strumsky did not renew his request to admit the
recording, he has not preserved this issue.
Conclusion
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.
I write separately to explain my views on the hearsay
issues in this case.
C.B.s report of sexual abuse to her school friend,
C.K., was properly admitted under the first complaint exception
to the hearsay rule. When C.B. confided in C.K., this was C.B.s
first report of the sexual abuse; moreover, C.K.s description of
the report was fairly short and did not include many details.
With regard to C.B.s later reports to her teacher and
to the school nurse, the trial judge ruled that C.B.s statements
to these two adults were admissible to establish the course of
the investigation. This was a permissible basis for the
testimony; but if this was the sole ground for allowing the
teacher and the school nurse to testify, they should not have
been allowed to give the details of C.B.s report only that C.B.
claimed to have been sexually abused, and that they alerted the
authorities.
If I were writing on a clean slate, I would be inclined
to expand the first complaint exception to the circumstances of
this case: circumstances where a child victim first confides the
sexual abuse to a peer, and then later confides in an adult who
is in a position to help. (In the present case, C.B.s reports to
her teacher and the school nurse took place within a span of
minutes; they were essentially a single continuing report.) But
even under a strict construction of the first complaint rule, I
conclude that any error in allowing the teacher and the school
nurse to recite the details of C.B.s report does not require
reversal of Strumskys conviction.
The testimony of both the teacher and the school nurse
was fairly short, and neither of them offered many details of the
offense. The small detail that these two witnesses offered was
nothing compared to the amount of detail contained in C.B.s own
testimony, which went on for hours and which preceded the
testimony of these other witnesses.1 Further, it is clear from
the record that C.B. was a competent witness whose credibility
could be judged in the same manner as typical witnesses. C.B.
was not an inarticulate youngster whose account of the abuse was
presented primarily through the testimony of adults.2 Thus, any
arguable error in allowing C.B.s teacher and her school nurse to
cursorily repeat C.B.s report of sexual abuse was harmless.
This leaves the question of whether the trial judge
should have admitted the testimony of Detective Bales. Strumskys
attorney objected on hearsay grounds when Bales was asked to
describe C.B.s report of sexual abuse. Because the prosecutor
responded only with a general assertion that Baless testimony
would involve C.B.s prior consistent statement, with no
indication of what particular consistent thing C.B. had said to
Bales, the defense attorneys objection probably should have been
sustained at that point. However, Baless free-form description
of C.B.s report was cursory. The significant details of C.B.s
report were elicited when the prosecutor repeatedly asked Bales
to describe the particular content of C.B.s prior statement on
points previously raised by the attorneys during the cross-
examination and re-direct examination of C.B..
C.B. was the States first witness. At one point during
the direct examination of C.B., the prosecutor refreshed C.B.s
memory by having her read a portion of the transcript of her
statement to Detective Bales. However, it was during cross-
examination that C.B.s statement to Detective Bales began to loom
large in this case.
The defense attorneys first questions to C.B. were, Do
you recall when you were talked to by Michelle Bales? She had an
interview with you back in November. And they taped that
[interview], didnt they? The defense attorney then launched into
a cross-examination in which C.B. was repeatedly directed to
refer to, and sometimes read aloud, portions of her interview
with Bales and her prior testimony to the grand jury. In
response to this cross-examination, the prosecutor likewise
repeatedly asked C.B. to refer to her statement to Bales in order
to refresh her memory during re-direct.
Later in the trial, when Detective Bales was called to
testify, her testimony was to a large extent simply a
continuation of the process of impeachment and rehabilitation
that began when C.B. was on the stand. The prosecutor repeatedly
asked Bales about the content of C.B.s prior statement, but the
prosecutors questions were directed to the particular details
that had figured prominently in the cross-examination and re-
direct examination of C.B.. In fact, the prosecutors questions
were so detailed that Bales could not answer from memory. Again
and again with both attorneys blessing Bales was forced to
consult the transcript of C.B.s statement. Indeed, when Baless
answers deviated too much from the transcript of C.B.s statement,
Strumskys attorney objected and asked the trial judge to direct
Bales to read from the transcript rather than paraphrasing or
characterizing C.B.s words.
Given these circumstances, Baless testimony was
properly admissible to establish the content of C.B.s interview
on the particular points raised during the cross-examination and
re-direct examination of C.B. not under the theory that Bales
was relating C.B.s prior consistent statements, but rather
because C.B. had been impeached with apparent inconsistencies and
omissions in her interview with Bales, and Bales could clarify
exactly what C.B. had said or failed to say. In other words, the
primary relevance of Baless testimony was not to assert the truth
of C.B.s prior statements, but rather to establish what those
prior statements were.
_______________________________
1 AS 11.41.436(a)(2).
2 AS 47.17.010-.020.
3 See State v. Glass, 583 P.2d 872 (Alaska 1978), on
rehg, 596 P.2d 10 (Alaska 1979) (holding that the Alaska
Constitution requires police to obtain judicial authorization
before secretly recording a persons private conversations).
4 626 P.2d 1060, 1060-61 (Alaska 1980).
5 Greenway, 626 P.2d at 1060-61.
6 Id. at 1060.
7 720 P.2d 55 (Alaska App. 1986).
8 Id. at 58.
9 Id.
10 Id. at 63.
11 730 P.2d 172 (Alaska App. 1986).
12 Id. at 173.
13 Id.
14 Id. at 174.
15 Id.
16 Id.
17 Greenway, 626 P.2d at 1060.
18 Nitz, 720 P.2d at 58.
19 Id. at 68.
20 Id. at 70-71.
21 Id. at 64.
22 Id. at 67.
23 Id. at 68 (internal quotes omitted).
24 Id.
25 Id.
26 A.R.E. 106.
27 Commentary to Alaska Evidence Rule 106.
28 800 P.2d 949 (Alaska App. 1990).
29 Id. at 951-52 (citations omitted).
30 See Smithart v. State, 988 P.2d 583, 586-87
(Alaska 1999); Marrone v. State, 359 P.2d 969, 984-85 n.19
(Alaska 1961).
1 See Russell v. State, 934 P.2d 1335, 1344 (Alaska
App. 1997) (holding that even if the detail offered by a first
complaint witness exceeded the proper scope of this hearsay
exception, the error was harmless [because the victim] had
already testified to all of the details mentioned by [the
witness]). See also Kosbruk v. State, 820 P.2d 1082, 1084
(Alaska App. 1991) (noting that there has been a marked trend
toward relaxation of the traditional restrictions governing
admission of evidence of the victims first complaint, and that
[m]ore recent decisions have recognized the appropriateness,
within the reasonable limits of the trial courts discretion, of
allowing details of a first complaint of sexual assault to be
admitted for the purpose of enabling the jury to obtain a fair
understanding of the circumstances under which the complaint was
made).
2 See Horton v. State, 758 P.2d 628, 631 (Alaska App.
1988) (finding that the arguably inadmissible hearsay accounts of
the victims statements had little impact on the case because the
adolescent victims were competent witnesses and that the jury was
able to judge their credibility).
