Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Cleveland v. State (05/28/2004) ap-1934

Cleveland v. State (05/28/2004) ap-1934

                             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


STEVEN CLEVELAND,             )
                              )              Court of Appeals No.
A-8223
                                             Appellant,         )
Trial Court No. 2KB-00-726 Cr
                              )
                  v.          )
                              )                       O  P  I   N
I  O  N
STATE OF ALASKA,              )
                              )
                                             Appellee.          )
[No. 1934    May 28, 2004]
                              )


          Appeal  from the Superior Court, Second  Judi
          cial  District, Kotzebue, Richard H.  Erlich,
          Judge.

          Appearances:  Robert D. Lewis, Nome, for  the
          Appellant.   Timothy  W.  Terrell,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Gregg  D.  Renkes, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.


          Steven  Cleveland was convicted of second-degree sexual

assault  and   second-degree assault for sexually  penetrating  a

woman with a wide-diameter object, inflicting serious and lasting

internal  injuries.1  In this appeal, Cleveland asserts that  the

trial  judge  improperly prevented him from  presenting  evidence

suggesting that these crimes were committed by someone else.   In

          particular, Cleveland argues that the trial judge should have

allowed  him to present evidence that another man, Harry  Morena,

beat  the  same woman on the head with a wooden chair  leg  about

five  months after the sexual assault that Cleveland was  charged

with.

          Cleveland  accuses the trial judge of  having  violated

the  Smithart-Marrone  rule   a  rule  that  governs  a  criminal

defendants ability to introduce evidence tending to show that the

crime  was committed by someone else.2  But the trial judge never

invoked   the   Smithart-Marrone  rule  to  restrict   Clevelands

introduction of otherwise admissible evidence.

          That  is,  the  trial judge did not exclude  Clevelands

offered evidence on the basis that it was offered for an improper

purpose  (i.e., offered to prove that someone else committed  the

crime,  before Cleveland had established the requisite foundation

for  this  proof under Smithart and Marrone).  Rather, the  trial

judge  excluded Clevelands offered evidence because  it  was  not

admissible under the rules of evidence.

          We  conclude that the trial judges evidentiary  rulings

were  not  an  abuse  of discretion.  We therefore  uphold  those

evidentiary   rulings,  and  accordingly  we  affirm   Clevelands

convictions.

          Cleveland  also argues that his composite sentence   19

years to serve   is excessive.  For the reasons explained in this

opinion,  we conclude that this sentence is not clearly mistaken,

and we therefore affirm it.

Background facts


          Steven  Cleveland  was convicted  of  second-

degree  sexual assault and  second-degree  assault  for

sexually  penetrating a woman, H.C., during  a  weekend

drinking  binge at Clevelands house in the  village  of

Ambler  on  November  17-19,  2000.   Sometime  between

Friday  night,  November 17th,  and  Saturday  evening,

November 18th, H.C. was forcibly penetrated anally with

an  object  that  was somewhere between  four  and  six

inches in diameter.  This sexual penetration tore H.C.s

body  to  a  depth  of  four to six inches,  inflicting

serious and lasting internal injuries on H.C..

          The   episode  started  on  Friday   evening,

November 17th, when Cleveland invited H.C. over to  his

house  to  enjoy  a  batch of home  brew  that  he  had

prepared.   During  the  course of  the  evening,  H.C.

consumed so much home brew that she passed out, and she

never  went  home that night.  The next day  (Saturday,

November  18th), three other Ambler residents   all  of

them  H.C.s  relatives   came to Clevelands  house  and

drank  home brew with Cleveland and H.C..  These  three

were:   H.C.s  brother, Harry Morena; her  half-sister,

Mary   Williams;  and  her  niece,  Marys   19-year-old

daughter, Dora.

          Dora  Williams, Mary Williams, and  H.C.  all

testified  at  Clevelands trial, and they each  offered

slightly  different versions of what happened  on  that

Saturday.3

          Dora  Williams  testified that  she  and  her

mother  and  Harry  Morena arrived at Clevelands  house

around  10:00 in the morning; Cleveland and  H.C.  were

already there.  According to Dora, H.C. was sitting  on

a  couch  when they arrived, but H.C. was pretty  drunk

and  she soon got down on the floor.  Mary Williams and

Harry  Morena  tried to get H.C. back up on  the  couch

again, but they discovered that she had passed out,  so

          they left her on the floor.  Dora testified that H.C.

had no apparent injuries at that time, nor did Dora see

any blood on H.C.s clothing or on the floor.

          Dora  testified that she and her  mother  and

Morena  stayed  at Clevelands house for about  half  an

hour,  and  then  they departed  as  a  group   leaving

Cleveland  and H.C. alone in the house.  As  they  were

leaving,  Dora heard her mother Mary tell Harry  Morena

to  keep checking on H.C..  According to Dora, that was

the  only  time that she visited Clevelands house  that

day.

          Mary Williams testified that she and Dora and

Harry  Morena all arrived at Clevelands house at  about

9:00  or 9:30 on Saturday morning.  Cleveland and  H.C.

were  already  there.   Mary testified  that  H.C.  was

sitting  on the couch while they were there.  H.C.  was

in  the early stage of drinking when they arrived,  and

she was getting buzzed by the time they left Clevelands

house  less  than  an  hour  later.   Like  Dora,  Mary

Williams  testified that H.C. had no apparent  injuries

and that there was no blood in sight at that time.

          Mary  testified that she returned twice  that

day  to Clevelands house because she was worried  about

H.C..   Here,  Marys testimony diverged  somewhat  from

Doras:   Mary  testified that Dora accompanied  her  on

these return trips.

          According   to  Mary,  she  and  Dora   first

returned  to  Clevelands  house  before  11:00  in  the

morning.   They tried to get into the house; when  they

found  the  door locked, they pounded on the  door  for

about fifteen minutes.  Finally, Cleveland came to  the

door and let them in.

          Mary went inside and found H.C. lying on  the

floor,  totally  ... passed out, with  her  pants  down

below her waist.  Finding H.C. in this condition,  Mary

started yelling at Cleveland, demanding to know  if  he

had bothered H.C..  Cleveland denied doing anything.

          Mary  tried  to  wake up H.C.,  but  she  was

unresponsive.  Mary then decided to summon help.   Mary

testified  that she returned to Clevelands  house  with

Dora  and Harry Morena.  She said that she did not have

a  clear  memory  of that third visit because  she  was

partially blacked out from drinking.

          On  cross-examination, Mary admitted that she

and  H.C.  had once had a major conflict:  three  years

before  (i.e., in late 1997 or early 1998), Mary  found

out  that  H.C.  had been sleeping with Marys  husband.

Mary  stood outside H.C.s house, screamed at  her,  and

threw  rocks or large pieces of firewood through  H.C.s

windows.

          However,  according  to Mary,  she  and  H.C.

reconciled  two months later  and Mary got rid  of  her

philandering     husband.     Mary    explained     the

reconciliation  by noting that she and H.C.  are  half-

sisters  who have known each other all of their  lives.

(This  window-breaking  incident,  and  the  subsequent

reconciliation, were both confirmed by  H.C.  when  she

testified.)

          The third witness to testify about the events

of  Saturday, November 18th, was the victim, H.C..  She

testified that she asked her brother, Harry Morena,  to

take   her  to  Clevelands  house  on  Friday  evening,

November  17th, and to come back for her  later.   H.C.

testified that she had five or six glasses of home brew

that night, and then she passed out.

          When  H.C.  regained consciousness,  she  was

lying on the floor of Clevelands house, and she was  in

a  lot  of  pain.  At first, she thought that  she  was

simply  hung over, but then she noticed that there  was

blood on her pants and that the pain was severe in  her

rectum.   She  tried to get up, but she was  too  weak.

She  then crawled over to the couch, pulled herself up,

and lay there.

          Cleveland brought water to H.C., but as  soon

as  she drank it, she began to vomit.  H.C. lay on  the

couch  and apparently passed out again.  She  awoke  to

find Cleveland cleaning her blood from the floor.

          At  this point, Cleveland asked H.C.  if  she

wanted  to go to bed with him.  H.C. answered that  she

was  too sick and in too much pain for that.  Cleveland

then  asked H.C. if she wanted to touch his penis,  but

H.C. again declined.

          H.C.  testified  that,  during  the  morning,

Harry Morena came to Clevelands house to check on  her.

Morena  came inside the house and spoke to  H.C.  where

she lay on the couch, but H.C. told Morena that she was

too  sick  to  get up.  H.C. told Morena to  come  back

later,  when  she was feeling better, and  Morena  said

that he would do so.

          Morena  returned  to Clevelands  house  about

three   or  four  hours  later.   This  time,  however,

Cleveland   did  not  let  Morena  come  in;   instead,

Cleveland went outside to speak to Morena.  (Clevelands

house  has a kanachuk  i.e., an arctic entry vestibule,

so  that one must pass through two doors to get  inside

the  house.)  H.C. heard Cleveland tell Morena that she

was still sick, and then Morena left.

          H.C.  testified that Morena came back a third

time, about three or four hours after that.  This time,

however, Cleveland did not respond to Morenas knocking.

          H.C.  said  that  she had no recollection  of

either  Dora  or  Mary  Williams coming  to  Clevelands

house.   She did, however, recall hearing the voice  of

Ronald Cleveland outside the door, one time, with Harry

Morena.

          Ronald  Cleveland (a second  cousin  to  both

H.C. and Steven Cleveland) also testified at Clevelands

trial, and he partially corroborated H.C.s testimony on

this  point.   Ronald stated that he and  Harry  Morena

went  to Clevelands house toward the end of the day  on

Saturday,  November  18th, so that Harry  Morena  could

check  on  H.C..   However, Ronalds testimony  differed

from H.C.s in that he stated that Cleveland did respond

to their knocking.  Ronald said that when he and Morena

knocked on Clevelands outer door, Cleveland came to the

door  and stepped outside to talk to the two men.  This

was   unusual,   Ronald  declared,  because   Cleveland

normally  would  answer a knock on his door  by  simply

telling visitors to come on in.

          According  to  Ronald, Morena told  Cleveland

that  he  wanted  to  check on his  sister.   But  when

Cleveland  replied that H.C. was sleeping,  Morena  and

Ronald left without going inside.

          H.C.  remained at Clevelands house until mid-

morning the next day (Sunday, November 19th), when  she

used  Clevelands  telephone  to  call  her  stepfather,

Merrill Morena, and asked him to come take her home.

          Although   H.C.   was   still   in    extreme

discomfort, she apparently did not realize  the  extent

of  her  internal  injuries.  But  by  Tuesday  morning

(November 21st), H.C. was too weak to get up.  She then

sought  medical attention by telephoning the  community

health  clinic.  The health aide came to  H.C.s  house,

examined  her,  and arranged to have her medevacked  to

Anchorage, where H.C. underwent surgery.

          Cleveland was subsequently indicted for  both

first-degree  sexual  assault and first-degree  assault

(for causing the serious physical injury). He was tried

twice:  the first trial ended in a mistrial; the second

trial ended with guilty verdicts on the lesser offenses

of   second-degree  sexual  assault  and  second-degree

assault.

          Clevelands  defense  was  that  there  was  a

substantial possibility that someone else had committed

these  crimes.   Clevelands attorney acknowledged  that

only  a  small  group of people had the opportunity  to

sexually   assault  H.C.,  but  he  argued  that   Dora

Williams,  Mary  Williams, and Harry  Morena  were  all

likely suspects.

          In  particular, the defense attorney asserted

that  Dora  Williams was lying when she testified  that

she had visited Clevelands house only once on Saturday,

November  18th.   (As  explained above,  Doras  mother,

Mary, testified that Dora had accompanied her when  she

twice  returned to Clevelands house later that  day  to

check  on  H.C..)  The defense attorney suggested  that

Dora was trying to hide something.

          In  addition,  the defense attorney  reminded

the  jurors  of  the  incident in which  Mary  Williams

screamed at H.C. and broke her windows because H.C. had

engaged  in  adultery with Marys husband.  The  defense

attorney  asserted that this incident showed that  Mary

was  capable of erratic and violent behavior  when  she

was drunk.  And the defense attorney asked the jury  to

consider  why  Mary  was  so  intent  on  returning  to

Clevelands house to check on H.C..  He insinuated  that

Mary might have been trying to settle an old score.

          And  the defense attorney also accused  Harry

Morena.   He  noted  that blood had  been  found  on  a

sweatshirt in Clevelands house, and he noted  that  the

State  had  failed to present any evidence as  to  whom

that  sweatshirt  belonged to.   The  defense  attorney

asserted that the sweatshirt belonged to Morena:   that

Morena had gotten blood on the sweatshirt while he  was

sexually assaulting his sister, that he had removed the

sweatshirt  when he cleaned himself after  the  attack,

and  that  he  had then forgotten about the  sweatshirt

when  he  left  Clevelands house and  locked  the  door

behind  him   so that the sweatshirt was still  hanging

there when the police searched the house.

          In  sum, the defense attorney told the  jury,

Cleveland  may  have  been the  most  likely  candidate

(i.e.,  the  most  likely  perpetrator  of  the  sexual

assault), but just [naming the] likely candidate doesnt

get  the  [governments] job done.  The defense attorney

argued  that, because the perpetrator could  have  been

Mary  Williams, or Dora Williams, or Harry Morena,  the

government had failed to prove Clevelands guilt  beyond

a reasonable doubt.

          Despite  these arguments, the jury  convicted

Cleveland  of  the  sexual  assault  and  the  physical

assault.   On appeal, Cleveland argues that  the  trial

judge  committed  error in three different  evidentiary

rulings.   Each  of these rulings dealt  with  evidence

that Cleveland asserted would tend to exculpate him  by

suggesting that Harry Morena was the true culprit.



The trial judges hearsay ruling:  Morenas invocation of
his    privilege   against   self-incrimination,    and
Clevelands ensuing attempt to introduce some of Morenas
out-of-court  statements through the hearsay  testimony
of a state trooper


          This  issue  first  arose in  an  evidentiary

hearing that was held during Clevelands first trial  in

mid-June  2001.   The defense attorney wanted  to  call

Harry  Morena  to the stand and have him testify  about

his  several visits to Clevelands house on the  weekend

of the sexual assault (November 18-19, 2000).  However,

the defense attorney informed the trial judge  Superior

Court  Judge Richard H. Erlich  that it appeared likely

that Morena was going to invoke the Fifth Amendment  if

he was called as a witness at Clevelands trial.

          At the time of Clevelands first trial, Morena

was in jail:  he had been arrested two weeks before (on

June  1, 2001) on charges that he assaulted his sister,

H.C.,  by  beating  her on the head with  a  chair  leg

during  an argument.  When Morena was brought to  court

for  the evidentiary hearing, he was accompanied by the

assistant public defender who was representing  him  in

the assault case.

          Clevelands attorney told Judge Erlich that he

wanted  to  ask Morena questions about what Morena  saw

and  did  while he was at the Cleveland  house  on  the

weekend of November 18th-19th, because, in the  end,  I

want to assert that Harry Morena sexually assaulted and

physically  assaulted  his  sister,  H.C.,  [that   he]

perpetrated   the  crime  that  Steven   Cleveland   is

currently charged with.

          The  defense attorney also wanted to question

Morena  about his alleged recent assault on his  sister

an assault that had allegedly occurred on May 27th (two

and a half weeks before this evidentiary hearing).  The

defense attorney told Judge Erlich that he was going to

assert  that  the table leg [sic: it was a  chair  leg]

that  Morena  allegedly used against H.C. on  May  27th

was, in fact, the very same instrument that Morena  had

used  to  sexually  penetrate H.C.  six  months  before

(i.e., the previous November).

          The defense attorney made two arguments as to

why  this  evidence  would be  admissible.   First,  he

declared  that the supreme courts decision in  Smithart

guaranteed  him  the  right to introduce  any  evidence

which would tend to establish a reasonable doubt of the

defendants guilt.  Second, he declared that evidence of

Morenas  assault on H.C. was admissible by  analogy  to

Evidence Rule 404(b)(4)  the rule which states that, in

trials  for  acts of domestic violence, the  State  may

introduce  evidence  of the defendants  other  acts  of

domestic violence.

          Morena  was  then put on the stand  for  voir

dire   examination.   Even  though  Morena  showed   no

hesitancy in answering several questions about visiting

Clevelands  house during the weekend in  November  2000

when  H.C.  was  sexually assaulted,  Morenas  attorney

eventually  objected to Clevelands attorneys questions,

and  Judge  Erlich ultimately ruled that Morena  had  a

Fifth Amendment right not to answer questions about his

activities at Clevelands house that weekend.

          Following  this ruling, there is a  50-minute

break in the transcript.  The transcript picks up again

in the middle of the trial proceedings, just as a bench

conference  was  beginning.  From the  discussion  that

took place at the bench conference, it appears that the

bench  conference was called while Trooper Todd  Summey

was  on  the stand, being cross-examined by the defense

attorney.    Trooper  Summey  was   the   trooper   who

investigated Morenas assault on H.C. at the end of  May

2001,  and  he  was  also part of  the  team  that  had

investigated  the sexual assault on H.C.  the  previous

November.

          The  defense  attorney had  apparently  asked

Trooper Summey to tell the jury what Morena had said to

the  troopers about his visits to Clevelands  house  on

the  weekend  of the November sexual assault,  and  the

defense   attorneys  question  had  drawn   a   hearsay

objection from the prosecutor.

          At the bench conference, the defense attorney

responded to the hearsay objection by declaring:

     
          Defense  Attorney:  Im going  to  assert
     that [Morena] is unavailable [because of  his
     invocation  of  the privilege  against  self-
     incrimination], and therefore any  statements
     that  he ... made to the trooper  which,  you
     know,  I think have nothing to do with,  sort
     of credibility issues or anything  are things
     that [the defense] should at least be allowed
     to  begin to explore.  I think that there are
     some  questions about whether or not [Morena]
     may   be,  you  know,  available  for  cross-
     examination purposes and that kind of  stuff.
     But   I   think   [that]  the   witness   has
     voluntarily  absented himself,  and  I  think
     [that]  were  at  least entitled  to  inquire
     about  some of the foundational stuff   which
     has, interestingly enough, nothing to do with
     him  as  a witness or a ...  [At this  point,
     Judge  Erlich makes an indiscernible comment,
     and the defense attorney stops speaking.]
     
     A   few  minutes  later  (following  a  short

     recess),  the defense attorney made an  offer

     of  proof concerning the statements  that  he

     was trying to elicit:

     
     Defense Attorney:  Were asking the Court
to  allow us to ask the trooper about ... Mr.
Morenas  recitation of events to the trooper.
And,  as  [an offer of proof], [the  trooper]
would  say  [that Morena said] words  to  the
effect  that  he had been to the  [Cleveland]
house  on November 18th at or about  9:00  or
10:00  ... in the morning.  He could  not  be
sure of the exact times.  [H.C.] had awakened
him  to  let him know she would be at  Steven
Clevelands house.  Later, when [Morena]  woke
up, he went to Steven Clevelands residence to
check  on  [H.C.] because he knew [that]  she
was probably drinking alcohol.  At about 4:00
or  5:00  ... in the afternoon,  he  went  to
Steven   Clevelands   residence   with   Dora
Williams, and [he] saw [H.C.] passed  out  on
the  couch.   [He] tried to pick her  up  and
take  her home, [but] she was too heavy.   He
...  only  moved  her off the  couch  to  the
floor, [and then] he left her there to  sleep
it  off.  ...  Between 7:00 and 8:00, he went
back to Steven Clevelands residence with  Ron
Cleveland.  Thats the expected testimony from
the trooper.

          In  fact,  the testimony  that  the

defense  attorney was trying  to  elicit  was

double   hearsay.   Not  only  were   Morenas

statements made outside of court,  but  those

statements were made to a different  trooper.

Trooper  Summey (the person who was currently

on   the   witness   stand)  had   personally

interviewed Morena about the recent May  27th

assault on H.C., but another trooper  Trooper

Richard   Terry    was  the   one   who   had

interviewed  Morena  on  November  27,  2000,

about   Morenas  activities  and  visits   to

Clevelands  house during the weekend  of  the

sexual assault on H.C..

          When  Judge Erlich asked Clevelands

attorney  how  this proposed  testimony  fell

within any exception to the hearsay rule, the

defense attorney answered that it fell within

the  catch-all provision of Evidence Rule 804

that  is,  Evidence Rule 804(b)(5), which  is

generally referred to as the residual hearsay

exception.  See Ryan v. State, 899 P.2d 1371,

1374 (Alaska App. 1995).

          The  defense  attorney  noted  that

Morena  was  clearly  unavailable.   He  then

asserted that Morenas out-of-court statements

satisfied  the requirements of Evidence  Rule

804(b)(5) because these statements were being

offered  to prove material facts,  they  were

more  probative  on these  matters  than  any

other evidence available to the defense,  and

the  general  purposes of the  hearsay  rules

would  be  served by the admission  of  these

statements.

          We  do not have a transcript of the

testimony   presented  at  Clevelands   first

trial.    But   we  do  have  the   testimony

presented  at Clevelands second  trial   and,

based on that testimony, it is clear that the

defense  attorney was wrong when he  asserted

that there was no other evidence available to

prove  Morenas whereabouts and activities  on

the   November  weekend  in  question.   H.C.

testified  that she remembered Morena  coming

to  Clevelands house three times on Saturday,

November  18th.  And Mary Williams  testified

that  Morena was with her at Clevelands house

at least twice on that Saturday.

          Moreover,  as  Judge Erlich  noted,

Ryan holds that before hearsay statements can

be  introduced under the residual  exception,

the     circumstances    surrounding    those

statements    must   carry   guarantees    of

trustworthiness  equivalent to  or  exceeding

the   guarantees   of  trustworthiness   that

characterize the recognized exceptions to the

hearsay  rule.  See Ryan, 899  P.2d  at  1374

(quoting   the   first   paragraph   of   the

commentary  to Alaska Evidence Rule  803(23))

and at 1379.

          After Judge Erlich declared that he

did  not  see how Morenas statements  to  the

troopers   carried  special   guarantees   of

trustworthiness,    the   defense    attorney

responded  that much of what Morena  said  to

the   troopers   was  corroborated   by   the

testimony   of  other  witnesses.    But   we

explicitly  held in Ryan that the  guarantees

of  trustworthiness required by the  residual

hearsay  exception  can  not  be  proved   by

showing  that  an out-of-court  statement  is

corroborated by other evidence.  Rather,  the

required  guarantees of trustworthiness  must

be  established solely from the circumstances

of  the statement and the mental state of the

declarant.4

          We  conclude that Judge Erlich  did

not  abuse his discretion when he ruled  that

Morenas    statements   to   Trooper    Terry

concerning his visits to Clevelands house  on

the  weekend of November 18-19, 2000 did  not

carry   the   circumstantial  guarantees   of

trustworthiness  required  by  Evidence  Rule

804(b)(5).   For  this reason,  and  for  the

further   reason  that  much  of   the   same

information concerning Morenas visits to  the

house was available through the testimony  of

other  witnesses, Judge Erlich did not  abuse

his  discretion when he ruled that Clevelands

proposed hearsay testimony was not admissible

under the residual hearsay exception.



Clevelands challenge to this hearsay ruling:   his
assertion that the Alaska Supreme Courts  decision
in  Smithart v. State exempts criminal  defendants
from   the  hearsay  rules  when  defendants   are
attempting  to show that someone else  might  have
committed the crime


     On  appeal,  Cleveland  contends  that  Judge

Erlichs hearsay ruling is at odds with the  Alaska

Supreme Courts decision in Smithart v. State,  988

P.2d  583  (Alaska 1999).  Cleveland  argues  that

Smithart guarantees him the right to introduce any

evidence  that  might tend to raise  a  reasonable

doubt  concerning  his  guilt,  even  though  this

evidence might otherwise be inadmissible under the

normal   rules   of   evidence.    Cleveland   has

     misinterpreted Smithart.



(a)  The  supreme courts decision in  Smithart  v.
State


     In  Smithart,  the supreme court  was  called

upon to interpret and clarify its earlier decision

in  Marrone v. State, 359 P.2d 969, 984-85  n.  19

(Alaska 1961), in which the court adopted a common-

law rule that limits a criminal defendants ability

to introduce evidence tending to show that another

person committed the crime for which the defendant

is on trial.

          In  Marrone,  the supreme court held  that  a

defendant  seeking to prove that someone else committed

the  crime can not introduce evidence of threats  by  a

third person against the victim unless this evidence is

coupled with other evidence having an inherent tendency

to   connect  [this]  other  person  with  the   actual

commission  of  the crime.5  In Smithart,  the  supreme

court re-affirmed this rule:

     
          [A]   defendant  may  always   generally
     suggest that someone other than the defendant
     is  guilty of the charged crime.  But when  a
     defendant  wishes  to  implicate  a  specific
     individual,  evidence  of  the  third  partys
     guilt  is admissible only if the defense  can
     produce  evidence  that tend[s]  to  directly
     connect  such  other person with  the  actual
     commission of the crime charged.   This  rule
     derives from considerations of relevance  and
     materiality;  as we explained in  Marrone  v.
     State, such an initial evidentiary showing is
     necessary because if evidence of motive alone
     upon   the   part  of  other   persons   were
     admissible  ...  in  a  case  involving   the
     killing  of  a man who had led an active  and
     aggressive   life[,]  it  might   easily   be
     possible   for  the  defendant   to   produce
     evidence  tending  to show that  hundreds  of
     other  persons were possible suspects in  the
     murder.   In  such  a system,  the  resulting
          trial would be a confusing waste of judicial
     resources.   The concerns voiced  in  Marrone
     have  led  virtually every state  to  require
     some  kind of preliminary evidentiary showing
     before      allowing     introduction      of
     alternative-perpetrator evidence.
     
     Smithart,   988  P.2d  at  586-87  (footnotes

     omitted).   This  quoted passage  focuses  on

     evidence of another persons motive to  commit

     the crime.  But the supreme court also stated

     in  Smithart  that [c]ourts  generally  agree

     that   [the  mere]  opportunity  [of  another

     person   to   commit   the   crime]   is   an

     insufficient   basis  on   which   to   admit

     alternative-perpetrator  evidence.   Id.   at

     588.

          Thus,  under  the  Smithart-Marrone

rule,  evidence of another persons motive  to

commit  the  crime,  or evidence  of  another

persons  opportunity  to  commit  the  crime,

standing  alone, will not be admissible  when

offered  to prove that this other person  may

have  committed the crime.  As both  Smithart

and  Marrone  state, this  restriction  on  a

criminal   defendants  ability  to  introduce

evidence  of another persons potential  guilt

is based on the laws demand for relevance and

materiality.

          The  Smithart-Marrone rule  can  be

thought  of  as an issue-specific application

of  Evidence Rule 403.  That is, Smithart and

Marrone hold that evidence of another persons

motive  to  commit the crime, or evidence  of

another  persons opportunity  to  commit  the

crime, standing alone, is so speculative  and

carries so little probative weight that, even

though  this evidence might technically  meet

the  test  for relevance codified in Evidence

Rule  401, the evidence can be excluded under

Evidence Rule 403  the rule authorizing trial

judges  to exclude relevant evidence  if  its

probative   value   is  outweighed   by   its

potential    for   confusing   the    issues,

misleading the jury, or wasting time.

          But  if  the  proposed evidence  of

another persons potential guilt exceeds  this

threshold,  so that a reasonable  fact-finder

could  conclude  that the evidence  raises  a

reasonable  doubt concerning  the  defendants

guilt,  then the defendant should be  allowed

to  present the evidence.  Smithart, 988 P.2d

at 587, 588.

          Moreover, the Smithart-Marrone rule

is  similar to Evidence Rule 404 in  that  it

restricts  the admission of certain  evidence

only  when  that evidence is  offered  for  a

particular  purpose   here,  the  purpose  of

trying  to  show  that some identified  other

person may have committed the crime.

          Often,   at   a   criminal   trial,

evidence  that is relevant for other purposes

may  also tend to suggest the guilt  of  some

third person.  The Smithart-Marrone rule does

not  bar  the  admission of  evidence  simply

because the evidence tends to suggest someone

elses  guilt.  Rather, Smithart  and  Marrone

limit  a defendants ability to offer evidence

when  the  primary relevance of that evidence

is  to suggest someone elses guilt (until the

defendant  has  made the requisite  threshold

showing of materiality).

          This  gloss on the Smithart-Marrone

rule  is  implicit  in  the  Smithart  courts

explanation of why the rule does not restrict

a defendants scope of argument to the jury:


     [W]e  agree  with the court of  appealss
conclusion  that the trial court misconstrued
Marrone  when it prevented Smitharts attorney
from   arguing  that  DeForest  was   guilty.
Nothing  in  Marrone limits an attorney  from
using   an   opening  statement  or   closing
summation to draw reasonable inferences about
a   third   partys  involvement  from   trial
evidence.   The  court of  appeals  correctly
explained   that,  under  Marrone,   Smithart
should  have been able to argue to  the  jury
that  DeForest  was  guilty  of  the  charged
crimes:

     [T]he    Marrone   rule    limits    the
     introduction of evidence,  but  it  does
     not  limit a partys ability to argue all
     reasonable inferences from the  evidence
     that  is admitted.  If, despite Marrones
     restriction   on  the  introduction   of
     independent   evidence   that   DeForest
     committed  the crime, it was clear  that
     sufficient  evidence would be introduced
     at   Smitharts   trial  to   warrant   a
     reasonable inference that DeForest might
     be  the perpetrator, then Smithart would
     be  entitled to announce this  inference
     in his opening statement.

Smithart, 988 P.2d at 589 (footnotes omitted).6



     (b) Clevelands interpretation of Smithart
     

          Cleveland  argues that Judge Erlich  violated

Smithart  when  he prohibited Cleveland  from  offering

hearsay testimony regarding Harry Morenas statements to

the  troopers about Morenas visits to Clevelands  house

on  the  weekend of the sexual assault (November 17-19,

2000).

          It  is important to note, at the outset, that

          Clevelands case does not present a typical Smithart

problem.   Judge  Erlich  never invoked  the  Smithart-

Marrone   rule  to  preclude  Cleveland  from  offering

evidence of another persons potential guilt.   Nor  did

Judge  Erlich  invoke this rule to preclude  Clevelands

attorney  from  openly  accusing  other  people  (Harry

Morena, Mary Williams, and Dora Williams) of committing

the  crimes for which Cleveland was charged.  In  fact,

the defense attorney leveled these accusations both  in

his opening statement and in his summation to the jury.

          Clevelands basic contention is that,  once  a

defendant  has met the minimum threshold of materiality

specified in Smithart, the Smithart decision guarantees

a  defendant the right to introduce evidence tending to

suggest  another persons guilt, even when that evidence

would  otherwise  be  barred by  the  normal  rules  of

evidence.   Cleveland  relies  on  the  supreme  courts

statements  in  Smithart that  a  defendants  right  to

present  a  defense  is a fundamental  element  of  due

process,   and   that   evidentiary   rulings   [which]

substantially  infringe  ... the  right  to  present  a

defense   ...  violat[e]  [a]  defendants  due  process

rights.7

          Cleveland  argues that if all of his  various

offers of proof are credited, those combined offers  of

proof  contained  enough information implicating  Harry

Morena as the perpetrator of the sexual assault on H.C.

to  satisfy Smitharts minimum threshold of materiality.

From this, Cleveland concludes that he should have been

allowed  to introduce all of the information  contained

in   those  various  offers  of  proof,  even  if  this

information was objectionable hearsay or was  otherwise

inadmissible under the normal rules of evidence.

          Cleveland misunderstands Smithart.   Although

Smithart  confirms a defendants due  process  right  to

          present a defense, the right to present a defense does

not  include  the right to demand that the trial  judge

disregard  the rules of evidence.  In particular,  this

Court  has  held that a trial judge does not abridge  a

criminal defendants right to present a defense when the

judge  applies  the hearsay rules to  exclude  proposed

defense testimony.

          In  Garroutte v. State, 683 P.2d 262  (Alaska

App.  1984),  the  defendant wished  to  introduce  the

statement  of  an  unavailable  co-defendant,   Snyder.

Snyder  had  pleaded guilty before  Garroutte  went  to

trial.   During  Snyders interview with  the  probation

officer  assigned  to prepare the pre-sentence  report,

Snyder  admitted committing the crime, but he  asserted

that  his accomplice had not been Garroutte, but rather

a third person.8

          When  Garroutte learned of Snyders  statement

to  the  probation officer, Garroutte asked  his  trial

judge to allow hearsay testimony concerning Snyders out-

of-court statement.  The trial judge acknowledged  that

Snyders statement potentially fell within Evidence Rule

804(b)(3)s  exception  for  statements  against   penal

interest,   but  the  judge  concluded   that   Snyders

statement  lacked  the  circumstantial  guarantees   of

trustworthiness  required by Evidence Rule  804(b)(3).9

The judge then ruled that, because Snyders out-of-court

statement   was  not  admissible  under  any   of   the

exceptions  to the hearsay rule, Garroutte  was  barred

from offering that statement into evidence.10

          On appeal, this Court upheld the trial judges

ruling   that   Snyders  statement  lacked   sufficient

circumstantial guarantees of trustworthiness to qualify

for  admission under Evidence Rule 804(b)(3).  We  then

addressed  Garrouttes claim that, even  though  Snyders

statement was inadmissible hearsay, Garroutte had a due

          process right to present this evidence anyway:

     
          Garroutte    separately   argues    that
     exclusion  of Snyders statement violated  his
     constitutional right to due process  of  law.
     He  relies  on  Chambers v. Mississippi,  410
     U.S.  284,  93  S.Ct. 1038,  35  L.Ed.2d  297
     (1973).   In  Chambers,  the  United   States
     Supreme  Court  held  that  the  due  process
     clause was violated by mechanical application
     of  a  state law excluding statements against
     penal  interest.   The  court  reversed   the
     defendants  conviction because  he  had  been
     precluded   from  admitting  an  out-of-court
     statement that afforded persuasive assurances
     of  trustworthiness and was well  within  the
     basic   rationale   of  the   exception   for
     declarations against interest.  Chambers, 410
     U.S. at 302, 93 S.Ct. at 1049, 35 L.Ed.2d  at
     313.   [But  the] standards of  admissibility
     prescribed   by   Evidence   Rule   804(b)(3)
     parallel   the  constitutional   mandate   of
     Chambers.   ...   Our  holding  that  Snyders
     statement   was   not  clearly   corroborated
     therefore  controls Garrouttes constitutional
     claim.
     
Garroutte, 683 P.2d at 267.

          See  also Bright v. State, 826 P.2d 765, 771-72 (Alaska

App. 1992), rejecting another claim that a trial judge violated a

defendants right to due process when she barred the defense  from

offering  inadmissible  hearsay testimony regarding  out-of-court

statements  made  by co-defendants; DAntorio v. State,  837  P.2d

727,  735-36 (Alaska App. 1992), rejecting a claim that the trial

judge violated the defendants right to due process when the judge

excluded  inadmissible hearsay testimony offered by the  defense;

and  Balentine v. State, 707 P.2d 922, 925-26 (Alaska App. 1985),

rejecting a similar claim.

          In sum, Cleveland is wrong when he argues that Smithart

gives  defendants  the  right to override  the  normal  rules  of

evidence  when they offer testimony tending to show that  someone

else  committed the crime.  The Smithart decision  clarifies  the

rules  under which a defendant may introduce testimony suggesting

another persons guilt, but the supreme courts discussion of  this

point  presumes that the offered testimony is in fact  admissible

under  the  rules of evidence.  Smithart does not give defendants

the  right to introduce testimony or physical evidence that fails

to qualify for admission under the rules of evidence.

          Clevelands  attorney  proposed to have  Trooper  Summey

testify   about  Harry  Morenas  statements  to  another  trooper

(Trooper Terry), statements in which Morena described his  visits

to  Clevelands  house  on  Saturday,  November  18,  2000.   This

proposed  testimony was clearly hearsay.  Cleveland  argued  that

this   hearsay  testimony  was  admissible  under  the   residual

exception  codified in Evidence Rule 804(b)(5),  but  the  record

shows that much of the same information was available through the

testimony  of  other witnesses, and Judge Erlich  concluded  that

Morenas   out-of-court  statements  lacked   the   circumstantial

guarantees of trustworthiness required by Rule 804(b)(5).

          Cleveland does not actually dispute the ruling that the

offered  hearsay failed to meet the criteria for admission  under

Rule  804(b)(5).  Moreover (as explained above), we have reviewed

the  record and we conclude that Judge Erlichs ruling was not  an

abuse of discretion.  Cleveland tries to circumvent Judge Erlichs

ruling   by  arguing  that  Smithart  makes  the  hearsay   rules

irrelevant.  It does not.

          Accordingly,  we  uphold  Judge  Erlichs  decision   to

exclude the offered hearsay testimony.



     The  trial  judges  ruling concerning  the  chair  leg:
     Clevelands attempt to introduce this piece of  physical
     evidence  under  the theory that it was the  instrument
     that  was  used to sexually penetrate H.C.  during  the
     November 2000 sexual assault
     

               As  noted  earlier, Harry Morena was  charged

     with  assaulting his sister, H.C., with a chair leg  at

     the  end of May 2001 (about two weeks before Clevelands

     first trial).

               On  June  8,  2001  (i.e.,  the  week  before

     Clevelands  first  trial), Trooper  Summey  interviewed

     Morena  about  this incident.  During  this  interview,

     Morena  admitted to Trooper Summey that he  went  to  a

     gathering  at  H.C.s house late in the evening  of  May

     26th.   Several people were there, drinking home  brew.

     H.C.  and  Morena got into an argument:   according  to

     Morenas statement to Trooper Summey, H.C. was angry  at

     him  for taking her four-wheeler without permission and

     damaging  some  of her property.  It  is  unclear  from

     Trooper Summeys description of the conversation whether

     Morena  admitted  that  he had done  these  things,  or

     whether  Morena  was merely saying  that  he  and  H.C.

     argued because she accused him of doing these things.

               In  any  event, during this argument,  Morena

     punched  H.C. in the eye, and she went into her bedroom

     and  closed the door.  Morena then removed one  of  the

     legs  from the wooden chair that he was sitting on;  he

     walked  into H.C.s bedroom and hit her over the head  a

     few  times  with the chair leg.  After the assault  was

     reported,  the troopers discovered this  chair  leg  in

     H.C.s residence, next to her bed.

          According  to the testimony and the attorneys

descriptions of the chair leg, the chair leg weighed  a

couple of ounces and, at its widest, had a diameter  of

one and a half inches or less.

          During the evidentiary hearing that was  held

at   Clevelands  first  trial,  the  defense   attorney

asserted  that  this chair leg was the same  instrument

that  had  been used to sexually penetrate H.C.  during

the  sexual  assault at Clevelands  house  in  November

2000.   Judge Erlich replied that he was not sure  that

there  was  a  sufficient foundation to  establish  the

relevance of the chair leg for that purpose.

          The  next  day (June 14, 2001),  the  parties

returned to court for a continuation of the evidentiary

hearing.   Soon  after the hearing started,  Clevelands

attorney  announced that he intended to seek  admission

of the chair leg as a piece of physical evidence.

          Judge  Erlich asked the defense attorney  how

the  chair leg could have been the object used  in  the

sexual  assault,  when  the  doctor  who  examined  and

repaired  H.C.s  injuries  had  testified  that   those

injuries  were caused by an object that was six  inches

in  diameter.   The defense attorney replied  that  the

doctor  had  said that H.C.s injuries could  have  been

inflicted  with  a smaller-diameter object  if  greater

force  was used.  Based on that testimony, the  defense

attorney  took the position that there was  no  minimum

size  for  the object  and thus the one-and-a-half-inch

chair  leg  could  have  been used  during  the  sexual

assault.

          The  parties  have given us  a  very  limited

record of Clevelands first trial  and, in the few dozen

pages  of record that we have, Judge Erlich never ruled

on the defense attorneys motion to admit the chair leg.

However, it appears that Judge Erlich denied the motion

because  the  defense attorney renewed  the  motion  at

Clevelands second trial in September 2001.

          Clevelands  second trial began  on  September

11, 2001.  Because all civil aviation was canceled that

day   (thus   preventing  out-of-town  witnesses   from

attending  the trial), the prosecutor and  the  defense

attorney  gave their opening statements, and  then  the

jury  was excused for the rest of the day.  The defense

attorney took this opportunity to renew his request for

admission of the chair leg.

          Based on the facts described above (i.e., the

evidence  that  Morena beat H.C.  with  the  chair  leg

during  the  assault at H.C.s house on May  27,  2001),

Clevelands attorney argued that Morena must  have  used

the  same  chair leg (or a nearly identical object)  to

sexually  assault H.C. at Clevelands house  six  months

before, in November 2000.

          Judge  Erlich  noted that the chair  leg  was

much  thinner than the object described in the  doctors

testimony  from  Clevelands  first  trial.   But   more

important, Judge Erlich thought, was the fact that  the

chair  leg was found at H.C.s house in May 2001   i.e.,

it  was found at another location six months after  the

sexual assault committed at Clevelands house.  In other

words,   the  defense  attorneys  theory  of  relevancy

depended  on several unlikely assertions:  that  Morena

had  removed the chair leg from H.C.s house in November

2000,  that  Morena  took the chair leg  to  Clevelands

house  and used it commit the sexual assault  on  H.C.,

and  that  Morena then returned the chair leg to  H.C.s

house  and  re-fitted it to the chair  so  that  Morena

could sit on that chair when he visited H.C.s house  in

May  2001,  and so that he could again remove  the  leg

from  the chair and use it as a weapon when he got into

the argument with H.C. at the end of May 2001.

          Judge   Erlich  concluded  that  the  defense

attorneys  theory of relevance was too  speculative  to

support a reasonable conclusion that this chair leg was

the  instrument  used  to sexually  penetrate  H.C.  at

Clevelands  house in November 2000.  For  this  reason,

Judge Erlich ruled that the defense attorney had failed

to  establish  a  sufficient foundation  to  support  a

finding  that  the  chair  leg  was  relevant,  and  he

therefore  denied the defense request to introduce  the

chair leg into evidence.

          The  next day (September 12, 2001), testimony

began at Clevelands second trial.  The first government

witness  was  Dr.  Frances R. Wilson, the  surgeon  who

evaluated H.C.s injuries and operated on H.C. to repair

them.   Dr.  Wilsons testimony supported Judge  Erlichs

ruling regarding the chair leg.

          Dr.   Wilson  testified  that  H.C.   had   a

laceration  that went way up into her rectum,  ...  all

the way through the muscle, ... and into the fat around

the  rectum.  This laceration was between four and  six

inches  in length  that is, it penetrated four  to  six

inches into H.C.s body.  Dr. Wilson concluded that this

injury  was  caused  by somebody  forcibly  pushing  an

object into H.C.s rectum.  Judging from the nature  and

extent  of  the injury, Dr. Wilson concluded that  this

object was at least the diameter of a baseball bat,  or

even  bigger   as  large  as  four  to  six  inches  in

diameter.

          In    follow-up   questioning,   Dr.   Wilson

specifically rejected the suggestion that  this  injury

could have been caused by a mans penis.  She reiterated

that  the object had to have been about four inches  in

diameter.

          The  defense  attorney engaged in  relatively

brief  cross-examination of Dr. Wilson.   (This  cross-

examination covers only four pages of transcript.)  For

present  purposes, the salient aspect  of  that  cross-

examination   is   that  the  defense  attorney   never

questioned Dr. Wilsons assertion that the object  which

inflicted  H.C.s  injury had  to  have  been  at  least

approximately four inches in diameter.

          Based  on Dr. Wilsons testimony, and  on  the

physical  dimensions of the chair leg, and on the  fact

that  this chair leg was attached to a chair  in  H.C.s

house  on  the  evening of May 26-27, 2001  (i.e.,  six

months  after the sexual assault at Clevelands  house),

Judge Erlich did not abuse his discretion when he ruled

that no reasonable fact-finder could conclude that this

same  chair  leg  was the instrument used  to  sexually

penetrate  H.C.  at Clevelands house in November  2000.

Accordingly,  we  uphold  Judge  Erlichs  ruling   that

Cleveland  failed  to establish the  relevance  of  the

chair leg.

          Clevelands  brief  to  this  Court   contains

scattered sentences in which he continues to argue  the

relevance of the chair leg.  For example, on page 11 of

his  brief,  Cleveland asserts that the chair  leg  was

ostensibly  similar to the instrument [used during  the

sexual  assault].  Likewise, on page 17 of  the  brief,

Cleveland  asserts that the chair leg could  have  been

used  to cause the laceration to [H.C.s body].  Neither

of these assertions is supported by the record.

          In  addition, Cleveland relies  on  the  same

construction  of  Smithart that  we  discussed  in  the

previous  section of this opinion:  the  argument  that

Smithart  allows a defendant to circumvent  the  normal

rules of evidence if the defendant wishes to argue that

someone  else might have committed the crime.  This  is

not what Smithart stands for.



The  trial judges ruling concerning evidence of Morenas
May  2001  assault  on  H.C.:   Clevelands  attempt  to
introduce  evidence of this assault  to  prove  Morenas
propensity to commit assault


          The  final issue raised in this appeal arises

from  Judge  Erlichs  refusal  to  allow  Cleveland  to

introduce any evidence that Harry Morena assaulted H.C.

with  the chair leg in May 2001.  At some point  either

just  before Clevelands first trial or during the early

stages  of  that first trial, Judge Erlich  ruled  that

Cleveland  could not offer evidence of Morenas  assault

on  H.C.  on May 27, 2001.  We do not have a record  of

that  ruling,  but Clevelands attorney  refers  to  the

ruling during the evidentiary hearing of June 13,  2001

(i.e.,  in  the middle of Clevelands first trial).   At

that  June  13th  hearing, the defense  attorney  asked

Judge Erlich to reconsider this issue.

           In  addition to trying to get the chair  leg

itself  into evidence, Clevelands attorney also  wanted

to  call Morena to the stand to question him about  the

May  27th  assault.  After Morena invoked his privilege

against self-incrimination and became unavailable as  a

witness, the defense attorney offered the testimony  of

Trooper  Summey.  Summey was prepared to testify  that,

when  he  interviewed Morena on June 8, 2001 (that  is,

just  five days before the evidentiary hearing), Morena

confessed to beating his sister H.C. with the chair leg

during  an argument at her house on the evening of  May

26-27, 2001.

          The  State  did  not object to this  proposed

testimony   on  hearsay  grounds  (apparently   because

Morenas  statements were so clearly against  his  penal

interest).   However, the State argued  that  Cleveland

was  not entitled to introduce any evidence of the  May

27th  assault.  The State contended that  the  proposed

evidence was barred by Evidence Rule 404(b)(1), because

it  was  evidence  of  a bad act  committed  by  Morena

offered  to prove his propensity to commit similar  bad

acts.

          When the defense attorney responded that  the

May  2001 assault was relevant to show Morenas  motive,

the  prosecutor objected that it was impossible  for  a

later event (i.e., the May 2001 assault at H.C.s house)

to  provide the motive for an earlier event (i.e.,  the

November 2000 sexual assault at Clevelands house).   As

a  matter  of  logic, this is true, but it  misses  the

point.  Clevelands attorney was not arguing that Morena

was motivated to sexually assault H.C. in November 2000

because of something that happened six months later, in

May  2001.   Rather, the defense attorney  argued  that

both  the May 2001 assault and the November 2000 sexual

assault  were  manifestations of  the  same  underlying

motive   by  which the defense attorney actually  meant

trait of character.

          Responding to the prosecutors objection,  the

defense  attorney  clarified  his  position  for  Judge

Erlich:

     
     Defense  Attorney:  [I concede that  the
prosecutor] has a point about ... chronology.
[But  Im]  not talking about a motive  as  we
typically  understand [that  term].   [I  am]
talking  about  a  motive to physically  harm
someone.  And that motive to physically  harm
someone  is,  for  lack of a  better  phrase,
cruelty [or] meanness [or] willingness to see
someone  suffer.  I am asserting  that  these
two  incidents  [i.e., the May  2001  assault
with the chair leg, and the sexual assault in
November  2000] establish [Morenas]  cruelty,
meanness,   willing[ness]  to   see   someone
suffer.   And ... the fact that [the victims]
are  the  same [person] increases the  motive
because  a person who is willing to be  cruel
and  [to] hurt a person [at] time A, whenever
that takes place, ... a person who is willing
to  do  that is presumably willing  to  cause
injury  and  pain and [to] be cruel  to  that
same person at time B.  Thats [my argument].

On  one  level,  the  defense  attorneys  argument  for

admission of this evidence is clearly inconsistent with

Evidence  Rule  404(b)(1).   Rule  404(b)(1)  bars  the

introduction  of  specific  instances  of   a   persons

cruelty, meanness, or willingness to see someone suffer

when  this  evidence is offered to  prove  the  persons

general  propensity to be cruel,  to  be  mean,  or  to

inflict suffering on other people.

However,  the  defense attorney  also  noted  that  the

victim of both assaults was the same person.  In  fact,

during one of the defense attorneys other statements to

Judge  Erlich, he expressly drew an analogy to Evidence

Rule  404(b)(4)  the rule that authorizes the admission

of  a  defendants other acts of domestic violence in  a

prosecution for a crime of domestic violence.  That is,

the defense attorney was arguing that he should be able

to  introduce  evidence  of  Morenas  act  of  domestic

violence  (his  assault on H.C. in May  2001)  for  the

purpose  of  showing that Morena had  a  propensity  to

commit  acts  of domestic violence against  H.C.   and,

thus,  that  Morena had possibly committed  the  sexual

assault at Clevelands house in November 2000.

          Judge  Erlich understood that the defense attorney  was

arguing  that the incident of May 2001 was relevant to show  that

Morena  characteristically engaged in domestic  violence  against

his  sister,  H.C..   And  the  judge  rejected  the  prosecutors

position  that  a  subsequent act could never reveal  the  motive

behind  a prior act.  However, Judge Erlich declared that he  did

not  believe  the defense attorney had demonstrated a  sufficient

connection  between the May 2001 assault and  the  November  2000

sexual assault:

          
               The  Court:   As [the defense  attorney]
          noted,  the  DV  rule  [i.e.,  Evidence  Rule
          404(b)(4)]   doesnt  talk  about   prior   or
          subsequent   act[s].    [But]   as   we   all
          recognize,   its   really   unusual   for   a
          subsequent  act  ... to  relate  back.   [The
          defense attorney] says [that the relevance of
          the  May 2001 assault] is not motive,  quite;
          [rather,] it goes to cruelty, and [that]  its
          not  propensity.  And heres what  my  problem
          is:  I dont think [that], standing by itself,
          the  May  2001  incident is  relevant  unless
          there  [is] something prior to establish  its
          relevance.  I mean, thats the way I  see  it.
          ...   [There]  would [have to]  be  something
          more.
          
A few minutes later, the defense attorney asked for clarification

of the judges ruling:

          
               Defense Attorney:  I want to clarify [my
          understanding  of  your  ruling].   You  have
          found  that the May [2001] incident involving
          Mr.  Morena and [H.C.] is irrelevant  because
          there  appears to be no relation between  the
          May  incident  and the November incident,  is
          that correct?
          
               The  Court:   Thats  partially  correct.
          ...   The  argument  that  something  happens
          after  something [else], and it relates  back
          [to  the earlier event], is an argument thats
          difficult  to  make in the  law[.]   ...   To
          argue  that  the incident that [occurred]  in
          May of 2001 is relevant to the issues in this
          trial,  youd  at least need to [establish]  a
          predicate  of some prior kind of  interaction
          between Mr. Morena and [H.C.] that would fall
          within   the  [domestic  violence  category],
          okay?   Thats  where Im coming  from.   [Does
          that] clarif[y] it?
          
               Defense Attorney:  That does.
          
          In effect, Judge Erlich told the defense attorney, Show

me  more.  I am not convinced that the single assaultive incident

of  May  27,  2001 proves that Morena characteristically  commits

acts  of  domestic  violence  against  H.C..   If  you  bring  me

additional  evidence of a pattern of domestic  violence,  I  will

reconsider my ruling.

          For purposes of the present appeal, it is important  to

remember that Judge Erlich made this ruling during the middle  of

Clevelands  first trial.  This first trial ended in  a  mistrial,

leading to Clevelands second trial (and the convictions which  he

now  appeals).   Thus, the defense attorney had two opportunities

(the  remainder  of Clevelands first trial, and the  entirety  of

Clevelands  second  trial) to present the evidentiary  foundation

that  Judge  Erlich  had asked for  evidence  of  other  acts  of

domestic violence.

          The  defense attorney could have asked H.C. about these

matters.   Indeed, the record shows that this entire  evidentiary

discussion  and ruling took place while H.C. was on  the  witness

stand  at Clevelands first trial.  After Judge Erlich issued  the

ruling  that we have just quoted, the defense attorney  announced

that  he  intended to finish his cross-examination of  H.C.,  and

that  he  wanted  to reserve the right to recall H.C. during  the

defense  case  so  that  he could ask her about  other  incidents

between  herself  and  Harry  Morena   i.e.,  so  that  he  could

establish the domestic violence predicate that Judge Erlich asked

for.

          We  note,  moreover,  that most of  the  witnesses  who

testified at Clevelands trial (all of them except Dr. Wilson  and

the  state  troopers)  were residents of  the  small  village  of

Ambler,  and many of these witnesses were related to each  other.

They   were  presumably  acquainted  with  each  others  domestic

affairs,  and  they  might have provided  information  about  the

relationship  between H.C. and Morena even if  H.C.  herself  was

reticent on this topic.

          We  have no transcript of the testimony from Clevelands

first trial, so we do not know if Clevelands attorney pursued the

question  of other acts of domestic violence during the remainder

of  that  first trial.  But we do have a transcript of Clevelands

second trial.  And at the second trial, the defense attorney  did

not question H.C. about her relationship with Morena, nor did  he

ask any other witness about this topic.

          In particular, the defense attorney did not ask H.C. to

describe  any  prior  incidents in which Morena  acted  violently

toward her or physically abused her, nor did the defense attorney

ask  H.C. about any other prior incidents that might have created

ill-will  between herself and Morena.  Not only did  the  defense

attorney fail to ask H.C. about these matters, but he did not ask

any other witness about these matters, and he made no other offer

of proof about these matters.

          From  the defense attorneys silence on this issue, from

his  failure to try to establish the foundational predicate  that

Judge Erlich had asked for, we can only conclude that the defense

attorney  had  no  further  evidence  of  domestic  violence   or

animosity between Morena and H.C..

          Judge  Erlich did not irrevocably shut the door on  the

defense  attorneys effort to introduce evidence  of  Morenas  May

2001  assault on H.C. with the chair leg.  Instead, Judge  Erlich

told  Clevelands  attorney that he was not  convinced  that  this

single incident proved that Morena characteristically engaged  in

this  type  of  behavior,  but  he  was  willing  reconsider  the

admissibility of the May assault if the defense attorney  offered

evidence of some other incident of domestic violence between H.C.

and Morena.

          Given  Judge  Erlichs ruling, Clevelands  attorney  was

obviously motivated to offer this additional evidence if  it  had

existed.   But he did not offer it  even though Morenas statement

to  Trooper Summey clearly suggested that there had been at least

one  prior  incident in which Morena took H.C.s four-wheeler  and

damaged  some  of her property.   Indeed, on pages 13-14  of  his

brief to this Court, Clevelands attorney refers to this aspect of

Morenas  statement.  Clevelands attorney declares  that  [i]t  is

instructive  to  note  that the record is  incomplete  about  the

timing of the thefts and destruction of H.C.s property by Morena.

          The  fact that the record contains no clarification  of

these matters may indeed be instructive, but probably not in  the

sense Clevelands attorney intended.  The defense attorney was  on

notice  that  this  evidence  was  needed,  and  he  had  a  full

opportunity  to ask H.C. (or any other resident of Ambler)  about

these topics, and yet he did not.  In fact, the record shows that

Clevelands  attorney  never asked Judge  Erlich  to  revisit  the

question  of whether the defense could offer evidence of  Morenas

May 27th assault on H.C..  From this, the instruction we draw  is

that  there was no admissible evidence of any other incidents  of

violence or abuse between Morena and H.C..

          On  appeal, Cleveland asserts (on page 14 of his brief)

that  the  record presented to Judge Erlich establish[ed]  beyond

any  doubt  a  continuing  pattern of victimization  of  H.C.  by

Morena.   But this was precisely the assertion that Judge  Erlich

concluded had not been proved.   In effect, Judge Erlich told the

defense attorney that he was not convinced that a single  act  of

violence (the May 27th assault) established a pattern of violence

or  abuse, or that it otherwise adequately supported the  defense

attorneys  underlying  assertion that  Morena  characteristically

assaulted his sister.

          Judge  Erlich  told  Clevelands attorney  that  if  the

defense  could offer evidence of any prior incident  of  domestic

violence, then he would be willing to re-assess the relevance and

admissibility of the May 27th assault.  But, as we have explained

here, Clevelands attorney offered nothing further.

          We  will assume, for purposes of argument, the validity

of  Clevelands  underlying contention that Alaska  Evidence  Rule

404(b)(4)  might authorize the admission of evidence of  domestic

violence committed by people other than the defendant.  But  even

if  we  make that assumption, the question remains whether  Judge

Erlich  abused his discretion when, in the absence of any further

proof  that  there  was a history of violence  or  abuse  between

Morena  and H.C., the judge declined to allow Clevelands attorney

to  offer  evidence of the May 27th assault for  the  purpose  of

showing  that  Morena was characteristically abusive  or  violent

toward H.C..

          In  Bingaman v. State, 76 P.3d 398 (Alaska App.  2003),

we  cautioned that even though an act might qualify  as  domestic

violence under the expansive definition  codified in AS 18.66.990

(and incorporated by reference in Evidence Rule 404(b)(4)), trial

judges  must be vigilant to control the admission of other-crimes

evidence  under  Rule  404(b)(4).  Judges  must  carefully  gauge

whether the other crime that the State proposes to prove actually

supports  the  inference  for which  it  is  offered  under  Rule

404(b)(4):   the  inference that a person who has committed  this

other  crime is a person who characteristically engages  in  this

type of crime, and is therefore more likely to have committed the

crime being litigated.  Id. at 412-13.

          We note that there are many types of assault.  The fact

that  a  person  has  engaged in one type of  assault  might  not

necessarily   be   probative  of  that  persons  willingness   or

propensity  to engage in another kind of assault.  For  instance,

in  Carpentino v. State, 38 P.3d 547, 553-54 (Alaska App.  2002),

we  upheld  a  trial  judges ruling that the  defendants  alleged

sexual  abuse  of a male child was not sufficiently probative  of

his  propensity  to sexually abuse a female child  to  make  this

evidence  admissible  under  Evidence  Rule  404(b)(2).   And  in

Bingaman itself, we pointed out that a defendants willingness  to

engage  in  one  sort of sexual assault might not necessarily  be

probative of the defendants willingness to engage in another sort

of sexual assault.  Bingaman, 76 P.3d at 412.

          In the present case, Cleveland wanted to offer evidence

that  Morena  had gotten into an argument with his sister,  H.C.,

and  had  beaten  her over the head with a chair leg.   Cleveland

asserted  that  this  evidence was relevant to  the  issue  being

litigated at his trial:  the identity of the person who  sexually

assaulted  H.C.  at Clevelands house.  But Judge Erlich  was  not

required  to  unquestioningly accept the  underlying  premise  of

Clevelands  argument  the premise that if Morena was  willing  to

beat his sister on the head with a stick on one occasion, then he

was a person who characteristically assaulted his sister, and  he

therefore  was more likely to have raped his sister in  a  manner

likely to inflict severe internal injuries on her.

          This is the same problem of relevancy that we discussed

in Bingaman:  the issue of whether it is reasonable to infer that

a  person  who  commits  one kind of assault  (here,  a  physical

assault) is therefore more likely to commit a different  kind  of

assault  (sexual  assault).   Although  reasonable  judges  might

differ in their evaluations of this issue, we conclude that Judge

Erlich  did not abuse his discretion when he concluded  that  the

defense attorneys proposed inference concerning Morenas character

was  not  self-evident  from the single  incident  of  assaultive

behavior in May 2001.  Therefore, Judge Erlich did not abuse  his

discretion  when  he required Cleveland to offer some  additional

evidence  of  the relationship between Morena and H.C.   evidence

suggesting  that the May 27th assault was part of  a  pattern  of

domestic violence or abuse, or evidence otherwise suggesting that

the  May  27th assault was but one manifestation of an underlying

antagonism  between Morena and his sister  before he would  allow

Cleveland to introduce evidence of the May 27th assault and argue

to the jury that this assault made it more likely that Morena was

the perpetrator of the November 2000 sexual assault.

          As  we  have  explained, Cleveland offered  no  further

evidence on this point.  Accordingly, Judge Erlich did not  abuse

his discretion when he barred Cleveland from introducing evidence

of the May 2001 assault.

          As  was  true  with  respect  to  Judge  Erlichs  other

evidentiary  rulings, Cleveland again argues that Smithart  gives

him  the  right  to introduce evidence of the May  2001  incident

despite Judge Erlichs finding that this evidence was not relevant

for  the  purpose  that Cleveland offered it  i.e.,  despite  the

judges  finding that the May 2001 incident, standing  alone,  did

not  establish  Morenas  characteristic  propensity  to  sexually

assault  his sister.  But, as explained above, Smithart does  not

bar a trial judge from enforcing the rules of evidence against  a

defendant.



     Conclusion   regarding  Clevelands   attacks   on   his
     conviction
     

               For the reasons explained here, each of Judge

     Erlichs   three  challenged  evidentiary   rulings   is

     supportable  under  the  facts  of  the  case  and  the

     governing law.  We therefore uphold those rulings,  and

     we accordingly affirm Clevelands convictions.

     

     Clevelands sentence appeal
     

               Cleveland   was  convicted  of  second-degree

     sexual  assault (sexual penetration of an incapacitated

     person), second-degree assault (reckless infliction  of

     serious physical injury), and manufacturing alcohol  in

     a local option area.  Both second-degree sexual assault

     and  second-degree assault are class B felonies,  while

     the  offense of manufacturing alcohol in a local option

     area is a class C felony.11

               Cleveland  had previously been  convicted  of

     two  felonies.   In 1980, he was convicted  of  second-

     degree  assault  after  he  attacked  someone  with   a

     screwdriver.   And in 1985, Cleveland was convicted  of

     first-degree  sexual assault for raping his  sister-in-

     law  after  an  evening  of  drinking.   Cleveland  was

     sentenced  to  15  years  in  prison  for  this  sexual

     assault.

          In  addition to these felonies, Cleveland had

several other convictions for assault between 1979  and

1985  (when  he  was  imprisoned for  the  first-degree

sexual assault).  And he was convicted of two counts of

fourth-degree assault in October 2000  i.e., the  month

before  the sexual assault in this case.  Finally,  the

pre-sentence report contained an unrebutted  allegation

that  Cleveland committed another rape in 1982, a crime

that  went  unprosecuted because  the  victim  did  not

report it.

          Because Cleveland was a third felony offender

for  presumptive sentencing purposes, he faced a 6-year

presumptive  term for the second-degree sexual  assault

          and second-degree assault convictions, and he faced a 3-

year  presumptive  term  for the manufacturing  alcohol

conviction.12

          Judge  Erlich found that the State had proved

six  aggravating factors under AS 12.55.155(c):  (c)(1)

that   Clevelands  victim  sustained  physical  injury;

(c)(4)   that Cleveland used a dangerous instrument  in

furtherance of the offense; (c)(5)  that Cleveland knew

that  the  victim  was particularly vulnerable;  (c)(7)

that  one  of Clevelands prior felonies was of  a  more

serious  class  of  offense than  his  present  crimes;

(c)(8)    that  Clevelands  criminal  history  included

aggravated or repeated instances of assaultive conduct;

(c)(10)   that  Clevelands conduct  in  committing  the

physical assault was among the most serious within  the

definition of that offense, because Clevelands  conduct

actually   amounted   to  first-degree   assault;   and

(c)(18)(B)  that Cleveland had committed another sexual

assault involving the same or similar conduct.

          Based  on  these aggravators,  and  based  on

Clevelands  extensive  history  of  assaultive  crimes,

Judge  Erlich concluded that isolation was the  primary

sentencing  goal  in  Clevelands  case.   He  sentenced

Cleveland  to a composite term of 19 years imprisonment

for these three crimes.13

          Judge   Erlich   recognized   that,   because

Clevelands  sentence exceeded the 10-year maximum  term

of  imprisonment that Cleveland could have received for

his  most  serious offenses (the two class B felonies),

the judge could not impose the 19-year sentence without

finding  that this length of imprisonment was necessary

to protect the public.  See Neal v. State, 628 P.2d 19,

21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381

(Alaska  1977).   However,  the  judge  did  make  this

finding,  based  on  Clevelands  history  of  violence,

          violence that appeared to be most often triggered when

Cleveland  was  drinking, and based on  the  fact  that

previous  lengthy prison sentences had failed to  deter

Cleveland from further violent crimes.

          In   his   brief  to  this  Court,  Cleveland

concedes  that  he  has a history of violence,  but  he

argues that his criminal history does not support Judge

Erlichs decision to impose a composite sentence that is

nearly  double  the  maximum  sentence  for  either  of

Clevelands   most  serious  crimes  (the  second-degree

sexual assault and the second-degree assault).

          Judge   Erlich   concluded  that   Clevelands

current crimes were aggravated, and the record supports

this conclusion.  Judge Erlich could also properly take

account  of Clevelands lengthy history of violence  and

sexual  assault.  In addition, the judge could properly

consider  the  fact  that  a  previous  lengthy  prison

sentence  had failed to deter Cleveland from committing

two more violent felonies.

          We  have previously upheld atypically lengthy

prison   sentences   for   defendants   who   committed

apparently  inexplicable acts  of  extreme  violence.14

While  the  cases  in  the  accompanying  footnote  are

homicide  cases,  we conclude that the  same  principle

applies to Clevelands case.  Given Clevelands status as

a   third  felony  offender,  his  lengthy  history  of

assaults  and  sexual  assaults,  his  failure  to   be

deterred   by  previous  prison  sentences,   and   his

apparently  inexplicable  decision  to  inflict  severe

injuries  on the victim in this case, we conclude  that

Judge Erlich was not clearly mistaken when he imposed a

sentence that exceeded the normal 10-year ceiling under

the Neal-Mutschler rule.15



Conclusion


          The  judgement  of  the  superior  court   is

AFFIRMED.



_______________________________
     1 AS 11.41.420(a) and AS 11.41.210(a), respectively.

     2  Smithart  v. State, 988 P.2d 583, 586-592 (Alaska  1999),
interpreting Marrone v. State, 359 P.2d 969, 984-85 n. 19 (Alaska
1961).

3  We  are  speaking here of the testimony  given  by  these
witnesses  at Clevelands second trial.  Cleveland was  tried
twice; his first trial ended in a mistrial.  We do not  have
a transcript of the testimony at that first trial.

4 Id., 899 P.2d at 1375, citing Idaho v. Wright, 497 U.S.
805,  822-24; 110 S.Ct. 3139, 3150-51; 111 L.Ed.2d  638
(1990).

5 Marrone, 359 P.2d at 984.

6  Quoting this Courts earlier decision in Smithart  v.
State, 946 P.2d 1264, 1281 (Alaska App. 1997).

7 Smithart, 988 P.2d at 586.

8 Garroutte, 683 P.2d at 264-65.

9  Alaska  Evidence  Rule 804(b)(3)  states  that  when  [a]
statement  tending  to  expose  the  declarant  to  criminal
liability  [is]  offered  to  exculpate  the  accused,   the
statement    is    not   admissible   unless   corroborating
circumstances  clearly indicate the trustworthiness  of  the
statement.

10   Garroutte, 683 P.2d at 265.

11      See   AS   11.41.420(b),   AS   11.41.210(b),   and    AS
04.16.200(b).

12   See AS 12.55.125(d)(2) and AS 12.55.125(e)(2).

13    On  both  the sexual assault and the physical  assault
convictions, Judge Erlich sentenced Cleveland  to  10  years
imprisonment.   The judge imposed 6 years  of  the  physical
assault   sentence  consecutively  to  the  sexual   assault
sentence,  for a total of 16 years to serve.   In  addition,
Judge  Erlich  sentenced Cleveland  to  serve  5  years  for
manufacturing  alcohol,  of  which  3  years  were   imposed
consecutively  to  Clevelands sexual  assault  and  physical
assault.  Thus, Clevelands total time to serve is 19 years.

14    See  Hamilton v. State, 59 P.3d 760, 772 (Alaska  App.
2002);  Cheely  v.  State, 861 P.2d 1168, 1178-1180  (Alaska
App.  1993);  Norris v. State, 857 P.2d 349, 356-58  (Alaska
App. 1993); Gustafson v. State, 854 P.2d 751, 763-67 (Alaska
App. 1993); Monroe v. State, 847 P.2d 84, 92-93 (Alaska App.
1993);  Page  v.  State, 657 P.2d 850, 853-55  (Alaska  App.
1983);  Faulkenberry v. State, 649 P.2d 951, 956-57  (Alaska
App. 1982).

15    See  McClain  v. State, 519 P.2d 811,  813-14  (Alaska
1974) (an appellate court is to affirm a sentencing decision
unless the decision is clearly mistaken).