Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Snyder v. State (06/03/2005) ap-1985
Snyder v. State (06/03/2005) ap-1985
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
SAMUEL H. SNYDER, )
) Court of Appeals No.A-8720
Appellant, ) Trial Court No. 4BE-03-258 CR
)
v. ) O P I N IO N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1985 - June 3, 2005]
)
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Dale O. Curda, Judge.
Appearances: Sharon Barr, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Timothy
W. Terrell, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Samuel H. Snyder was charged with sexual assault in the
second degree for engaging in sexual intercourse with M.K., who
was either incapacitated or did not know that the sexual act was
being committed. Snyder argues that Superior Court Judge Dale O.
Curda erred in excluding two witnesses who would have testified
that, just two weeks after the assault, M.K. went to the auto
parts store where Snyder worked, and Snyder assisted her.
According to the two witnesses, during this encounter, M.K. spoke
amicably with Snyder and did not appear to be frightened of or
angry with him. We conclude that Judge Curda erred in excluding
this testimony and we reverse Snyders conviction.
Factual background
In the early morning hours of October 13, 2002, M.K.
went drinking in Bethel with two of her friends, Tamara Evon and
Marilyn Wassillie. The three women drove around town. Evon was
driving, and M.K. and Wassillie drank. M.K.s friends dropped her
off at the BNC apartments where M.K. had more drinks with a man
and woman she knew. M.K. then took a cab home.
From her home, M.K. then walked to her cousin Cindy
Pauls house. Paul did not answer her door, so M.K. continued on
to the home of Samuel H. Snyder. M.K., Snyder, and her late
brother, James, had all grown up together. M.K. considered
Snyder to be a friend. Since her brothers death, M.K. had become
depressed, and she wanted to talk to Snyder about him. Snyder
and M.K. sat on his porch drinking and talking about M.K.s
brother.
At some point, M.K. claims she blacked out. M.K awoke
hours later and found that she was inside Snyders living room
with her pants and underwear pushed down to her knees. She had
no memory of how she got from the porch to the living room. M.K.
could feel that someone had had sex with her. M.K. was still
very intoxicated. She got dressed and went next door to the
house of her cousin Marie Lekander. Lekander was awakened by
M.K.s knocking and answered the door. She found M.K. disheveled,
crying, and intoxicated. M.K. told Lekander that she had been
raped. Lekander called the police and Bethel Police Officer Terry
Stonecipher responded.
Officer Stonecipher found M.K. curled up in a corner
crying. It was apparent to Officer Stonecipher that M.K. was
still intoxicated. Although he found it difficult to get
information from M.K., Officer Stonecipher determined that a
sexual assault exam was necessary.
At the hospital, M.K. was examined by Kayle York, a
nurse trained in treating sexual assault victims. York also
found M.K. to be very intoxicated. York discovered that M.K.s
blood alcohol level was still .223 percent.
Officer Stonecipher obtained a warrant to search
Snyders house. He executed the warrant and interviewed Snyder.
Initially, Snyder denied having sex with M.K. He later admitted
having sex with her, but explained that he had thought she wanted
to have sex. He claimed she herself had pulled down her pants
and underwear while sitting on his couch.
Snyder also told Officer Stonecipher that M.K. had been
visibly intoxicated when she arrived at his house around 4:30
a.m. Snyder turned over to Officer Stonecipher a used condom.
Snyder was indicted for one count of sexual assault in
the second degree, on the theory that he engaged in sexual
penetration with M.K. while she was either incapacitated or
unaware that a sexual act was being committed.1
Snyder defended on the ground that either M.K. had
consented to the sexual penetration or he at least had reasonably
believed that she was consenting. In support of his case, Snyder
sought to call two witnesses, Richard Yager and Barbara
Engebreth. Yager and Engebreth testified in an offer of proof out
of the presence of the jury. They testified that, just two weeks
after the assault, M.K. went with Engebreth to an auto parts
store where Snyder worked. Yager was present because he was the
manager of the auto parts store. Snyder assisted M.K. at the
store. During this encounter, M.K. and Snyder appeared to be
friendly with each other and M.K. did not appear to be afraid of
or angry with Snyder. Ingebreth testified that she did not
recall M.K. making any negative comments about Snyder either
before or after she spoke to him. Snyder contended that M.K.s
behavior at the auto parts store was inconsistent with her
assertion that Snyder had engaged in sexual intercourse with her
while she was either incapacitated or unaware that he was
committing the sexual act.
After hearing this offer of proof, Judge Curda
concluded that the proposed evidence was not admissible. Judge
Curda applied Evidence Rule 403, under which a trial judge may
exclude testimony if the judge concludes that the probative value
of the testimony is outweighed by the danger of unfair prejudice.
Judge Curda found that the proposed evidence had very low
probative value. Judge Curda reasoned that M.K. had no reason to
be afraid of Snyder at the auto parts store. The store was full
of people and M.K. had a friend with her. Judge Curda also
described Bethel as a small place where people were generally
friendly to each other. He concluded that there was nothing
unusual about M.K.s being friendly towards Snyder, and that there
was a risk of confusing the jury by bringing an additional issue
into the trial.
This court addressed a similar issue in Kitchens v.
State.2 In Kitchens, the defendant was convicted of breaking
into the victims Anchorage apartment and sexually assaulting
her.3 The day after the assault, the victim moved out of state.4
The victim did not report the assault right away, and contended
that this was partly because Kitchens had threatened to kill her
if she did.5
Kitchens attempted to present testimony (from the
victims ex-boyfriend) that the victim decided to return to
Anchorage despite the fact that, after Kitchens had been indicted
for the sexual assault, he was released on bail. The witness
would have testified that it was his personal observation that
the victim was totally carefree and unconcerned with the fact
that Kitchen would be out of custody in the city to which she was
returning.6 The trial court excluded this testimony on the
ground that it was impermissibly speculative opinion evidence.7
This court disagreed with the trial courts ruling that
the ex-boyfriends observation of the victims demeanor was
impermissible opinion evidence. We stated:
Evaluation of personal demeanor is an
inherent part of ordinary social interaction
and, in most situations, entails little more
than commonsense judgment. Hence, if
demeanor is relevant, there is ordinarily
nothing impermissible in asking a witness to
describe the demeanor of a person with whom
the witness has spoken. The trial court
erred in concluding that the proposed inquiry
called for speculative opinion evidence.[8]
We then went on to conclude that evidence of the
victims carefree attitude was relevant to undermine the
credibility of the victims claim that she had not reported the
rape in part because Kitchens had threatened to kill her:
Evidence of [the victims] carefree attitude
was at least marginally relevant to Kitchens
consent defense and tended to undermine [the
victims] credibility, since [the victims]
apparent lack of fear might indicate that in
actuality she had no reason to fear Kitchens
that Kitchens had never threatened her.
Because we find nothing in the record to
support the conclusion that this evidence had
any potential for prejudice that might have
outweighed its probative value, we conclude
that the trial court erred in excluding
it.[9]
The same reasoning we applied in Kitchens leads us to
conclude that Judge Curda erred in excluding the testimony that
described M.K.s apparently friendly interaction with Snyder at
the auto parts store. The State attempts to distinguish Kitchens
on the ground that Snyder was not charged with a forceful rape of
M.K. He was charged with having sexual intercourse with M.K.
while she was either incapacitated or unaware that the sexual act
was being committed. But, in presenting its case, the State
relied on evidence that M.K. was extremely upset after she
concluded that Snyder had sexual intercourse with her while she
was incapacitated. The States argument also ignores Snyders
theory of the case, that M.K. initially consented to the sexual
intercourse, or at least acted as if she did. Snyder theorized
that M.K. might later have changed her mind or, in her
intoxicated state, could not remember what happened. Snyder
wanted to argue that M.K.s interaction with him at the auto parts
store was inconsistent with her testimony that Snyder had sexual
intercourse with her while she was incapacitated or unaware of
the sexual act and that she was extremely angry with Snyder for
taking advantage of her.
Judge Curdas evaluation of M.K.s interaction with
Snyder at the auto parts store is certainly a plausible
conclusion from the evidence. M.K. might have felt safe in that
situation and might have concluded that being friendly to Snyder
was the most sensible way to handle an awkward situation. But
the opposite conclusion is also possible. M.K.s interaction with
Snyder at the auto parts store might very well be inconsistent
with her claim that Snyder had engaged in sexual intercourse with
her while she was incapacitated or unaware. The point is that
Snyder was entitled to a jury trial. It was up to the jury to
determine the weight to give the evidence. We do not believe
that having the two witnesses testify before the jury would have
taken an inordinate amount of time or would have confused the
jurors. The testimony was relevant for the jury to evaluate
M.K.s credibility. We conclude that Judge Curda erred in failing
to allow Snyder to present this evidence.
Relying on Kitchens, the State argues that, if Judge
Curda erred, the error was harmless. In Kitchens we found the
error in failing to admit the evidence of the victims post-
incident behavior was harmless error. But in Kitchens, the State
had a very strong case against the defendant. The State had a
tape-recorded telephone call in which Kitchens admitted that he
had raped the victim. Furthermore, Kitchens was able to cross-
examine the victim about her return to Alaska. And the victim
essentially conceded the matters which Kitchens wanted to
establish with independent testimony.10 We therefore concluded
that the failure to admit the independent evidence was harmless
error. But Snyders case is different. M.K.s credibility was
critical to determining Snyders guilt or innocence. Snyder was
unable to get the evidence of his contact with M.K. at the auto
parts store into evidence. And, as we have pointed out, the jury
might have found this evidence important to evaluate M.K.s
credibility. We accordingly conclude that the error was not
harmless.
Conclusion
The trial court erred in refusing to allow Snyder to
introduce evidence of his interaction with M.K. at the auto parts
store. And we conclude that this evidence was important for the
jury to evaluate M.K.s credibility. We accordingly reverse
Snyders conviction.
The conviction is REVERSED.
_______________________________
1 AS 11.41.420(a)(3)(B), (C).
2 898 P.2d 443, 451-52 (Alaska App. 1995).
3 Id. at 444-45.
4 Id. at 446.
5 Id. at 445.
6 Id. at 451.
7 Id. at 448.
8 Id. at 451.
9 Id.
10 Id. at 452.
