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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
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Courts:
303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| EDWARD H. ACTIVE, | ) |
| ) Court of Appeals No. A-8984 | |
| Appellant, | ) Trial Court No. 3DI-03-436 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2086 March 9, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Dillingham, Fred Torrisi,
Judge.
Appearances: Dan S. Bair, Assistant Public
Advocate, and Chad W. Holt, Supervising
Assistant Public Advocate, Anchorage, for the
Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Edward H. Active appeals his convictions for first-
degree burglary, attempted first-degree sexual assault, and
fourth-degree assault. Active argues that the trial judge
improperly allowed the State to play (and the jury to hear) audio
tapes of the victims prior statements to a police investigator.
Active also argues that the trial judge improperly allowed the
State to introduce evidence of Actives 1993 conviction for second-
degree sexual assault (involving another victim). Finally,
Active argues that he was sentenced in violation of his Sixth
Amendment right to jury trial as interpreted in Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
For the reasons explained here, we conclude that the
challenged evidence was properly admitted, and we also conclude
that Actives sentencing conformed to Blakely. We therefore
affirm Actives convictions.
Background facts: the States case against Active
The charges in this case arose from events
that occurred in August 2003 in Twin Hills and Togiak.
Active was involved in a long-term romantic
relationship with C.M.. C.M. had a house in Togiak,
and Active often stayed with her. During their
relationship, Active was occasionally physically
violent toward C.M., to the point of bruising her, but
C.M. repeatedly refused to bring charges (or to
cooperate in the investigation of potential charges).
On August 3, 2003, Active and C.M. were
visiting friends in the village of Twin Hills. Active
thought that C.M. was paying too much attention to
another man, and he began roughing up C.M.. C.M.
telephoned her mother in Togiak and asked her for
assistance. In response, C.M.s mother called a family
friend, Gladys Small, who lived in Twin Hills, and
asked her to check on C.M.s welfare.
Small went looking for C.M.. When she found
her, she observed that C.M.s face and eyes were
swollen and bruised. Small and her boyfriend
transported C.M. back to her mothers house in Togiak.
When C.M.s mother saw her daughters bruises, she called
the police. However, C.M. refused to allow the police
to take photographs of her bruises, and she would not
bring charges against Active.
Even though C.M. declined to press charges
for the August 3rd assault, she did ask Active to leave
her house and stay somewhere else for a while. C.M.
also contacted her brother and had him install a new
metal plate on her door, so that it could be locked
securely.
In the early morning of August 7th, Active
came to C.M.s house and started to break in. While
this was happening, C.M. telephoned her stepsister,
June Logusak. C.M.s nephew, Craig Logusak, answered
the telephone. C.M. sounded scared, and (over the
telephone) Craig could hear a sound similar to the
sound of metal striking metal. (The metal
reinforcement of C.M.s door sustained damage during
that night.)
C.M. asked Craig to have his mother (i.e.,
C.M.s stepsister) come to her aid immediately because
someone was trying to break in through the door. Craig
woke up his parents and told them that C.M. needed
help.
June Logusak and her husband threw on some
clothes and ran to C.M.s house. Logusak knocked on the
door for several minutes, but no one answered. She
then tried to open the door, but it would not open.
Logusak and her husband then went around to the side of
the house where C.M.s bedroom was located. A light was
on in the bedroom, the bedroom window was broken, and a
blanket was hanging over the broken window.
Logusak called out to C.M., but C.M. did not
immediately answer. When C.M. finally responded,
Logusak announced that she and her husband were outside
the window, and they wanted to know if C.M. was all
right. When Logusak asked C.M. if she was alone, C.M.
mumbled a response, but Logusak heard C.M. say Aki
C.M.s pet name for Active.
Logusak and her husband stood outside the
window for twenty minutes, waiting to see if anything
else happened, and trying to assure themselves that
C.M. was all right. They then returned to their home.
Both C.M.s mother and C.M.s brother called
her house around 8:00 in the morning, but C.M. did not
answer their calls. However, a short time later, C.M.
came out of her house. C.M.s mother (who lived just a
few feet away) saw that C.M. was crying and that her
face was bruised. C.M. said that she had been sexually
assaulted, and that she was tired of being beaten up.
C.M. then went to the local clinic, where it
was discovered that she had suffered a perforated
eardrum. This time, C.M. allowed the clinic staff to
take photographs of her bruises.
Togiak Police Officer John Kirby went to the
clinic and interviewed C.M.. C.M. told Kirby about the
earlier assault in Twin Hills, and how she had told
Active to leave her house, as an alternative to
pressing charges against him. With respect to the
assault that had just occurred, C.M. told Kirby that
Active assaulted her because he thought he had heard
C.M. with someone else in her bedroom.
C.M. described how Active had broken into her
bedroom: he threw an object against the window pane
and broke it, then reached in and slid the window open.
Active then physically and sexually assaulted C.M. for
hours. C.M. cried and told Active to leave, but she
did not fight back because she feared that Active would
hurt her worse if she did. Active finally left (again,
by climbing through the window) after it became day and
C.M.s mother started calling her house, and Active
realized that more people would be coming to the house
to check on C.M..
The next day (August 8th), Kirby conducted a
follow-up interview with C.M.. C.M. confirmed that
Active had broken into her house by breaking the window
and that Active had sexually attacked her although she
said that he did not succeed in penetrating her. C.M.
also told Kirby that, during the attack, Active
threatened her with a pair of scissors. And she
reiterated that Active left her house only after her
mother and brother both called, and Active realized
that people would be coming to check on C.M..
Based on these events, Active was charged
with first-degree burglary, attempted first-degree
sexual assault, and two counts of fourth-degree assault
one for the physical assault that accompanied the
attempted sexual assault in C.M.s house, and the other
for the previous assault in Twin Hills.
Two months after Active was indicted, C.M.
executed an affidavit in which she declared that she
had maliciously, intentionally[,] and untruthfully
accused Edward Active of wrong doing. C.M. stated in
this affidavit that Edward never sexually assaulted
[her] and that any sexual activity between [them] has
always been consensual. C.M. further stated that
Active had not burglarized her house. Rather, she
declared, Edward has always had access to our home, and
he never came into the house through any other way
[than] through the front door. C.M. declared that she
had lied about Active because [she] was angry with
[him] after hearing many rumors of [his] infidelity.
C.M.s testimony at Actives trial, and the States
request to play the audio tapes of her two interviews
with Officer Kirby
One of the major issues presented in this
appeal is whether the prosecutor laid a sufficient
foundation for the introduction of C.M.s out-of-court
statements to Officer Kirby. These statements were
offered as prior inconsistent statements, so the State
was obliged to comply with the foundational
requirements of Alaska Evidence Rule 801(d)(1)(A) and
Alaska Evidence Rule 613(b) before offering the
statements.
Rule 801(d)(1)(A) states that, [u]nless the
interests of justice otherwise require, a witnesss
inconsistent statements shall be excluded unless ...
the witness was so examined while testifying as to give
the witness an opportunity to explain or to deny the
statement[,] or ... the witness has not been excused
from giving further testimony in the action.
Rule 613(b) states that [b]efore extrinsic
evidence of a prior contradictory statement [of a
witness] may be admitted, the examiner shall lay a
foundation for impeachment by affording the witness the
opportunity, while testifying, to explain or deny [the
contradictory] statement, ... except as provided in
subdivision (b)(1) of this rule. Subsection (b)(1)
states that the court has the discretion to allow the
inconsistent statement to be introduced before the
required foundation is laid, and to have the witness
later recalled for the purpose of laying a foundation
for impeachment, if the court is satisfied that [the
examiners] failure to lay a foundation earlier was not
intentional, or if intentional was for good cause. In
addition, subsection (b)(1) authorizes the court to
allow the introduction of the inconsistent statement
even if no foundation is ever laid, if the court is
convinced that introduction of this evidence is in the
interests of justice.
Because Active challenges the adequacy of the
governments foundation for C.M.s prior statements to
the investigating officer, we will describe the
prosecutors examination of C.M. in some detail.
C.M. was called as a government witness at
Actives trial. However, as explained more fully below,
C.M. claimed to remember little of what had happened to
her, and little of what she had said to other people
about these events.
C.M. was insistent on only three points.
First, Active had not burglarized her house by breaking
in through the window; rather, he used his key to enter
her house. Second, Active had not sexually assaulted
her; rather, they had engaged in consensual sex.
Third, although C.M. claimed not to remember exactly
what she told Officer Kirby, she declared that, to the
extent that she had accused Active of burglarizing her
house and sexually assaulting her, her statements to
Kirby were lies accusations that she invented because
she was upset with Active and wanted to get him in
trouble.
With this preface, we now turn to the details
of the prosecutors direct examination of C.M..
When the prosecutor asked C.M. about the
assault that occurred at Twin Hills, C.M. acknowledged
that she and Active went to visit friends in that
village, and that Active became angry at her because he
thought that C.M. was coming on to somebody else. C.M.
recalled struggling with Active, but when the
prosecutor asked C.M. if Active struck her, C.M.
declared, I dont remember.
C.M. admitted that the police wanted to take
photographs of her, so that they could file charges,
but C.M. did not allow this.
C.M. admitted that she described these events
to Officer Kirby when he interviewed her, but C.M.
could not remember what she told him.
The prosecutor then asked C.M. if she
remembered something happening to her on the day of the
incident in this case. C.M. answered, No. The
prosecutor then prompted, Do you remember [that]
somebody broke your window? C.M. answered, Yes. The
following colloquy ensued:
Prosecutor: Okay. Tell us the first
thing you remember from that date.
C.M.: Just that there was a window
being broken, and I picked up the telephone
and called my stepsister.
Prosecutor: Now, who was in your house
[at that time]?
C.M.: Just myself.
Prosecutor: Okay. ... Who did you
talk to on the phone at your stepsisters
house?
C.M.: My nephew [Craig] answered the
phone.
Prosecutor: ... And do you remember
what you told Craig?
C.M.: No, I dont.
Prosecutor: Isnt it true that you told
him that someone was banging on your door and
trying to get into your house?
C.M.: I dont remember. ... I dont
remember exactly what I said to him.
Prosecutor: ... What did you ask your
nephew to do?
C.M.: I dont think I asked him to do
anything. I dont remember the conversation
with him. ... I dont recall.
Prosecutor: Why did you call over there
if you werent going to ask him to do
anything?
C.M.: I dont know. I just dont
remember what I said to him.
The prosecutor then asked C.M. to describe what
happened that night after her window was broken. C.M.
responded, I dont remember a lot of that evening. I
know [that Active] was there; he was there with me.
The prosecutor then told C.M. that he wanted to take
her narrative step by step:
Prosecutor: You were asleep when your
window was broken, is that correct? (Pause)
Youve got to answer out loud ...
C.M.: Yes.
Prosecutor: ... And, so, whats the
next thing you remember after your window
being broken?
C.M.: Being on the telephone, calling
Craigs [house].
Prosecutor: Okay. And then whats the
next thing you remember after that?
C.M.: I dont remember a whole lot of
that evening. I dont know.
Prosecutor: Well, Im just asking you
what the next thing was.
C.M.: Talking to him [i.e., Active].
Laying in bed with him.
Prosecutor: Okay. You dont remember
how he got into the house?
C.M.: He came to the door.
Prosecutor: Okay. So were you in bed
with [Active] at the time your stepsister
came over Ms. Logusak?
C.M.: Yes.
Prosecutor: Okay. And how long do you
think it took [your stepsister] to get over
[to your house]?
C.M.: I dont know. I dont know.
Prosecutor: [But] sometime between the
time the window got broke[n] and the time Ms.
Logusak came over, Mr. Active came in
[through] your front door?
C.M.: Yes.
Prosecutor: Okay. And he immediately
lay down in bed with you?
C.M.: I dont remember. I know we were
talking, and I was asking [him] about where
he was, and ...
Prosecutor: Okay. Had you invited him
into the house?
C.M.: [No, ] he came in with his key.
...
Prosecutor: Okay. And did you [two]
talk about someone breaking your window?
C.M.: No, I dont remember talking about
that.
C.M. testified that she lay in bed with Active all
night after that. When the prosecutor asked C.M. if
anything happened during that time, C.M. admitted that
she and Active [got] into some struggles, ... where
[she] was yelling and ... was upset, [and Active] had
his hand over [her] mouth. The prosecutor asked C.M.
if Active had hurt her when he placed his hand over her
mouth. She responded, I dont remember it hurting[;] it
did leave some bruises, though.
C.M. claimed that she and Active parted in the morning
on bad terms: C.M. was upset because Active was seeing another
woman. After Active left, C.M. went to her mothers house and
told [her] mother some things, and she [i.e., her mother] called
the cops. But when the prosecutor asked C.M. if she recalled
what she had told her mother, C.M. answered, I dont remember at
all.
C.M. then testified that, after the police arrived, she
was taken to the local clinic. C.M. described her condition as,
I couldnt hardly hear out of my right ear [it turned out that her
eardrum was perforated] and I had bruises on my face. C.M.
attributed all of these injuries to the Twin Hills trip. But
when the prosecutor asked C.M. if she remembered how all of this
had happened to her, C.M. answered, No.
C.M. remembered talking to Officer Kirby. But when the
prosecutor asked C.M. if she told Kirby what was going on, and
why [she was] injured, C.M. answered, I dont remember what I ...
told him.
C.M. stated that, although she truthfully described the
Twin Hills situation to Kirby, she lied to Kirby about the
situation that happened the night before because she was still
really angry with Edward. In particular, C.M. testified that she
lied to Kirby when she said that Active had crawled through her
window and assaulted her.
When the prosecutor asked C.M. if she remembered what
else she had told Kirby, C.M. answered, No. I was I was upset.
I was upset. When the prosecutor asked C.M. if she remembered
telling Kirby that she had removed her window covering during the
night, hoping to attract the attention of a neighbor or passerby,
C.M. answered, I dont remember. When the prosecutor asked C.M.
if, on the day before this incident, she had asked her brother to
reinforce her door, C.M. answered, I dont remember if I did. ...
I dont remember ever asking him to help me with the door. But
its been so long. ... He could have [reinforced the door].
When the prosecutor asked C.M. how her front door had
later sustained damage, she answered, I dont remember. The
prosecutor asked C.M. if she remembered telling her brother that
Active had broken her door. C.M. responded, I dont remember.
... I dont remember telling him anything about my door being
broken.
C.M. declared that she had suffered no injuries that
night. When the prosecutor reminded her that she had already
testified that Active bruised her mouth when he held his hand
over it, C.M. replied that she did not remember any other
bruises.
The prosecutor showed C.M. a photograph of C.M. that
was taken at the clinic on the morning after the assault. C.M.
declared that she did not remember when that photograph was
taken. When the prosecutor asked if this photograph depicted the
bruises that were on C.M.s face after her night with Active, C.M.
declared that the bruises depicted in the photograph had all been
sustained four days earlier, during the Twin Hills incident.
The prosecutor then showed C.M. a photograph of her
hand, this one again depicting injuries. When the prosecutor
asked C.M., Was your hand injured?, C.M. replied, I dont
remember. I dont remember. The prosecutor pursued the matter:
Do you have any idea how your hand could have gotten injured that
way? C.M. replied, No.
The prosecutor then showed C.M. another photograph,
this one depicting bruises to her shoulder. He asked C.M., Do
you know how those bruises happened? C.M. answered, No. ... I
dont remember. The prosecutor showed C.M. a photograph depicting
bruises to her forearm. C.M. stated that she did not know how
she sustained those bruises.
Toward the end of the examination, the prosecutor asked
C.M. if she remembered calling the district attorneys office on
August 13th (i.e., about one week after the assault) and asking
the authorities to drop the charges against Active. C.M.
responded, I dont remember that phone call.
All told, during the prosecutors direct examination of
C.M., there were more than fifty times when C.M. answered either
I dont know or I dont remember to questions regarding what had
happened to C.M., and what she had said to her relatives and to
the authorities about these occurrences. However, C.M.
demonstrated no such uncertainty on the three main points
favorable to Actives defense: that Active had not broken into
her house, that Active had not sexually assaulted her, and that
everything she might have said to the contrary in her two
interviews with Officer Kirby was a lie.
After C.M. was excused from the stand, the prosecutor
asked Superior Court Judge Fred Torrisi for permission to play
the audio tapes of C.M.s interviews with Kirby. These tapes were
offered under Alaska Evidence Rule 801(d)(1)(A), as C.M.s prior
inconsistent statements. Actives attorney objected, arguing that
the prosecutor had failed to lay the proper foundation for
introducing this evidence.
The defense attorney asserted that the prosecutor
should have played the two tapes while C.M. was still on the
stand directly confronting C.M. with each purported
inconsistency, then asking her whether she conceded making that
particular assertion and, if so, whether she had an explanation
for it:
The Court: So, your objection ... is
what?
Defense Attorney: [The party seeking to
introduce evidence of a prior inconsistent
statement must] confront the witness with
[the] prior inconsistent statement. ... The
prior statement should be played [while the
witness is on the stand], to give the witness
an opportunity to respond to it. [If the
tapes are played now], the jury wont be able
to see how [C.M.] reacts to [the prior
statements, and] there wont be any further
[opportunity] for cross-examination of [C.M.]
regarding the prior inconsistent statements.
The Court: Well, I note that [C.M.] is
still here [and] could be recalled [to the
stand]. But youre saying that [no proper
foundation has been laid]? I mean, [the
prosecutor] did confront [C.M.] with [the
prior statements] in the sense that he [asked
her], You talked to Kirby and you told him
something else, right? So youre saying [that
the prosecutor] has to actually go line by
line, or sentence by sentence, play[ing] the
tape while [C.M.]s up there [on the stand]?
Defense Attorney: I [yes,] thats what
I request.
In addition to arguing that C.M.s statements to Kirby
were inconsistent with her testimony in court, the
prosecutor advanced a separate theory for admitting the
two tapes. As explained above, C.M. conceded that she
had told Kirby that Active had broken into her house
and sexually assaulted her; however, she asserted that
she had been lying when she made these accusations
(because she was angry that Active had been seeing
another woman). The prosecutor argued that, given this
situation, the audio tapes were relevant not only for
the factual statements recorded on them, but also
because they demonstrated C.M.s demeanor when she made
these statements thus potentially helping the jury to
decide whether to believe or disbelieve C.M.s current
assertion that all of her prior accusations were
falsehoods motivated by jealousy.
During the middle of this discussion, Judge Torrisi
noted that C.M. (the declarant who made the challenged
out-of-court statements) had been excused and was
headed toward the courtroom door. The judge told the
parties, If anybody wants me to ... order ... her [to]
stay until were done with this discussion, I can do
that. Actives attorney responded, I would [ask you to
do that], Judge. Judge Torrisi immediately directed an
officer to tell C.M. that she was still under subpoena,
although she was free to leave the courtroom.
Judge Torrisi ultimately ruled that the prosecutor
could play both tapes for the jury. Active challenges this
ruling on appeal.
Judge Torrisis ruling actually involves three different
aspects of evidence law. First, when a party wishes to introduce
a witnesss prior inconsistent statements, and those statements
are recorded either in writing or on tape, must the party show
the witness the writing, or play the tape for the witness, before
questioning the witness about the prior statements? Second, in
instances where the witness admits having made the inconsistent
statements, may the proponent of the evidence nevertheless
proceed to introduce extrinsic evidence of those statements? And
third, when a party examines a witness about the witnesss prior
statements, must the party ask the witness about each and every
prior factual assertion that the party intends to introduce? Or
is it sufficient that the party ask the witness to admit or deny
the primary contentions made by the witness on the prior
occasion?
The first issue is whether, if the prior statements are
preserved in written or taped form, the proponent of the evidence
must reveal the precise content of the writing or the tape to the
witness before questioning the witness about those statements.
The answer to this question is found in Alaska Evidence Rule
613(b)(2):
In examining a witness concerning a
prior statement made by the witness, whether
written or not, the statement need not be
shown nor its contents disclosed to the
witness at that time, but on request the same
shall be shown or disclosed to opposing
counsel.
As explained in paragraphs 5 through 7 of the Commentary to
Evidence Rule 613(b), this provision of our evidence rules was
intended to supersede the contrary rule at common law, which was
known as the rule in Queen Carolines Case.1
The next question is whether the State should have been
allowed to introduce extrinsic evidence of C.M.s prior
statements, given the fact that C.M. did not deny making those
statements. (As explained above, C.M. claimed not to remember
many details of what she had said to Officer Kirby; but she
declared that, to the extent that she accused Active of criminal
conduct, her statements to Kirby were lies.)
Several jurisdictions follow the rule that if a witness
admits making the prior statements, no extrinsic evidence of
those prior statements may be introduced.2 However, Alaska does
not follow this rule.
In Bentley v. State, 397 P.2d 976 (Alaska 1965), our
supreme court held that it was error for a trial judge to exclude
extrinsic evidence of a witnesss prior inconsistent statement
when (1) the crucial issue at trial was whether the jury should
credit the witnesss present testimony or should instead credit
her prior inconsistent statement, and (2) the extrinsic evidence
offered by the defendant an audiotape demonstrated the complete
context of the witnesss prior statement.3 For these reasons, the
court concluded that there was a reasonable possibility that the
jury would view the facts differently if they heard, not simply
the witnesss unelaborated concession that she had previously made
inconsistent statements, but the tape of the conversation in
which she had made those statements.4
In Clifton v. State, 758 P.2d 1279, 1283 (Alaska App.
1988), this court construed Bentley to mean that, when a witness
admits making the prior statement, the trial judge has the
discretion to admit extrinsic evidence of the prior statement if
the extrinsic evidence will aid the jurys resolution of the case
and will not be unduly prejudicial. And in Nunn v. State, 845
P.2d 435 (Alaska App. 1993), we applied the Bentley rule to a
situation similar to the one presented in Actives case.
In Nunn, the victim conceded that she had accused the
defendant of criminal activity during a police interview, but she
insisted that those accusations had been false. We held that the
trial judge had properly allowed the State to play the tape of
the victims interview with the police:
[O]ne of the critical issues facing the jury
was whether to credit [the victims] trial
testimony or her conflicting prior
statements. Had [the victim] been lying when
she accused Nunn of sexually abusing her, or
was [the victim] lying when she testified
that no sexual abuse had occurred? Here, a
videotape preserved [the victims] demeanor as
she told [the police investigator] about the
sexual abuse in an interview that was held
only a few days after [the victim] first
reported the abuse to her camp counselor.
The trial judge could reasonably conclude
that, because the videotape displayed [the
victims] demeanor, the tape had substantial
probative value beyond the mere words
recorded on it. The trial court therefore
did not abuse its discretion when it decided
to allow the playing of the videotape.
Nunn, 845 P.2d at 440-41.
For these same reasons, we conclude
that Judge Torrisi did not abuse his
discretion when he decided to allow the
prosecutor to play the audio tapes of C.M.s
two interviews with Kirby.
This bring us to the final
question: whether, if the prosecutor wished
to play the two taped interviews in their
entirety, the prosecutor was first obliged to
expressly question C.M. about each and every
assertion of fact that she made in those
interviews. This question is also resolved
by our decision in Nunn.
The defendant in Nunn was charged
with sexually abusing his stepdaughter. As
in the present case, the victim was
interviewed by the police and, during this
interview, she described the defendants
criminal conduct; but the victim later
recanted, asserting that all of her prior
accusations were lies, and that these lies
were motivated by her anger at the
defendant.5 After the victim repeated her
recantation at trial, the State was allowed
to play the videotape of the police
interview.
One of Nunns claims on appeal was
that, even though the victim made
inconsistent statements during the police
interview, the prosecutor nevertheless failed
to lay a proper foundation for playing the
interview in its entirety. Nunn noted that,
under Evidence Rule 613(b), a witness is
normally entitled to an opportunity, while
testifying, to explain or deny any prior
statement. Nunn therefore argued that the
videotape could not be introduced as a whole
unless the prosecutor expressly asked the
victim about each and every potentially
inconsistent statement contained in the
interview.6
We rejected Nunns argument
concluding that this suggested interpretation
of Evidence Rule 613(b) was unreasonably
narrow:
In answer to the prosecutors questions,
[the victim] testified that she had lied to
[the police investigator]; she stated that
Nunn had done absolutely nothing wrong. At
this point, the prosecutor asked [the victim]
about specific statements she had made to
[the investigator] during the interview: her
statement that Nunn had touched her genitals,
both with his hand and with his penis, her
statement that Nunn had touched her breasts
and her genitals with his mouth, and her
statement that Nunn had penetrated her
genitals with both his finger and his penis.
In each case, [the victim] recanted these
statements, testifying that she had lied when
she said these things to [the investigator].
Under these circumstances, the trial
judge could reasonably conclude that [the
victim] would continue to categorically deny
all allegations of sexual abuse and would
continue to disown any and all statements she
had previously made to the contrary. The
trial judge could therefore conclude that
[the victim] had been given sufficient
opportunity to explain or deny the statements
she made during her interview with [the
police investigator], and that it was
pointless to require the prosecutor to
continue asking [the victim] about every
other statement she had made during that
interview. ... We [therefore] uphold the
trial courts ruling that the State
established a proper foundation under Rule
613(b) for introducing the videotape.
Nunn, 845 P.2d at 441.
The same analysis applies to
Actives case. C.M. had described Actives
criminal conduct during her two interviews
with Officer Kirby, but she later recanted
her accusations, and she repeated this
recantation when she was called to the stand
at Actives trial. As we explained earlier in
this opinion, when the prosecutor questioned
C.M. at trial, she claimed to remember very
little of what she had said to Kirby, but she
repeatedly asserted that any accusation she
had made against Active was false that she
had fabricated these accusations because she
was angry at Active.
Given these circumstances, Judge
Torrisi could reasonably conclude that it was
pointless to require the prosecutor to
continue asking [C.M.] about every
[remaining] statement she had made during
[the] interview[s]. Nunn, 845 P.2d at 441.
Accordingly, the State laid a sufficient
foundation under Evidence Rule 613(b) to play
the taped interviews in their entirety.
Evidence of Actives prior conviction for second-degree
sexual assault
Just before Actives trial began, the
prosecutor gave notice that the State intended to
introduce evidence of Actives 1993 conviction for
second-degree sexual assault.
Active was convicted in 1993 of second-degree
sexual assault after he entered a 15-year-old
girls bedroom, held his hand over her mouth until
she passed out, and then engaged in sexual
activity with her. For this crime, Active
received a sentence of 6 years with 2 years
suspended.
Active was released from prison in January
1996, but he was put back in prison in November
1996 for violating his probation / parole. He was
released again in November 1997, but in June 1999
he was sent back to prison to serve the remaining
2 years of his sentence. Thus, even though the
second-degree sexual assault conviction was eleven
years old at the time of Actives trial in the
present case, Active had been in prison during the
majority of the intervening eleven years.
The prosecutor conceded that the specific
facts of the prior offense might be overly prejudicial,
so he suggested that the State be allowed simply to
introduce a certified copy of the judgement, telling
the jury that Active had been convicted of engaging in
sexual activity with a woman without her consent.
Actives attorney conceded that Actives prior
conviction was potentially admissible under Alaska
Evidence Rule 404(b)(3). (This rule states that when a
defendant is on trial for attempted sexual assault, the
government may introduce evidence of the defendants
prior convictions for sexual assault.) However, the
defense attorney argued that the conviction was too old
to be very probative of Actives propensity to commit
sexual assault, and that therefore the proposed
evidence would be more prejudicial than probative.
Judge Torrisi agreed that this evidence had a
high potential for prejudice. However, the judge
agreed with the prosecutor that, given the fact that
Active had been in prison for most of the intervening
eleven years, the age of the conviction was not so
important. The judge also concluded that, if C.M. was
going to recant her accusations against Active, the
State might have a significant need for the evidence.
Ultimately, Judge Torrisi told the parties
that his ruling on the admissibility of this evidence
would turn on what C.M. said when she was called to the
stand:
The Court: If [C.M.] says [that the
sexual assault] did not happen, that [they]
didnt even have sex, then [the] probative
value [of this evidence] is outweighed by the
possibility that the jury would try the
[defendant] for the [prior crime]. [But] if
she says, It did happen, and I consented,
[then] I will reverse myself on this. The
State has convinced me that the time period,
while [ostensibly] eleven years, is really
closer to something like five [years]. [And
this evidence], certainly I think, is ...
highly relevant under [Rule] 403. ... If
the victim gets [on the stand] and says, It
happened, and it was consensual, then it
seems to me [that] the State has a high need
for this evidence, and I will allow it.
As explained earlier in this opinion, C.M. testified
that she and Active engaged in consensual sex on the
night in question i.e., that their sexual activity was
not an assault. Thus, at the end of the States case-in-
chief, Judge Torrisi allowed the prosecutor to
introduce certified copies of (1) the information
charging Active with second-degree sexual assault for
engaging in sexual contact with a woman without her
consent, and (2) the judgement of conviction entered
against Active for that offense.
Judge Torrisi offered the defense
attorney an opportunity to submit a jury
instruction regarding the proper and improper
uses of this evidence, but the defense
attorney apparently never responded to this
invitation. Judge Torrisi sua sponte
instructed the jury that, even though
evidence of Actives other crime had been
admitted,
this evidence is ... insufficient by itself
to warrant [a] conviction. The State has the
burden to prove each element of its case
beyond a reasonable doubt. How much weight
you give to the prior conviction, as with all
evidence, is up to you.
On appeal, Active challenges the
judges ruling regarding the admissibility of
his 1993 conviction. This challenge is
meritless. The record shows that Judge
Torrisi conscientiously applied the balancing
test we described in Bingaman v. State, 76
P.3d 398, 414-16 (Alaska App. 2003). The
judge did not abuse his discretion when he
allowed the State to introduce evidence of
the 1993 conviction.
Actives argument that he was sentenced in violation of
the Sixth Amendment right to jury trial as
interpreted in Blakely v. Washington
Active was convicted of first-degree
burglary, attempted first-degree sexual assault, and
two counts of fourth-degree assault. Two of these
crimes first-degree burglary and attempted first-
degree sexual assault were governed by Alaskas
presumptive sentencing law (in its pre-March 2005
version). As a third felony offender, Active faced a
presumptive term of 6 years imprisonment for the
burglary and 15 years imprisonment for the attempted
sexual assault.7
In order to authorize sentences above these
presumptive terms, the State proposed four aggravating
factors under AS 12.55.155(c). Judge Torrisi concluded
that the State had proved three of these aggravators:
(c)(8) that Actives criminal history included
aggravated or repeated instances of assaultive
behavior; (c)(18)(A) that Actives crimes were
committed against someone living in the same dwelling
unit; and (c)(18)(B) that Active had committed a
previous sexual assault.
These aggravators became moot with respect to
Actives sentence for first-degree burglary, because
Judge Torrisi imposed the unadjusted 6-year presumptive
term for this crime. However, Judge Torrisi added 2
years of suspended imprisonment to the 15-year
presumptive term for attempted first-degree sexual
assault. (That is, he sentenced Active to 17 years
with 2 years suspended.) This sentence would not be
lawful in the absence of aggravating factors.
On appeal, Active contends that Judge
Torrisi, by finding the three aggravators without
submitting them to a jury, violated Actives Sixth
Amendment right to jury trial as interpreted in Blakely
v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004). Actives first hurdle is that this
claim was not preserved for appeal.
Actives sentencing took place in mid-November
2004. This was approximately five months after the
United States Supreme Court issued its decision in
Blakely. At the beginning of Actives sentencing
hearing, the defense attorney took note of the Blakely
decision. However, the defense attorney then declared
that, looking at ... the facts of Mr. Actives case,
[he] would concede the [States proposed] aggravators[.]
The defense attorney added that he would
simply give notice of his position that whatever is
[ultimately] decided [by the appellate courts] in terms
of Alaskas presumptive sentencing statute should apply
to [Actives] case. This statement did not constitute a
legally adequate objection to Judge Torrisis decision
to resolve the proposed aggravators without submitting
them to a jury.
Alaska Criminal Rule 46 sets forth the
minimum requirements for an objection. Under this
rule, at the time the ruling ... of the court is made
or sought, the attorney must make[] known to the court
the action which the [attorney] desires the court to
take[,] or the [attorneys] objection to the action of
the court[,] and the grounds therefor[.]
Even though Actives attorney was aware of the
decision in Blakely, the defense attorney did not ask
Judge Torrisi to submit the States proposed aggravators
to a jury. Nor did the defense attorney suggest that
Judge Torrisi needed to alter any other sentencing
procedure on account of Blakely. Rather, the defense
attorney announced an open-ended, unspecified objection
to all aspects of the sentencing proceeding if later
appellate decisions showed or indicated that one or
more aspects of the proceeding were flawed.
Such a statement does not satisfy either of
Criminal Rule 46s commands. The defense attorney did
not expressly inform Judge Torrisi of the action that
the attorney wished the judge to take (or refrain from
taking), and the defense attorney did not inform Judge
Torrisi of the legal grounds for the attorneys
position. This means that Active must now show plain
error if he is to prevail on his Blakely claim.
We have previously held that, consistent with
Blakely, a sentencing judge can decide aggravator
(c)(8) without submitting the issue to a jury if the
States proof rests solely on the defendants criminal
convictions for assaultive behavior. Milligrock v.
State, 118 P.3d 11, 15-16 (Alaska App. 2005). That was
the case here; Judge Torrisi found aggravator (c)(8)
based on the fact that Active had several prior
convictions for assault, sexual assault, and robbery.
Thus, Judge Torrisi committed no error under Blakely
when he decided aggravator (c)(8) without submitting
this issue to a jury.
For the same reason, Judge Torrisi could
decide aggravator (c)(18)(B) without submitting the
issue to a jury. The States proof of this aggravator
was based solely on Actives 1993 conviction for second-
degree sexual assault.
Active notes that our decision in Milligrock
rests on the fact that the Blakely right to jury trial
does not extend to aggravating factors that are based
on a defendants prior convictions. Active asks us to
declare that this exception for prior convictions does
not exist under Alaska law and that, therefore, Judge
Torrisi violated the right to jury trial guaranteed by
the Alaska Constitution when he decided aggravators
(c)(8) and (c)(18)(B).
Actives argument ultimately rests on an
expansive interpretation of the Alaska Supreme Courts
decision in Donlun v. State, 527 P.2d 472 (Alaska
1974). According to Active, Donlun stands for the
proposition that, when a defendant is subject to
presumptive sentencing, aggravating factors must be
pleaded in the grand jury indictment and must be proved
to the trial jury beyond a reasonable doubt. We
recently rejected this interpretation of Donlun. See
State v. Dague, 143 P.3d 988, 994-98 (Alaska App.
2006).
In fact, in State v. Malloy, 46 P.3d 949
(Alaska 2002), the Alaska Supreme Court itself rejected
the notion that Donlun required the State to allege
aggravating factors in the indictment and ultimately
prove these factors to a jury. The supreme court
stated: Donlun ... recognize[s] that an increased
sentence resulting from a finding of statutory
aggravating circumstances is not a harsher maximum
sentence [ and thus does not trigger a right to jury
trial under Donlun]. Malloy, 46 P.3d at 955.
Accordingly, we reject Actives argument that
the Alaska Constitution guarantees him a broader right
to jury trial with respect to sentencing factors than
the right to jury trial recognized in Blakely.
This leaves aggravator (c)(18)(A). We have
held that even though this aggravator should be
submitted to a jury under Blakely, any error in not
submitting this issue to a jury is harmless beyond a
reasonable doubt (and thus does not constitute plain
error) if the evidence on this point is not subject to
reasonable dispute that is, if there is no reasonable
possibility that a jury would have found in the
defendants favor if the issue had been submitted to a
jury. Milligrock, 118 P.3d at 17.
Active has never claimed (either at his
sentencing hearing, or in his briefs to this Court)
that there was any reasonable possibility that a jury
would have decided aggravator (c)(18)(A) in his favor.
Thus, he has failed to allege the ingredient necessary
for a claim of plain error regarding this aggravator.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
12 Brod. & Bing. [Broderip & Binghams Court of Common Pleas
Reports] 284, 286-290; 129 Eng. Rep. 976 (1820).
2See, e.g., Dilley v. Chesapeake & Ohio Railway Co., 327
F.2d 249, 251 (6th Cir. 1964); United States v. Greer, 806 F.2d
556, 559 (5th Cir. 1986); Brown v. State, 682 So.2d 340, 345
(Miss. 1996).
3Bentley, 397 P.2d at 978.
4Id. at 978-79.
5Nunn, 845 P.2d at 439.
6Id. at 441.
7See AS 11.46.300(b) (first-degree burglary is a class B
felony); AS 11.41.410(b) (first-degree sexual assault is an
unclassified felony); AS 11.31.100(d)(2) (an attempt to
commit any unclassified felony other than first-degree
murder is a class A felony). And see former AS
12.55.125(d)(2) (pre-March 2005 version) (the presumptive
term for a third felony offender convicted of a class B
felony was 6 years imprisonment); former AS 12.55.125(c)(4)
(pre-March 2005 version) (the presumptive term for a third
felony offender convicted of a class A felony was 15 years
imprisonment).
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