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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| NICK N. CHARLIAGA JR., | ) |
| ) Court of Appeals No. A-9282 | |
| Appellant, | ) Trial Court No. 3KO-04-670 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2101 May 18, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Kodiak, Joel H. Bolger, Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Douglas H. Kossler, 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.
The sole issue presented in this appeal is whether the
superior court should have struck all information relating to an
alleged incident of sexual abuse of a minor from the defendants
pre-sentence report.
Nick N. Charliaga Jr. pleaded no contest to second-
degree sexual abuse of a minor. In preparation for Charliagas
sentencing, the Department of Corrections submitted a pre-
sentence report. Pursuant to Alaska Criminal Rule 32.1(d)(5),
Charliaga filed various objections to the information in this pre-
sentence report. All but one of these objections were resolved
to Charliagas satisfaction. Charliagas remaining objection
pertained to the allegation that, in 1997 (i.e., approximately
seven years before Charliagas present offense), he sexually
abused a thirteen-year-old girl named J.L..
The pre-sentence report contained J.L.s description of
this offense. The report also related that J.L.s mother brought
this incident to the attention of the State Troopers, that an
investigator questioned Charliaga about this matter, and that
Charliaga admitted ... touching J.L. in her groin area above her
clothes. According to the pre-sentence report, Charliaga also
told the investigator that he believed that J.L. was between
twelve and fourteen years old, and that he stopped [touching
J.L.] because he knew what he was doing was wrong.
At the sentencing hearing, Charliaga took the stand to
testify about this incident. He admitted that he had confessed
to the trooper investigator. In particular, Charliaga conceded
that he told the trooper that he placed his hands on J.L.s groin,
inside her shorts but outside her panties. Nevertheless,
Charliaga claimed that his confession was false. He now asserted
that he was innocent of this sexual misconduct, and that he had
confessed only because the trooper was apparently already
convinced of his guilt.
After hearing Charliagas testimony, Superior Court
Judge Joel H. Bolger concluded that Charliaga was not telling the
truth about his earlier confession. The judge found that the
earlier confession was true, and that Charliagas proposed
explanation for making that earlier confession was false. Having
made this finding, Judge Bolger declined to remove the challenged
information from the pre-sentence report.
Under Alaska law, in sentencing proceedings, the State
can normally rely on hearsay allegations of a defendants other
misconduct but not if the defendant takes the stand, denies the
allegation, and submits to cross-examination regarding the
matter. In that case, the State must either support its
allegation with live testimony or, alternatively, prove that the
hearsay declarant is not available to testify and furnish
information to support the hearsay declarants credibility.1
Here, Charliaga took the stand and denied having
sexually abused J.L.. At the same time, however, Charliaga
admitted that he had, in fact, confessed to this crime when he
was questioned by the trooper investigator.
When Charliaga acknowledged making the earlier
confession, he in essence conceded that certain assertions
contained in the disputed portion of the pre-sentence report were
true: in particular, the fact that a trooper investigator was
sent to interview Charliaga regarding an allegation of sexual
abuse involving J.L., and that, during this interview, Charliaga
confessed that he had engaged in sexual contact with J.L.,
believing that she was underage, and that he knew at the time
that his conduct was improper. Thus, the State did not have to
produce any additional testimony to support these assertions.
The main question remaining to be resolved, then, was
whether Judge Bolger believed Charliagas current testimony i.e.,
Charliagas assertion that his earlier confession was false.
This Court confronted a similar situation in Evans v.
State, 23 P.3d 650 (Alaska App. 2001). The pre-sentence report
in Evans contained assertions that the defendant had engaged in
various uncharged acts of sexual abuse of a minor. Evans took
the stand at his sentencing hearing and denied that he had
committed these acts of sexual abuse.2 However, during his
testimony, Evans admitted that he had made arguably incriminatory
statements during an earlier taped telephone conversation with
the victims mother.3
In this telephone conversation, Evans stated that he
had touched the victim, and that the victim had touched him.4 We
concluded that, because the sentencing judge heard admissible
testimony that Evans had made these statements,
the Hamilton rule no longer barred [the
sentencing judge] from considering these
out-of-court statements when [the judge]
resolved Evanss challenges to the allegations
of sexual misconduct contained in the
pre-sentence report.
. . .
Of course, it was up to [the sentencing
judge] to determine what Evanss statements
meant, and what events Evans was referring
to. When Evans testified about these
out-of-court statements, he insisted that he
had been referring to innocent touchings that
occurred during bathing. This was an issue
of fact to be resolved by [the sentencing
judge].
Evans, 23 P.3d at 652-53.
Judge Bolger was faced with a
similar task in Charliagas case. In his
testimony at the sentencing hearing,
Charliaga admitted that he had previously
confessed to sexually abusing J.L., but he
now contended that his confession was false.
It was up to Judge Bolger to resolve this
question of fact.
After hearing Charliagas offered
explanation for this confession (and
observing Charliaga on the stand), Judge
Bolger concluded that Charliaga was not
telling the truth in his testimony at the
sentencing hearing. In other words, Judge
Bolger concluded that Charliagas earlier
confession was, in fact, a truthful account
of events, and that Charliagas later
explanation for this confession was
untruthful.
This being so, the pre-sentence
report could properly contain assertions
concerning Charliagas sexual abuse of J.L. to
the extent that these assertions were
supported either by Charliagas testimony at
the sentencing hearing or by Charliagas
earlier confession.
With regard to Charliagas earlier
confession, the pre-sentence report could
properly contain a description of the
statements that Charliaga made to the trooper
investigator, as well as any background facts
that were necessary to understand the meaning
or significance of Charliagas statements to
the investigator. These background facts
would not be barred by the hearsay rule,
because their purpose would not be to provide
direct proof of the matters asserted, but
rather to provide the context for
understanding Charliagas statements.5
However, some of the details that
currently appear in Charliagas pre-sentence
report fall outside the statements that
Charliaga made at the sentencing hearing, the
statements he made to the trooper, and the
background facts necessary to understand his
statements to the trooper. These additional
details of the offense, which were apparently
supplied by J.L. (either to her mother or
directly to the state troopers) should be
struck from the pre-sentence report because
J.L.s description of the offense is hearsay,
because Charliaga offered a testimonial
denial, and because the State made no effort
to prove that J.L. was unavailable as a
witness.
For these reasons, we affirm the
superior courts main ruling that the pre-
sentence report can properly contain the
allegation that Charliaga sexually abused
J.L.. However, Charliaga is entitled to have
some of the details of this allegation
redacted from the pre-sentence report.
The details contained in Charliagas
testimony at the sentencing hearing can
remain in the pre-sentence report, as well as
the details contained in Charliagas
statements to the investigator, supplemented
with any other background facts that are
necessary to understand Charliagas statements
to the investigator. But Charliaga is
entitled to the excision of any details that
fall outside these three categories.
(In his reply brief, Charliaga
raises an additional argument as to why the
allegation of sexual abuse should have been
struck from the pre-sentence report. We do
not address this argument further because
arguments presented for the first time in a
reply brief are waived.)6
We remand Charliagas case to the
superior court with directions to redact some
of the details of the discussion at pages 5-6
of the pre-sentence report, employing the
rules explained here.
We do not retain jurisdiction of
this appeal.
_______________________________
1Evan v. State, 899 P.2d 926, 929 (Alaska App. 1995);
Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App. 1989).
2Evans, 23 P.3d at 651.
3Id. at 652.
4Id.
5See Evans v. State, 23 P.3d 650, 652-53 (Alaska App. 2001);
Linne v. State, 674 P.2d 1345, 1356 n. 8 (Alaska App.
1983).
6Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406,
411 (Alaska 1990); Hitt v. J.B. Coghill, Inc., 641
P.2d 211, 213 n. 4 (Alaska 1982).
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