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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TRYGVE ANGASAN,
Appellant, Court of Appeals No. A-10948
Trial Court No. 3NA-09-267 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2403 - December 6, 2013
Appeal from the Superior Court, Third Judicial District,
Naknek, John W. Wolfe, Judge.
Appearances: Colleen A. Libbey, Libbey Law Offices,
Anchorage, for the Appellant. Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special Prosecutions
and Appeals, Anchorage, and Michael C. Geraghty, Attorney
General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,
*
Senior Judge .
Judge MANNHEIMER.
* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
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Trygve Angasan was convicted of second-degree sexual abuse of a minor.
The State's case against Angasan was based on evidence that, in the early morning hours
of September 19, 2009, Angasan used his mobile phone to trade dozens of text messages
with the thirteen-year-old victim, and that he then drove to her house in a silver-colored
Chevrolet owned by his family. The victim got into the vehicle, and she and Angasan
drove off together. When Angasan stopped the car, he engaged in sexual penetration
with the victim.
Several months after he was sentenced, Angasan filed a motion seeking a
new trial under Alaska Criminal Rule 33. Angasan's motion was based on the claim that
he had new evidence that tended to exculpate him. In support of his motion, Angasan
submitted the affidavits of four of his relatives: his brother, Shawn Angasan; his
grandmother, Clara Angasan; his grandfather, Ralph Angasan; and his uncle, Peter
Angasan (the son of Clara and Ralph).
The superior court found that essentially all of the information contained
in these four supporting affidavits was known to either Angasan or his attorney at the
time of trial. Accordingly, the superior court ruled that the information presented in
these affidavits was not "newly discovered evidence" under the test adopted by the
Alaska Supreme Court in Salinas v. State, 373 P.2d 512 (Alaska 1962).
(Under the Salinas test, evidence is considered "newly discovered" if the
defendant shows both (1) that the evidence was unknown to the defense at the time of
trial, and (2) that the evidence could not have been discovered with a reasonably diligent
investigation.)
Because the superior court concluded that Angasan's offered evidence was
not "newly discovered" as defined in Salinas, the superior court viewed Angasan's
motion as essentially "an oblique way of arguing ineffective assistance of counsel". In
other words, the court concluded that Angasan was really arguing that, given the
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availability of the information described in the four affidavits, his trial attorney should
have pursued a different strategy at trial - a strategy that entailed presenting the
information contained in the four affidavits.
Viewing Angasan's pleadings in this manner (i.e., as an attack on the
competence of his trial attorney, rather than a claim based on newly discovered
evidence), Angasan's motion for a new trial was filed several months late - because
Criminal Rule 33(c) declares that, with the exception of claims based on newly
discovered evidence, motions for a new trial must be filed within five days after the
verdict. The superior court declined to extend this five-day filing deadline, because the
court reasoned that there was no need to relax the deadline - since Angasan could
pursue his claim of ineffective assistance of counsel by filing a petition for post-
conviction relief under Criminal Rule 35.1.
But instead of following the superior court's suggestion and filing a petition
for post-conviction relief, Angasan filed this appeal.
Angasan contends that the superior court both misunderstood the nature of
his claim and committed legal error in rejecting it. Angasan contends that his request for
a new trial is, in fact, based on a claim of new evidence, and that he is not asserting (at
least at this time) that he received ineffective assistance from his trial attorney.
Angasan acknowledges that the information contained in three of the four
affidavits presented to the superior court does not qualify as "newly discovered
evidence" under the Salinas test. Nevertheless, Angasan argues that Criminal Rule 33
allows a defendant to seek a new trial based on any evidence that was not presented at
trial - even though this evidence was known to the defense at the time of trial, or could
have been discovered through diligent inquiry.
Angasan further contends that the superior court could not properly deny
his motion for a new trial without holding an evidentiary hearing, so that the superior
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court could assess the strength of the new evidence and the credibility of the people who
submitted the four affidavits - thus allowing the superior court to reach an informed
opinion as to whether this new evidence was likely to have changed the jury's verdict.
For the reasons explained in this opinion, we reject Angasan's contention
that "new" evidence (for purposes of Criminal Rule 33) includes any and all evidence
that was not presented at trial. Rather, we hold that when a defendant seeks a new trial
based on evidence that was not presented at trial, the defendant must normally show that
this evidence qualifies as "newly discovered" under the Salinas test: that it was not
known at the time of trial, and that it was not discoverable through diligent inquiry at the
time.
Given the contents of the four affidavits submitted by Angasan's relatives,
the superior court could properly find that none of this evidence was "newly discovered"
under the Salinas test - that all of the evidence was either known to the defense at the
time of trial or could have been discovered through reasonably diligent efforts.
Accordingly, we affirm the superior court's denial of Angasan's motion for a new trial.
When a defendant seeks a new trial under Criminal Rule 33 based on
evidence that was not presented at the defendant's trial, the defendant must
normally show that this evidence meets the Salinas criteria for newly
discovered evidence
Alaska Criminal Rule 33(a) declares that a trial court "may grant a new trial
to a defendant if required in the interest of justice." Rule 33(c) specifies the time limits
that apply to motions for a new trial: the motion must normally be filed within five days
after the verdict is rendered, except that a motion based on the ground of newly
discovered evidence "may be made [at any time] before or within 180 days after final
judgment".
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From the wording of Criminal Rules 33(a) and 33(c), it would appear that
all new trial motions are governed by the "interest of justice" test set forth in Rule 33(a)
- and that, among all potential new trial motions, those based on a claim of newly
discovered evidence have a special, more lenient filing deadline.
But Angasan interprets Rule 33 in a different way. He argues that
section (a) of the rule and section (c) of the rule each establish a separate ground for
seeking a new trial. According to Angasan, section (c) of the rule authorizes a trial court
to grant a new trial on the basis of "newly discovered evidence" as that phrase has been
defined in Salinas, while section (a) of the rule, on the other hand, authorizes a trial court
to grant a new trial for any reason "in the interest of justice" - even when the
defendant's request for a new trial is based on evidence that does not qualify as "newly
discovered" under the Salinas definition.
Under Angasan's interpretation of Rule 33, subsection (a) gives trial judges
the authority to circumvent the Salinas restrictions that apply to new evidence claims -
to grant a new trial "in the interest of justice" even when the defendant's proposed
evidence was known to the defense at the time of trial, or could have been discovered
through reasonable diligence.
There is one narrow sense in which Angasan's interpretation of the rule
comports with current Alaska law. This Court has repeatedly recognized that a motion
for a new trial can be based on a claim of ineffective assistance of counsel. 1
And claims
of ineffective assistance often rest on the claim that the defendant's trial attorney
incompetently failed to present exculpatory evidence that was known at the time of trial,
1 See, e.g., Bryant v. State , 133 P.3d 690, 691 (Alaska App. 2006); Alexander v. State ,
838 P.2d 269, 274-75 (Alaska App. 1992); Barry v. State , 675 P.2d 1292, 1296 (Alaska App.
1984).
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or that the attorney failed to diligently investigate the case and, as a consequence,
incompetently failed to discover exculpatory evidence.
But Angasan has expressly declared that he is not claiming that his trial
attorney was ineffective. Rather, Angasan is making a different, broader claim: a claim
that, regardless of the competence or incompetence of a defendant's trial attorney, Rule
33(a) allows a defendant to seek a new trial by arguing that there is additional evidence
that should have been presented at trial - even when this evidence was known at the
time of trial, or even though this evidence could have been discovered through
reasonable diligence.
We acknowledge that the authority conferred on trial judges by Criminal
Rule 33(a) - the authority to grant a new trial when "required in the interest of justice"
- is meant to be interpreted broadly. Generally speaking, a motion for a new trial may
be based on "[any claim of] trial error or pretrial error that would justify reversal of a
conviction", or upon the assertion that the verdict is against the weight of the
evidence. 2
See State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003) (declaring that the
rule gives a trial judge great discretion to determine whether, under the particular facts
of the defendant's case, "the verdict effectuates substantial justice between the parties");
Love v. State , 621 A.2d 910, 914 (Md. App. 1993) ("The list of possible grounds for the
granting of a new trial by the trial judge ... is virtually open-ended."); State v. Guerra,
278 P.3d 1031, 1042 (N.M. 2012) (same concept); Reyes v. State , 849 S.W.2d 812, 813-
14 (Tex. Crim. App. 1993) ("[Criminal] Rule 30(a) does not limit the grounds under
2 Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, Criminal
Procedure (3rd ed. 2007), § 24.11(b), Vol. 6, p. 560.
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which a motion for new trial may be granted[,] but rather provides the trial judge the
general authority to grant such a motion.").
The corresponding federal rule of criminal procedure also uses the phrase
"the interest of justice", and the federal courts have construed this phrase to cover a host
of potential situations. 3
However, in essentially all American jurisdictions, motions for a new trial
based on claims of newly discovered evidence are not favored by the courts, and these
claims are viewed "with great caution". Wayne R. LaFave, Jerold H. Israel, Nancy J.
King, and Orin S. Kerr, Criminal Procedure (3rd ed. 2007), § 24.11(d), Vol. 6, p. 562.
This principle - that claims of new evidence are viewed with caution - finds
embodiment in the kind of standards that the Alaska Supreme Court adopted in Salinas.
As explained in LaFave ,
Courts are naturally skeptical of claims that a defendant [who
was] fairly convicted, with proper representation by counsel,
3 See Charles Alan Wright and Sarah N. Welling, Federal Practice and Procedure:
Criminal (4th ed. 2011), § 589, Vol. 3, pp. 547-555. In addition to motions for a new trial
based on newly discovered evidence, Federal Practice and Procedure lists these potential
grounds for seeking a new trial under Federal Criminal Rule 33: an allegation that the
verdict was against the weight of the evidence; that there was misconduct by, or misconduct
affecting, the jury, the judge, or the attorneys; that the trial judge improperly failed to sever
the trial of co-defendants or the trial of different charges; that the trial was rendered unfair
by the absence of an important witness; that there was a flaw in the jury selection process,
or that a particular juror was improperly allowed to sit; that the government failed to provide
discovery; that the defendant's waiver of jury trial was invalid; that the defendant was
incompetent to stand trial; that the trial was rendered unfair by the defendant's absence from
portions of the trial; that the trial judge improperly admitted or excluded evidence; that the
trial judge allowed the jury to find out, in a joint trial of co-defendants, that one co-defendant
had pleaded guilty in the middle of the trial; that there was a variance between the allegation
in the charging document and the government's proof at trial; and that the trial judge gave
incorrect or improper jury instructions.
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should now be given a second opportunity because of new
information that has suddenly been acquired. ... Accord-
ingly, rather exacting standards have been developed for the
motion for new trial based on newly discovered evidence. ...
[T]he basic [standards are that] (1) the evidence must be new
to the defense, (2) the failure to learn of the evidence earlier
must not be due to a lack of proper diligence, (3) and the
evidence must reach a certain level of significance [when]
measured in reference to the other evidence in the trial.
Id. at 562-63.
Essentially every American jurisdiction has adopted some version of the
Salinas test - in particular, the requirements that the defendant show that the proposed
new evidence was not known to either the defendant or the defense attorney at the time
4
of trial, and that the evidence could not have been discovered through reasonable
diligence. 5 (In many federal and state jurisdictions, these standards are referred to as the
"Berry rule", because the standards were first articulated by the Georgia Supreme Court
6
in Berry v. State , 1851 WL 1405 (Ga. 1851).)
One of the main purposes of this restriction on claims of new evidence is
to prevent defendants from obtaining a new trial simply because the defendant or their
attorney, having received an adverse result at trial, now believes that a different strategy
would have worked better.
With regard to evidence that was known to the defense at the time of trial,
the Salinas restriction prohibits defendants from using Rule 33 as a vehicle "to change
[their] strategy after an unfavorable verdict and use evidence [that they] chose not to
4 Federal Practice and Procedure: Criminal , § 584, Vol. 3, pp. 454-55.
5 Id . at 451-52.
6 Ibid. ; LaFave , § 24.11(d), Vol. 6, p. 563.
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7
present at the trial". And with regard to evidence that was not known at the time of
trial, but could have been discovered through reasonable diligence, the social policy
behind the Salinas restriction was explained by the Alaska Supreme Court in Lindhag
v. Department of Natural Resources , 123 P.3d 948 (Alaska 2005): the defendant must
prove that the proposed new evidence could not have been discovered earlier through
reasonably diligent effort, because a rule allowing a party to seek relief from a trial
verdict "should not serve as a back-door route to retrying a case [whenever the] party
thinks he can make a better showing on a second attempt." Id. at 956.
All of this leads us to reject Angasan's contention that the "interest of
justice" standard set forth in Criminal Rule 33(a) allows a litigant to evade the two
Salinas restrictions on what qualifies as "newly discovered" evidence. We conclude
instead that these two restrictions comprise a judicial gloss on the meaning of "the
interest of justice" in situations where the defendant's motion for a new trial is based on
a claim of new evidence.
Although this Court has never confronted Angasan's precise argument
before, this Court addressed a similar argument - and reached the same conclusion -
in Lewis v. State , 901 P.2d 448 (Alaska App. 1995).
The defendant in Lewis sought post-conviction relief under Criminal Rule
35.1(a)(4), which permits a court to grant relief from a criminal judgement whenever
"evidence of material facts, not previously presented and heard, ... requires vacation of
the conviction ... in the interest of justice." Lewis conceded that his proposed evidence
would not qualify as "newly discovered" under the Salinas test, but he argued that the
7 Federal Practice and Procedure: Criminal , § 584, Vol. 3, pp. 457-58.
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Salinas test applied only to motions for a new trial under Criminal Rule 33, and not to
8
petitions for post-conviction relief.
Specifically, Lewis argued that a more liberal standard should apply when
new evidence is advanced as a basis for post-conviction relief, because the language of
Criminal Rule 35.1(a)(4) does not explicitly require a defendant's new evidence to be
"newly discovered". Rather, Rule 35.1(a)(4) only states that the evidence must be
material, that it must not have been previously presented, and that it "requires vacation
of the conviction ... in the interest of justice". Based on this, Lewis contended that a
defendant petitioning for post-conviction relief should not have to prove that the new
evidence was unknown at the time of trial, and that the evidence could not have been
discovered through diligent inquiry. Instead, Lewis argued that the only question was
whether the new evidence required vacation of the defendant's conviction "in the interest
of justice". 9
This Court rejected Lewis's argument:
[A]lthough the language of Rule 35.1 makes no
explicit mention of a newly discovered evidence requirement
and speaks broadly of granting relief as necessary "in the
interest of justice," we fail to see how the interest of justice
would be served by allowing an award of post-conviction
relief based on new evidence that would not result in the
award of a new trial under the standard embodied in Criminal
Rule 33. Construing Rule 35.1(a)(4) to allow new trials to be
awarded on more permissive grounds than those provided for
under Rule 33 - the rule specifically governing new-trial
motions - would elevate form over substance, permitting
identical claims of newly discovered evidence to be decided
8 Lewis , 901 P.2d at 449.
9 Ibid.
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differently based solely on the procedure chosen to assert
them.
Lewis , 901 P.2d at 449-450.
Because the phrase "interest of justice" is intended to be broadly
interpreted, and is meant to be applied in all the various situations that might present
themselves in criminal litigation, we hesitate to conclusively declare that, aside from
claims of ineffective assistance of counsel, a motion for new trial could never be based
on previously available or previously discoverable evidence. However, in such
situations, we believe that the reasons for granting relief would have to be extraordinary
and compelling - because granting relief in these situations would normally tend to
undercut the social policy that bars a defendant from seeking to relitigate their criminal
case simply because the defendant or their attorney has come up with a different trial
strategy that appears more promising.
In Angasan's case, the new evidence that Angasan offered - even if it was
wholly believed - did not constitute convincing proof of Angasan's factual innocence.
At best, the new evidence merely cast doubt on the State's case. We accordingly
conclude that there is no extraordinary and compelling reason to exempt Angasan from
the Salinas requirements that the new evidence (1) was not previously available and
(2) was not previously discoverable through diligent inquiry.
Whether the affidavit of Peter Angasan qualified as newly discovered
evidence under the Salinas test
As we explained at the beginning of this opinion, Angasan presented the
affidavits of four potential witnesses in support of his motion for new trial. With respect
to three of these affidavits, Angasan does not dispute the superior court's ruling that the
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affidavits fail to qualify as "newly discovered" evidence. However, with respect to the
fourth affidavit - the affidavit submitted by Peter Angasan - Angasan argues that
Peter's proposed testimony is newly discovered.
Peter Angasan's affidavit contained three assertions of fact that were
pertinent to Angasan's case. First, Peter asserted that the victim of the sexual abuse had
at least some social interaction with another young man, Bjorn King. Second, Peter
asserted that Bjorn King repeatedly had possession of, and used, Trygve Angasan's
mobile phone in the days surrounding the offense - thus suggesting that King, and not
Angasan, might have been the one who exchanged the large number of text messages
with the victim. And third, Peter asserted that, on the night of the offense, Clara Angasan
asked Peter to collect the keys to all of the family's motor vehicles and bring them to her,
and that Peter did this - thus suggesting that Trygve Angasan did not have access to the
silver Chevrolet at the time the offense was alleged to have occurred.
The superior court found that, with one possible exception (the assertion
that Bjorn King repeatedly possessed and used Trygve Angasan's mobile phone), all of
the information contained in Peter Angasan's affidavit was known to Angasan's attorney
at the time of trial.
With respect to the allegation that Bjorn King repeatedly possessed and
used Angasan's mobile phone in the days surrounding the offense, the superior court
concluded that this assertion, even if true, did not constitute newly discovered
information because "the defendant himself would have been aware of that fact", and
thus Angasan's trial attorney "must have known" about it.
In his briefs to this Court, Angasan does not challenge the superior court's
finding that the information contained in Peter Angasan's affidavit was known to the
defense at the time of trial. However, Angasan argues that Peter should still be
considered a newly discovered source of evidence.
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According to Angasan's offer of proof in the superior court, (1) Peter left
for the Philippines a few months after Angasan was indicted; (2) Peter was essentially
incommunicado during his stay in the Philippines; and (3) until Peter returned from the
Philippines, neither Angasan nor his trial attorney had reason to believe that Peter was
a potential witness in Angasan's case.
Angasan notes that when a court is asked to dismiss a litigant's case on the
pleadings (i.e., without an evidentiary hearing or trial), the court is required to examine
the litigant's pleadings, treat all of the well-pleaded assertions of fact in those pleadings
as true, and then decide whether these assertions of fact (if ultimately proved) would
entitle the litigant to relief. 10
Relying on this principle, Angasan contends that the
superior court was required to treat Peter Angasan as a newly discovered witness - in
the sense that the court was required to presume the truth of Angasan's offer of proof
that Peter's existence as a potential witness was newly discovered.
But as this Court explained in LaBrake v. State , 152 P.3d 474 (Alaska App.
2007), even though a court must normally presume the truth of all of a litigant's well-
pleaded assertions of fact, this presumption does not extend to each and every assertion
in the litigant's pleadings:
[A] court deciding a motion for judgement on the pleadings
need not assume the truth of the [party's] conclusions of law,
nor the truth of the [party's] assertions concerning facts that
10 J & L Diversified Enterprises, Inc. v. Anchorage , 736 P.2d 349, 351 (Alaska 1987)
(an appellate court reviewing a dismissal on the pleadings must accept as true all
well-pleaded allegations of fact contained in the appellant's trial court pleadings); LaBrake
v. State , 152 P.3d 474, 480 (Alaska App. 2007) (same); Steffensen v. State, 837 P.2d 1123,
1125-26 (Alaska App. 1992) ("[W]hen the superior court decides whether the defendant's
petition states a prima facie case for relief, the superior court is obliged to view the factual
allegations of the defendant's petition in the light most favorable to the defendant.").
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are legally impossible, or the party's assertions concerning
matters that would not be admissible in evidence. Moreover,
the court need not assume the truth of assertions that are
patently false or unfounded, based on the existing record or
based on the court's own judicial notice.
LaBrake , 152 P.3d at 481. Under our decision in LaBrake , and based on the record in
Angasan's case, the superior court did not need to hold a hearing to reject Angasan's
assertion that Peter Angasan's existence as a witness was "newly discovered" under the
Salinas test.
The Salinas test required Angasan to show both (1) that Peter's existence
as a potential witness was not known to either Angasan or his attorney at the time of trial,
and (2) that Peter's existence as a potential witness could not have been discovered
through reasonably diligent efforts.
The first question - whether Angasan and his attorney were aware at the
time of trial that Peter was a potential witness - is a question of fact, and in the absence
of conclusive evidence to the contrary, the superior court was required to presume the
truth of Angasan's assertion that neither he nor his attorney knew that Peter was a
potential witness (assuming that this assertion was properly supported by affidavit or
other evidence).
However, the second question - whether Peter's existence as a potential
witness could have been discovered through reasonably diligent efforts - is a mixed
question of fact and law. The answer to this question hinges both on matters of historical
fact and on the court's legal assessment of what would qualify as "diligent" investigative
efforts under the circumstances.
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In Angasan's case, the superior court could properly conclude, on the
record before it, that Angasan's offer of proof failed to satisfy this "diligence" aspect of
the Salinas test.
As we explained earlier, Peter Angasan asserted in his affidavit (1) that his
mother, Clara, asked him to collect the keys to all of the family's vehicles on the evening
preceding the offense, and (2) that he collected the keys and gave them all to Clara.
Clara Angasan, for her part, asserted in her affidavit that she told Angasan's
attorney about having the car keys for the vehicles, and that she was surprised when the
attorney did not call her to testify at Angasan's trial.
Based on these assertions in Clara's affidavit, the superior court found that
Angasan's attorney was aware of Clara's evidence - and, thus, this evidence was not
"newly discovered" for purposes of Salinas. And as we noted earlier, Angasan does not
dispute the superior court's ruling that Clara's evidence failed to qualify as "newly
discovered".
But if Clara's evidence concerning the car keys was not newly discovered,
it necessarily follows that Peter's existence as a potential witness was not newly
discovered either.
According to Peter's affidavit, it was Clara who asked him to collect the car
keys, and he delivered the keys to her personally. Assuming the truth of Peter's
affidavit, either (1) Clara told Angasan's attorney that Peter was a potential witness when
she described how she got possession of the car keys, or (2) Angasan's attorney would
have found out that Peter was a potential witness if he had diligently questioned Clara
about this matter. In either event, Peter's existence as a potential witness in Angasan's
case was not "newly discovered" under the Salinas test.
Accordingly, the superior court properly concluded that, of the four
affidavits that Angasan submitted in support of his motion for a new trial, none of them
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qualified as "newly discovered" evidence under the Salinas test. The superior court
could therefore deny Angasan's new trial motion on the pleadings.
Angasan's remaining claim
Apart from his motion for a new trial, Angasan argues that his conviction
must be reversed because the trial judge refused to allow Angasan's defense attorney to
introduce evidence tending to show that the thirteen-year-old victim had engaged in other
"sexualized behavior" - in particular, sending text messages with sexual overtones to
a "guy in Florida".
But the defense attorney did not offer this evidence directly. Rather, the
defense attorney only sought conditional admission of this evidence.
The information in question was included in the report prepared by the
nurse who examined and interviewed the victim following the allegation of sexual abuse.
At trial, Angasan's attorney argued that if the State introduced the nurse's report, then,
under the principle of testimonial completeness, the jury should be apprised of the
portion of the report where the nurse described the victim's "sexualized behavior".
Angasan's trial judge initially ruled that this portion of the nurse's report
was not particularly relevant, and that this portion would be excised from the report
when the State offered the report into evidence. However, the judge invited the defense
attorney to renew his request "if ... something comes up that makes [this evidence] more
pertinent to the issues [in dispute]."
But the situation changed later in the trial - because, when the prosecutor
called the nurse to the stand, the prosecutor made no attempt to introduce the nurse's
report, and Angasan's attorney never raised the issue again. Indeed, at the end of the
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trial, the prosecutor noted on the record that he had not introduced the nurse's report, and
Angasan's attorney responded, "Oh, so that whole argument is moot."
Given these circumstances, Angasan's attorney failed to preserve an
objection to the trial judge's preliminary ruling on the admissibility of this portion of the
nurse's report.
Conclusion
The judgement of the superior court is AFFIRMED.
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