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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSHUA W. COLE,
Court of Appeals No. A-12442
Appellant, Trial Court No. 1AG-13-00001 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2661 - October 17, 2019
Appeal f
rom the Superior Court, First Judicial District, Sitka,
David V. George, Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, and Suddock,
Senior Superior Court Judge. *
Judge SUDDOCK.
* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
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In 2012, L.P., a twelve-year-old girl residing in Angoon, disclosed that
Joshua W. Cole had sexually abused her on two occasions. The authorities arranged for
L.P. to give a videotaped statement describing this abuse. Cole was subsequently
charged with first- and second-degree sexual abuse of a minor based on the first incident,
1
and two counts of second-degree sexual abuse of a minor based on the second one.
Although L.P.'s videotaped statement would normally be hearsay, Alaska
Rule of Evidence 801(d)(3) provides that a pretrial videotaped statement "by the victim
of a crime who is less than 16 years of age" is not hearsay if certain foundational
requisites are met. Cole objected pretrial that two of these foundational requisites were
not satisfied. Following a two-stage evidentiary hearing, the court overruled this
objection, finding that the foundational criteria were met. But the court conditioned
admission of the videotaped statement on L.P. testifying at trial before the video was
played to the jury.
Cole was convicted on all counts, and he now appeals, arguing that the trial
judge erred when he found the foundational requisites of Rule 801(d)(3) to be satisfied.
For the reasons explained here, we find no error.
Cole also claims that the judge should have sustained his objection when,
during the prosecutor's closing argument, sheinformedthejury that she was not required
to prove the specific dates of Cole's crimes, even though the indictment charged that
each incident occurred during a specific month of the year. But the prosecutor's
evidence firmly placed each incident within the time frame specified in the indictment.
And, contrary to Cole's argument in this appeal, he never raised the sort of alibi defense
that might have made the timing of the crimes a significant issue. Accordingly, we
conclude that Cole was not prejudiced by the prosecutor's remark.
1 AS 11.41.434(a)(1) and AS 11.41.436(a)(2), respectively.
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Facts and proceedings
When L.P. was two years old, she was adopted by a couple living in
Angoon. L.P. suffered from fetal alcohol spectrum disorder, and she had consequent
learning disabilities. L.P.'s adoptive maternal grandmother, Marie Demmert, also
resided in Angoon. L.P. visited her grandmother's house often and would sometimes
stay there overnight.
Demmert'sbiologicalgranddaughterEileenHunter,andHunter'sboyfriend
Joshua Cole, shared a bedroom in Demmert's house. In March 2011, while Hunter was
away, Cole fondled L.P.'s breasts and digitally penetrated her vagina as she was resting
on a bed at Demmert's house.
In September 2011, L.P.'s mother brought L.P. to Alaska State Trooper
Christopher Umbs, who interviewed her about whether Cole had sexually abused her.
L.P. repeatedly denied that Cole had touched her sexually. L.P. was eleven years old at
the time.
About a year later, in October of 2012, while L.P. slept on a couch in her
grandmother's living room, she awakened to find Cole crouching on the floor next to
her. Cole attempted to digitally penetrate L.P.'s vagina, but she turned away. Cole then
began fondling L.P.'s breasts through her shirt. He was almost immediately interrupted
by Cole's girlfriend Hunter, who emerged from their bedroom and asked Cole what he
was doing to L.P. According to L.P., Cole said "nothing," stood up, and accompanied
Hunter back to their bedroom.
Soon after this happened, L.P. told her older stepbrother, Norman Joseph,
that Cole had touched her "private area." Shortly thereafter the family reported the
matter to the authorities, and Trooper Umbs arranged for L.P. to be interviewed on
videotape in Juneau at the Child Advocacy Center ("CAC").
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During this interview, L.P. described both incidents of her sexual abuse by
Cole. She also recanted her earlier denials from the September 2011 interview with
Trooper Umbs.
Cole's challenges to the admission of L.P.'s videotaped interview
Cole filed a pretrial motion opposing the admission of the CAC interview,
contending that L.P.'s statement failed to satisfy the requirement of Evidence Rule
801(d)(3)(H) that the court must "determine that [the statement] is sufficiently reliable
and trustworthy and that the interests of justice are best served by admitting the recording
into evidence."
The court held an evidentiary hearing at which L.P., her mother, and
Trooper Umbs testified. Trooper Umbs testified that during L.P.'s interview at the
Juneau CAC, he and another person had observed the interview via closed-circuit
television in an adjoining room. (L.P.'s mother testified that she believed that three
persons had observed the interview in this fashion.) Umbs further testified that, toward
the end of the interview, interviewer Jennifer Narvaez briefly visited the observation
room to consult about followup questions. Narvaez then resumed the interview and
posed questions along the lines suggested by the observers.
During argument at the close of the hearing, Cole's defense attorney
objected to admission of L.P.'s statement on the ground that L.P.'s interviewer had failed
to identify "each person participating in the taking of the statement" on the video
recording, as required by Rule 801(d)(3)(E). The defense attorney pointed out that
Narvaez had identified herself on the videotape, but she had not identified the observers
in the adjoining room.
After the evidentiary hearing, the State filed a supplemental pleading
identifying the persons in the adjoining room as Trooper Umbs, Keith Merrifield from
Catholic Social Services, and Brian Messing, a CAC employee. (We note that these
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same observers are identified on the title page of the transcript for the CAC video
recording.)
The judge later issued a written order, conditionally finding that all of the
foundational requisites of Rule 801(d)(3) had been satisfied. As to subsection (d)(3)(E),
the judge noted that "L.P. and Mrs. Narvaez, who took L.P.'s statement and conducted
the interview, were identified on the recording."
The judge set a second evidentiary hearing to afford the parties a further
opportunity to present evidence on the issue of whether L.P.'s statement was
"sufficiently reliable" to qualify for admission under Rule 801(d)(3)(H), and to clarify
the meaning of that section's requirement that the judge find "that the interests of justice
are best served by admitting the recording into evidence."
During that hearing Jennifer Narvaez confirmed that, after a brief
intermission late in L.P.'s interview, she had crafted followup questions based on
suggestions fromthe persons observing the interview via closed-circuit television. After
hearing further argument, the judge found that L.P.'s statement was sufficiently reliable
and that its admission into evidence served the interests of justice.
Why we conclude that the judge did not err in finding that the foundational
requirement under Alaska Evidence Rule 801(d)(3)(E) was met
As noted, Evidence Rule 801(d)(3) provides for the admission of
out-of-court statements made by children who are alleged to be the victims of a crime,
so long as those statements meet certain requirements. Under the rule, a child's recorded
out-of-court statement is not hearsay and is therefore admissible into evidence, if the
child is less than sixteen years of age, and if the following foundational matters are
established:
(A) the recording was made before the proceeding [at which
it is being offered];
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(B) the victim is available for cross-examination;
(C) the prosecutor and any attorney representing the
defendant were not present when the statement was taken;
(D) the recording is on videotape or other format that records
both the visual and aural components of the statement;
(E) each person who participated in the taking of the
statement is identified on the recording;
(F) the taking of the statement as a whole was conducted in
a manner that would avoid undue influence of the victim;
(G) the defense has been provided a reasonable opportunity
to view the recording before the proceeding; and
(H) the court has had an opportunity to view the recording
and determine that it is sufficiently reliable and trustworthy
and that the interests of justice are best served by admitting
the recording into evidence.
If the trial court finds that any of these foundational requirements are not met, the
videotaped interview is not admissible under Evidence Rule 801(d)(3).
Here, the parties disagree regarding the meaning of the foundational
requirement that "each person who participated in the taking of thestatementisidentified
2
on the recording."
Cole argues that once the persons observing the interview on closed-
circuit television gave suggestions to the interviewer during a break late in the interview,
they became "participants" in the taking of L.P.'s statement within the meaning of
subsection (d)(3)(E), and that their late-stage participation then required the interviewer
to directly identify them on the recording.
The State argues that subsection (d)(3)(E)'s requirement that the
participants be identified "on the recording" should be construed to apply only to those
2 Alaska Evid. R. 801(d)(3)(E).
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persons physically present in the interview room, i.e., to persons whose verbal
statements, body language, or other qualities might somehow directly influence the
child's interview experience in some undue way. The State reasons that even if out-of-
roomobservers provide off-record suggestions for additional questions, the child will be
unlikely to intuit the genesis of those questions, and the court will be able to evaluate the
propriety of the questions based on their merits rather than on who suggested them.
3
Evidence Rule 801(d)(3) is a legislatively enacted rule.
We are required
to interpret the rule "according to reason, practicality, and common sense, considering
4
the meaning of the [rule]'s language, its legislative history, and its purpose." The parties
provide no legislative history shedding light on the intended breadth of the phrase "each
person who participated in the taking of the statement," and our independent researchhas
revealed none.
We discussed the overarching legislative rationale for this evidence rule in
5
The bill's sponsor, Senator Hollis French, testified that the bill
Augustine v. State .
would enhance truth-finding at trials by affording children a safe venue to give their
accounts free of the intimidating factors inherent to a courtroom, with questioning by
persons trained to neutrally elicit information. Senator French specifically mentioned
two important safeguards to this procedure: a judge would be required to evaluate
whether the child had been subjected to undue influence, and also to evaluate whether
6
the child's statement was trustworthy.
3 See Augustine v. State, 355 P.3d 573, 582 (Alaska App. 2015).
4 Brown v. State, 404 P.3d 191, 193 (Alaska App. 2017) (quoting ARCTEC Servs. v.
Cummings, 295 P.3d 916, 920 (Alaska 2013)).
5 Augustine v. State , 355 P.3d 573, 582-83 (Alaska App. 2015).
6 Id.
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We have canvassed statutes in multiple other states that provide for
admission of videotaped interviews by child victims of crime. The most common
foundational requirement in those statutes that require on-record identification of
participants in the interview is that the interviewer must identify all persons heard on the
videotape. None of these statutes require the identification of persons who are merely
consulted off-record. 7
Here, the only persons present in the interview room were Narvaez and
L.P., both of whom were identified on the recording. The observers - Trooper Umbs,
Keith Merrifield, and Brian Messing - were identified on the front page of the transcript
of the recording, but were not identified in the recording itself. We perceive no reason
why observers must be identified on the recording, even if they are consulted before or
during the interview. As the State points out, any questions suggested by the observers
can still be assessed on their own merits based on the recording.
This is not to say that the presence of observers is necessarily irrelevant to
the reliability and trustworthiness assessment that the trial court must make. The State
should still report the identities of any observers to the defense so that the defense can
determine whether the presence of the observers raises issues of undue influence. But
the failure to include that information on the recording itself does not, on its own,
preclude admission of the videotaped interview. In this case, the State did notify the
defense of the identities of the observers, and we therefore need not decide the precise
contours of when and how the identity of observers must be disclosed.
7 Ariz. Rev. Stat. Ann. § 13-4252(A)(3) ("[e]veryvoice on the recording is identified");
Kan. Stat. Ann. § 22-3434(a)(2)(c); Ky. Rev. Stat. Ann. § 421.350(3)(c); La. Stat. Ann. §
15:440.5(A)(5); Mo. Ann. Stat. § 492.304(1)(5); Okla. Stat. Ann. tit. 10A, § 1-4-505(B)(6);
R.I. Gen. Laws Ann. § 11-37-13.2(b)(3); Tenn. Code Ann. § 24-7-123(b)(6); Utah R. Crim.
P. 15.5(a)(5).
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Accordingly, we find no error in the trial court's finding that the
foundational requirement under Evidence Rule 801(d)(3)(E) was met.
Why we conclude that the judge did not err in finding that the foundational
requirement under Alaska Evidence Rule 801(d)(3)(H) was met
Under Rule 801(d)(3)(H), the court must "determine that [the videotaped
statement] is sufficiently reliable and trustworthy and that the interests of justice are best
served by admitting the recording into evidence." Cole argues that the judge erred when
he found that this foundational requirement was satisfied.
Relying on our decision in Augustine , Cole argues first that the judge erred
when he failed to make detailed findings directly addressing each and every one of
Cole's challenges to the reliability of L.P.'s statement. But Cole did not make such a
request to the judge. In any event, we are unpersuaded by Cole's reliance on Augustine .
In Augustine , thejudgeaffirmatively declined to determinethe reliability of the proffered
video statement at all , instead ruling that the weight of the evidence was for the jury to
decide. Faced with this total abrogation of the judge's duty as gatekeeper, we remanded
8
the case for the judge to enter reliability findings.
But the record in Cole's case reflects
that the judge independently assessed the reliability and trustworthiness of L.P.'s
statement and shows that, unlike in Augustine , the judge fulfilled his important
gatekeeper role.
Cole next argues that the judge misapplied the interests of justice standard.
This claim rests on a subtle semantic difference that Cole did not point out below - a
difference between the judge's use of the phrase "the interests of justice" in his oral
decision and the language of the rule that "the interests of justice are best served by
8 Augustine , 355 P.3d at 585-86.
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admitting the recording into evidence." We have reviewed the record and we perceive
the court's phrasing to be, if anything, a linguistic slip, rather than a substantive
misunderstanding.9
Finally, Cole argues that the judge applied the wrong evidentiary standard
to the foundational requirements. According to Cole, the judge was required to apply a
clear and convincing standard when making these determinations. But Cole did not raise
this claim in the trial court proceedings, and because he did not obtain a ruling on the
applicable standard of care, we cannot tell what evidentiary standard the judge used, or
would have used had this claim been made in the trial court. For these reasons we
10
conclude that Cole has waived this claim.
We have reviewed the record, and we conclude that the judge's findings of
fact and conclusions of law adequately address whether L.P.'s statement met the
requirements of subsection (H). We accordingly deny Cole's request that we remand the
case and require the judge to enter additional findings of fact regarding this matter.
9 See Bierria v. Dickinson Mfg. Co., 36 P.3d 654, 657 (Alaska 2001) ("[M]ore
important than how the test is phrased is how it is applied."); see also In re Life Ins. Co. of
Alaska , 76 P.3d 366, 370 (Alaska 2003) (concluding that the superior court's brief references
to "substantial evidence" during its oral ruling did not show that the court had failed to apply
the correct standard of review (de novo)).
10
See, e.g., Pierce v. State, 261 P.3d 428, 430-32 (Alaska App. 2011) ("[A] litigant is
not entitled to pursue a claim on appeal unless that claim was presented to the lower court,
and unless the lower court issued a ruling on the merits of that claim.").
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The court did not err when it overruled defense objections to the
prosecutor's final argument
As explained earlier in this opinion, Cole was charged with committing
sexual assaults on L.P. at the home of her adoptive maternal grandmother Marie
Demmert on two separate occasions - in March 2011 and in October 2012.
The evidence at trial showed that L.P. would stay overnight at Demmert's
house (where Cole and his girlfriend Hunter also lived) during L.P.'s mother's monthly
trips to Juneau to purchase household supplies.
The State's evidence placed the first incident of abuse in March 2011. At
that time, Cole and Hunter were expecting their first child. For several weeks prior to
the baby's birth on April 1, 2011, Hunter stayed in Juneau while Cole remained in
Angoon.
The State's evidence placed the second incident of abuse in October 2012,
on one of two weekends that L.P. stayed overnight at Demmert's house while her mother
was in Juneau.
Soon after this second incident, L.P. told her older stepbrother Norman
Joseph that Cole had touched her "private area." At the time of this disclosure, L.P. and
her family were staying at a hotel in Juneau awaiting the birth of Joseph's daughter, who
was born on October 16, 2012.
During her final argument, the prosecutor told the jury several times that
the State did not bear the burden of proving the exact dates of the crimes, and at one
point stated that the State did not have to prove the exact months of the crimes. The
defenseattorneytwiceobjectedto theprosecutor'scharacterization oftheState's burden,
telling the judge this misstated "the law of alibi." The judge overruled these objections.
Cole now argues on appeal that the trial court erred when it allowed the
prosecutor to argue that the State did not have to prove the exact dates of the alleged
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offenses. Specifically, Cole asserts that the judge effectively permitted the prosecutor
to amend the indictment to eliminate any timing parameters, and that this amendment
prejudiced his defense.
Under Alaska law, the State is not obligated to prove the date of an alleged
crime, so long as the defendant is sufficiently on notice of the charged crime to
meaningfully defend against it. As we held in Larkin v. State,
Alaska law follows the same rules described in LaFave and
in Wright: the rules that the date of the offense is normally
not a material element of the offense, and that a variance
between the date specified in the indictment and the date
revealed by the evidence at trial will not support an attack on
the judgement unless the variance prejudiced the
defendant's ability to prepare or present their defense.11
Here, we conclude that Cole was not prejudiced by the prosecutor's
statements for two reasons.
First, even though the prosecutor stated briefly in closing that the State was
not required to prove that Cole's crimes occurred during the respective months charged
in the indictment - March 2011 and October 2012 - the evidence at trial actually did
so, and the prosecutor never argued that the crimes occurred at other times. The
evidence at trial firmly linked the crimes to those two months. Testimony at trial related
each incident to the weeks preceding the birth of a baby - the first incident to the birth
of Hunter's baby, and the second to the birth of L.P.'s brother's baby. The weeks
preceding each respective birth fell within the March 2011and October 2012 time frames
charged in the indictment.
Second, although Cole's objections below were based on "the law of alibi,"
Cole did not actually present alibi defenses excluding his opportunity to abuse L.P.
11 Larkin v. State , 88 P.3d 153, 157 (Alaska App. 2004).
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during the charged months. As to the March 2011 occurrence, Cole (who did not testify)
offered no evidence that he was away from Angoon during that month; his defense
attorney merely argued that since L.P. denied in her September 2011 statement that Cole
had abused her, he must not have done so. This general denial did not amount to an alibi
defense.
And as to the October 2012 occurrence, L.P.'s mother testified that she
twice traveled to Juneau in early October, each time leaving L.P. in Demmert's care in
Angoon. Cole presented documentary evidence that he was in Juneau during the first of
those trips, but not the second. Indeed, in his statement to Trooper Umbs, Cole admitted
that he was present at Demmert's house on an October night, that he encountered L.P.
sleeping on a living room couch, that Hunter entered the room and asked him what he
was doing, and that he then returned to his bedroom with Hunter. L.P. and Hunter both
testified to those same facts, and L.P. added that Cole molested her just before Hunter's
arrival.
12
Cole's case is analogous to an Illinois case, People v. Stevens . Stevens
argued that a jury instruction informing the jury that the date of the crime alleged in the
indictment was not an element of the charged offense had prejudiced his defense. The
court held that because Stevens (like Cole) actually admitted that he was present on the
night in question, he was not prejudiced by the instruction.
Here, while Cole's alibi defense only excluded two days falling within
October 2012, evidence at trial suggested that the crime likely occurred during the
following week. L.P., Hunter, and Cole each acknowledged Cole's presence on an
October night during which Hunter saw Cole next to the couch on which L.P. was lying.
12 People v. Stevens, 115 N.E.3d 1207, 1215-16 (Ill. App. 2018).
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We therefore conclude that Cole suffered no prejudice when the prosecutor
told the jury that the State did not have a burden to prove the exact date (or month) of
Cole's crimes.
Conclusion
We AFFIRM the judgment of the superior court.
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