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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
REID DUARD HAYES,
Court of Appeals No. A-12801
Appellant, Trial Court No. 3AN-12-03709 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2678 - September 18, 2020
Appeal f
rom the Superior Court, Third Judicial District,
Anchorage, Paul E. Olson, Judge.
Appearances: Michael Horowitz, Law Office of Michael
Horowitz, Kingsley, Michigan, under contract with the Office
of Public Advocacy, Anchorage, for the Appellant. Patricia L.
Haines, Assistant AttorneyGeneral, Office of Criminal Appeals,
Anchorage, and Kevin G. Clarkson, Attorney General, Juneau,
for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD.
----------------------- Page 2-----------------------
Reid Duard Hayes was convicted, following a jury trial, of three counts of
first-degree sexual abuse of a minor, three counts of second-degree sexual abuse of a
minor, and one count of attempted second-degree sexual abuse of a minor for sexually
abusing three of his girlfriend's underage daughters over the course of several years.
Hayes raises six claims on appeal. The first two claims require us to
construe Alaska Evidence Rule 801(d)(3) -the evidence rule authorizing the admission
of recorded statements by child victims of crime, provided that certain foundational
requirements are met. Specifically, we must decide whether the requirement that the
child victim be "less than 16 years of age" applies at the time when the statement is taken
or at the time of trial when the victim is called to testify. For the reasons explained here,
we conclude that the applicable time period is when the recorded statement was taken.
We are also required to decide whether the use of an investigating officer
as the interviewer in a child advocacy center interview constitutes a per se bar to
admitting those interviews under Evidence Rule 801(d)(3). For the reasons explained
here, we conclude that the fact that the interviewer is an investigating officer is an
important factor for thecourtto consider when evaluating thereliabilityandadmissibility
of the child advocacy center interview, but we do not agree with Hayes that it is a per se
bar to admissibility.
Hayes raises four other claims of error, relating to (1) the State's use of a
child sexual abuse expert; (2) N.E.'s trial testimony; (3) a discovery matter; and (4) a
special condition of probation. For the reasons explained here, we reject each of these
claims of error.
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Background facts
In 2007, Hayes began dating and living together with a woman who had
five daughters: S.D. (thirteen years old), N.E. (nine years old), K.E. (seven years old),
A.E. (four years old), and L.E. (under one year old).
According to later trial testimony, Hayes began sexually abusing S.D.
around the summer of 2008, when she was fourteen years old. S.D. testified regarding
an incident in which Hayes started kissing and touching her while they were watching
a movie and then penetrated her vagina with his penis. S.D. recalled at least one other
specific incident of sexual penetration, although she testified that it happened many more
times.
N.E. testified that Hayes first sexually abused her when she was around
twelve years old. As was the case with S.D., the sexual abuse took place while N.E. and
Hayes were watching a movie. The first time Hayes touched her vagina, they were
laying on the bed facing the television, and he moved his hand down her stomach under
her clothes until he reached her vagina; he placed his fingers on top of her vagina for
about five to ten minutes. Although she testified there were three to five "really similar"
incidents, N.E. specifically remembered thelast occurrence, when he penetrated her with
two fingers.
K.E. testified to an incident in late 2011 or early 2012, when Hayes moved
his hand towards K.E.'s vagina while hugging hergoodnight. BecauseK.E. was wearing
tight-fitting "skinny jeans," Hayes was unable to get his hand inside her pants. K.E.
grabbed Hayes's hand and moved it away, telling him that she "wasn't his girlfriend;
[she] was his daughter."
Shortlythereafter -in January 2012 -the girlsdisclosed thesexual abuse
to their aunt, who then brought them to Alaska CARES, a child advocacy center (CAC).
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There, two detectives conducted forensic interviews with S.D., N.E., and K.E., as well
as with their younger sister A.E., then eight years old.
Hayes was later indicted on three counts of first-degree sexual abuse of a
minor, three counts of second-degree sexual abuse of a minor, and one count of
attempted second-degree sexual abuse of a minor. 1
Hayes's trial was held in June 2016. All three victims - S.D., N.E., and
K.E. - testified at trial, as did A.E. The Alaska CARES videos of N.E. and K.E. were
also played for the jury as part of the State's case-in-chief. Hayes maintained his
innocence, and his defense centered on discrediting the girls. The victims' mother, who
2
was engaged to Hayes at the time of trial, testified in support of Hayes's account.
Ultimately, a jury found Hayes guilty of all counts. He was sentenced to
39 years to serve. The court also imposed a 10-year term of probation with general and
special conditions.
This appeal followed.
Hayes's argument that Alaska Evidence Rule 801(d)(3) should be
construed to only apply to victims who are under the age of sixteen at the
time of trial
Alaska Evidence Rule 801(d)(3) allows the State to admit the videotaped
statement of a child victim as part of its case-in-chief. Traditionally, such evidence
would be barredby theprohibition against hearsay because it is an out-of-court statement
1 AS 11.41.434(a)(1), (a)(3)(A), (a)(3)(B); AS 11.41.436(a)(1), (a)(5)(A), (a)(5)(A); and
AS 11.41.436(a)(5)(A) & AS 11.31.100, respectively.
2 In the intervening years, the victims' mother had lost custody of her children.
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3
introduced for the truth of the matter asserted. But Rule 801(d)(3) exempts this
evidence from the hearsay rule if it is "a recorded statement by the victim of a crime who
is less than 16 years of age" and satisfies eight additional criteria. In full, the rule
provides:
The statement is a recorded statement by the victim of a
crime who is less than 16 years of age and
(A) the recording was made before the proceeding;
(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.
At the time of the interviews in this case, N.E. was thirteen years old. But
by the time of trial, over four years later, N.E. was eighteen years old.
The State asked the court to admit K.E.'s and N.E.'s video-recorded
statements under Rule 801(d)(3). Hayes objected to N.E.'s video-recorded statements,
arguing that the rule's requirement that the child victim be "less than 16 years of age"
3 See Alaska Evid. R. 801(a)-(c) & 802.
- 5 - 2678
----------------------- Page 6-----------------------
should be interpreted to mean that the victim is less than sixteen years of age at the time
4
of trial .
The State argued that this language should be interpreted to mean that the
victim was less than sixteen years of age at the time the statement was made. The trial
court agreed with the State and admitted the statements. Hayes now appeals that ruling.
In interpreting a statute, we examine de novo "the meaning of the statute's
language, its legislative history, and its purpose" in light of "reason, practicality, and
5
common sense."
Under Alaska's "sliding scale" approach to statutory interpretation,
"the plainer the statutory language is, the more convincing the evidence of a contrary
6
legislative intent must be."
We acknowledge that the relevant language of Rule 801(d)(3) is subject to
two interpretations. Because the rule describes the age of the victim in the present tense
("by the victim . . . who is less than 16 years of age"), it is theoretically possible to read
the rule, as Hayes does, as referring to the victim's age at the time of trial. But the
present tense is also commonly used to describe the content of a recording or
photograph, even thoughtherecording or photographwasnecessarily made at some time
in the past. It is therefore also possible to read the rule, as the State does, as referring to
the victim's age at the time the recording was made.
In our view, the State's reading is the more natural one. Typically, when
a person describes a recording, the expectation is that the description applies to the
recording at the time it was made, not to some future time when the recording might be
4 Hayes did not object to K.E.'s video-recorded statements on this basis, even though
she had turned sixteen years old by the time of trial.
5 Brown v. State, 404 P.3d 191, 193 (Alaska App. 2017) (quoting ARCTEC Servs. v.
Cummings, 295 P.3d 916, 920 (Alaska 2013)).
6 State v. Thompson, 425 P.3d 166, 169 (Alaska App. 2018) (citing State v. Fyfe, 370
P.3d 1092, 1094 (Alaska 2016)).
- 6 - 2678
----------------------- Page 7-----------------------
used. For example, if a video is described as "the recorded statement by a victim who
is intoxicated," the expectation would be that the victim was intoxicated at the time the
statement was made. Likewise, "a recorded statement by a victim who is wearing a blue
shirt" would be assumed to be describing the victim in the recording, rather than what
the victim is wearing in the courtroom.
In other words, the language of Rule 801(d)(3), although not perfectly
plain, supports the more natural interpretation offered by the State: The victim must
have been "less than 16 years of age" at the time the recording was made.
This interpretation of the rule is consistent with how other states have
interpreted similar rules in their own jurisdictions. Although some of the analogous rules
in other jurisdictions are unambiguous and clearly state whether the victim's age
referenced in the rule is the age at the time the recording was made or at the time of trial, 7
7 See, e.g., Del. Code Ann. tit. 11, § 3513(a) (2020) (admitting "[a]n out-of-court
statement made by a child victim or witness who is under 11 years of age at the time of the
proceeding"); Ind. Code § 35-37-4-6(d)(l) (2020) (admitting "[a] statement or videotape that
is made by a person who at the time of trial is a protected person [ e.g., 'a child who is less
than fourteen (14) years of age']"); Ohio R. Evid. 807(A) (admitting "[a]n out-of-court
statement made by a child who is under twelve years of age at the time of trial or hearing");
42 Pa. Cons. Stat. § 5985.1(a)(1) (2020) (admitting "[a]n out-of-court statement made by a
child victim or witness, who at the time the statement was made was 12 years of age or
younger"); S.C. Code Ann. § 17-23-175(C)(1) (2020) (admitting out-of-court statements
made by "a person who is under the age of twelve years at the time of the making of the
statement"); Vt. R. Evid. 804a(a) (admitting "[s]tatements by a person who is a child 12 years
of age or under . . . at the time the statements were made"); Wis. Stat. § 908.08(3)(a) (2020)
("The court or hearing examiner shall admit the recording upon finding . . . [t]hat the trial or
hearing in which the recording is offered will commence: 1. Before the child's 12th
birthday; or 2. Before the child's 16th birthday and the interests of justice warrant its
admission . . . .").
- 7 - 2678
----------------------- Page 8-----------------------
8
there are some rules that contain an ambiguity similar to the one presented here. In the
face of such ambiguity, courts in other jurisdictions have generally concluded that the
9
law is referring to the victim's age at the time the recording was made.
Thelegislativehistory ofEvidenceRule801(d)(3)provides further support
for the State's interpretation that it is the victim's age at the time of the recording that
matters, rather than the victim's age at the time of trial.
Rule 801(d)(3) originated in 2005 as Senate Bill 117, and its legislative
history reveals a dual purpose: (1) to protect children from the traumatic experience of
testifying; and (2) to provide the best evidence of the abuse to the jury.
In introducing the bill to the Senate Judiciary Standing Committee, its
sponsor, Senator Hollis French, expressed his belief that "young victims of crime don't
8 See, e.g., Ga. Code Ann. § 25-8-820 (2020) (admitting statements "made by a child
younger than 16 years of age"); La. Stat. Ann. § 15:440.2(C)(1) (2020) (admitting statements
of "a victim of a crime or a witness in a criminal proceeding and who is . . . [u]nder the age
of seventeen years"); Mass. Gen. Laws ch. 233, § 82 (2020) (admitting "statements of a child
under the age of ten"); Tenn. Code Ann. § 24-7-123(a) (2020) (admitting "a video recording
of an interview of a child by a forensic interviewer containing a statement made by the child
under thirteen (13) years of age").
9 See, e.g., Darden v. State, 425 S.E.2d 409, 410 (Ga. App. 1992) (holding that "the age
of the child at the time the statements were made is determinative of their admissibility");
State v. In re A.M., 994 So.2d 1277, 1278 (La. 2008) (assessing the victim's age "[a]t the
time the interviews at issue were videotaped"); In re Adoption of Daisy , 934 N.E.2d 252,
259-60 (Mass. App. 2010) (holding that the statutory language dictated that "it is the age of
the child when the statements were made that is the determinative consideration"); State v.
Herron, 461 S.W.3d 890, 904 n.11 (Tenn. 2015) (noting that the statutory language
authorizes the admission of recorded forensic interviews "only if the child is under the age
of thirteen when the statement is given"); see also State v. Roman, 590 A.2d 686, 688, 690
(N.J. App. 1991) (holding that the age requirement of former Evidence Rule 63(33) -
admitting statements "by a child under the age of 12" - is "satisfied if the declarant was
under 12 years of age when the statement was made" and that the child's age at the time of
trial "is irrelevant").
- 8 - 2678
----------------------- Page 9-----------------------
get a fair shake in courtrooms in Alaska." 10 He described the longstanding, beneficial
practice of forensically interviewing child victims at CACs - "safe, nurturing, child-
friendly environments [where] the interviewers are specially trained to work with
11
children and work with a multidisciplinary team focused on the child's welfare."
Senator French explained that the victim's narrative, as told to the forensic
interviewer, is "often much more informative about the child's experiencewith an abuser
than the testimony the child will give in a formal court setting."12
Even if an attorney
could elicit the basics of the victim's account on the witness stand, that account rarely
possessed the "vitality and the breadth and the depth of the statement given back at the
CAC."13
Senator French expressed his dismay that a child victim's "full" statement
at the CAC was largely inadmissible in court, and that the jury was therefore forced to
14
rely on the victim's narrative often years after the fact. He explained that a victim's
"difficulty in articulating the details of a very painful and very private experience often
15
results in a reduction of the charges" and that the bill would therefore "enhance the law
16
enforcement process to bring child predators to justice."
Thus, by "let[ing] those
10 Audio of Senate Judiciary Comm., Senate Bill 117, testimony of Senator French,
9:27:09-9:27:16 a.m. (Mar. 31, 2005).
11 Id. at 9:27:41-9:27:51 a.m.
12 Id. at 9:28:22-9:28:30 a.m.
13 Id. at 9:30:05-9:30:41 a.m.
14 Id.
15 Id. at 9:28:43-9:28:51 a.m.
16 Id. at 9:28:12-9:28:17 a.m.
- 9 - 2678
----------------------- Page 10-----------------------
17
statements come in, let[ing] the jury see the entire story," the proposed rule would "help
18
protect Alaska's children and bring swifter justice for them."
The legislature's goal of "amplify[ing] the voices of children who have
been abused and children who have been sexually assaulted and let[ing] their voices
19
does not depend on the victim's age at
shine in a courtroom as strongly as possible"
trial. In fact, adopting Hayes's interpretation of only allowing admission of these
statements when the victim is under sixteen years old at the time of the trial would
frustrate the legislature's purpose of providing narratives that are closer in time to the
20
incident, when memories are most fresh. Furthermore, as other jurisdictions have
recognized, it would be unfair to penalize the victims for delays in the trial process
21
outside their - or even the State's - control.
Hayes argues that the primary concern of the legislature - preventing
inaccurate or unreliable testimony caused by a child victim's impaired communication
on the stand in the presence of a defendant - no longer applies to adult witnesses. We
17 Id. at 9:31:04-9:31:08 a.m.
18 Press Advisory, "French, Kookesh File Bills to Protect Children," Alaska State
Legislature, Senator Hollis French, Senator Albert Kookesh (Feb. 28, 2005).
19 Senate Floor Session, 24th Alaska Legislature, Debate on House Bill 53, testimony
of Senator French, Gavel Audio at 47:21-47:45 (May 9, 2005).
20 Cf. State v. Gaines, 342 S.W.3d 390, 397 (Mo. App. 2011) (explaining that, as a
practical matter, "[a]s the period of time between the sexual attack and trial grows longer,
it only makes sense that the need to use these out-of-court statements becomes more critical
to ensure the victim's testimony does not 'become contaminated by contacts and influences
prior to trial'") (quoting State v. Benwire, 98 S.W.3d 618, 624 (Mo. App. 2003)).
21
See, e.g., State v. Roman, 590 A.2d 686, 690 (N.J. App. 1991) (explaining that
interpreting the age requirement to be the age at the time of trial "might encourage the
defense to delay trial and hold the prosecutor captive to dilatory tactics").
- 10 - 2678
----------------------- Page 11-----------------------
acknowledge that adults are likely better equipped to confront painful experiences, but
22
the legislature's reliability concerns still remain.
By the time N.E. testified at trial -
when she was over eighteen years old -her direct testimony was often halted. At times,
she struggled to remember details of the abuse that had happened over four years earlier.
Without thevideotaped statement, about whichN.E. was cross-examined over thecourse
of two days, the jury would not have heard the "fuller and more in-depth" narrative the
23
legislature intended it to consider.
In sum, we conclude that the language of the rule, the relevant legislative
history, and the underlying policy rationales support the State's interpretation of
Evidence Rule 801(d)(3). Accordingly, we construe the language "a recorded statement
by a victim of a crime who is less than 16 years of age" to apply to the age of the victim
at the time the recording was made, not the age of the victim at the time the recording is
admitted into evidence. We therefore reject this claim on appeal.
Hayes's argument that the videos were foundationally deficient under Rule
801(d)(3) because they were conducted by the investigating officers
Hayes also argues that both K.E.'s and N.E.'s videos were foundationally
deficient under Rule 801(d)(3) - specifically, under subsections (C) and (F) - because
the interviews were conducted by the police detectives involved in the investigation of
Hayes's offenses. Subsection (C) precludes the prosecutor and defense attorney from
being present when a victim's statement is taken, and subsection (F) requires the court
22 See Gaines, 342 S.W.3d at 397 ("[I]t is common sense that our memories of childhood
fade and distort over time as we grow older, so the idea that we are somehow able to
articulate traumatic events that occurred in our childhood better when we are adults seems
divorced from reality.") (emphasis in original).
23
Audio of Senate Judiciary Comm., Senate Bill 117, testimony of Senator French,
9:30:57-9:31:01 a.m. (Mar. 31, 2005).
- 11 - 2678
----------------------- Page 12-----------------------
to determine that "the taking of the statement as a whole was conducted in a manner that
would avoid undue influence of the victim."
Hayes concedes that the trial court "did generally evaluate the interviews
under Rule 801(d)(3)(F)." He also concedes that "outwardly, there was nothing
suggestive about the procedure." According to Hayes, however, the trial court failed to
consider that allowing police interviewers would raise the same concerns addressed in
subsection (C) and that their presence would unduly influence the victims under
subsection (F).
In essence, then, Hayes's argumentisthatinterviewsbypoliceinvestigators
assigned to the case should be per se inadmissible under Rule 801(d)(3). We have
24
previously addressed (but declined to decide) this question in Augustine v. State . We
acknowledged in Augustine that "iftheattorneysrepresenting theStateandthedefendant
are barred from participating, so as to preserve the neutrality and non-suggestiveness of
the interview, the participation of agents of those attorneys - their paralegals and their
25
investigators - would seemingly raise the same concerns." We also pointed out that
"recent psychological research has shown that a witness's identification of a suspect can
be influenced by the police interviewer's inadvertent, even unconscious, verbal and
physical cues - cues that arise from the interviewer's pre-existing knowledge and
26
theories of the case." Ultimately, however, we declined to decide whether to adopt a
24 Augustine v. State , 355 P.3d 573, 586 (Alaska App. 2015).
25 Id.
26 Id. (citing Tegoseak v. State, 221 P.3d 345, 351-62 (Alaska App. 2009)); see
Tegoseak, 221 P.3d at 350-52 (canvassing the increasing psychological research on
unconscious signaling and citing research proposing that police departments adopt double-
blind procedures - in which neither the questioner nor the subject being tested knows the
nature of the information required - in order to minimize the risk that officers
(continued...)
- 12 - 2678
----------------------- Page 13-----------------------
per se rule in Augustine . Instead, because we were already remanding for further
findings under Rule 801(d)(3) for a different reason, we directed the superior court to
consider the concerns noted above in assessing whether the interviews in that case met
the foundational requirements of Rule 801(d)(3). 27
Now, with the issue squarely presented, we conclude that interviews
conducted by police investigators involved with the case are not per se inadmissible
under Rule 801(d)(3).
Beginningwith thestatutorylanguage,wenotethat nothing in theruleitself
forbids police investigators involved in the case from conducting the interviews. This
stands in contrast to subsection (C), which expressly forbids the prosecutor and defense
counsel from being present when the statement is taken.
Furthermore, the legislative history of Senate Bill 117 suggests that the
legislature contemplated that police officers would be conducting forensic interviews.
The bill's proponents before the Senate Judiciary Committee included law enforcement
personnel who were specially trained to conduct these interviews. Senator French, when
introducing the bill, specifically noted that the "multidisciplinary team [at the CAC]
focused on the child's welfare . . . may include police officers, social workers, child
28
therapists, medical professionals, and child advocates." Moreover, the bill did not
require an interview to be conducted at a CAC, as the senators noted the limited access
26 (...continued)
unintentionally influence witnesses, even if their conduct is not overtly suggestive).
27 Augustine , 355 P.3d at 586.
28 Audio of Senate Judiciary Comm., Senate Bill 117, testimony of Senator French,
9:27:48-9:27:58 a.m. (Mar. 31, 2005).
- 13 - 2678
----------------------- Page 14-----------------------
29
to CACs around the state. In other words, the legislature assumed that police officers
would conduct at least some of the interviews the legislature intended to be admissible
under Rule 801(d)(3).
Given the legislature's awareness that police officers would be conducting
some of these interviews, and given the legislature's explicit prohibition of prosecutor
or defense counsel involvement in the interviews, it is reasonable to conclude that if the
legislature had intended to exclude police investigators involved in the case from
conducting these interviews, it would have said so expressly. In the absence of an
express directive, we decline to adopt a per se rule excluding all interviews conducted
by police investigators involved in the case.
As weacknowledged in Augustine , however, an officer intimately involved
with the case heightens the possibility of unduly influencing the victims. Trial courts
evaluating interviews conducted by police investigators should be particularly wary of
this possibility and, in assessing whether the interviews meet the foundational
requirements of Rule 801(d)(3)(F) and (H), should consider the risk that the child's
responses could have been influenced by the officer's knowledge and expectations. 30
Here, the trial court independently reviewed both interviews and, as Hayes
acknowledges, made the requisite analysis under Rule 801(d)(3)(F). The court found
that the detective's interview of K.E. was a "very good interview and a very fair
interview," with "nothing to suggest any inappropriate answers nor any undue
29 Id. at 9:33:55-9:34:10 a.m. (testimony of Senator French and Senator Therriault).
30
See Tegoseak, 221 P.3d at 351-52 (explaining the "Clever Hans effect," where
medical researchers, "because of their knowledge of the experiment and their expectations
concerning the outcome, can unintentionally influence the responses of the test subjects -
by unconscious signaling, or by small differences in how they interact with test subjects" and
that "photographic lineups could be affected by these same difficulties").
- 14 - 2678
----------------------- Page 15-----------------------
influence." Although the court noted that another detective's questioning of N.E. was
"a little bit different," again, the court found that "there wasn't any inducement or any
attempt to unduly influence the person being interviewed at that time." The court noted
that N.E. actuallycorrected theofficer and tried clarifying the questions at various points,
which further indicated that there was no undue influence on her.
The court also distinguished these videos from others it had seen - those
that were "so leading and so suggestive" that it would not allow them to be admitted. In
contrast, the court found K.E.'s and N.E.'s videos "sufficiently reliable and trustworthy
that justice [would be] best served by allowing them into evidence," pursuant to Rule
801(d)(3)(H).
Given these findings, it is clear that the superior court considered and
rejected the possibility that the police investigators involved in the case unduly
influenced the responses provided by the children. Under these circumstances, the trial
court did not abuse its discretion in admitting the Alaska CARES videos of K.E. and
N.E. under Rule 801(d)(3).
Hayes's challenge to the child sexual abuse expert testimony
On appeal, Hayes argues that the trial court abused its discretion by
allowing the State to offer testimony of expert witness Pamela Karalunas in its case-in-
chief. Karalunas, the statewide coordinator of the Alaska Children's Alliance, was
qualified as an expert witness in the "dynamics of child sexual abuse and the process of
disclosure of child sexual abuse." As the State's final witness, she testified regarding
children's reporting patterns, drawn from her decades of experience working with child
sexual abuse victims and their families. Hayes argues that this testimony amounted to
"sexual abuse profile evidence" and that Karalunas was acting as a "human polygraph."
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----------------------- Page 16-----------------------
As the Alaska Supreme Court has recognized, "[i]n child sexual abuse
cases, there is usually little corroborating physical evidence of the alleged abuse; the
child may not report the abuse until several years have passed and the matter often comes
down to the alleged victim's word against the word of the alleged abuser." 31 And this
Court has held that an expert witness can testify "concerning the usual behavior of
victims of child sexual abuse" in order to help the jury better assess the victims'
32
credibility.
We note that there are limits to such opinion testimony. For instance, it
must be offered in response to a defense claim that the "conduct in question is
33
inconsistent with claims of sexual abuse," and the experts must "generally ma[ke] it
34
clear that [they are] not speaking for the truthfulness of these particular witnesses."
There is a "significant distinction between presenting a witness, such as a polygraph
operator, to testify that a person is telling the truth, and presenting a witness who can
35
Based on our
state that the behavior of a witness falls within a common pattern."
31 L.C.H. v. T.S. , 28 P.3d 915, 923 (Alaska 2001).
32 Rodriquez v. State, 741 P.2d 1200, 1204 (Alaska App. 1987) (citing State v.
Middleton , 657 P.2d 1215, 1219-20 (Or. 1983)).
33 L.C.H. , 28 P.3d at 924; see also Vickers v. State, 2008 WL 4367527, at *3 (Alaska
App. Sept. 24, 2008) (unpublished) ("Both this court and the Alaska Supreme Court have
previouslyheld that the State cannot introduce expert testimonyabout the behavior of victims
of abuse or domestic violence for the purpose of suggesting that a particular person's claim
of assault or abuse should be believed because that person fits the 'profile' of a particular
kind of victim. Rather, the State can rely on such expert testimony only to rebut defense
claims that the behavior of the purported victim was seemingly inconsistent with a claim of
assault or abuse." (footnotes omitted)).
34 Rodriquez, 741 P.2d at 1205.
35 Id. at 1204.
- 16 - 2678
----------------------- Page 17-----------------------
review of the record, we conclude that Karalunas's testimony was consistent with these
limitations and that the court therefore did not abuse its discretion in admitting it. 36
Hayes's challenge to N.E.'s testimony that Hayes admitted to having been
sexually abused himself
At trial, N.E. testified on direct examination that when Hayes's abuse was
finally revealed to her mother, her mother insisted that N.E. confront Hayes directly.
N.E.'s mother brought N.E. and Hayes into the same room and, in Hayes's presence,
asked N.E. if Hayes had ever touched her. N.E. said yes. According to N.E., her mother
then turned to Hayes, "and she . . . asked him if he had ever touched [N.E.] and he said
yes." The prosecutor continued:
Prosecutor : Did he say anything more about I guess
why he had touched you?
N.E. : In that same room he said it was because he was
molested as a kid.
Prosecutor : Did he say I guess that affected me?
N.E. : Yes.
Additionally, the jury heard N.E.'s Alaska CARES interview, in which N.E. also
mentioned Hayes's statement that he had been molested as a child.
On appeal, Hayes claims the trial court should not have admitted this
evidence because it was irrelevant and prejudicial under Alaska Evidence Rules 401 and
36 See, e.g., Cartee v. Cartee, 239 P.3d 707, 721 (Alaska 2010) ("We review a trial
court's decision to admit or exclude evidence, including expert witness testimony, for abuse
of discretion and will only reverse an erroneous decision if it affected the substantial rights
of a party." (footnotes omitted)); Handley v. State, 615 P.2d 627, 630 (Alaska 1980) ("The
decision whether to permit a witness to testify as an expert is one committed to the sound
discretion of the trial court. Such decisions are reviewable only for abuse [of discretion]."
(citing Pederson v. State, 420 P.2d 327, 335 (Alaska 1966))).
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403. He argues that this testimony amounted to propensity evidence which allowed the
jury to believe that because he had been molested when he was younger, he was more
likely to commit this particular crime.
We agree that, as a general matter, evidence of a defendant's own abuse as
37
a child can carry "a strong and unmistakable potential for prejudice." In Nelson v.
State, for instance, we reversed a conviction for second-degree sexual abuse of a minor
when the trial court allowed a State witness to testify that the defendant "had once
38
admitted being sexually abused as a boy by his father." We recognized "the
widespread belief that sexual abusers of children are frequently people who have
39
themselves been victims of abuse as children." This was particularly true in Nelson's
case - where the conduct the defendant had been subjected to as a child closely tracked
the conduct to which he allegedly subjected his young victim.
But Hayes's case is meaningfully different from Nelson, and we conclude
that, to the extent that N.E.'s testimony should not have been admitted, any error was
harmless. The prosecution did not dwell on N.E.'s testimony or make needless
references to Hayes's past. Instead, the prosecution only once referenced this admission
- in closing argument to bolster N.E.'s credibility. The prosecutor argued that, given
N.E.'s report of Hayes's detailed reaction, it was unlikely that she was the one lying in
the confrontation (rather than the defendant or her mother, who testified that no
admission of guilt had occurred). The jury was also instructed to view Hayes's
unrecorded, out-of-court statement with caution. Under these circumstances, any
prejudice to Hayes was minimized, and we find no reversible error.
37 Nelson v. State, 782 P.2d 290, 297 (Alaska App. 1989).
38 Id. at 296.
39 Id. at 297.
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Hayes's argument that he was prejudiced by the trial court's refusal to
compel the production of Tiburon reports
40
Prior to trial, Hayes moved to compel Tiburon reports
relating to the
victims and their aunt (who had brought them to Alaska CARES). He asserted, in
general terms, that these records of police contacts "may lead to further discoverable
information bearing on the credibility of S.D., N.E., K.E. and [their aunt]." He also
asserted that "[u]pon information and belief, both S.D. and K.E. have had contact with
[the Anchorage Police Department], as runaways." The trial court denied this request,
although the trial court appears to have granted a second, narrower request for certain
Tiburon records related to a police contact with K.E. at her elementary school.
On appeal, Hayes argues that the superior court erred when it denied his
initial motion to compel Tiburon reports. He argues that he was prejudiced by this error
because discovery of these reports could have provided "evidence that the girls ran away
prior to reporting the offenses" and that this evidence "would have supported Hayes's
claim that the girls fabricated the claims to get out of their horrible environment."
But, as the State points out, Hayes had similar evidence in his possession
at the time of trial and did not use it. Our review of the record indicates that Hayes
received a significant amount of discovery from the Office of Children's Services
documenting the family's poor living conditions, as well as the mother's drug abuse and
neglect. The confidential reports also included numerous references to incidents in
which S.D. and K.E. ran away from home. The State also provided police reports related
40 Tiburon is the electronic records management database maintained by the Anchorage
Police Department. Police officers upload their investigative reports into the Tiburon system,
including reports of any prior contacts that witnesses and victims may have had with law
enforcement.
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----------------------- Page 20-----------------------
to these runaway attempts - information specifically requested as part of Hayes's
motion to compel Tiburon reports.
Hayes does not dispute that his attorney had this evidence regarding S.D.'s
and K.E.'s runaway attempts and failed to use the information at trial. The attorney did
not question the girls about their runaway attempts, nor did he call anyone identified in
the reports to testify as a defense witness. 41
The State argues that, given these circumstances, any error in failing to
discover the Tiburon reports was harmless. We agree, and we therefore reject this claim.
Hayes's challenge to Special Probation Condition 12
Finally, Hayes argues the trial court committed plain error by imposing an
unconstitutionally vague probation condition at sentencing. He specifically challenges
Special Condition Number 12, which read as follows:
The defendant shall submit to a search of their residence, any
vehicle under their control, personal computer and/or any
item which has internet connectivity (i.e., X-Box, cell phone,
palm pilots, Blackberries) at the direction of a probation
officer for the presence of sexually explicit material as
defined in AS 11.41.455(a). The defendant shall provide the
probation officer any and all passwords used for such
devices.
Hayes argues that the requirement that he submit to certain searches for
"sexually explicit material" was overbroad.
Hayes's argument is unpersuasive. The imposed probation condition does
not require him to submit to searches for sexually explicit material as a general matter;
41 We also note that K.E. testified on direct examination that she was in treatment
because she ran away. Hayes's attorney, however, did not cross-examine her regarding this
statement.
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it requires him to submit to searches for "sexually explicit material as defined in
AS 11.41.455(a) ." Alaska Statute 11.41.455(a) defines the crime of unlawful sexual
exploitation of a minor and contains a specific list of proscribed sexual conduct. We
have previously endorsed referring to this statute as a means of resolving the ambiguity
in the phrase "sexually explicit material," thereby preventing the probation condition
42
from being unconstitutionally vague.
Given the trial court's incorporation of
AS 11.41.455(a), we find no plain error.
Conclusion
For the reasons described above, we AFFIRM the judgment of the superior
court.
42 Diorec v. State , 295 P.3d 409, 417-18 (Alaska App. 2013).
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