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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
AARON K. WILLIAMS,
Court of Appeals No. A-12970
Appellant, Trial Court No. 1JU-15-01212 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2700 - April 23, 2021
Appeal f
rom the Superior Court, First Judicial District, Juneau,
Trevor Stephens, Judge.
Appearances: Marilyn J. Kamm, Attorney at Law, Anchorage,
under contract with the Office of Public Advocacy, for the
Appellant. Eric A. Ringsmuth, Assistant Attorney General,
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.
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Aaron K. Williams was convicted, following a jury trial, of second-degree
1
sexual assault for vaginally penetrating his cousin while she was unconscious. Williams
raises four issues on appeal. For the reasons explained in this opinion, we reject
Williams's arguments and affirm his conviction.
Williams's argument that the trial court improperlyadmittedtextmessages
sent from his phone to the victim
Williams sent a series of text messages to the victim, D.M., the day after the
sexual assault. These text messages were admitted at trial in the form of photographs of
the text messages as they appeared on D.M.'s and Williams's phones. On appeal,
Williams argues that these text messages were improperly admitted for two reasons.
First, Williams argues that the State was required to produce an expert
witness who could testify that the texts were sent from Williams's cell phone. But
Williams's defense attorney did not dispute at trial that the texts were sent from
Williams's cell phone, and she never argued that an expert was required to testify to this
2
This argument is therefore not preserved, and
fact before the texts could be admitted.
3
Williams must show plain error. Given the defense attorney's acknowledgment that the
texts were sent from Williams's cell phone, we find no plain error.
Second, Williams argues that even if the messages were sent from his
phone, there was insufficient evidence to show that he authored the text messages.
Williams frames this as an 'authenticity" issue under Alaska Evidence Rule 901. Rule
1 AS 11.41.420(a)(3).
2 See Pierce v. State , 261 P.3d 428, 430-31 (Alaska App. 2011) ('[A] litigant is not
entitled to pursue a claim on appeal unless that claim was presented to the lower court . . .
[and] the lower court issued a ruling on the merits of that claim.").
3 See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
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901 states that '[t]he requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims." The commentary to the rule explains
that the 'requirement of showing authenticity or identity falls in the category of
relevancy dependent upon fulfillment of a condition of fact and is governed by the
4
procedure set forth in Rule 104(b)."
Alaska Evidence Rule 104(b), in turn, provides that
'[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact,
the court shall admit it upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition."
Under these rules, the key question is whether the State presented
'sufficient evidence" to 'support a finding that the matter in question is what its
proponent claims" - i.e., to support a finding that the text messages in question were
authored by Williams.
5
First, D.M. testified
The record is clear that the State met that burden here.
that she had previously texted and called Williams at that number on other occasions,
including in the hours before the sexual assault. Next, one of the text messages sent from
Williams's phone to D.M. after the sexual assault asked D.M. to delay telling the police
about the assault until Williams could visit his ailing mother and grandmother. Williams
made an identical request to D.M. over a recorded phone call that same day, suggesting
that Williams was also the person who sent the text messages. Finally, the police
4 Alaska R. Evid. 901 cmt. para. 1 (quoting advisory committee's notes to Federal
Evidence Rule 901).
5
See State v. Savage, 920 N.W.2d 692, 703 (Neb. 2018) ('The proponent of the text
messages is not required to conclusively prove who authored the text messages. The
possibility of an alteration or misuse by another generally goes to weight, not admissibility."
(footnotes omitted)). See generally George L. Blum, Annotation, Authentication of Text
Messages , 38 A.L.R. 7th Art. 2, § 35 (2018).
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interviewed Williams within twenty-four hours of the sexual assault, and during that
interview, Williams was in possession of his cell phone, admitted that he had used his
cell phone throughout the day, and never claimed during the interview that anyone else
had used his cell phone to make calls or send text messages, even though the police
specifically asked him about communications made on his cell phone.
Williams points out that some of the facts noted above were not testified to
until after the text messages were admitted into evidence, and he argues that therefore
the trial court erred in concluding that the evidence was sufficient at the time it admitted
the text messages into evidence. But Williams has failed to explain how an error in the
timing of the admission of the text messages caused himprejudice. Accordingly, we find
no error.
For all these reasons, we reject Williams's argument that the admission of
the text messages requires reversal of his conviction.
Williams's argument that the trial court erred in denying his motion for a
mistrial based on the victim's demeanor on the witness stand
Next, Williams argues that D.M.'s demeanor on the witness stand was
prejudicial and that the trial court erred when it denied his motion for a mistrial on that
basis. We disagree.
Prior to D.M.'s testimony, the prosecutor notified the trial court that D.M.
had expressed a great deal of concern about having to walk so closely to Williams to get
to the witness stand. Both parties and the trial court agreed that D.M. could enter and
exit the courtroom outside the presence of the jury, and that Williams and defense
counsel would move away from the counsel table when D.M. entered. Even with these
accommodations, D.M. became sick and vomited shortly after entering the courtroom
(before the jury had entered). The court took a recess for approximately half an hour,
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----------------------- Page 5-----------------------
during which time the prosecutor attempted to console D.M. and get her to a point where
she was comfortable testifying. After the recess, the jury was brought back into the
room, and D.M. was called to testify.
At the beginning of D.M.'s testimony, a juror complained that he could not
hear her. The parties and the trial court agreed to move D.M. closer to the jury. D.M.
then testified without incident for a few minutes, until the prosecutor asked her if she had
ever had a sexual relationship with Williams. D.M. apparently had some sort of visible
reaction to this question, as it prompted the prosecutor to immediately follow up with
'Maybe we need to take a - let me know if you need to take a break, okay?"
The trial court then had the jury step out for a few minutes. The court later
explained on the record that after the prosecutor asked D.M. about needing a break, D.M.
turned to her left and had a tissue over her mouth. Then, as the jury was stepping out of
the courtroom, D.M. vomited 'a little bit," and after the jury left, she vomited more.
Defense counsel moved for a mistrial. The trial court denied this request,
noting that a person's demeanor on the witness stand is valid evidence that the jury can
consider. Williams now appeals that ruling.
This Court has previously recognized that a victim's testimony in a sexual
assault case is 'an obviously emotional and embarrassing situation"thatcan cause strong
6 7
reactions.
But a witness's demeanor is generally a relevant consideration for the jury.
6 Xavier v. State , 2011 WL 746630, at *2 (Alaska App. Mar. 2, 2011) (unpublished).
7 See Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130,
1136 (Alaska 2001) ('The significance of live testimony and demeanor evidence has been
long recognized."); Alaska Criminal Pattern JuryInstruction 1.10 (2012) (instructing the jury
to consider, inter alia, 'the witness's attitude, behavior and appearance on the stand[,] and
the way the witness testifies" in evaluating the credibility of the witness).
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----------------------- Page 6-----------------------
On the other hand, it is also true that a strong emotional or physical reaction
8
by a witness creates a potential for prejudice.
The risk is not that the jury will consider
the witness's demeanor in reaching its verdict, which is permitted. Rather, the risk is that
the witness's demeanor will so overwhelm the other aspects of the witness's testimony
and the State's evidence that it will lead the jury to decide the case based solely or
primarily on sympathy or emotion for the witness, instead of on a dispassionate analysis
9
of all the evidence presented.
Although this risk is real, it is the trial court, and not this Court, that is in
the best position to gauge the effect of the witness's demeanor on the jury, to take steps
to mitigate the prejudicial effect of that demeanor, and to determine if (despite those
10
steps) a mistrial is necessary. For this reason, assuming the trial court has otherwise
properly applied the law, we will only overturn a trial court's denial of a mistrial if the
trial court abused its discretion - i.e., if 'under the circumstances, the [court's] decision
11
Having reviewed the
falls outside the range of reasonable responses to the problem."
record, we find no abuse of discretion here.
8 See, e.g., State v. Swenson, 382 P.2d 614, 624-27 (Wash. 1963) (reversing a
defendant's conviction and ordering a new trial based primarily on a key witness's demeanor
during cross-examination), overruled on other grounds by State v. Land, 851 P.2d 678
(Wash. 1993) (en banc).
9 See Jones v. State, 1994 WL 16197104, at *5 (Alaska App. Dec. 28, 1994)
(unpublished) (concluding that the trial court did not err in conducting jury voir dire after the
jury possibly saw legal staff comforting a distraught witness, and deciding that jurors were
not overcome with emotions for the witness and mistrial was not warranted).
10 See Walker v. State, 652 P.2d 88, 92 (Alaska 1982), overruled on other grounds by
Young v. State, 374 P.3d 395 (Alaska 2016); Xavier, 2011 WL 746630, at *2.
11 Hewitt v. State, 188 P.3d 697, 699-70 (Alaska App. 2008).
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Williams's argument that the evidence was insufficient to support his
conviction
Next, Williams argues that the evidence was insufficient to establish that
D.M. was incapacitated at the time of the sexual assault. Williams also argues that the
evidence was insufficient to establish that he knew that D.M. was incapacitated, because
he himself was so intoxicated. 12
When we review a claim of insufficient evidence, we are required to view
the evidence (and all reasonable inferences to be drawn from that evidence) in the light
13
most favorable to upholding the jury's verdict. Viewed in this light, the evidence was
sufficient to establish both that D.M. wasincapacitated and that Williams knewthat D.M.
was incapacitated. With respect to D.M.'s incapacitation,D.M. testified that she had four
to six shots of whiskey, did not remember lying down in the bed in which she woke up,
did not remember the sexual assault, and never would have consciously consented to
have sex with Williams. With respect to Williams's knowledge, a witness testified that
Williams was coherent and offered the witness a drink just minutes before the sexual
assault occurred. Interpreting this evidence in the light most favorable to the jury's
verdict, a fair-minded juror could conclude that D.M. was incapacitated and that
Williams knew that she was incapacitated (or would have known that she was
14
incapacitated but for his own voluntary intoxication).
12 See former AS 11.41.420(a)(3) (2014).
13 Inga v. State , 440 P.3d 345, 350 (Alaska App. 2019) (citing Iyapana v. State , 284 P.3d
841, 848-49 (Alaska App. 2012)).
14 See Dorsey v. State, __ P.3d __, Op. No. 2689, 2021 WL 220648, at *11 (Alaska App.
Jan. 22, 2021) (explaining that voluntary intoxication does not negate the 'knowingly" mens
rea element in Alaska (citing AS 11.81.630)).
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Williams's argument that his sentence was excessive
Finally, Williams challenges his sentence as excessive. Williams was
convicted of second-degree sexual assault, a class B felony. Williams was previously
convicted of two other felonies - attempted second-degree sexual assault and third-
degree assault. Thus, Williams was subject to a presumptive sentencing range of 20 to
35 years' imprisonment. 15
At sentencing, the court found that the State had proved two statutory
aggravators - that Williams had engaged in repeated instances of assaultive behavior
16
and that Williams had committed five or more class A misdemeanors. The court then
discussed the Chaney criteria at length, emphasizing the need for isolation and the
17
seriousness of Williams's conduct. After considering the Chaney criteria, the court
imposed a sentence of 35 years with 12 years suspended, or 23 years to serve.
Williams's primary contention regarding his sentence is that the trial court
failed to conduct an on-the-record review of sentences imposed in similar second-degree
sexual assault cases. But as we recently explained in Williams v. State, 'the absence of
an explicit, on-the-record comparison of sentences imposed in similar cases is most
problematic when we are unable to discern the basis for the trial court's sentencing
decision - that is, when the record is so lacking in detail as to preclude meaningful
appellate review, or when the sentence itself appears arbitrary or disproportionate when
18
examined against other cases."
15 AS 12.55.125(i)(3)(D).
16 AS 12.55.155(c)(8) and AS 12.55.155(c)(31), respectively.
17 See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970); AS 12.55.005.
18 Williams v. State, 480 P.3d 95, 103 (Alaska App. 2021).
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That is not the case here. The court engaged in a thorough review of the
Chaney criteria and explained in detail the reasons it imposed the sentence it did. The
record is therefore not 'so lacking in detail as to preclude meaningful appellate review."
Having independently reviewed the sentencing record, we conclude that Williams has
failed to show that his sentence is clearly mistaken. 19
Conclusion
20
The judgment of the superior court is AFFIRMED.
19 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
20 The State notes that the judgment includes a scrivener's error - it reflects that
Williams was convicted of second-degree sexual assault but cites the third-degree assault
statute, AS 11.41.220(a)(3). We direct the superior court to correct this error in the
judgment.
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