Opinion
A-13604 7134
11-27-2024
PHILLIP EUGENE BIGHAM, Appellant, v. STATE OF ALASKA, Appellee.
Brooke Berens, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge Trial Court No. 3AN-15-11289 CR.
Brooke Berens, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG, JUDGE
A jury found Phillip Eugene Bigham, a former juvenile justice officer at the McLaughlin Youth Center, guilty of seven counts of first-degree sexual abuse of a minor, one count of attempted fourth-degree escape, and one count of solicitation of fourth-degree escape, based on evidence that he engaged in sexual penetration with A.G., a resident in the facility, and subsequently tried to help her run away from the facility.
AS 11.41.434(a)(2), AS 11.56.330(a)(1) & AS 11.31.100, and AS 11.56.330(a)(1) & AS 11.31.110, respectively.
Bigham appeals his convictions, raising several claims. For the reasons explained in this decision, we reject most of Bigham's claims. However, we conclude that the jury's verdicts for attempted fourth-degree escape and solicitation of fourth-degree escape should have merged into a single conviction, and we remand this case to the superior court for amendment of the judgment to reflect this merger and to correct several additional errors.
Background facts and proceedings
In 2015, Phillip Bigham was working as a supervising officer in the girls treatment unit at the McLaughlin Youth Center. Sixteen-year-old A.G. was one of the residents in this unit. In the summer of 2015, Bigham found A.G. in the midst of a suicide attempt, and he intervened. A.G. later testified that, after this incident, she and Bigham developed a "father-daughter" relationship.
After about a year in his position in the girls treatment unit, Bigham was informed that he likely would not be allowed to continue as a supervisor in that unit. One of the reasons provided was his inability "to set clear boundaries with residents and staff," and of particular concern was his relationship with A.G. In light of his impending demotion, Bigham resigned from his position entirely, and his last day at McLaughlin was November 27, 2015.
Shortly after Bigham left, other staff members discovered letters that had been mailed to A.G. and appeared to include Bigham's handwriting. These letters contained detailed escape plans and provided information known only by McLaughlin staff about internal security measures. A.G. later told the unit supervisor that these letters were from Bigham and that they had been planning her escape from McLaughlin over the phone.
During A.G.'s conversation with the unit supervisor, A.G. also disclosed that "more than one" sexual act had occurred with Bigham before he left the facility. This led the supervisor to contact the Anchorage Police Department, and a detective was assigned to investigate.
The detective interviewed A.G., and over the course of several interviews, A.G. told the detective that Bigham had sexually abused her on four occasions. A.G. reported that three of these occasions involved fellatio and/or digital penetration, and that twice Bigham had engaged in penile-vaginal penetration with her. A.G. said that at least two of these incidents occurred in a shed outside of A.G.'s unit at McLaughlin, and on at least one occasion, the abuse occurred in a basement underneath the unit, which had low ceilings. A.G. reported that Bigham placed his hands on the basement ceiling's ductwork while she performed fellatio; the police found two handprints on the ductwork (though they could not identify the specific source of these prints). A.G. also reported that Bigham's genital area was shaved - a description later verified upon Bigham's arrest.
A.G. did not disclose the penile-vaginal penetration to the detective until their final interview. A.G. later testified that she initially was not ready to share all of the details but that, once she was ready, she requested another interview because she had more information that she needed to share.
The detective obtained a Glass warrant to record a call between A.G. and Bigham. During the call, Bigham made several incriminating statements related to the escape plans. In particular, Bigham asked A.G. about the notes she had received, including whether anyone else had found them, and he advised her to wait until the following weekend to "go through with [her] plan" since there would be fewer staff members on duty then. Bigham told A.G. to try to exit the facility's gate, and then go toward the mountains, where he would be waiting for her at a McDonald's.
See State v. Glass, 583 P.2d 872 (Alaska 1978).
Bigham and A.G. also had an exchange about something that took place while they were together at McLaughlin:
A.G:. - remember in the shed?
Bigham: Uh-huh (affirmative). What? What?
A.G.: It's just, I don't know -
Bigham: Remember in the shed what?
A.G: Everything.
Bigham: Yes. Yeah, what about it?
A.G.: I just can't stop thinking (indiscernible) -
Bigham: Driving you nuts?
AG.: Yeah.
Bigham: You excited?
AG.: Yes.
Bigham: Okay. I am, too. Based on these allegations, a grand jury ultimately indicted Bigham on seven counts of first-degree sexual abuse of a minor. Bigham was also charged with attempted fourth-degree escape and solicitation of fourth-degree escape.
Bigham was initially indicted on seven counts of second-degree sexual abuse of a minor. But the State later reindicted Bigham, charging him with seven counts of first-degree sexual abuse of a minor based on the theory that he engaged in sexual penetration with A.G., a person under eighteen years of age, when he was her "legal guardian." See AS 11.41.434(a)(2). As a juvenile justice officer at McLaughlin Youth Center, Bigham qualified as A.G.'s "legal guardian." See former AS 11.41.470(3) (2015) (defining "legal guardian" to include "a person who is under a duty to exercise general supervision over a minor or other person committed to the custody of the Department of Health and Social Services under AS 47.10 or AS 47.12 as a result of a court order, statute, or regulation" - and also include "Department of Health and Social Services employees . . . and staff members and other employees of group homes or youth facilities where the minor or other person is placed as a result of a court order or the action of the Department of Health and Social Services").
Bigham was initially indicted on one count of attempted second-degree escape and one count of solicitation of second-degree escape, but the State reduced these charges to attempted fourth-degree escape and solicitation of fourth-degree escape. Bigham was also indicted on one count of official misconduct under AS 11.56.850, but the State later dismissed this charge.
The case proceeded to trial, and A.G. testified. During her testimony, A.G. had a hard time remembering when the abuse occurred. But she stated that "a lot of sexual things . . . happened" with Bigham while she was at McLaughlin - things she did not "want happening to [her]" - including digital penetration, penile penetration, and touching Bigham's genitals with her hands and mouth. Through the lead detective's testimony, the State introduced A.G.'s prior statements to the detective. Another detective testified to finding handprints on the basement's ductwork and to discovering, when photographing Bigham after his arrest, that Bigham had a shaved pubic area. The State also introduced the Glass warrant recording.
Ultimately, the jury found Bigham guilty of all charges. This appeal followed.
Bigham 's claim that his right to be present was violated when he was absent from jury playbacks and discussion of various communications with the jury
Bigham argues that his right to be present at all stages of his trial was violated when the superior court communicated with the jury and authorized various playbacks of testimony in his absence and without obtaining a personal waiver of his right to be present.
After the jury began its deliberations, the superior court asked the parties what they would like to do in the event the jury asked to listen to playbacks of the witnesses' testimony. Bigham's attorney stated that he would like the option to be present for playbacks. The court therefore did not seek a personal waiver from Bigham of his right to be present, and Bigham did not waive his presence at future playbacks. Rather, the court told defense counsel, "If Mr. Bigham wishes to be either on the phone with you, or present in the courtroom, you just need to let me know . . . and we can wait till the two of you show up in court if you want to do that."
During deliberations, the jury made four separate requests.
The jury additionally asked for some dry erase markers to use on the whiteboard.
First, the jury asked to relisten to the Glass warrant audio and to rehear A.G.' s testimony. The superior court contacted the attorneys by phone. The court asked defense counsel whether Bigham was with him, and the attorney informed the court that he was not. The court responded, "Okay. At some point, if you feel [Bigham] needs to be brought into this, let me know." Counsel did not respond to this point.
The court then proceeded to discuss the jury's request with the attorneys. The court asked defense counsel if he and Bigham wished to be present for the playback, to which the attorney responded, "No. That's all right." Given defense counsel's position, the prosecutor also elected not to attend the playback.
Second, the jury sent a note seeking clarification of the "on or about" language in the indictment as it related to the dates of the sexual abuse charges. The court again contacted the attorneys by phone and asked defense counsel whether Bigham was with him. The attorney responded, "No. That's all right. I'll be in touch with him soon." The court and the attorneys then discussed and finalized a response to the jury's question.
Third, the jury notified the court that it was having trouble opening an audio CD that was provided by the State. The court called defense counsel but did not inquire about Bigham's presence. The prosecutor was in the courtroom. The court directed the parties to work together to convert the file into a format that could be opened by the jury.
Finally, the jury asked to rehear the testimony of the lead detective (the detective who interviewed A.G.). The prosecutor was again in the courtroom, with defense counsel on the phone. The court did not inquire about Bigham's presence. The attorneys elected not to be present for the playback.
In Alaska, a criminal defendant has a constitutional right to be present in the courtroom at every stage of their trial. The right to be present includes both the trial proceedings themselves and also "any type of communication [that] occurs between the court and the jury during its deliberations" - e.g., when a jury listens to a playback or when the court gives an additional instruction to the jury.
Lee v. State, 509 P.2d 1088, 1089-90 (Alaska 1973); Wamser v. State, 652 P.2d 98, 101 n.10 (Alaska 1982); Dolchok v. State, 639 P.2d 277, 283 (Alaska 1982); see also Alaska R. Crim. P. 38(a) (“A defendant charged with a felony offense shall be present at a felony first appearance, an arraignment, any hearing where evidence will be presented, a change of plea hearing, at every stage of trial, including the impaneling of the jury and return of the verdict, at a sentencing hearing, and at a hearing on an adjudication or disposition for a petition to revoke probation.”).
State v. Hannagan, 559 P.2d 1059, 1064 (Alaska 1977) (first citing Gafford v. State, 440 P.2d 405, 417 (Alaska 1968); and then citing Noffke v. State, 422 P.2d 102, 105 (Alaska 1967)); see also Wamser, 652 P.2d at 101 (discussing Dixon v. State, 605 P.2d 882, 884 (Alaska 1980)); Alaska R. Crim. P. 38(a).
See Hannagan, 559 P.2d at 1064.
See, e.g., Jones v. State, 719 P.2d 265, 266-67 (Alaska App. 1986); Noffke, 422 P.2d at 105.
A defendant who waives their right to be present at trial must do so knowingly and intelligently. Because the right to be present is personal to the defendant, an effective waiver generally requires the defendant's personal participation and should be on the record.
Hannagan, 559 P.2d at 1064 ("[T]here is a constitutional requirement that the defendant personally waive his right to be present at trial in a knowing and intelligent manner. Absent the defendant's express waiver, an attorney may not waive this right for his client.").
See Cunningham v. State, 408 P.3d 1238, 1247 (Alaska App. 2017) (stating "trial judges should be mindful. . . that any waiver of [the right to presence] should take place on the record"); Elsey v. State, 1992 WL 12153176, at *4 (Alaska App. May 20, 1992) (unpublished) (recognizing that "[b]ecause the right to presence is personal to the defendant and the defendant alone is empowered to waive it, an effective waiver of the right ordinarily requires the defendant's personal participation").
In certain circumstances, however, a defendant may waive their right to be present at trial through their attorney. In Lee v. State, the Alaska Supreme Court set out three ways in which a criminal defendant may knowingly and intelligently waive their right to be present through their attorney:
(1) the defendant has given counsel express authority in a knowing and intelligent manner, (2) the defendant is present at the time of the waiver, has clearly been informed of his rights, and remains silent, or (3) the defendant subsequently acquiesces in the proceedings in a knowing and intelligent manner.
Lee v. State, 509 P.2d 1088, 1092 (Alaska 1973) (holding that the attorney's waiver of the defendant's right to be present at the return of verdict was invalid since there was no evidence of "express authorization... [or] acquiescence to the waiver by [the defendant]"); see also Hannagan, 559 P.2d at 1064-65 (attorney's waiver of defendant's right to be present during playbacks without defendant's knowledge was invalid); Elsey, 1992 WL 12153176, at *4 (defendant's knowing acquiescence in attorney's waiver of defendant's right to be present during discussion of jury inquiries rendered the waiver valid).
Here, there is little in the record to show that Bigham waived his right to be present, either directly or through his attorney. The court did not obtain a personal, on-the-record waiver from Bigham of his right to be present. And the record does not reflect a waiver through Bigham's counsel. During discussion of the playback requests and other notes from the jury, defense counsel did not indicate that he had express authority to waive Bigham's presence or proceed in his absence, nor did he give any indication that Bigham was aware of the proceedings and understood his right to be present.
The State argues it is possible that Bigham effectively waived his right to be present in a manner not disclosed on the record and asks us to remand for an evidentiary hearing to determine whether Bigham waived his right to be present. While a remand might be appropriate under certain circumstances, we question whether a remand would be appropriate here, given the absence of any on-the-record indication of an explicit or implicit waiver, express consent for the attorney to proceed in Bigham's absence, or Bigham's acquiescence in the proceedings.
See, e.g., Jonas v. State, 773 P.2d 960, 969-70 (Alaska App. 1989) (where defendant claimed a proceeding occurred outside his personal presence, case was remanded for findings as to what, if anything, happened outside defendant's presence); Jones v. State, 1984 WL 908613, at *1 (Alaska App. Aug. 29, 1984) (unpublished) (remanding for evidentiary hearing to resolve dispute as to whether the parties were aware of and present for discussion of a substantive jury note to the judge); see also State v. Martin, 695 N.W.2d 578, 586-87 (Minn. 2005) (remanding for additional development of the record regarding the nature of jury communications from which the defendant was absent); Thompson v. State, 12 So.3d 723, 727-28 (Ala.Crim.App.2008) (remanding for an evidentiary hearing where the trial court had concluded that defendant's absence from a portion of trial was voluntary but the record did not contain evidence supporting that conclusion); Champ v. State, 854 S.E.2d 706, 716-17 (Ga. 2021) (remanding for an evidentiary hearing and factual findings, where the defendant raised a right-to-be-present claim for the first time on appeal and there was a significant question as to whether the defendant acquiesced to his absence from the relevant bench conferences).
See Lee, 509 P.2d at 1090 ("Courts have been most reluctant to find that a defendant's absence is 'voluntary' in the absence of clear evidence on the record that he knew of the proceedings and exercised a decision to stay away."); Hannagan, 559 P.2d at 1061, 1065 (holding that, where defense counsel told the court that the defendant's presence during playback of testimony was unnecessary and the attorney sought to "waive any problems in that respect" without conferring with the defendant, the waiver was ineffective and the defendant's right to be present at the playback was violated); see also Taylor v. Illinois, 484 U.S. 400, 417-18 & n.24 (1988) (recognizing that "there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client," and citing as one example the right to be present at trial). The State cites the supreme court's decision in Wamser v. State in support of its request for an evidentiary hearing. But in Wamser, the supreme court remanded the case for a new trial, not an evidentiary hearing, after determining that the defendant's right to be present had been violated and the State had failed to prove that the error was harmless beyond a reasonable doubt. Wamser v. State, 652 P.2d 98, 102-03 (Alaska 1982). In Wamser, a jury note indicating that the jury was deadlocked was never delivered to the trial judge by the bailiff, nor communicated to the parties. Id. at 99-100, 102.
We conclude, however, that we need not resolve this issue in this case because even assuming Bigham did not waive his constitutional right to be present, his absence from the playbacks and the discussion of the additional instruction to the jury was harmless beyond a reasonable doubt.
See Dixon v. State, 605 P.2d 882, 884 (Alaska 1980).
Bigham argues that he was prejudiced by his absence from the proceedings in three ways - the first relates to the playback of A.G.'s testimony, the second relates to the court's instruction regarding the "on or about" language, and the third relates to the playbacks of both A.G.'s and the lead detective's testimony. (Bigham does not argue that he was prejudiced by the discussion of the non-functional audio CD outside of his presence.)
First, Bigham argues that he was prejudiced during the playback of A.G.' s trial testimony, when the court clerk mistakenly played a portion of a brief competency inquiry that the court had conducted outside the presence of the jury before A.G. testified. Specifically, the jury heard the following exchange for the first time during playback:
Prior to trial, Bigham had questioned A.G.'s competency to testify after receiving information that A.G. had been hospitalized. The court agreed to conduct an inquiry, and prior to A.G.'s testimony, the superior court asked A.G. a brief series of questions to assess her capacity to provide truthful testimony.
Court: And, Ms. [G.], can you tell me how old you are?
A.G:. I'm nineteen.
Court Nineteen now. Okay. And how far did you go in school?
A.G.: I graduated with twenty-seven cred - twenty-seven credits.
Court: Okay. So you graduated from high school?
AG.: Yes.
Court: Okay. Have you gone to school any since then?
AG.: Huh?
Court: Have you been to any further school since you graduated from high school?
AG: No.
Court: Okay.
A.G.: But I'm planning on it.
Court: Okay. All right. And this is going to sound like an odd question, but I need to know the answer. Do you understand the difference between telling the truth and telling a lie?
AG: Yes.
Court: Okay. And you understand when you're under oath in a court proceeding, you've got to tell the truth. You understand that?
AG: Yes.
Court: Okay.
The playback audio then reflected the court asking the parties whether they had any additional questions they wished to ask A.G.
At that point during the playback, one of the jurors spoke up, stating, "We weren't there when she was saying this[.]" Another juror informed the clerk, "Don't worry about that." The clerk skipped ahead and played one last question (the last question of the competency inquiry):
Court: And do you know who the President of the United States is at the current time?
A.G.: Donald Trump.
The playback audio then reflected the jury's return to the courtroom and the commencement of A.G.'s direct examination, for which the jury had been present.
On appeal, Bigham argues that this exchange unfairly bolstered A.G.'s credibility. But the court's questions to A.G. were little more than general preliminary questions as well as a reaffirmation of the witness oath to which the jury heard A.G. swear before she provided her testimony - i.e., that she promised to testify truthfully, to tell "the truth, the whole truth, and nothing but the truth." The court's inquiry was brief, and the court did not make any findings on the record regarding A.G.'s credibility or capacity to testify accurately.
See Alaska R. Evid. 603 ("Before testifying, every witness shall be required to declare that the witness will testify truthfully[.]").
Moreover, after a portion of the improper voir dire testimony was played, one of the jurors spoke up and alerted the clerk that the jury had not been present for this portion of the testimony. Another juror said not to worry about that part. In other words, this was not the portion of the testimony the jury wanted to hear, and they were well aware it was not part of the evidence before them.
We therefore conclude that the playback of this portion of A.G.'s brief voir dire testimony was harmless beyond a reasonable doubt.
Second, Bigham argues that he was prejudiced by the superior court's substantive response to the jury's question regarding the phrase "on or about" contained in the charges. After the jury requested clarification of the definition of "on or about" with respect to the dates of the offenses, the court discussed this request with the prosecutor and the defense attorney. The court ultimately instructed the jury as follows, without objection by the parties:
The phrase "on or about" indicates the alleged offense occurred on or around the date indicated. The exact date need not be proven. Where it is alleged there is evidence of a similar act on successive days, such as Count I and Count IV or Count II and Count V, and the charges are written as "on or about," in order to return a verdict of guilty on each of the similar counts, the jury must be unanimous as to the specific conduct that has been proven beyond a reasonable
doubt for each count. Although charged as occurring on or about a certain date, guilty verdicts on Count I and Count IV cannot be given for the same incident. Similarly, guilty verdicts on Count II and Count V cannot be given for the same incident.
On appeal, Bigham does not argue that this instruction was erroneous. Rather, he argues that had he been personally present for the court's discussion of the instruction with the parties, it is "highly probable" that he would have asked for a more favorable instruction from the court - e.g., he would have asked for the court to instruct the jury that "on or about" should be read narrowly, or to remind the jury that it can consider conflicting evidence when weighing a witness's credibility.
But we have recognized that "when a trial court considers purely legal matters [at a hearing with the prosecutor and defense counsel], a defendant's presence is unlikely to influence the result," as there is little chance that a defendant would personally perceive and raise purely legal issues. The question is whether the record establishes "some reasonable possibility that the trial judge's rulings would have been more favorable to [the defendant] if he had participated."
Graham v. State, 1998 WL 90889, at *5, *8 (Alaska App. Mar. 4, 1998) (unpublished) (citing Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (holding that the defendant's due process right to be present was not violated when the defendant was excluded from an in-chambers hearing to determine the competency of two child witnesses)); Dolchok v. State, 639 P.2d 277, 284-85 (Alaska 1982) (holding that the defendant's exclusion from a pretrial conference at which only legal matters were discussed was harmless error); Jonas, 773 P.2d at 970 (defendant's absence from pretrial conference at which the parties alerted the court to anticipated evidentiary issues was harmless where the defendant's presence “could have in no way aided his defense”); see also Kugzruk v. State, 436 P.2d 962, 964-66 (Alaska 1968) (holding that defendant's personal absence from multiple anteroom conferences, without objection by his counsel, was not obviously prejudicial under plain error standard).
Graham, 1998 WL 90889, at *7; see also People v. Coleman, 909 N.E.2d 952, 964 (Ill. App. 2009) (concluding that the defendant's personal absence from discussion of the jury's note requesting a definition of “abet” was harmless beyond a reasonable doubt where the court gave an accurate instruction with the concurrence of defense counsel); McKenzie v. State, 687 N.W.2d 902, 906 (Minn. 2004) (holding that the defendant's personal absence from discussion of jury notes was harmless beyond a reasonable doubt where the trial court conferred with defense counsel, responded consistent with defense counsel's input, and the responses were “appropriate” and provided no new information to the jury).
Here, Bigham's attorney was present and engaged with the court regarding the additional instruction to be provided to the jury. And, ultimately, the jury was properly instructed on the "on or about" language in the indictment. There is little possibility that Bigham's presence would have led to a different, more favorable instruction.
Relying on our decisions in Jones v. State and Carpenter v. State, Bigham argues that, in assessing harmlessness, the focus is "on the type of action taken by the court in the defendant's absence, not the propriety of that action." But Jones and Carpenter involved situations where the trial court engaged in an ex parte communication with the jury, crafting a response to a jury's inquiry without any input from the attorneys or the defendant. Rightfully, the question in that instance must focus on the type of issue addressed by the court and the failure to allow the defense to offer "comments, suggestions, and objections to guide both the substance and phrasing of the court's response to the jury's request." Here, however, Bigham's attorney was present and offered comments and suggestions to guide the court's response, to which both attorneys ultimately agreed.
Jones v. State, 719 P.2d 265, 267 (Alaska App. 1986) (emphasis added); accord Carpenter v. State, 408 P.3d 1235, 1237 (Alaska App. 2017).
Jones, 719 P.2d at 266-67 (holding that ex parte communication between the court and the jury as to the meaning of a concept critical to the trial was reversible error); Carpenter, 408 P.3d at 1237-38 (concluding that court's ex parte response to jury that reported it was hung was reversible error); see also Wamser v. State, 652 P.2d 98, 101 & nn. 12-13 (Alaska 1982) (recognizing that "a trial judge's response to a jury communication without notice to the defendant and his counsel and a hearing on the record is error" and collecting cases); Dixon v. State, 605 P.2d 882, 883-84, 887-89 (Alaska 1980) (holding that judge's ex parte denial of jury's request to hear playback of all of complaining witness's and defendant's testimony, while offering to locate portions of the testimony over which there was disagreement by the jury, was reversible error); Cox v. State, 575 P.2d 297, 300-01 (Alaska 1978) (holding that judge's ex parte communication to the jury, denying their request to hear playback testimony by two alibi witnesses crucial to the defense, was not harmless beyond a reasonable doubt).
Jones, 719 P.2d at 267 (quoting Wamser, 652 P.2d at 101-02).
For these reasons, we conclude that any error in responding to the jury's question without Bigham's personal presence was harmless beyond a reasonable doubt.
Finally, Bigham argues that he was prejudiced when he was not present for the playbacks of A.G.'s and the lead detective's testimony because the jury elected to only rehear portions of these witnesses' testimony. Specifically, the jury listened to A.G.'s direct examination and portions of the detective's direct, redirect, recross, and final redirect examinations. The jury did not listen to A.G.'s cross-examination, redirect, or recross, or to the detective's initial cross-examination. (As we noted, when contacted by the court, Bigham's attorney chose not to be present for both of these playbacks.)
Bigham claims that had he been personally present during these playbacks, he would have objected to the jury listening to only portions of the testimony, and he would have insisted the jurors also listen to the witnesses' entire cross-examinations. But Bigham does not argue that he would have been entitled to insist that the jury relisten to the full testimony. Bigham also does not allege that the portions of testimony the jury reheard were misrepresentative of the overall testimony or that they placed "undue emphasis" on the State's case. And in any event, there is no indication that, had the jury reheard the respective cross-examinations, there is a "reasonable possibility" that it would have "had an impact on the jury's deliberative process."
See Ripley v. State, 590 P.2d 48, 51-52 (Alaska 1979) (recognizing that the trial court had discretion to decide whether to require the playback of cross-examinations when the jury only requested to hear direct examination); cf. Hoffman v. State, 950 P.2d 141, 146 n.1 (Alaska App. 1997) (observing that telling a jury which requested a partial playback that they could only listen to the witness's complete testimony could have "the effect of discouraging the jury from pursuing its request for playbacks").
Richardson v. State, 579 P.2d 1372, 1374 (Alaska 1978).
Cunningham v. State, 408 P.3d 1238, 1245 (Alaska App. 2017); see also Jones, 719 P.2d at 267; Graham v. State, 1998 WL 90889, at *5-9 (Alaska App. Mar. 4, 1998) (unpublished).
In sum, even assuming Bigham did not validly waive his right to be present during playbacks and during the time when the superior court crafted its response to the jury's question, this error was harmless beyond a reasonable doubt under the circumstances of this case.
Bigham 's claim that the superior court improperly restricted his cross-examination of A.G.
At trial, A.G. was a reluctant witness, and her frustrations were evident to the court and the parties. During her direct examination, the court ruled that A.G. was a hostile or reluctant witness and allowed the prosecutor some leeway in asking leading questions. A.G. testified to several acts of sexual penetration and sexual contact with Bigham, but she also frequently indicated that she did not know or did not remember what happened and was presented with her prior statements to the detective. During her cross-examination, A.G. repeatedly testified that she did not want to be in the courtroom and did not want to be testifying.
At one point during her cross-examination, when A.G. declared that she did not want to testify, the judge excused the jury to allow A.G. to take a moment away from testifying. The judge then had the following exchange with A.G. outside the presence of the jury:
Court: All right. Take a moment, Ms. [G]. We're still on record, but based -
A.G.: I am ready to get this over and done with. I'm tired of my head being fucked with this fucking family.
Court: I understand. I understand. And the more you can answer questions and move along -
A.G.: No, I don't. You guys are fucking - fucking retarded.
Court: Okay.
A. G: The whole fucking thing.
Court: I understand.
A. G: The out - the fucking satellites - everything. What you guys did to my family - fucking state, you bitches.
Court: Okay. And I apol -
A.G.: We're on record. What else, huh?
Court: Okay. I don't know what happened with your family. But -
Court: If you want to get this done, then we need you -
A.G: I want this over and done with.
Court: I understand. So the quicker -
A.G: No, you don't -
Court: - we can get the questions -
A.G: - understand. It's not even court ordered. It's not even subpoenaed. It's not even anything.
Court: Okay.
A. G: It's all fake - everything.
Court: Okay. Well, when you tell me you're ready to go forward, we'll -
A.G: I'm not -
Court: - bring in the jury.
A.G.: - ready to go forward.
Court: Okay. All right. We'll wait -
AG.: Okay -
Court: - till you're ready.
A.G.: - I'm ready to go forward.
Court: Okay. Let's bring in the jury.
During this exchange, A.G. was obviously upset and emotional, at various times raising her voice and expressing clear frustration.
After Bigham's counsel resumed his cross-examination, he asked A.G. about the statements she had made during the break while the jury was excused. Specifically, defense counsel asked A.G. what she meant when she stated that the "State did something to [her] family." The prosecutor objected, and the court held a bench conference.
The court ruled that A.G.'s statement regarding what the State did to her family was irrelevant, and that A.G. had been "obviously upset." Defense counsel acknowledged he did not know the relevance, but he argued that "it seemed relevant to [A.G.]" The court told defense counsel that he could investigate what A.G. meant outside the proceeding, but that he could not ask about that statement in front of the jury. (Counsel apparently never revisited this issue, and Bigham does not challenge the preclusion of this questioning on appeal.)
After resuming cross-examination, defense counsel asked A.G. if it was true that she had said "it's all f-ing fake" while the jury was excused. (A.G. had actually said, "It's all fake - everything.") The prosecutor again objected, and the court again held a bench conference. The court questioned the relevancy of the statement, asking defense counsel whether he had any idea what A.G. meant when she said this. Bigham's attorney explained that the statement "speaks for itself and that he was "suggesting that it's all fake, like she said." But the attorney made no request to ask A.G. what she meant or to further elaborate outside the presence of the jury. The court ruled that the attorney could not ask A.G. about her statement.
We wish to note one problem with the way the transcript depicts this bench conference exchange. The transcript shows that the prosecutor sought to confirm that defense counsel was "suggesting [A.G.] was attempting to recant her allegations." Next, A.G. said something indiscernible, followed by "Let's - let's do that." On the face of the transcript, A.G.'s statement could be read to suggest that she was agreeing with the prosecutor's characterization and in fact trying to recant her allegations. Indeed, Bigham's briefs characterize A.G.'s response as reflecting her agreement that she was trying to recant. We have listened to the trial audio, which reveals that, after the prosecutor's confirmation that defense counsel was referring to a recantation, A.G. spoke for approximately eight seconds, all of which is indiscernible. Only after the eight seconds of indiscernible speech did A.G. say, "Let's do that." Thus, it is not at all clear from the audio that A.G. was responding to the prosecutor's characterization of her statement as a recantation when she said, "Let's do that." We note that no one present at trial ever referenced A.G.'s statement of "let's do that," let alone characterized it as indicating that A.G. was agreeing that she had been trying to recant the allegations.
On appeal, Bigham claims that A.G. could have been referring to the allegations against him - i.e., that they were "all fake" - and argues that the court erred in precluding him from cross-examining A.G. about this statement.
Viewed in a vacuum, Bigham's argument has some appeal. Trial courts must be "particularly solicitous toward cross-examination that is intended to reveal bias, prejudice, or motive to testify falsely." If A.G's statement that "it's all fake" related to her allegations, then clearly this statement would have been an appropriate topic for cross-examination.
Cleveland v. State, 258 P.3d 878, 884 (Alaska App. 2011) (quoting Wood v. State, 837 P.2d 743, 745 (Alaska App. 1992)).
But Bigham is taking A.G.'s statement out of context. There is no indication in the record that, when A.G. made this statement, she was referring to the truth of her accusations against Bigham. A.G.'s statement took place during an emotional outburst in which she expressed annoyance and frustration with the questions she was being asked and the judicial process to which she had been subjected. Immediately before the court took a break and sent the jury out of the room, A.G. had become upset by defense counsel's questioning on topics which she clearly felt were not relevant to the trial. She then told the court, "I am ready to get this over and done with," before asserting moments later, "It's not even court ordered. It's not even subpoenaed. It's not even anything." It was only in the context of these frustrations that A.G. declared, "It's all fake - everything." There was no indication that A.G. was referring to the truth of her accusations against Bigham.
Indeed, A.G.'s subsequent testimony refutes any notion that she was recanting her allegations. At the very end of defense counsel's cross-examination, counsel asked A.G., "Did you ever tell anybody that you lied about these allegations?" A.G. responded, "No." Then, on redirect examination, the prosecutor asked A.G. whether she had been "lying" during her direct examination the previous day. A.G. testified that she was not lying when she testified regarding the allegations of sexual abuse, and that she had not lied or invented anything when she previously disclosed the abuse to the detective during her interviews. (She testified that, while she did not disclose everything to the detective during their initial interviews, by the final interview, she "said everything" that had happened.) Interpreting A.G.'s statement, "It's all fake," as a recantation would be inconsistent with this testimony.
Ultimately, the trial court heard the statement in the moment it was made and was in the best position to evaluate its meaning. It is clear that the court did not interpret A.G.'s statement as a recantation, and Bigham's attorney offered nothing more beyond, "I think it [i.e., the statement] speaks for itself." And Bigham never sought to further develop this issue outside the presence of the jury.
See id. ("We generally review a trial court's ruling regarding the limits of cross-examination for abuse of discretion."); see also Wahl v. State, 441 P.3d 424, 430 (Alaska 2019) (recognizing that the trial court's exclusion of evidence is reviewed for an abuse of discretion - that is, whether the decision was "arbitrary, capricious, manifestly unreasonable, or stemmed from an improper motive" (internal quotation marks omitted) (quoting Lindbo v. Colaska, Inc., 414 P.3d 646, 651 (Alaska 2018))).
But even assuming the court should have permitted Bigham to ask A.G. whether she made this statement, we conclude that this error does not require reversal. As we noted above, although defense counsel was precluded from asking A.G. about her statement during the break, he was not precluded from directly asking her whether she had ever recanted, and he did. A.G. repeatedly confirmed she was not lying about the allegations. And the defense attorney also asked questions that sought to probe A.G.'s motive to lie - namely, whether she was seeking to get out of trouble at McLaughlin or reap a financial benefit from a related civil lawsuit.
Moreover, to the extent A.G.'s statement demonstrated her general frustrations toward the proceedings, her animosity toward the entire process was already readily apparent to the jury. During her testimony before the jury, she said, at various times, "I don't want to talk about this at all. I don't want to be ... in this courtroom at all," "I don't want to continue this," "I fucking hate this courtroom," "This is so fucking stupid," and "I don't want to do this." Immediately after she said, "I don't feel comfortable with this .... I don't want to do this," the court took the break at which A.G. said, "I want this over and done with. ... It's not even court ordered. It's not even subpoenaed. It's not even anything. ... It's all fake - everything." And the court granted the prosecutor permission to treat A.G. as a hostile witness, reflecting the fact that A.G.'s reluctance to testify was readily apparent to those in the courtroom.
For all these reasons, we conclude that any error in limiting Bigham's cross-examination of A.G. about the comment she made outside the jury's presence was harmless, and we reject this claim of error.
Bighorn's claim that the superior court failed to disclose all relevant sealed records
Prior to trial, Bigham sought to compel the production of records from the Office of Children's Services (OCS) regarding "any claims made by A.G. of sexual abuse or official misconduct by anyone and the investigation and subsequent evaluation of those claims." In support of this request, Bigham's attorney alleged that a defense investigation had revealed that A.G. had a history of falsely reporting incidents of sexual abuse. Through counsel at the Office of Victims' Rights, A.G. opposed Bigham's request.
The superior court ultimately granted Bigham's request for review of the OCS records, finding that the records "may contain relevant information that is material to the defendant's defense." After reviewing the OCS documents in camera, the court released sixteen pages of redacted documents to the parties. The court reserved ruling as to whether any of the information was admissible at trial.
The disclosed records revealed that A.G. had previously accused her stepfather of sexually abusing her in 2012 (three years prior to the incidents alleged in this case). Her stepfather denied the allegation, and according to the documents, the police investigated the report but declined to pursue charges because of inconsistencies in A.G.'s reports and the absence of corroborating information.
Despite detailed information about these allegations and suggestions that A.G.'s reports against her stepfather had not been credited, Bigham's attorney never sought to litigate the admissibility of these allegations at trial. He did not file a pretrial motion to admit the evidence under Morgan v. State - /'. e., he did not request a hearing to prove that A.G.'s allegations were false - nor did he argue that there was any other basis for admitting evidence of these allegations. And at trial, Bigham's attorney did not seek to introduce evidence of A.G.'s prior allegations against her stepfather.
See Morgan v. State, 54 P.3d 332, 333 (Alaska App. 2002).
The OCS records disclosed to Bigham also revealed an allegation in which A.G. reported that a male staff member at North Star Residential Treatment had molested her when she was admitted for treatment. At trial, defense counsel did seek to question A.G. and A.G.'s McLaughlin unit supervisor about A.G.'s allegations of sexual abuse against staff members of facilities where she had resided, including the staff member at North Star. But the court precluded the questioning, ruling that defense counsel had not properly litigated the issue or the falsity of the prior allegations.(Bigham does not challenge the court's decisions to preclude this questioning.)
See id.
Bigham now asks this Court to review the undisclosed OCS documents that remain under seal to ensure that the superior court disclosed all relevant materials. The State agrees that Bigham is entitled to have this Court review the undisclosed records that remain under seal.
We have reviewed the records. Only a limited number of the records relate to A.G.'s past allegations of sexual abuse, and the vast majority of these limited documents were either disclosed to the parties or cumulative to the documents disclosed.
The sealed records contain some additional context about A.G.'s reports of sexual abuse against her stepfather. But, as we noted, the documents that were disclosed to the parties contained meaningful discrepancies regarding A.G.'s allegations, and defense counsel never pursued this line of inquiry prior to or during trial. There is little reason to believe the additional details in the sealed records would have impacted the litigation, and they are largely cumulative to the substantial information defense counsel already had. We therefore conclude that the court did not abuse its discretion in declining to disclose these documents.
The undisclosed records also contain brief references to two other instances in which A.G. reported to OCS that she had been sexually abused by a family member and by family friends. The sexual abuse allegedly occurred when A.G. was five and six years old, and the reports were made years later. The records contain little information about these reports and no information as to whether the police investigated these allegations or whether the claims were credited or substantiated.
The court did not provide an explanation for why it did not disclose these records. To facilitate meaningful appellate review of sealed records, we urge judges to explain their reasons for disclosing or not disclosing records - even if this order must itself be placed under seal for our later review.
See Douglas v. State, 527 P.3d 291, 310-11 (Alaska App. 2023) ("To facilitate . . . appellate review [of confidential records that are not disclosed to the parties and placed under seal for later appellate review], we encourage the trial court to provide a written or oral explanation of its disclosure decision.").
That said, we have reviewed the records, and we conclude that the relevance is marginal in light of how the issues played out at trial and the limited information in the records themselves. We therefore conclude that any failure to disclose the additional information does not constitute reversible error.
We note that the records that were disclosed to the parties did reveal another sexual abuse allegation by A.G. against her stepfather. But there is similarly no indication as to whether that claim was investigated or whether charges were pursued - and Bigham's counsel did not attempt to litigate its admissibility at trial.
Bighorn 's claims regarding his escape convictions
Bigham was initially charged with attempted second-degree escape and solicitation of second-degree escape based on his efforts to assist A.G. in leaving the McLaughlin Youth Center. As relevant here, the offense of second-degree escape requires the escaping person to be under "official detention for a felony." The State later reduced these charges from second-degree escape to fourth-degree escape - which requires instead that the person have been under "official detention for a misdemeanor" at the time of the offense. The statute defining "official detention" expressly includes "actual or constructive restraint under an order of a court in a . . . juvenile proceeding."
AS 11.56.310(a)(1)(B).
AS 11.56.330(a)(1).
AS 11.81.900(42) (defining "official detention," in relevant part, as "custody, arrest, ... or actual or constructive restraint under an order of a court in a . . . juvenile proceeding").
On appeal, Bigham does not dispute that A.G. was under "official detention" while at McLaughlin. However, he argues that the State presented insufficient evidence that A.G. was under such detention for a misdemeanor offense.
Although the adjudication process for juvenile defendants is distinct from criminal proceedings for adults, this Court has held that the escape statutes apply equally to adjudicated delinquents. In particular, we have noted that "the language 'for a felony' and 'for a misdemeanor' as used in the escape . . . statutes ... is meant to divide the universe of persons who are in 'official detention' into two categories, by seriousness of their underlying conduct, and is not meant to exclude adjudicated delinquents from the statutes." We emphasized that the main purpose of classifying felons and misdemeanants in the escape context is "to establish the appropriate degree of escape to be charged and the period of incarceration to be imposed."
LeFever v. State, 877 P.2d 1298, 1301 (Alaska App. 1994).
Id. (internal quotation marks omitted) (quoting State v. Stores, 816 P.2d 206, 212 n.5 (Alaska App. 1991)).
And when the lowest level of an offense is charged - as in the case of fourth-degree escape-proof of a fact or status whose purpose is to enhance the offense is generally not required. By way of analogy, when the State charges a person in Alaska with the lowest level of theft (fourth-degree theft), the State need only prove that the item stolen has some monetary value, not a particular dollar amount. The Virginia Court of Appeals has applied this rule to escape statutes, holding that when an escape statute differentiates felons from misdemeanants solely to delineate the appropriate degree of offense, a "substantive" violation requires only that the defendant escaped from official custody. That is, "proof of the underlying offense for which an accused is in custody is irrelevant to the determination of guilt, except in those cases in which the [prosecution] seeks enhanced punishment[.]"
Flynn v. State, 1992 WL 12153295, at *2 (Alaska App. Sept. 23, 1992) (unpublished) (stating that fourth-degree theft "is established when the stolen property has any monetary value at all; no particular dollar value need be shown"); see also, e.g., Goldsbury v. State, 2012 WL 3253161, at *1 (Alaska App. Aug. 8, 2012) (unpublished) (finding sufficient evidence for fourth-degree theft where property had only small, unknown market value); Simpson v. State, 2006 WL 3691724, at *1-2 (Alaska App. Dec. 13, 2006) (unpublished) (same).
See, e.g., Williams v. Commonwealth, 514 S.E.2d 381, 383 (Va.App. 1999).
Id.
In this case, because the State amended the charges to allege that Bigham helped A.G. commit the lowest level of the offense {i.e., fourth-degree escape), the State was required to show only that A.G. was under "official detention" at McLaughlin. As we noted, Bigham does not dispute the fact that A.G. was under official detention. We therefore conclude that there was sufficient evidence to support the jury's verdicts on the escape-related charges.
The State presented evidence that McLaughlin Youth Center houses minors who have been adjudicated or detained for a crime and that the residents of the girls treatment unit, where A.G. resided, were detained under court orders.
However, the State concedes that the jury's verdicts for attempted fourth-degree escape and solicitation of fourth-degree escape should merge because they were based on the same underlying conduct. We have reviewed the record, and we conclude that the State's concession is well-founded. Because the superior court entered convictions of record on these offenses, with no accompanying sentences, a resentencing hearing is not required.
See Avila v. State, 22 P.3d 890, 894 (Alaska App. 2001) (citing AS 11.31.140(b)); see also Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (appellate courts must independently assess whether a State's concession of error in a criminal case is well-founded).
Correction of inaccuracies in the judgment
Finally, Bigham points to two inaccuracies in the judgment. Specifically, Bigham asserts that the judgment: (1) incorrectly states that Bigham was convicted of attempted second-degree escape and solicitation of second-degree escape under AS 11.56.310(a)(1)(B); and (2) incorrectly recites the dates of the offenses for Count IV (CTN 3) and Count IX (CTN 7).
The judgment orders the convictions according to the "CTN," or charge tracking number, associated with each offense, while the indictment and the jury instructions order the charges by "Count."
The State acknowledges these errors, and the State's concession is well-founded. The judgment should be corrected to reflect that the jury found Bigham guilty of attempted fourth-degree escape and solicitation of fourth-degree escape under AS 11.56.330(a)(1), which are both class B misdemeanors. (The court should then further amend the judgment to reflect only a single conviction for one of these two offenses.)
The parties are also correct with respect to the dates of Counts IV and IX (CTNs 3 and 7, respectively) in the judgment. On remand, the superior court should amend the judgment to reflect the correct dates for these offenses.
The years of the offenses are misstated in the judgment as to both counts.
Conclusion
We REMAND this case to the superior court with directions to merge the verdicts for attempted fourth-degree escape and solicitation of fourth-degree escape into a single conviction. The court shall ensure that the judgment properly refers to fourth-degree escape under AS 11.56.330(a)(1), as well as the correct dates of the offenses provided in Counts IV and IX (CTNs 3 and 7, respectively). In all other respects, we AFFIRM the judgment of the superior court.