Judge SUDDOCK.

NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-11-10053 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Megan R. Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.

Jamie Don Cordell was charged with sexually abusing two of his daughters, as well as a friend of one of his daughters. Following a jury trial, Cordell was convicted of one count of first-degree and two counts of second-degree sexual abuse of a minor for abusing one of his daughters, but he was acquitted of abusing the two other children.

On appeal, Cordell claims that the superior court erred when it allowed the State to introduce, under Alaska Evidence Rule 404(b)(2), evidence that Cordell had acted in a sexually suggestive manner toward two other young girls. We conclude that the superior court did not abuse its discretion when it admitted this evidence.

Cordell also claims that the trial court erred when it allowed the State to introduce, as a prior inconsistent statement, an excerpt of the prosecutor's recorded pre-trial interview with a defense expert witness. We agree that the superior court erred, but we conclude that the error was harmless.

Background

In July of 2011, Alaska State Troopers received a call from the mother of then twelve-year-old H.S. The mother claimed that Cordell had sexually assaulted H.S.

During an ensuing interview by a trooper, H.S. alleged that Cordell had sexually assaulted her while she was at a sleep-over with her friend S.C. (Cordell's daughter) at the home of S.C.'s aunt. H.S. said that Cordell — who was the only adult in the house at the time — came into the room that H.S. was sharing with S.C., and then carried her into an adjacent bedroom. According to H.S., Cordell placed her on the bed and started to remove her clothing. He kissed her neck, chest, and stomach. H.S. was unable to push Cordell off of her.

H.S. further alleged that Cordell put his hand on her vagina and made her touch his penis. She said that Cordell threatened to kill her unless she cooperated, but that when she told Cordell that she was a virgin, he sent her back to her room. An Anchorage police detective, Kim Trujillo, later re-interviewed H.S., and H.S. repeated these allegations.

Detective Trujillo also interviewed Cordell's daughters, S.C. and her younger sister J.C. S.C. told Trujillo that Cordell began to sexually abuse her when she was in the third grade, and that this recurred about twice a month. During one of these encounters, Cordell touched S.C.'s vagina, under her clothes but over her underwear. Another time, when S.C. was sharing Cordell's bed with Cordell and J.C., Cordell touched S.C.'s chest and vagina. S.C. said that Cordell told her to touch his penis, but that she had refused. On a third occasion recounted by S.C., she and three of her siblings slept together in the living room of Cordell's apartment; while the others slept, Cordell penetrated her vagina with his penis. S.C. estimated that Cordell penetrated her at least one other time, and that she once put her hand on Cordell's penis.

S.C.'s younger sister J.C. told Detective Trujillo that one night, when she was seven years old, she approached Cordell while he was lying on his bed. J.C. said that Cordell told her to lie down, and then forced her to "lick his balls."

Cordell was charged with seven counts of sexual abuse of a minor. Counts I and II charged first- and second-degree sexual abuse of H.S.

Counts III and IV charged first-degree sexual abuse of S.C., and Counts V and VI charged second-degree sexual abuse of S.C.

Count VII charged first-degree sexual abuse of J.C.

Cordell was also charged with contributing to the delinquency of a minor for providing H.S. and S.C. with alcohol.

Following a jury trial, Cordell was convicted of three of the four counts charging sexual abuse of S.C., and acquitted of the remaining count. The jury acquitted Cordell of all of the charges involving the other two girls.

The State's request to introduce prior bad acts under Alaska Evidence Rule 404(b)(2)

Prior to trial, the State asked the court for permission to introduce evidence of similar acts that Cordell had committed against other children. Specifically, the State sought to introduce the testimony of two other young girls — N.P. and A.C. — who claimed that Cordell had engaged in inappropriate sexual behavior with them. The defense attorney objected to the proposed evidence, and Superior Court Judge Kevin M. Saxby held a hearing to resolve the issue. Both N.P. and A.C. testified at this hearing.

N.P. testified that in 2010, while she was visiting Cordell's house, he asked her to sit on his lap and to rub his arm — and then he started kissing or nibbling her ear. Cordell told N.P., "You're sexy like your mom." N.P. wanted to go home, but when she told Cordell she was calling her mother, he insisted that she make the call in front of him; N.P. then called her mother without asking to be picked up. Cordell told N.P., "If you're scared, you can come sleep in Uncle Jamie's room [i.e., Cordell's room]." N.P. declined, and then the next morning she told her mother what happened.

The superior court next heard from A.C. A.C. claimed that when she was ten years old and attending S.C.'s at-home birthday party, Cordell invited her to come into a large walk-in closet with him. A.C. had been playing in only her bra and underwear at the time, and she followed Cordell into the closet. A.C. claimed that Cordell tried to turn the lights off when she went inside, but that she kept her hand over the switch. Cordell offered to give her a ride in his truck if she would take off her underwear, but she refused. Cordell suggested that, if A.C. was older, they could get married and "go camping and stuff."

The superior court found that N.P.'s and A.C.'s testimony was admissible under Rule 404(b)(2) because N.P. and A.C. were similar to the victims named in the indictment and because the alleged acts were similar to the charged crimes. The court found that the victims were similar because all of the girls involved in the case were similarly aged preteens or very early teenagers. The court found that N.P.'s allegations were similar to the charged offenses because N.P. accused Cordell of engaging in "flirting and suggestive behavior" and "fondling of her breasts." With respect to A.C.'s allegations, the court found that these were similar to the charged offenses because Cordell used "suggestive language," and he engaged in "an attempt to have her disrobe."

Referring to this Court's decision in Bingaman v. State — where we set forth factors that a court must consider before the court admits evidence under Evidence Rules 404(b)(2), (b)(3), and (b)(4) — the superior court concluded "that all the Bingaman factors weigh in favor of admissibility." The court then found that both incidents were highly probative, within the scope of the allegations at trial, and not unfairly prejudicial.

On appeal, Cordell argues that the superior court erred when it found that his conduct with N.P. and A.C. was similar to the offenses charged in the present case.

The legislature enacted Evidence Rule 404(b)(2) to make it easier for the government to introduce evidence of a defendant's other acts of sexually or physically abusing a minor, even when this evidence is offered for the purpose of proving a defendant's characteristic propensity to commit the type of crime charged in the indictment. In the present case, the superior court carefully weighed the Bingaman factors before ruling that Cordell's conduct with N.P. and A.C. was sufficiently similar to the charged offenses, and that evidence of those prior bad acts was more probative than prejudicial.

Having reviewed the record, we conclude that the superior court could properly find that Cordell's actions toward N.P. and A.C. were similar to the crimes charged against him, and that the superior court did not abuse its discretion when the court concluded that the potential unfair prejudice of this evidence did not outweigh its probative value. Accordingly, we find no error.

Why we conclude that the judge erred when he admitted an excerpt of the defense expert's recorded interview with the prosecutor, but that this error was harmless

At trial, Cordell's defense attorney presented an expert witness, Bradley McAuliff, a professor of psychology who testified concerning research on the suggestibility of children, and whether children could be prompted to report false incidents of sexual abuse during forensic interviews.

After Dr. McAuliff gave this testimony, the court allowed the prosecutor to play an excerpt of McAuliff's recorded pretrial interview, on the ground that this excerpt was a "prior inconsistent statement."

On appeal, Cordell argues that McAuliff's statement during the pretrial interview was not in fact inconsistent with his trial testimony — and that, therefore, the trial judge should not have allowed the prosecutor to introduce this statement as a prior inconsistent statement. We agree with Cordell that the judge erred, but we conclude that this error was harmless.

The introduction of McAuliff's pretrial statement did not prejudice Cordell because, as Cordell himself notes, this pretrial statement did not contradict McAuliff's trial testimony. And to the extent that the prosecutor argued otherwise in his summation to the jury, Cordell was not prejudiced because the jury was instructed (1) that the attorneys' arguments were not evidence, and (2) that the jurors should pay attention to the attorneys' arguments only to the extent that those arguments were consistent with the evidence presented at trial. We presume that the jury followed these instructions (and Cordell has offered no reason for us to believe the jury did not).

We therefore conclude that neither the erroneous admission of McAuliff's pretrial statement, nor the prosecutor's arguments based on that pretrial statement, appreciably affected the jury's verdict.

Conclusion

The judgment of the superior court is AFFIRMED.