Opinion
Court of Appeals No. A-9947.
July 2, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Trial Court No. 3AN-06-169 DL.
Robert R. Polley, Kodiak, for the Appellant. Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
The superior court found E.L. to be a delinquent minor, based on evidence that she attempted to steal a motor vehicle. E.L. now appeals this delinquency adjudication.
E.L. argues that the superior court erred by holding a court trial without properly inquiring into whether E.L. had knowingly waived her right to a jury. E.L. further argues that the superior court violated Alaska Evidence Rule 404(b)(1) by allowing the State to cross-examine E.L. in a manner that revealed that she had lied to the police when they initially questioned her. E.L. contends that this evidence — i.e., evidence of a specific act of dishonesty — was inadmissible under Rule 404(b)(1) because its sole relevance was to prove E.L.'s character for untruthfulness. And finally, E.L. argues that the evidence presented at her trial was legally insufficient to support the superior court's verdict.
For the reasons explained here, we reject all three of E.L.'s assertions on appeal, and we therefore uphold the delinquency adjudication.
Underlying facts
At about three o'clock in the morning on May 12, 2006, Tiffany Gerkman awoke to a loud banging noise coming from outside her Anchorage apartment. Gerkman went out on her front porch and saw two people sitting in the front seats of her car.
The car was parked in a carport about three or four feet from the porch. The porch light was on and shining into the car, and the car's interior lights were also illuminated — thus allowing Gerkman to get a good look at the two individuals inside her car. Gerkman observed a young female, between sixteen and nineteen years old, sitting in the driver's seat. This female was dressed in dark clothing, and her hair was pulled back. The young female looked up at Gerkman — thereby giving Gerkman the opportunity to observe her face for about fifteen seconds.
When Gerkman yelled, "What the hell are you doing?", the two people in her car jumped out and ran down the street. Gerkman went to the car and observed two screwdrivers lying on the driver's seat floorboard. She also noticed that the ignition had been broken off of the steering column. Gerkman then called the police.
Within about fifteen minutes, Anchorage Police Officers Eric Nowak and Lucas Denbleyker responded to Gerkman's call. While Nowak interviewed Gerkman, Denbleyker searched the neighborhood and stopped sixteen-year-old E.L., whom he found walking about a block and a half from Gerkman's residence, and who matched Gerkman's description of the female suspect.
Denbleyker asked E.L. who she was, and what she was doing out so late. E.L. told Denbleyker that she had just moved to the area and did not know her address. She gave her date of birth as October 11, 1987, and she told the officer that she was eighteen years old. (E.L.'s real birth date was October 11, 1989, and she was sixteen years old.) E.L. told Denblyker that the reason she was out so late was simply that she felt like going for a walk.
Denbleyker explained that he had stopped E.L. because the police had received a report that people were trying to steal a car in the neighborhood. Denbleyker then informed E.L. of the description of the suspects that the victim had given to the police. E.L. responded that she had just seen two individuals running across the parking lot nearby who matched that description. E.L. told Denbleyker that the female member of this pair resembled her — and then she added that she knew it looked bad for her to be in the same area as the attempted vehicle theft, and for her to match the physical description of one of the suspects.
Denbleyker conducted a records check on E.L. and discovered that her true birth year was 1989, and that she was only sixteen years old. E.L. informed the officer that she had lied about her age because she didn't want him to be angry with her for being out so late. Nevertheless, E.L. continued to assert that she was only out for a walk, that she was alone, and that she had seen two individuals who matched the descriptions of the suspects.
Denbleyker directed E.L. to have a seat in his patrol car, and then Nowak brought Gerkman around the corner to see if she could identify E.L. . While Gerkman stood between one and two car lengths away, the officers shined a spotlight on E.L. so that her face was illuminated. Gerkman identified E.L. as the female she had seen in her car.
E.L.'s claim that she was denied her right to trial by jury
Under Alaska Delinquency Rule 21(a), a minor charged with delinquency is entitled to a trial by jury, but only if the minor files a request for a jury trial within ten days of their arraignment or within ten days of the time they enter a denial of the delinquency petition (whichever is later). We recently discussed the history and operation of this rule in I.J. v. State, 182 P.3d 643 (Alaska App. 2008).
E.L. was tried by Superior Court Judge Eric A. Aarseth, sitting without a jury. Judge Aarseth did not address E.L. personally to ascertain that she was knowingly and voluntarily waiving her right to a jury trial. On appeal, E.L. argues that Judge Aarseth's failure to conduct this inquiry is reversible error. She relies on decisions of the Alaska Supreme Court and this Court holding that a criminal defendant's waiver of jury trial must be personal, knowing, and voluntary — and that a defendant's failure to protest the lack of a jury is not sufficient to establish the requisite knowing waiver.
See, e.g., W alker v. State, 578 P.2d 1388, 1390 (A laska 1978); M cG lauflin v. State, 857 P.2d 366, 369 (Alaska App. 1993).
That is indeed the rule in criminal cases. But, as explained above, Delinquency Rule 21(a) codifies a different rule for delinquency proceedings: a minor must affirmatively assert the right to jury trial, or it is lost.
E.L. does not point to any pleading or to the audio record of any court hearing where she invoked her right to jury trial under Delinquency Rule 21(a) by affirmatively requesting a jury trial. To the contrary: at a court hearing on January 4, 2007, just before E.L.'s trial, her attorney assured Judge Aarseth that the trial would be a bench trial.
Accordingly, the superior court was under no obligation to conduct an inquiry as to whether E.L. was willing to waive her right to a jury.
E.L.'s claim that the superior court allowed the State to offer evidence of her character for untruthfulness in violation of Alaska Evidence Rule 404(b)(1)
E.L. took the stand at her trial and denied involvement in the attempt to steal Gerkman's vehicle. During the State's cross-examination of E.L., and over the objection of E.L.'s attorney, the prosecutor elicited the fact that E.L. lied to Officer Denbleyker about her age. On appeal, E.L. asserts that this evidence was relevant only to prove her character for untruthfulness, and that the evidence was therefore barred by Alaska Evidence Rule 404(b)(1).
A s w e explained in Sm ithart v. State, 946 P.2d 1264, 1270-71 (A laska A pp. 1997), Alaska Evidence Rule 404(b)(1) precludes evidence of a person's other wrongful acts only if (1) that evidence is offered solely to prove the person's character and (2) the person's character is being used as circumstantial evidence that the person acted true to character during the incident being litigated.
If, on the other hand, the evidence of the person's wrongful acts has some other case-specific relevance, Evidence Rule 404(b)(1) does not preclude the evidence. It is admissible — subject to the balancing of probative value versus potential for unfair prejudice under Evidence Rule 403.
Smithart, 946 P.2d at 1271.
In assessing whether evidence is being offered for the purpose barred by Evidence Rule 404(b)(1), a judge must "consider whether the factfinder is being asked to engage in a two-step reasoning process: to infer from a person's behavior on one occasion something about the nature of the person, and then to infer from the person's nature how the person probably would have behaved on another occasion when the only connection between the two occasions is that the factfinder believes that people of a certain type would act the same way both times."
Id. (citing Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence Manual (6th ed. 1994), Rule 404, pp. 322-23) (internal brackets omitted).
Using this test, the State's evidence that E.L. lied to the police about her age and year of birth was not barred by Evidence Rule 404(b)(1). This evidence was not offered to show that, in general, E.L. had a propensity to lie, and that this propensity to lie made it more likely that E.L. would lie again. Rather, the evidence was offered to show that E.L. lied to the police on this very occasion.
Moreover, our review of the superior court proceedings convinces us that Judge Aarseth did not use the fact that E.L. lied to the police for the "propensity" purpose barred by Evidence Rule 404(b)(1). Instead, he used this fact to assess E.L.'s state of mind when the police first questioned her.
At the end of the bench trial, Judge Aarseth explained why he did not believe E.L.'s testimony that she saw two people matching Gerkman's description of the car thieves running across the parking lot. The judge concluded that it was unlikely that E.L. had been able to see these two purported individuals well enough to notice the small details that she described during her testimony in court. The judge noted that E.L.'s testimony was rendered additionally suspect by the fact that E.L. failed to relay these facts to Officer Denbleyker when he first questioned her. Then Judge Aarseth added:
The Court: [E.L.] clearly was calm and collected enough to rationalize lying about her age at the time. . . . I think it's perfectly reasonable for me to assume that, if she actually had the facts that she was testifying today to, . . . she would have provided all of that detail to the police officers at the scene. . . . I think really what happened . . . was that [E.L.] simply repeated back to the officer [the same information he] had already . . . given to her . . . regarding [the] suspects.
The above-quoted excerpt shows that Judge Aarseth did not use the fact that E.L. lied to Denbleyker as proof that she had a propensity to lie. Rather, the judge used this fact as proof that E.L. was calm and collected during her encounter with Denbleyker — and that, as a consequence, what she said to him, and what she failed to say, should not be ascribed to excitement or nervousness. The judge concluded that E.L.'s failure to relay seemingly important details to Denbleyker was an indication that she invented these details after the fact.
E.L. argues in the alternative that, even if the evidence was admissible under Evidence Rule 404(b)(1) ( i.e., even if it was offered to prove something other than E.L.'s propensity to lie), Judge Aarseth nevertheless should have excluded the evidence under Evidence Rule 403 on the ground that it was more prejudicial than probative. This argument fails for two reasons.
First, evidence that E.L. lied about her age and her year of birth is not the type of evidence that was likely to cause a fact-finder to feel overmastering hostility or prejudice toward E.L., nor was it otherwise likely to cause a fact-finder to decide E.L.'s case on improper grounds.
Second, because E.L.'s case was tried to the court rather than a jury, there is little chance that this evidence unfairly influenced the verdict. Judges routinely hear evidence that has a potential for unfair prejudice, and they are trained and expected to set this prejudicial aspect of the evidence aside when they render their decisions. Indeed, in Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517 (5th Cir. 1981), the Fifth Circuit Court of Appeals held that the portion of Federal Evidence Rule 403 that requires a court to balance the probative value of evidence against its potential for unfair prejudice is simply not applicable in bench trials. The Fifth Circuit explained:
Excluding relevant evidence in a bench trial because it is cumulative or a waste of time is clearly a proper exercise of the judge's power, but excluding relevant evidence on the basis of "unfair prejudice" is a useless procedure. [Evidence] Rule 403 assumes [that] a trial judge is able to discern and weigh the improper inferences that a jury might draw from certain evidence, and then balance those improprieties against [the evidence's] probative value and necessity. Certainly, in a bench trial, the same judge can also exclude those improper inferences from his mind in reaching a decision.
Gulf States Utilities Co., 635 F.2d at 519.
For all these reasons, we conclude that Judge Aarseth properly allowed the prosecutor to elicit the challenged testimony during her cross-examination of E.L. . E.L.'s claim that the evidence presented at her trial was insufficient to support the superior court's verdict
In her brief to this Court, E.L. suggests several potential reasons to doubt the accuracy or credibility of various aspects of the State's evidence. But when the sufficiency of the evidence is challenged, an appellate court is obliged to view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the lower court's verdict. In other words, we are to assess the sufficiency of the evidence in this case by first resolving all conflicts and doubts in favor of Judge Aarseth's decision, and then asking whether, viewing the evidence in that light, a reasonable fact-finder could have concluded that the State's case was proved beyond a reasonable doubt.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981) (citing Martin v. City of Fairbanks, 456 P.2d 462, 464 (Alaska 1969)).
Helmer v. State, 608 P.2d 38, 39 (Alaska 1980).
Employing this test, we conclude that the evidence was sufficient to support the superior court's verdict.
As part of her argument that the evidence was insufficient, E.L. attempts to inject another issue: she asserts that the superior court should have suppressed Gerkman's in-person identification of her because (according to E.L.) that identification was obtained in violation of E.L.'s due process rights.
E.L. can not raise this issue for the first time on appeal. Under Delinquency Rules 17(b)(2) and 17(e), all motions to suppress evidence on the ground that it was illegally obtained must be raised prior to the minor's trial — and, if a suppression claim is not raised before trial, it is waived.
Moreover, as the State points out in its brief, E.L.'s due process claim implicitly rests on the premise that, under the circumstances, it was not necessary for the police to conduct a "show-up" (a one-on-one identification) as opposed to a lineup. E.L. offers no argument on this crucial point, and the record in this case offers substantial justification for conducting an immediate show-up.
See Anderson v. State, 123 P.3d 1110, 1116 (Alaska App. 2005).
Conclusion
The judgement of the superior court is AFFIRMED.