Opinion
Court of Appeals No. A-12580 No. 6869
05-20-2020
ALAN GLEN HUGHES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Laurence Blakely, 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.
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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 4FA-13-02801 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge. Appearances: Laurence Blakely, 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: Allard, Chief Judge, and Coats and Mannheimer, Senior Judges. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
In 2013, Alan Glen Hughes and his wife lived in North Pole with their sixteen-year-old daughter P.H., fourteen-year-old son R.H., and twelve-year-old daughter A.H. In October of that year, an initial report led police investigators to interview P.H. and A.H. at Stevie's Place, a child advocacy center. The girls disclosed a long history of sexual abuse by Hughes.
Based on these interviews, Hughes was indicted on twenty-seven counts of first-degree sexual abuse of a minor. All three children testified at Hughes's trial, and they described how their father had engaged in years of sexual abuse. P.H. and A.H. testified to several specific incidents of abuse, including vaginal, anal, and oral penetration by Hughes. For his part, Hughes denied that any sexual abuse had occurred. The jury ultimately convicted Hughes of thirteen counts.
AS 11.41.434(a)(1), (2).
Hughes now appeals. Hughes first argues that the superior court should have ordered an independent psychological evaluation of A.H. before deciding that she would be allowed to testify via closed-circuit television. Second, Hughes argues that the court erred in allowing the prosecutor to repeat a portion of his direct examination of A.H. after it was discovered that her testimony had not been properly recorded. Lastly, Hughes argues that the evidence presented at his trial was not legally sufficient to support several of his convictions.
We agree with Hughes that the evidence presented at trial was insufficient to support three of his convictions. But in all other respects, we reject Hughes's arguments and affirm his convictions.
Hughes's argument that the superior court should have ordered an independent psychological evaluation of A.H. before allowing her to testify via closed-circuit television
Hughes's first argument on appeal is that the superior court should have granted his request for an independent psychological evaluation of A.H. before the court decided whether to allow her to testify remotely at his trial. To explain our resolution of this issue, we must first describe the relevant procedural history of Hughes's claim.
Prior to trial, the prosecutor asked the court to allow A.H. to testify outside the courtroom via closed-circuit television. Testimony by closed-circuit television is permitted under AS 12.45.046(a)(2) "if the court determines that the testimony by the child victim . . . under normal court procedures would result in the child's inability to effectively communicate." The prosecutor told the court that A.H.'s psychologist believed that A.H. would be unable to effectively communicate if she were forced to testify in Hughes's presence. The prosecutor requested an evidentiary hearing, where A.H.'s therapist would explain why A.H. should be allowed to testify via closed-circuit television, in order to address this matter.
See, e.g., Reutter v. State, 886 P.2d 1298, 1305-08 (Alaska App. 1994) (upholding statute as constitutional under the Confrontation Clause by incorporating requirements of Maryland v. Craig, 497 U.S. 836 (1990)).
Before this hearing, Hughes's attorney asked the court to order an independent psychological evaluation of A.H. The prosecutor opposed this request, arguing that AS 12.45.042 prohibited any such evaluation.
Alaska Statute 12.45.042 generally prohibits a court from ordering a crime victim to undergo a psychiatric or psychological evaluation, except when "(1) the victim's psychiatric or psychological condition is an element of the offense charged; or (2) the prosecution has given notice that it will present evidence at trial that the victim suffers from a continuing psychological or psychiatric condition that resulted from the offense charged."
The prosecutor argued that neither of these exceptions applied to Hughes's case, and that therefore the court had no authority to grant Hughes's request for an independent examination of A.H. But Hughes's attorney argued that the second exception applied, because the prosecutor's request to have A.H. testify via closed-circuit television was implicitly premised on the assertion that Hughes's acts of abuse had rendered A.H. incapable of effectively communicating in open court in Hughes's presence.
Hughes's attorney acknowledged that the wording of AS 12.45.042(2) referred to situations where the State intended to present evidence of the victim's psychological condition "at trial." But the defense attorney argued that this clause of the statute should be interpreted to also include pretrial proceedings where the State relies on the assertion "that the victim suffers from a continuing psychological or psychiatric condition that resulted from the offense charged."
The superior court acknowledged that it was "perhaps easy to understand" how A.H.'s appearance by closed-circuit television could be viewed as "a trial issue" under AS 12.45.042(2). But the court then declared that, at that point in the proceedings, it was not yet convinced "that there would be any beneficial purpose" in ordering an independent evaluation of A.H. The court told Hughes's attorney that he could certainly consult a psychological expert prior to the evidentiary hearing to get feedback on the report provided by A.H.'s therapist and to prepare for cross-examination, but that the court would not order an independent evaluation of A.H. until it had some reason to believe that the proposed examination was needed.
At the evidentiary hearing, A.H.'s therapist testified that because of A.H.'s emotional trauma and her relationship with Hughes, A.H. would not be able to effectively communicate her testimony if she was forced to confront Hughes face-to-face. But Hughes's attorney did not renew his request for an independent evaluation. Nor did the attorney attempt to make any further showing that an independent evaluation would provide useful information. Based on the therapist's testimony, the court ruled that A.H. would be allowed to testify via closed-circuit television.
On appeal, Hughes argues that the superior court erred when it denied the defense attorney's initial request for an independent evaluation of A.H. But as we have just explained, the superior court did not deny the defense attorney's request outright. Rather, the court indicated that it would order an independent evaluation if the defense attorney could show that the proposed evaluation would have a "beneficial purpose" — i.e., that it would provide information that would be useful to the court's decision whether to allow A.H. to testify via closed-circuit television. After the initial request, however, Hughes's attorney never raised this issue again.
"Normally, an appellant may only appeal issues on which he has obtained an adverse ruling from the trial court." Thus, the only question preserved for appeal is whether the superior court erred when it refused to order an independent evaluation of A.H. until Hughes's attorney affirmatively demonstrated some reason to believe that an independent evaluation would provide information that would be material to the court's decision.
Bryant v. State, 115 P.3d 1249, 1258 (Alaska App. 2005).
Hughes's brief to this Court does not address this issue. Hughes briefly mentions the superior court's ruling in his description of the procedural facts, but he fails to discuss the substance of that ruling, and he fails to explain why the court's requirement of an additional showing was improper.
We therefore reject Hughes's argument that the superior court erred in denying his request for an independent psychological evaluation of A.H. We express no opinion on the proper interpretation of AS 12.45.042(2) in these circumstances.
We have not yet had the opportunity to interpret AS 12.45.042. We note, however, that the superior court's requirement that Hughes demonstrate some beneficial purpose appears to be consistent with our pre-AS 12.45.042 case law. See Moor v. State, 709 P.2d 498, 508 (Alaska App. 1985) ("[A] strong showing of materiality is required before we will reverse a trial court's decision not to grant a psychiatric evaluation of a prosecution witness."); Pickens v. State, 675 P.2d 665, 669 (Alaska App. 1984) ("Defense counsel's speculation that a psychiatric evaluation of the victim might turn something up does not amount to a showing of necessity justifying a court-ordered evaluation."). And we have previously indicated that AS 12.45.042 might have further limited a trial court's authority to order an independent psychological evaluation of an alleged victim. See Barney v. State, 1998 WL 80113, at *9 (Alaska App. Feb. 25, 1998) (unpublished) (noting that under AS 12.45.042 "a court's authority to order the mental examination of an alleged victim is apparently narrower than allowed by Pickens").
Hughes's argument that the court erred in allowing the prosecutor to repeat some of his direct examination of A.H.
Next, Hughes argues that the superior court erred when it allowed the prosecutor to repeat certain portions of his direct examination of A.H. after the court experienced technical difficulties with its audio recording equipment.
During A.H.'s testimony, the trial judge was notified that some portions of A.H.'s closed-circuit testimony were not being adequately captured by the in-court recording equipment, and that the jurors were therefore unable to properly hear her testimony. To ensure a complete record, the court allowed the prosecutor to repeat a portion of his direct examination of A.H. and allowed A.H. to repeat her answers. This repeat examination lasted less than twenty minutes.
On appeal, Hughes contends that the prosecutor's re-examination of A.H. was not necessary because the in-court recording equipment had, in fact, accurately captured A.H.'s testimony. Hughes also argues that, to the extent it was necessary to repeat some portion of the prosecutor's direct examination, the court erred by allowing the prosecutor to repeat much more of the examination than those particular portions where A.H.'s testimony was inaudible.
We have reviewed the record. To the extent that the prosecutor was allowed to repeat questions beyond the ones that were necessary (i.e., inaudible), we conclude that any error was harmless. The repeat examination of A.H. was a relatively brief portion of Hughes's trial, and it was limited in scope. If there was any error, we conclude that it had no appreciable effect on the jury's verdict.
See Love v. State, 457 P.2d 622, 634 (Alaska 1969) (holding that, for instances of nonconstitutional error, the test for harmlessness is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict").
The evidence was not legally sufficient to support Hughes's convictions on Counts 9, 11, and 12
Hughes next challenges the sufficiency of the evidence to support a number of his convictions. When we review the sufficiency of the evidence to support a criminal conviction, we view the evidence (and all reasonable inferences to be drawn from that evidence) in the light most favorable to the verdict, and we then assess whether a reasonable juror could have concluded that the government had proved the charge beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Hughes first challenges his convictions on Counts 9, 11, and 12. These counts charged Hughes with first-degree sexual abuse of a minor under AS 11.41.434(a)(1), which required the State to prove that Hughes engaged in sexual penetration with someone who was under thirteen years of age — here, P.H.
To convict Hughes of the charges in Counts 11 and 12, the State had to prove that Hughes sexually penetrated P.H. via genital intercourse and fellatio, respectively, between January 1 and December 31, 2010, and that P.H. was under thirteen years of age when this penetration occurred. But P.H. was already thirteen years old in 2010; she turned thirteen in October 2009. Thus, no reasonable juror could have concluded that P.H. was younger than thirteen on any date in 2010 — and the evidence was therefore insufficient to support Hughes's convictions on Counts 11 and 12.
Count 9 charged Hughes with sexually penetrating P.H. the year beforehand — between January 1 and December 31, 2009. As we just mentioned, P.H. turned thirteen during October 2009. Thus, P.H. was younger than thirteen years old during more than nine months of 2009. But when the prosecutor explained the evidentiary bases of the various counts to the jury, he expressly told the jurors that Count 9 referred to an incident that occurred when P.H. was thirteen years old. We therefore agree with Hughes that the evidence was insufficient to support his conviction on Count 9.
Cf. Riley v. State, 60 P.3d 204, 208 (Alaska App. 2002) ("[W]e have repeatedly held that ambiguities and potential flaws in jury instructions can be cured by the arguments of the parties.").
In its brief to this Court, the State concedes that the evidence was legally insufficient to support a finding that P.H. was under thirteen years of age at the times described in Counts 9, 11, and 12, and that Hughes could therefore not be found guilty of violating AS 11.41.434(a)(1). However, the State argues that, based on the conduct alleged in Counts 9, 11, and 12, Hughes could have validly been convicted of the same offense (first-degree sexual abuse of a minor against P.H.) under a different subsection of AS 11.41.434 — subsection (a)(2).
Under AS 11.41.434(a)(2), a defendant commits first-degree sexual abuse of a minor if they engage in sexual penetration with a person under the age of eighteen, and if the defendant is the child's parent. The State notes that the evidence presented at Hughes's trial was sufficient to support findings that P.H. was younger than eighteen at the time of the sexual abuse, and that Hughes was P.H.'s parent. The State therefore asserts that Hughes's claim is not really about the legal sufficiency of the evidence to support his conviction. Rather, the State contends, Hughes is pointing to a "variance" between the offenses alleged in Counts 9, 11, and 12 of the indictment and the offenses that were proved at trial.
This argument has no merit. A variance occurs when the allegations resolved by the trial jury differ from the allegations set forth in the grand jury indictment. But in Hughes's case, the jury instructions concerning the elements of Counts 9, 11, and 12 mirrored the charges contained in the indictment. Both the indictment and the jury instructions stated that all three counts rested on the allegation that P.H. was under the age of thirteen at the time of the sexual abuse.
See Michael v. State, 805 P.2d 371, 374 (Alaska 1991); Wease v. State, 2017 WL 1379313, at *4 (Alaska App. Apr. 12, 2017) (unpublished).
Now, for the first time, the State proposes that Hughes should have been convicted on a different legal basis — a basis not alleged in the indictment and not reflected in the jury instructions. But even if the record gives every reason to believe that the grand jury would have indicted Hughes under subsection (a)(2) if they had been asked to do so, and even if the record leaves no doubt that the trial jury would have convicted Hughes under subsection (a)(2) if they had been instructed on the elements of that theory, the fact remains that the grand jury did not indict Hughes under that theory, and the trial jury was not asked to resolve the elements of that theory. It would therefore be illegal to now convict Hughes under subsection (a)(2) of the statute.
See Michael, 805 P.2d at 374.
The evidence was sufficient to support Hughes's conviction on Count 17
Hughes next argues that the evidence was insufficient to support his conviction on Count 17. Count 17 alleged that Hughes was guilty of first-degree sexual abuse of a minor under AS 11.41.434(a)(2) because he engaged in genital intercourse with P.H. between January 1, 2013 and September 30, 2013 (when she was under eighteen years old), and because he was P.H.'s parent.
On appeal, Hughes argues that the evidence was insufficient to conclude that he engaged in genital intercourse with P.H. during this time period. Hughes points out that P.H. testified that Hughes had "sex" with her between February 2013 and August 2013, but he argues that the term "sex" is not specific enough for the jury to conclude that genital intercourse occurred.
We acknowledge that the term "sex" can refer to various types of sexual activity, including, but not limited to, genital intercourse. But when P.H. described the numerous incidents of sexual abuse by Hughes, she always used the word "sex" to refer to penile-vaginal penetration. For example, P.H. testified to multiple incidents of genital penetration where Hughes "put his penis in [her] vagina and had sex." In contrast, when testifying about oral penetration, P.H. did not use the term "sex" to describe these acts.
Thus, because P.H. always used the word "sex" to describe penile-vaginal penetration, jurors could reasonably conclude that when P.H. testified that Hughes had "sex" with her between February 2013 and August 2013, she was again referring to an act of penile-vaginal intercourse. The evidence was therefore sufficient to support Hughes's conviction on Count 17.
See, e.g., Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003) (when evaluating sufficiency, viewing the evidence — and all reasonable inferences to be drawn from it — in the light most favorable to the jury's verdict).
Hughes also appears to argue that the evidence on Count 17 was insufficient because the time period alleged in Count 17 "does not track" P.H.'s testimony. There is no merit to this argument. Count 17 alleged that genital intercourse occurred between January 1, 2013 and September 30, 2013, and P.H. testified that the abuse took place between February 2013 and August 2013, which is well within the time frame alleged.
The evidence was sufficient to support Hughes's conviction on Count 23
Next, Hughes argues that the evidence was insufficient to support his conviction on Count 23. Count 23 alleged that Hughes engaged in sexual penetration, specifically genital intercourse, with A.H. when she was under thirteen years of age.
There is a discrepancy between the trial transcript and the audio recording of the trial. According to the transcript, when A.H. described the incident in question, she was unclear as to whether an act of penetration occurred. The transcript shows A.H. testifying that Hughes "(indiscernible) for a little bit, and then he put it, and then he spermed." But the audio recording shows that A.H. in fact testified that Hughes "put it in, and then he spermed" — a more explicit assertion that sexual penetration had occurred. We therefore conclude that there was sufficient evidence of genital intercourse to support Hughes's conviction on Count 23.
The evidence was sufficient to support Hughes's convictions on Counts 21 and 25
Finally, Hughes argues that we must reverse his convictions on Counts 21 and 25. Both counts alleged that Hughes engaged in sexual penetration of A.H., specifically, genital intercourse, during 2011 (Count 21) and 2013 (Count 25).
The State's theory at trial was that one of these counts could be supported by the "laundry room incident" — i.e., A.H.'s allegation that Hughes put his penis in her vagina when they were in the laundry room. (She could not recall with specificity whether this incident took place in 2011 or 2013.) The other count could be supported under a "continuing course of conduct" theory — i.e., that A.H. was penetrated on a regular basis throughout the year (either 2011 or 2013). The jury was not instructed regarding which theory applied to which count, but they were instructed that their verdicts on each count had to be based on a single, identifiable event or course of conduct. The jury ultimately convicted Hughes of both counts.
On appeal, Hughes concedes that the evidence regarding the laundry room incident was sufficient to support a conviction on one of these counts. Hughes argues, however, that there was insufficient evidence to support the State's course of conduct theory — and that, because the jury's verdicts do not indicate which theory formed the basis of its decisions on that count, we must reverse the verdicts on both counts.
We have reviewed the record, and we conclude that the evidence was legally sufficient to support the State's course of conduct theory in both years.
As our supreme court explained in George v. State, a continuing course of conduct theory is legally sufficient if the evidence before the jury satisfies three requirements. First, the evidence "must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct." Second, it must "describe the number of acts committed with sufficient certainty to support each of the counts alleged." Third, the evidence must "describe the general time period in which these acts occurred . . . to assure the acts were committed within the applicable limitation period."
George v. State, 362 P.3d 1026, 1032 (Alaska 2015).
Id. (quoting People v. Jones, 792 P.2d 643, 655 (Cal. 1990) (en banc)).
Id.
Id.
In this case, A.H. testified that Hughes put his penis in her vagina three or four times a month from the time she was eight until the time she was twelve — i.e., during the years 2009 through 2013. She testified where these acts occurred, the time of day they occurred, who was in the house at the time, her body position when Hughes penetrated her, where he ejaculated and how he would clean it up, and who she told afterward. This testimony was sufficient to meet the three requirements set out in George. Thus, A.H.'s testimony was sufficient to support the State's course of conduct theory relating to the acts of sexual penetration alleged in Counts 21 and 25. We therefore reject Hughes's challenge to his convictions on these two counts.
Conclusion
For the reasons explained here, we REVERSE Hughes's convictions on Counts 9, 11, and 12, and we REMAND this case to the superior court for resentencing, as appropriate. On remand, the court shall also address and correct what appear to be incorrect numbering of the counts in the judgment. In all other respects, we AFFIRM the judgment of the superior court.
The judgment does not track the numbering system that was used in the indictment and at trial. --------