Opinion
Court of Appeals No. A-8672.
December 29, 2004.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Richard D. Savell, Judge. Trial Court No. 4FA-S02-1386 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
MEMORANDUM OPINION AND JUDGMENT
Chad Nelson appeals his convictions for sexual abuse of a minor in the first degree, sexual assault in the first degree, and sexual abuse of a minor in the second degree. Nelson argues that the trial court erred when it admitted evidence of Nelson's prior sexual misconduct under Alaska Evidence Rule 404(b)(1). We agree, and we reverse those convictions.
AS 11.41.434.
AS 11.41.410(a).
AS 11.41.436(a).
Factual and procedural background
In April 2002, 26-year-old Chad Nelson lived in a trailer in Fairbanks with his wife Shannon Nelson, their six-year-old son Damon, Shannon's 24-year-old stepbrother Andy Bird, and Shannon's 15-year-old sister C.B. On Saturday, April 20, 2002, the five of them went to Pizza Hut for dinner. Nelson and Bird shared a pitcher of beer. Following dinner, Shannon went to work for a night shift beginning at 7 p.m. The rest of the group returned to the trailer. On the way home, Nelson and Bird stopped to purchase a twelve pack of beer, wine coolers and a half-pint of tequila. Nelson began drinking the beer and Bird drank both beer and tequila. C.B. consumed two "Purple Passion" wine coolers.
C.B.'s sixteen-year-old friend L.M. arrived later that evening around 10:30 or 11:00 p.m. with the intention of spending the night. When L.M. arrived, she found C.B. sitting in the living room at the computer desk with two empty bottles nearby. L.M. testified that C.B. was acting "really goofy", slurring her words, and walking "tipsy." Shortly after the arrival of L.M., Nelson and Bird made another trip to a store and returned with more alcohol, including wine coolers. Nelson gave L.M. a wine cooler and told her that she needed to catch up with C.B. who had already consumed two wine coolers. L.M. began drinking.
According to C.B., at some point in the evening, while Nelson was sitting next to her on the couch, he tried to kiss her. C.B. tried to push him away. Nelson then put his hand under her shirt and into her bra, touching her breast. C.B. tried to push him away, and then got up and left. She went into her room. Later, while C.B. was lying on the bed next to L.M., Nelson came into the room. According to C.B., Nelson put his hands under her pants and penetrated her vagina with his fingers. She also said that Nelson took off L.M.'s pants and her underwear and touched her vagina.
L.M. testified about the evening in question. She said that she was C.B.'s best friend. She testified that C.B. was "buzzed" and acting "really goofy" when she arrived. L.M. testified that she consumed several drinks and also got "buzzed." She said that she saw Nelson kiss C.B. After having her recollection refreshed by her grand jury testimony, she also recalled seeing Nelson touch C.B.'s breast. She said that when she and C.B. were in the bedroom, that Nelson rubbed her (L.M.) all over her body. But she stated that she had no recollection of any incident where Nelson removed her pants. Andy Bird testified that, while he was walking through the hallway, he saw Nelson kiss C.B. in her bedroom.
C.B. testified that she did not initially tell anyone about the incident because she was afraid that Nelson might hurt her and that her sister, Shannon Nelson, would be angry with her. C.B. did have a conversation about the incident in the early morning hours following the assault with Andy Bird, communicating that she was scared and upset. On May 6th, C.B. spoke with her older sister Nicole about the incident, who then informed their mother. Their mother later told Shannon about the incident in vague terms. Shannon confronted C.B. and L.M., telling them that she wanted to report the incident to the state troopers. State Trooper Eric Olsen interviewed C.B., and the State filed several charges against Nelson. The State indicted Nelson on one count of first-degree abuse of a minor and one count of first-degree sexual assault for digitally penetrating C.B., and one count of second-degree sexual abuse of a minor for touching her breast. The State also charged Nelson by information with two counts of contributing to the delinquency of a minor for furnishing alcohol to C.B. and L.M.
Before trial, the State made an application under Evidence Rule 404(b)(1) to admit evidence of Nelson's prior sexual misconduct with a teenage girl, S.S. After hearing the State's offer of proof, Superior Court Judge Richard D. Savell concluded that the evidence of Nelson's sexual misconduct with S.S. was admissible because it was similar to the sexual misconduct which Nelson was accused of in this case.
At trial, Nelson conceded that he was guilty of contributing to the delinquency of a minor by providing alcohol to both C.B. and L.M. But he contested the other charges. The defense theory at trial was that C.B. had fabricated her claims of Nelson's sexual misconduct in an effort to avoid living with her sister and Nelson in Fairbanks so that she could rejoin her family in Hawaii. S.S. testified at Nelson's trial regarding Nelson's sexual misconduct with her. The jury convicted Nelson on all counts. This appeal follows.
Discussion
S.S. testified at trial in accordance with the State's pretrial offer of proof. S.S. is Shannon Nelson's cousin and is the wife of Chad Nelson's best friend. According to S.S., several years earlier, when she was approximately fifteen years old, she was at a Fourth of July party at a friend's house and became intoxicated. A friend took her to an upstairs room to sleep, and S.S. locked herself in the room. S.S. states that upon waking, Nelson's hand was under her shirt, touching her breast. She said that her face was wet, apparently from Nelson kissing her.
S.S. testified that a second incident occurred on her wedding night, when she was nineteen. S.S. testified that she again became intoxicated. She said that she went up to a room where she and her husband had been staying. Shannon Nelson was passed out on the bed. After S.S. went to sleep, she woke up feeling fingers in her vagina. At first she thought it was her husband, but soon realized it was Nelson. She jumped up and left the room.
S.S. also related another incident that took place in California when she was nineteen. S.S. stated that she had been drinking, and went to sleep next to her husband. S.S. said that she woke up, feeling Nelson's hand moving toward her vagina over her pants. S.S. said that she just grabbed Nelson's hand and removed it from her body.
Evidence Rule 404(b)(1) "bars the admission of evidence of a defendant's other crimes if that evidence is introduced for the sole purpose of proving that the defendant is a person who, by nature, engages in such wrongful acts and who consequently could be expected to behave the same way during the occasion being litigated." But the rule does allow the evidence to be admitted for other purposes. In determining whether to admit evidence under Evidence Rule 404(b)(1) the trial judge must engage in a two-step analysis. First, the judge must determine whether the evidence is relevant for a purpose other than to show criminal propensity. Second, the judge must apply Rule 403 and weigh the probative value of the evidence against its potential for unfair prejudice.
Carpentino v. State, 38 P.3d 547, 550 (Alaska App. 2002) (footnote omitted).
Alaska Evidence Rule 404(b)(1) provides:
(b) Other Crimes, Wrongs, or Acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Lerchenstein v. State, 697 P.2d 312, 315-16 (Alaska App. 1985) aff'd 726 P.2d 546 (Alaska 1986).
Judge Savell concluded that S.S.'s testimony was admissible because it established a significantly similar pattern of abuse. He concluded that the testimony was admissible to establish Nelson's intent to commit the sexual abuse and also to establish that the abuse did not take place because of a mistake or accident.
The State recognizes that, in his opening statement, Nelson's theory was that C.B. had fabricated her claim that he had engaged in sexual misconduct in order to try to rejoin her family in Hawaii. But the State argues that Nelson did not disclaim defenses that C.B. had consented or that Nelson had not intended the sexual contact. The State points to testimony about statements which Nelson made in which Nelson claimed that he was intoxicated and that he did not remember engaging in sexual contact with C.B. and L.M.
S.S.'s testimony, if believed by the jury, showed that when Nelson was intoxicated he had a proclivity to sexually assault women who were incapacitated by alcohol and were readily available to him. But if the evidence was offered for this purpose, it would be propensity evidence barred by Evidence Rule 404(b)(1). The question, therefore, is to determine "whether the evidence had some other, more case-specific relevance."
Clark v. State, 953 P.2d 159, 163 (Alaska App. 1995).
Id.
In Smithart v. State, we conceded "that there is no ready dividing line between prior acts that reveal only the defendant's propensity to commit that same type of wrongful act, and prior acts that reveal a genuine case-specific ground for believing that the defendant committed the crimes being litigated." But our cases have generally emphasized the danger of propensity evidence and have required a distinct case-specific relevance to the issues contested at trial to establish admissibility under Rule 404(b)(1).
946 P.2d 1264 (Alaska App. 1997), rev'd on other grounds, 988 P.2d 583 (Alaska 1999).
Id. at 1272-73.
Carpentino, 38 P.3d at 553-54; Nicholia v. State, 34 P.3d 344, 348 (Alaska App. 2001); Clark, 953 P.2d at 161-63; Velez v. State, 762 P.2d 1297 (Alaska App. 1988).
In our view, the evidence that Nelson had previously sexually assaulted S.S. merely tended to show that Nelson had a propensity, when intoxicated, to sexually assault women who were incapacitated by alcohol when they were readily available to him. Other than this, there does not appear to be a significant parallel between Nelson's alleged sexual assaults on C.B. and his previous sexual assaults on S.S. We accordingly conclude that the evidence was propensity evidence barred by Evidence Rule 404(b)(1), and that Judge Savell erred in allowing the State to introduce this evidence.
The State argues that admission of S.S.'s evidence, if error, was harmless because it did not appreciably affect the jury's verdict. We reject the State's argument. It is true that Nelson had a seemingly weak defense. Furthermore, the State presented evidence that Nelson made several statements in which he did not directly deny the sexual contact, but claimed that he could not remember what happened because he was intoxicated. But the testimony of C.B. and L.M. about the incident varied significantly, and it is impossible for us to speculate, from an appellate record, what a jury might have done had S.S. not testified. It appears to us that S.S.'s testimony might have had a significant effect on the jury's verdict.
Conclusion
We conclude that the trial court erred in admitting S.S.'s testimony. We are unable to conclude that admission of this testimony did not appreciably affect Nelson's convictions for sexual abuse of a minor in the first degree, sexual assault in the first degree, and sexual abuse of a minor in the second degree. We therefore REVERSE those convictions. Nelson concedes that he was properly convicted of contributing to the delinquency of a minor by furnishing alcohol to C.B. and L.M. We accordingly AFFIRM those convictions.