Opinion
Court of Appeals No. A-10229.
October 5, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, John Suddock, Judge, Trial Court No. 3AN-05-12000 Cr.
Christine S. Schleuss, Law Office of Christine Schleuss, Anchorage, for the Appellant. Kenneth M. Rosen-stein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Mark Allen Abrell appeals his conviction for first-degree sexual assault on several grounds. First, Abrell contends that the trial judge erred by allowing the State to introduce evidence that Abrell had been previously convicted of sexual assault, to rebut Abrell's claim that the sexual relations in this case were consensual. Second, Abrell contends that the trial judge improperly restricted the defense attorney's cross-examination of the victim. And third, Abrell contends that the trial judge erred by instructing the jury that they could consider the fact that Abrell left the scene after the incident. For the reasons explained in this opinion, we conclude that none of these claims of error has merit.
Abrell also challenges his sentence. During the sentencing proceedings, Abrell proposed the mitigating factor that his conduct in this criminal episode was among the least serious within the statutory definition of first-degree sexual assault. The sentencing judge rejected this proposed mitigator, and Abrell argues that this was error. For the reasons explained here, we conclude that the sentencing judge properly rejected Abrell's proposed mitigator.
Underlying facts
In August 2005, the victim in this case, J.S., was visiting Anchorage from her home in St. Michael. She was staying with her husband (with whom she did not normally live) at a residence in the Dimond Estates trailer park.
On August 27th, J.S. spent the morning with her husband and her children, and then she went out to socialize with her boyfriend. According to her later testimony, J.S. and her boyfriend walked to a park, where they drank beer and smoked marijuana, and then they went into a house, where they continued to drink alcohol. After they left the house, J.S. told her boyfriend that she was "really messed up", and that she wanted to go home, but her boyfriend wanted to drink more alcohol. They argued, and her boyfriend left.
At this point, J.S. tried to find her way back to her estranged husband's residence, but this took a long time because she got lost in the park. J.S. was approaching her estranged husband's residence when she was stopped by a man. J.S. described this man as a balding white male who was wearing glasses.
J.S. told this man that she was going home, but he pulled her along with him. He dragged her along the ground, leaving marks on her back, and at one point he carried her over his shoulder. Although J.S.'s memory of this encounter was fuzzy (because of her intoxication), she testified that the man must have hit her, because afterward her face was bruised and her neck was sore.
During this attack, J.S. apparently drifted in and out of consciousness, but she remembered waking up with the man on top of her. She tried to push him away with her arms and legs, but she was too weak and tired. J.S. did not remember being sexually penetrated, but a later medical examination showed that she had been penetrated.
The man told J.S. that he was going to take her to C Street, where he was staying. J.S. struggled with the man — and, during this struggle, a passerby observed what was going on and approached them. J.S.'s attacker told this passerby that J.S. was his girlfriend or his wife, that they were merely having an argument, and that the passerby should not be concerned. But when the passerby was about to leave, J.S. grabbed him by the ankle and said, "No, don't leave. I need help. I need your help." In response, the passerby told J.S. that there was a police patrol car nearby, and that she should run to it.
The patrol car was driven by Officer Dan Reeder of the Anchorage Police Department. Reeder saw J.S. walk out into traffic from the Dimond Estates trailer park, and then fall down into the street. According to Reeder's later testimony, J.S. was visibly intoxicated and "wet and soiled and muddy". She was wearing a shirt, but she had no pants or shoes.
Reeder summoned backup, and then he investigated the bike trail that was located across the street, to see if he could find a sexual assault scene, but he did not discover anything.
Officer Denielle Hrovat responded to Reeder's call for assistance. Hrovat spoke to J.S., who told the officer that she had been sexually assaulted in the nearby woods. Hrovat transported J.S. to a hospital to be examined by a sexual assault response team.
The nurse who examined J.S. observed that she had swelling and bruising on her face, neck, and various other parts of her body. J.S. had also suffered a laceration to her vagina, and she had "debris, dirt, and tiny rocks" inside her vagina and anus. Swabs were taken from J.S.'s body, and these swabs revealed the presence of spermatozoa.
The manager of the Dimond Estates trailer park had installed surveillance cameras in response to vandalism at the trailer park. The surveillance footage from the time of the attack showed that J.S. was in the company of a man who was later identified as Mark Abrell. When a DNA expert analyzed the spermatozoa obtained from J.S.'s body, the testing showed that there was a high probability that the sperm came from Abrell. According to the DNA analyst, the chances that the sperm came from someone other than Abrell were about one in four million.
At trial, Abrell contended that his sexual penetration of J.S. was consensual. The jury rejected this contention and found Abrell guilty of sexual assault. The admission of evidence that Abrell had committed a previous sexual assault
At Abrell's trial, the State introduced evidence that Abrell was convicted of another first-degree sexual assault in 1983. This evidence was admitted under Alaska Evidence Rule 404(b)(3), which states that when a defendant who is on trial for sexual assault relies on a defense of consent, the government may introduce evidence of the defendant's other acts of sexual assault.
Abrell acknowledges that Evidence Rule 404(b)(3) authorizes the admission of this type of evidence. But Abrell contends that the trial judge committed error by failing to adequately screen this evidence to assess whether its probative value outweighed its potential for unfair prejudice. Abrell further contends that, under the particular facts of his case, the evidence of his prior sexual assault had very little relevance, and was so likely to engender unfair prejudice, that the trial judge abused his discretion when he allowed the State to introduce this evidence.
In order to answer this contention, we must describe the litigation of this issue in some detail.
The State raised this issue in a pleading filed before trial. Anticipating that Abrell might rely on a defense of consent, the State argued that Abrell's prior act of sexual assault would then become relevant and admissible under Rule 404(b)(3).
In support of its request, the State provided a detailed description of Abrell's earlier offense:
On June 12, 1982, the defendant, Mark Abrell, met D.S., a female, outside the Monkey Wharf Bar[,] where she had discovered her bicycle tires had been slashed[.] [Abrell] offered her a ride [home]. Abrell put D.S.'s bicycle in the back of his [Chevrolet] Blazer[, and he] started driving in the wrong direction. [When] D.S. pointed out that the [direction] Abrell was driving would not take her home[,] he stated that he wanted to get her bike fixed[.] Abrell . . . eventually drove D.S. into a deserted field[, where his] Blazer . . . became stuck in the mud. Abrell became angry with D.S., blaming her for the car getting stuck. D.S. began crying and Abrell became angrier. Abrell took D.S. from the vehicle into the field[,] and forced her to remove her pants and underwear. [Abrell] then digitally penetrated D.S., performed oral sex on D.S., and proceeded to have sexual intercourse three times with D.S. . . . After sexually assaulting her, [Abrell] threatened D.S. with a knife and told her [that] he could have hurt her more than he did. At one point[,] in between sexual assaults, D.S. attempted to run from [Abrell] wearing only a shirt[;] he chased . . . and caught her and dragged her back to the location of the rape. [Abrell] eventually walked with D.S. to [the] Dimond Estates trailer park and left her[,] after making her assure him she would not call the police. D.S. knocked on the door of a trailer [and obtained access to a telephone. She] called her boyfriend[,] and together they notified the police of the assault. [The police] found [Abrell] later the same day[; he was] in the field[,] attempting to extract his vehicle from the mud. [Abrell] admitted to being [with] D.S., but denied that he had sexual intercourse with her. . . . Abrell was convicted of six separate counts of sexual assault in the first degree against D.S.
The State then analyzed this proposed evidence under the test prescribed in Bingaman v. State, 76 P.3d 398 (Alaska App. 2003) — a multi-factor test for determining whether evidence of other crimes is more prejudicial than probative.
In the State's discussion of the Bingaman factors, the State asserted that it had "strong evidence" — including the testimony of "two [or] three witnesses from [the] prior case" — to show that Abrell committed these sexual assaults against D.S.. The State further asserted that "[t]he similarities between the [earlier case and the present case] are striking". Specifically, the State pointed out that in both cases: Abrell made nighttime contact with women he did not know; he sexually assaulted these women in brushy or wooded locations near the Dimond Estates trailer park; he forced the women to remove their pants and underwear, but he left their shirts on; he struck both women in the face during the assaults; and he chased the women when they tried to escape, and dragged them back to the same location to continue his assaults.
When the defense attorney filed Abrell's response to the State's request, the defense attorney told the superior court that she would be unable to provide a detailed argument under the Bingaman test until the court held a hearing at which the State could present the testimony of its witnesses (as an offer of proof). The defense attorney informed the court (apparently, based on a telephone conversation with the prosecutor) that the State was planning to present three witnesses at this hearing, and the defense attorney asked the court to order the State to produce background material on these three witnesses. The defense attorney also informed the court that she objected to the State's plan to have one of these witnesses testify telephonically.
On November 27, 2007 ( i.e., one week before Abrell's trial began), the superior court held a hearing on the State's request to introduce evidence of this prior sexual assault. For purposes of analyzing Abrell's arguments on appeal, two major issues were discussed at this hearing. The first issue was the State's failure to bring its witnesses to the hearing, so that they could testify about the details of the earlier sexual assault. The second issue was how far the State would be permitted to go into the factual details of the earlier sexual assault, if the superior court ruled that evidence of this prior assault was admissible under Rule 404(b)(3). (a) The State's failure to bring its witnesses to the hearing
At the beginning of the hearing, Abrell's attorney complained that she still did not have all the background information concerning the earlier sexual assault. She also complained that "about two-thirds of the stuff the State provided to me about the prior [assault] is illegible."
However, the defense attorney conceded that she "certainly [had] a sense of what the State's case and the prior conviction [evidence] is about". She told the trial judge — Superior Court Judge John Suddock — that, with respect to the still-unproduced background materials, "we can work that out, and figure those issues out".
The defense attorney then asked Judge Suddock whether he had a copy of the materials that the State had provided to the defense. In his answer to the defense attorney's question, Judge Suddock implied that he had not received a copy of these materials — but he told the defense attorney that he was familiar with the factual description of the prior sexual assault contained in the State's pleading. Judge Suddock told the defense attorney that this factual description seemed to be a sufficient basis for conducting the Bingaman analysis, unless the defense attorney had something else to offer.
In response, the defense attorney informed Judge Suddock that she had asked the prosecutor to bring the State's three witnesses to the hearing — so that they might testify about the prior sexual assault — but the prosecutor had not arranged to have these witnesses come to the hearing.
According to the defense attorney, the prosecutor decided not to bring the witnesses to the hearing because the defense attorney had failed to identify any specific aspects of the State's offer of proof that she intended to dispute. The defense attorney told Judge Suddock that she had "some issues" with the prosecutor's decision. However, immediately after saying this, the defense attorney told Judge Suddock that she thought "we can sort of cut through that" — because "[this is not] a fight that we have to have, depending on what Your Honor says". Then, without making any further protest about the State's failure to produce its witnesses, the defense attorney began her analysis of the Bingaman factors.
During this analysis, the defense attorney made statements which demonstrated that she was familiar not only with the factual assertions in the State's pleading, but also with other details of the State's proposed proof of the earlier sexual assault. For instance, the defense attorney told Judge Suddock that the State did not have an eyewitness to the prior assault because "[the victim] doesn't have a very clear memory [of what happened]". The defense attorney also told Judge Suddock that, even though articles of Abrell's clothing had been found at the site, those articles of clothing were discovered by the victim's boyfriend, not by the police, thus potentially raising the possibility of evidence tampering.
In other words, even though the defense attorney complained earlier about not receiving background materials from the State, and about the absence of the State's witnesses from the hearing, the defense attorney demonstrated a substantial knowledge of the pertinent facts as well as a substantial knowledge of the potential evidentiary difficulties in the State's offer of proof.
The issue of the State's failure to produce its witnesses at the hearing came up again when the prosecutor rose to deliver her response to the defense attorney's Bingaman argument. The prosecutor began by offering a justification for her failure to bring the witnesses to the hearing when Judge Suddock interrupted her:
The Court: May I make a suggestion? . . . I'm [not worried] about it. . . . [And] Ms. Moudy [ i.e., the defense attorney] is no longer worried about it. . . . She's not accusing you of anything. . . . [So] as far as I'm concerned here, it's kind of a . . . non-issue.
Prosecutor: A moot point.
The Court: And [so] I'm going to suggest [that] you take "yes" for an answer.
Prosecutor: Thank you.
The defense attorney made no objection (nor any other comment) to this colloquy between Judge Suddock and the prosecutor. In particular, the defense attorney raised no objection when Judge Suddock stated that the defense attorney was "no longer worried about" the State's failure to call witnesses to testify about the facts of the earlier sexual assault.
(b) The permissible scope of what the State would be allowed to prove regarding the prior sexual assault
Toward the beginning of the hearing, the defense attorney told Judge Suddock that even if he ruled that evidence of the prior sexual assault was admissible, it was the defense position that "the State [could] only introduce the judgment [in that previous case]", and not any testimony concerning "the actual facts of the previous case". Judge Suddock immediately asked the prosecutor:
The Court: Is there any controversy on that [point]?
Prosecutor: No, Your Honor. That's [all that] we're seeking to do.
The Court: All right.
Defense Attorney: Okay — [but] my reading of the State's [pleading] was that they were intending to introduce the actual facts of the previous case, which is why I . . .
The Court: But I think . . . [the prosecutor has] dispelled . . . that [difficulty] now.
Defense Attorney: Sure.
Thus, the parties were in agreement that, even if Judge Suddock ruled in the State's favor on the question of whether the State would be allowed to introduce evidence of Abrell's prior sexual assault, the State's evidence would be limited to the judgement itself, and the State would not be able to present witnesses to describe the specific facts of the prior crime.
Later in the hearing, toward the end of the prosecutor's argument concerning the Bingaman factors, the prosecutor suggested an alternative approach to this issue: If Judge Suddock concluded that it might be too prejudicial to introduce the criminal judgement (that is, the document itself) into evidence, the issue of Abrell's prior conviction might be handled by means of "a stipulation between [the] parties" — a stipulation that the jury simply be instructed "that the parties agreed that the defendant had [a] prior conviction for [sexual] penetration without consent". Such a jury instruction, the prosecutor suggested, would avoid any possible prejudice that might be created by the wording of the judgement itself.
The defense attorney responded that she "[did not] have any problem with the kind of instruction [proposed by the State]." The defense attorney then reiterated her understanding of the situation — that both parties agreed that the State would not be allowed to introduce evidence concerning the factual details of Abrell's prior offense:
Defense Attorney: My understanding is that we both agree that none of that [factual] information . . . is coming in, and that now we're going to just have a jury instruction that says the parties have stipulated that Mr. Abrell — if Your Honor lets [the prior conviction] in — has been previously convicted of penetration without consent. So I'm hoping that . . . we don't [have] to even talk about the . . . facts [of the prior offense], or where it's available, or whatever.
Neither the prosecutor nor Judge Suddock expressed any disagreement with the defense attorney's synopsis.
(c) Abrell's claim that Judge Suddock committed procedural error when he ruled on the admissibility of evidence concerning Abrell's prior sexual assault
Abrell argues that Judge Suddock committed two procedural errors when he ruled on the admissibility of evidence concerning Abrell's prior act of sexual assault. First, Abrell argues that Judge Suddock should have required the State to make a detailed offer of proof concerning the details of that prior offense through the testimony of live witnesses. Second, Abrell argues that Judge Suddock should not have issued his ruling without first personally examining the background documents that the prosecutor provided to the defense attorney.
In his brief to this Court, Abrell contends that his trial attorney objected to Judge Suddock's handling of the matter on both of these grounds. But as can be seen from our foregoing description of the superior court litigation, Abrell is mistaken.
It is true that Abrell's trial attorney mentioned both of these procedural problems. But Judge Suddock stated that it appeared to him that he could make an informed ruling based on the factual description of the prior offense that was contained in the State's pleading. And even though the defense attorney referred to the State's decision not to bring live witnesses to the hearing, the defense attorney also told Judge Suddock that "we can sort of cut through that", and that "[this] is [not] a fight that we have to have". The defense attorney then proceeded to argue the main issue — i.e., whether, under the Bingaman test, the State should be allowed to introduce evidence of Abrell's prior conviction for sexual assault — without ever again suggesting that the State needed to present live witnesses or any other type of supporting evidence.
Moreover, when the prosecutor later attempted to offer a justification for her failure to present live witnesses, Judge Suddock interrupted her and declared that, in his view and in the defense attorney's view, the absence of live witnesses was a "non-issue". Abrell's trial attorney made no objection to the judge's characterization of her position.
In other words, the record shows that Abrell's trial attorney effectively consented to have this issue litigated on the basis of the factual assertions contained in the State's pleading, rather than requiring the State to produce evidence of the details of the prior offense.
For these reasons, we conclude that Abrell failed to preserve these procedural objections to the way Judge Suddock handled this issue. We further conclude that Judge Suddock did not commit plain error in his handling of this issue. The defense attorney was willing to assume the truth of the factual assertions contained in the State's pleading when she litigated whether the State should be allowed to introduce evidence of Abrell's prior offense. Judge Suddock was under no obligation to sua sponte prevent the defense attorney from adopting this strategy. (d) Abrell's claim that Judge Suddock had no plausible basis for concluding that evidence of Abrell's prior sexual assault should be admitted at trial
Abrell alternatively argues that Judge Suddock could not meaningfully evaluate the probative value and potential unfair prejudice of Abrell's prior conviction until he heard an offer of proof from the prosecutor concerning the evidence that the State intended to introduce at trial regarding Abrell's current offense. Abrell further asserts that his prior conviction for sexual assault was of minimal relevance because it was more than twenty years old.
The ultimate question is whether Judge Suddock abused his discretion when he found that Abrell's prior offense was relevant, and that its probative value was not outweighed by its potential for unfair prejudice. Given the DNA analysis which showed that Abrell was the source of the sperm recovered from J.S.'s body, the State had fairly convincing evidence that Abrell engaged in sexual relations with J.S.. And given Abrell's notice that he was contemplating pursuing a defense of "consent", the only material issue in serious dispute was whether Abrell coerced J.S. into engaging in sexual relations.
Under Evidence Rule 404(b)(3), when a defendant on trial for sexual assault pursues a defense that the sexual encounter was consensual, evidence of the defendant's prior acts of sexual assault (regardless of whether those acts led to criminal convictions) is potentially admissible, subject to the type of analysis that this Court described in Bingaman.
As we pointed out in Bingaman, the fact that Rule 404(b)(3) is limited to evidence of sexual assaults is some guarantee that this evidence of the defendant's past conduct will be relevant to the current charges. 76 P.3d at 412. However, it is possible that a defendant's past acts of sexual assault might involve situations so different from the current charge that those acts have little or no relevance to the current charge:
[Proposed evidence of a defendant's] "propensity to commit sexual assault" must be examined carefully. The Alaska statutes defining sexual assault encompass many forms of conduct — from drunkenly groping a co-worker's breast at an office party, to date rape, to sexually assaulting a stranger on a running path. It might not be true that a defendant who is willing to engage in one of these forms of sexual assault is thereby more likely to have engaged in some other different type of attempted sexual assault. And if this assertion is not true, then the offered character evidence would not be relevant.
Bingaman, 76 P.3d at 411.
Generally speaking, evidence of a defendant's past act of sexual assault has the most relevance if the defendant's prior sexual assault involved the same situational behavior as the current charge — because, in those circumstances, evidence of the prior sexual assault "give[s] rise to a stronger underlying assertion that the defendant's [conduct on the other occasion is] predictive of what the defendant did on the occasion being litigated." Ibid.
In Abrell's case, Judge Suddock noted that both Abrell's prior sexual assault and the current charge involved acts that were "profoundly similar", in that both acts involved "forcible rape [committed] outside in a field with a stranger". Judge Suddock acknowledged that Abrell's prior conviction was fairly old, but he also noted that Abrell committed the prior offense in "full adulthood, after the formation of [adult] consciousness and morality, . . . post-adolescence".
Judge Suddock proceeded under the assumption that Abrell's defense was going to be consent, and that the jury would be confronted with a case of "he said [she consented]; she said [she did not]". (Abrell's attorney did not object or contradict the judge when he declared, "I'm told that your defense is `consent'.")
In light of Abrell's decision to claim that J.S. consented to have sex with him, Judge Suddock concluded that evidence of Abrell's prior act of sexual assault would be relevant to the most material disputed issue in the case. Judge Suddock also suggested that, to the extent J.S.'s testimony might be weak — for, as Abrell notes in his brief to this Court, J.S. was quite intoxicated during the episode, and she could not say for sure whether she was sexually assaulted, or how she became partially disrobed — the anticipated weakness of J.S.'s testimony tended to show the State's need for evidence of the prior sexual assault.
All in all, the record shows that Judge Suddock conscientiously considered and applied the factors that this Court set forth in Bingaman for determining whether evidence of a defendant's other crimes should be admitted under Evidence Rule 404(b)(3). We conclude that Judge Suddock did not abuse his discretion when he ruled that the State could introduce evidence of Abrell's earlier sexual assault.
(e) Abrell's claim that, even if evidence of the prior sexual assault was admissible under Evidence Rule 404(b)(3), it was error for Judge Suddock to allow the State to prove that previous sexual assault by means of a jury instruction which simply informed the jurors that Abrell had been convicted in the earlier case
Abrell argues that even if Judge Suddock properly ruled that evidence of his prior sexual assault was admissible under Evidence Rule 404(b)(3), it was nevertheless error for Judge Suddock to allow the State to prove Abrell's previous sexual assault by simply informing the jurors that a judgement had been entered against Abrell for engaging in non-consensual sexual penetration.
As we explained earlier, when Judge Suddock held the hearing on the issue of whether the State would be allowed to introduce evidence ( i.e., any evidence at all) of Abrell's prior act of sexual assault, the judge and parties also discussed the ancillary question of what form or type of evidence the State would be allowed to introduce on this topic.
Abrell's attorney argued that, even if the judge ruled that evidence of Abrell's prior sexual assault was admissible, the State should not be allowed to present witnesses to testify about the specific facts of that prior crime. Instead, the defense attorney contended, the State should only be allowed to introduce the judgement from that previous case. When Judge Suddock asked the prosecutor if this limitation was acceptable, the prosecutor answered that this was fine.
In other words, the parties were in agreement that if Judge Suddock ruled in the State's favor on the question of whether the State would be allowed to introduce evidence of Abrell's prior sexual assault, the State's evidence would be limited to the judgement itself, and the State would not be able to present witnesses to describe the specific facts of the prior crime.
As we also described earlier in this opinion, the prosecutor later suggested an alternative approach to this issue: In order to avoid any potential prejudice arising from the wording of the judgement, the prosecutor suggested that the issue of Abrell's prior conviction might be handled by simply having the parties stipulate in a jury instruction that Abrell had a prior conviction for engaging in sexual penetration without consent. When the prosecutor broached this idea, the defense attorney responded that she "[did not] have any problem" with the State's proposal. The defense attorney then summed up her understanding of the situation:
Defense Attorney: My understanding is that we both agree that none of that [factual] information [about the prior sexual assault] is coming in, and that . . . we're going to just have a jury instruction that says the parties have stipulated that Mr. Abrell . . . has been previously convicted of penetration without consent.
In other words, Abrell's trial attorney actively opposed having the State present any witnesses to testify about the facts of the earlier case, and she actively endorsed the prosecutor's suggestion that the State's proof of the prior assault should simply take the form of a stipulation that Abrell had previously been convicted of engaging in non-consensual sexual penetration.
But on appeal, Abrell claims that this procedure was error. Specifically, Abrell argues that this procedure violated the Alaska Supreme Court's holding in F.T. v. State, 862 P.2d 857 (Alaska 1993).
In F.T., the supreme court held that it was error for a court to take judicial notice of a previously issued restraining order "for the purpose of establishing that [the subject of the restraining order] had committed acts of violence in the past". Id. at 863-64. As this Court explained in Jones v. State, 215 P.3d 1091 (Alaska App. 2009), the supreme court's decision in F.T. was an application of the broader principle that it is improper for one court to take judicial notice of another court's findings of fact for the purpose of establishing the truth of the factual assertions underlying the other court's findings: "the truth of evidence received in another court case (as opposed to the fact that the evidence was offered) is not a proper subject of judicial notice." Jones, 215 P.3d at 1099.
But though it would have been improper for Judge Suddock to take judicial notice of Abrell's prior sexual assault conviction for the purpose of proving that Abrell was factually guilty of the prior sexual assault, this problem is not presented in Abrell's case — because Judge Suddock did not take judicial notice of Abrell's prior conviction. Rather, the parties stipulated that Abrell had previously been convicted of sexual assault. This procedure did not violate the holding in F.T..
We acknowledge that, had Abrell's trial attorney chosen to object, the State would not have been able to prove Abrell's prior act of sexual assault by introducing the criminal judgement from that prior case. No provision of the Alaska rules of evidence authorizes the evidentiary use of a criminal judgement to prove the facts underlying that judgement. Jones, 215 P.3d at 1099. Rather, "evidence of a criminal conviction is inadmissible hearsay under Alaska law if it is offered to prove that the defendant actually engaged in the conduct that would justify that conviction". Douglas v. State, 166 P.3d 61, 85 (Alaska App. 2007).
But hearsay evidence is admissible if the opposing party does not object. Here, Abrell's attorney did not object to having the State prove the prior sexual assault by introducing the criminal judgement from the earlier case. In fact, Abrell's attorney insisted on this method of proof, and she actively opposed the alternative of having the State present live witnesses to testify about this earlier crime.
Rusenstrom v. Rusenstrom, 981 P.2d 558, 560 (Alaska 1999); Bird v. Starkey, 914 P.2d 1246, 1248 n. 1 (Alaska 1996); Savely v. State, 180 P.3d 961, 962 (Alaska App. 2008); Cassell v. State, 645 P.2d 219, 220-21 (Alaska App. 1982); see also John W. Strong, McCormick on Evidence (4th ed. 1992), § 55, Vol. 1, p. 221 (failure to object to hearsay is a waiver of the objection).
(Given the description of the prior sexual assault contained in the State's pre-trial pleading, one can understand why the defense attorney might want to keep these details from the jury and would favor a bare-bones description of the earlier charge.)
Later, when the prosecutor suggested that it was not even necessary to introduce the judgement, and that the parties could simply stipulate that Abrell had previously been convicted of engaging in non-consensual sexual penetration, the defense attorney declared that she preferred this alternative method of handling the issue.
For these reasons, we conclude that there was no error in the method by which the jury was apprised of Abrell's prior act of sexual assault.
Abrell's claim that Judge Suddock improperly restricted his attorney's cross-examination of the victim, J.S.
Abrell argues that Judge Suddock improperly prohibited his attorney from cross-examining J.S. about specific instances of alcohol abuse, and about child custody conflicts that she either had, or potentially might have, with her husband. Abrell claims that Judge Suddock imposed such significant restrictions on his ability to cross-examine J.S. on these issues that the effect of these restrictions was to deny Abrell his constitutional right to confront his accuser.
It is true that Judge Suddock placed some restrictions on the defense attorney's cross-examination of J.S. in these areas. But the defense attorney did not object to these restrictions; rather, she indicated that they were acceptable. For this reason, Abrell's claims of error are not preserved. Here are the pertinent facts:
Because Abrell asserted that his sexual relations with J.S. were consensual, Abrell's attorney had to identify a plausible reason why J.S. might falsely claim that she had been assaulted. During a break in her cross-examination of J.S., Abrell's attorney asked Judge Suddock if she could question J.S. about several issues: J.S.'s history of alcohol problems, J.S.'s history with her family and her husband, and the possibility that if J.S. drunkenly had consensual sex with a stranger in the woods, this might adversely affect her child custody rights.
In particular, the defense attorney noted that the prosecutor had introduced evidence that J.S. was a good mother, and that she had a good relationship with her husband and her children (even though she did not live with them). The defense attorney also noted that J.S. had testified (purportedly falsely) that she had never had any alcohol problems before she began dating her current boyfriend. The defense attorney argued that she should be able to cross-examine J.S. about any problems within her family, and about an alleged incident in Oklahoma where a child was removed from J.S.'s custody because of her alcohol problems.
Judge Suddock agreed that those topics were relevant, but he asked the defense counsel not to use the discussion of these topics as "a vehicle to get into specific other bad conduct." During the course of their discussion, the defense attorney said that she would be able to establish J.S.'s alcohol and custody problems through the testimony of J.S.'s husband. Judge Suddock then suggested that, if these matters could be established through the husband's testimony, the defense attorney's questioning of J.S. on these matters could be brief (because the husband would later provide more information on these points). The defense attorney agreed with the judge's assessment.
Judge Suddock later summarized his understanding of the defense attorney's position:
The Court: [Y]ou have argued that [J.S.] had a motive to lie because of ongoing child custody implications. . . . [I]f she had consensual sex with a fellow in a ditch, that might . . . give a superior court judge pause about her fitness as a mother. . . . [I]s that the tree you're barking up?
The defense attorney agreed that it was. The following exchange then took place between Judge Suddock and the defense attorney:
Defense Attorney: I would like to . . . ask [J.S.] about . . . what her understanding of the custody arrangements [was, and] what her understanding of her visitation or contact with her children was, [and whether] a court [was] involved in looking at those things or implementing any orders, and whether or not [the court's view of these matters] would have been affected by [her] intoxication and [her act of] having sex with a person in a ditch . . .
The Court: I think those . . .
Defense Attorney: . . . while she was intoxicated.
The Court: . . . parameters are acceptable.
Defense Attorney: Okay.
The Court: I think you [ask] her, "Was it on your mind, or did you consider, or is it logical to assume that this situation might impact [the child custody] situation. But I don't want [you] to go into specifics . . . without [first making an] offer of proof.
Defense Attorney: I won't go into specifics. . . . I'm going to ask her about her long-standing alcohol issues, and I'm going to ask . . . what her understanding is of the custody issues: . . . Was there any court involvement? Did she think that any of the things that she's testified about, or any of the things that had happened there, . . . would . . . affect those things.
Judge Suddock agreed that these inquiries would be proper as well.
Abrell's attorney then proceeded to question J.S. concerning her child custody arrangement. J.S. explained the specifics of her child custody agreement, and she declared that, at the time of the sexual assault (August 2005), she and her husband were not in conflict about any issues related to the custody of the children. The defense attorney reminded J.S. that she was under oath, but J.S. repeated her denial twice more. At this point, defense counsel chose not to cross-examine J.S. about these matters any further.
Later in the trial, when J.S.'s husband took the stand, the defense attorney cross-examined him regarding J.S.'s problems with alcohol, and about the child custody arrangements. J.S.'s husband testified that J.S. had a long-standing alcohol problem, and that this problem manifested itself as early as 2002 or 2003 — well before the incident in this case, and before J.S. met her current boyfriend. J.S.'s husband also testified that, because of two incidents related to alcohol that occurred in May and July of 2005, J.S. was subject to a court order prohibiting her from having contact with him or with their children. In other words, these issues were present at the time of the incident in this case.
Based on this record, we conclude that Abrell failed to preserve his claim that he was subjected to improper limitations on his cross-examination of J.S.. Judge Suddock and Abrell's attorney engaged in a lengthy discussion of the subjects that the defense attorney might appropriately raise during her cross-examination of J.S., and of the boundaries of that cross-examination. Abrell's attorney did not object to Judge Suddock's rulings on these matters. Nor can we find plain error in a situation like this, where the defense attorney's failure to object was obviously tactical.
Judge Suddock's instruction to the jurors regarding the inference they might draw if they found that Abrell purposely left the scene after J.S. went in search of the police
At the close of Abrell's trial, Judge Suddock instructed the jurors that if they found that Abrell fled immediately after the commission of the crime, they could consider this fact (along with the rest of the evidence in the case) in determining whether Abrell was guilty or innocent. Judge Suddock concluded that this instruction was justified because "there [was] circumstantial evidence from which a jury could conclude that [Abrell] left the scene to avoid confronting [the police]."
In this appeal, Abrell does not challenge the content or wording of the jury instruction on flight, but he argues that there was insufficient evidence to warrant a "flight" instruction at all.
The applicable test is whether, viewing the evidence in the light most favorable to the proponent of the instruction (here, the State), a reasonable fact-finder could conclude that Abrell left the scene under circumstances suggesting that his departure was motivated by a consciousness of guilt.
See People v. Bradford, 929 P.2d 544, 575 (Cal. 1997). Compare Lacey v. State, 54 P.3d 304, 308 (Alaska App. 2002) (declaring that a trial judge should instruct the jury on the defense of necessity if there is "evidence [which,] viewed in the light most favorable to the defendant, is sufficient to allow a reasonable juror to find in the defendant's favor on each element of the defense."); Weston v. State, 682 P.2d 1119, 1121 (Alaska 1984) (holding that a trial judge should instruct the jury on self-defense if, viewing the evidence in the light most favorable to the proponent of the instruction, a reasonable juror could find in the defendant's favor on the issue of self-defense).
As we described earlier in this opinion, the State presented evidence that J.S. and Abrell struggled after the sexual assault, and that this struggle attracted the attention of a passerby, who approached them. Abrell told this passerby that J.S. was his girlfriend or his wife, that they were having an argument, and that the passerby should not be concerned. But as the passerby was about to leave, J.S. grabbed him by the ankle and said, "No, don't leave. . . . I need your help." The passerby then pointed out that a police patrol car was nearby, and he told J.S. to run to the patrol car. J.S. got up and ran out of the woods, toward the police.
After J.S. told the police that she had been assaulted in the woods, a police officer went into the woods and, for about half an hour, he conducted a search for evidence of the assault. This officer never encountered Abrell.
Abrell argues that there was no evidence that he "fled" the scene, in the sense of purposely leaving in order to avoid detection or apprehension. Abrell contends that the evidence merely showed that he left the scene.
This is one plausible interpretation of the evidence, and Abrell's attorney was free to argue this interpretation during her summation. In fact, the defense attorney did make this argument:
Defense Attorney: One thing that I know [the prosecutor is] going to say is — because there's an instruction . . . that says you can use evidence that Mr. Abrell fled from the scene as evidence that he's guilty. Well, that's one way of looking at it. [But] he could have left because he was just attacked by [the passerby]. Maybe . . . [J.S.] went to the police because somebody [ i.e., Abrell] was being attacked in the woods.
But even though one might reasonably argue that Abrell's act of leaving the scene was consistent with innocence, the question here is whether the contrary conclusion was also reasonable — whether reasonable jurors might conclude that Abrell purposely fled the scene to avoid detection or apprehension. And when we assess whether it was proper for Judge Suddock to give the challenged jury instruction, we must view the evidence in the light most favorable to the proponent of the instruction ( i.e., the State).
Because a reasonable juror, viewing the evidence in the light most favorable to the State, could conclude that Abrell left the scene under circumstances suggesting that his departure was motivated by a consciousness of guilt, it was not error for Judge Suddock to give the challenged jury instruction. Abrell's argument that, during the sentencing proceedings, Judge Suddock should have found that Abrell's crime was among the least serious within the definition of first-degree sexual assault
Abrell was subject to presumptive sentencing for the crime of first-degree sexual assault. During the sentencing proceedings, Abrell argued that his offense was mitigated under AS 12.55.155(d)(9). This mitigator applies when the defendant's conduct in committing the offense was among the least serious conduct included in the definition of the offense.
See AS 12.55.125(i)(1).
In support of this mitigator, Abrell argued that, because J.S. did not remember the assault, she could not have suffered the psychological harm usually suffered by sexual assault victims. Abrell also argued that Judge Suddock should find this mitigator because Abrell did not physically beat J.S., break into her home, or threaten her with death or serious injury. Also, Abrell made no attempt to prevent J.S. from leaving the scene to contact police. Finally, Abrell argued that because J.S. was so intoxicated at the time of the sexual assault, his crime was more akin to sexual assault on an incapacitated person ( i.e., second-degree sexual assault) than to sexual assault by force.
Judge Suddock rejected these arguments. Based on J.S.'s testimony at trial, the judge found that Abrell had failed to prove that J.S. suffered no psychological injury from the assault. In addition, based on the evidence of J.S.'s injuries, Judge Suddock found that Abrell had failed to prove that J.S. was not the victim of physical violence. Although the judge conceded that the level of violence in the present case was not among the worst that might have been inflicted during a sexual assault, the judge concluded that this lesser degree of violence did not mean that Abrell's conduct was among the least serious.
Judge Suddock further found that the sexual assault did not involve an unconscious victim, nor did it involve any mistake on Abrell's part as to whether J.S. was consenting to the sexual penetration.
For these reasons, Judge Suddock ruled that Abrell had failed to prove mitigator (d)(9). Judge Suddock concluded instead that Abrell's conduct fell within the large range of "typical rape conduct".
In Michael v. State, 115 P.3d 517 (Alaska 2005), the supreme court clarified the law governing an appellate court's review of a sentencing judge's ruling on mitigator (d)(9). The appellate court should defer to the sentencing judge's findings of fact unless those findings are shown to be clearly erroneous. Id. at 519. Then, based on these given facts, the appellate court must independently determine whether the defendant's conduct qualifies as "among the least serious" within the definition of the offense. Id. at 519-520.
Abrell does not challenge any of Judge Suddock's findings of fact. Based on those findings, we conclude that Abrell's conduct in this case does not qualify as "among the least serious" within the definition of first-degree sexual assault.
Conclusion
The judgement of the superior court is AFFIRMED.