Opinion
Court of Appeals No. A-10463.
November 23, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-03-1999 Cr.
Beth Lewis Trimmer, Assistant Public Advocate, Appeals Statewide Defense Section, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Kenneth M.
Rosenstein, 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
Douglas W. Artemie appeals his convictions for first-degree sexual assault (coerced sexual penetration) and first-degree assault (intentional infliction of serious physical injury). Artemie went to trial twice on these charges. His first trial ended in a mistrial. His second trial ended in guilty verdicts on both charges.
See Artemie v. State, 158 P.3d 860 (Alaska App. 2007).
Artemie challenges two of the evidentiary rulings made at his second trial: a hearsay ruling that limited the content of Artemie's trial testimony, and a ruling under Evidence Rule 404(b) that allowed the State to introduce evidence of Artemie's prior sexual conduct.
Artemie also argues that, even if these challenged evidentiary rulings were correct, his separate convictions for sexual assault and physical assault must be merged into a single combined conviction, because both convictions are based on the same act — Artemie's act of forcing his fist into the victim's vaginal canal.
For the reasons explained in this opinion, we conclude (1) that Artemie did not preserve an objection to the hearsay ruling, (2) that the Rule 404(b) ruling was not an abuse of discretion, and (3) that the double jeopardy clause of the Alaska Constitution does not require merger of Artemie's convictions.
Underlying facts: the State's case
In February 2003, a young woman named N.J. was in Anchorage, staying at the home of her niece, Barbara Aitalla. On February 22nd, N.J. attended a basketball tournament with her brother and Richard Kammeyer, a young man whom N.J. had casually dated, and with whom she had had sexual relations the night before.
After the basketball game, N.J. went to socialize with her friend, Teresa Reedy. Around 11:30 p.m., N.J. and Reedy went to a liquor store and purchased vodka and beer. At some point, they met up with Douglas Artemie, who was Reedy's friend. The trio went to Aitalla's apartment.
At Aitalla's apartment, N.J., Reedy, and Artemie talked and drank. Both Reedy and Artemie testified that N.J. and Artemie sat on a couch together, touching and kissing. N.J. did not remember touching or kissing Artemie.
N.J. testified that when she told Artemie that she was a social worker, Artemie responded by telling N.J. that he wanted to "touch [her] in the bedroom". N.J. testified that she went into the bedroom with Artemie — and then Artemie became violent. According to N.J., Artemie held her arms and pushed her onto the bed. He then put his elbow across her neck and choked her, telling her to take off her pants. When N.J.'s pants were removed, Artemie thrust his fist into N.J.'s vagina. N.J. told him to stop, but Artemie "grabbed inside of [her]" and twisted. N.J. said that she felt "excruciating pain."
During this assault, Artemie called N.J."slut", "bitch", and "cunt". Artemie also said, "Who's going to want you now?" Artemie eventually collapsed next to N.J..
About 20 minutes later, N.J. got up and went to the bathroom. While she was in the bathroom, Artemie came in, looked in the mirror, combed his fingers through his hair, and remarked how good looking he was. Artemie left the bathroom and put on his jacket as if preparing to leave, but instead he stayed and talked to N.J.; he told her not to tell anyone what had happened. After N.J. assured Artemie that she would not tell anyone, Artemie took the remaining contents of the vodka bottle and left.
Teresa Reedy was passed out on the couch during the entire encounter. N.J. woke up Reedy and told her, "He hurt me." (N.J. did not know Artemie's name.) Reedy observed blood on N.J.'s nightgown and blood running down her legs. When N.J. asked Reedy who the man was, Reedy gave N.J. Artemie's name and phone number. N.J. called 911, and Reedy left the apartment.
N.J. was taken to the Alaska Native Medical Center. Doctor Patti Paris, the treating physician, testified that N.J. told her that she and a friend had been "hanging out", that they had been drinking together, and that he got angry with her and attacked her by choking her and putting his fist up her vagina.
Medical examinations revealed that N.J. had suffered lacerations and bruising to her anus, perineum, and urethra. N.J. had three large lacerations on the inside of her vagina. Each of these lacerations was several inches long, and two of them were three inches deep — i.e., they penetrated the vaginal wall and went into the surrounding tissue. These injuries needed to be surgically repaired.
During the investigation, swabs were taken from the fingernails of N.J.'s left and right hands and from the bruises on her left arm and right leg, for the purpose of DNA analysis. The left-hand swab contained only N.J.'s DNA, and the right-hand swab did not yield a sufficient amount of DNA for testing.
The left-arm swab contained DNA from more than one source, at least one of which was male. Neither N.J. nor Artemie could be excluded as sources of this DNA. In addition, other DNA was present whose source could not have been N.J. or Artemie.
The right-leg swab also contained DNA from more than one source, at least one of which was male. Again, neither N.J. nor Artemie could be excluded as sources of this DNA.
When N.J. was shown a photo lineup, she identified Artemie as her assailant.
Underlying facts: Artemie's testimony
Artemie took the stand at his trial and offered a different version of events. Basically, Artemie asserted that he had not attacked N.J.. He testified that N.J. made sexual advances to him in the apartment, but he rejected these advances and left the apartment. According to Artemie, someone else must have committed the assault after he left.
More specifically, Artemie testified that when he met Reedy and N.J. on the night in question, N.J. was "stumbling around" to the extent that he and Reedy had to help her walk. He said that, when the three of them arrived at the apartment, N.J. played a message that had been left on the answering machine, and this message sounded threatening. Artemie said that the caller was male, but he did not know who the caller was, nor did he know when the message was left on the machine.
Artemie testified that N.J. sat beside him on a love seat and started "slobbering" on him and kissing him. Artemie explained that, because of the threatening phone message, he was hesitant to respond to N.J.'s advances, so he backed away from N.J., telling her that he "[did not] want to do this".
At about this time, Teresa Reedy's mobile phone rang, and Artemie answered it. He identified the caller as Douglas Leblanc. Artemie and Leblanc had had problems in the past (a dispute concerning Leblanc's wife). Based on the content of the phone call, Artemie concluded that Leblanc would soon be coming to the apartment to see Reedy. Artemie did not want to encounter Leblanc, so he left the apartment. According to Artemie, N.J. was still sitting on the love seat when he left.
Underlying facts: The defense attorney's suggestion that Richard Kammeyer committed the assault on N.J.
Before trial began, Artemie's attorney sought permission to introduce evidence on the issue of whether Richard Kammeyer might have been the one who assaulted N.J.. The trial judge, Superior Court Judge Philip R. Volland, granted this defense request. In the defense opening statement, and again in the defense summation, Artemie's attorney told the jurors that N.J. was not assaulted by Artemie, and the defense attorney suggested that the assault was committed by Kammeyer.
During the trial, evidence was presented that N.J. and Kammeyer had casually dated several years earlier, that Kammeyer was visiting Anchorage (attending a basketball tournament) during the week preceding the assault in this case, and that Kammeyer had sex with N.J. the day before the assault. However, there was no evidence to suggest that Kammeyer had ever harmed N.J. or had ever posed any difficulty for her. Further, according to the testimony given by Kammeyer and by N.J.'s brother at Artemie's trial, it appears that Kammeyer and N.J.'s brother were drinking together when the assault occurred.
The trial judge's ruling that Artemie would not be allowed to recite, verbatim , the content of the phone message he purportedly heard on the answering machine in the apartment
As we explained earlier, Artemie testified that, soon after he arrived at the apartment with N.J. and Reedy, N.J. played a phone message that had been left on the answering machine. Artemie said that he did not know who left this phone message on the machine, but the message sounded threatening.
A few minutes before Artemie took the stand, the prosecutor asked Judge Volland for a protective order that would bar Artemie from reciting the precise words of this purported threatening phone message. The prosecutor argued that, under the hearsay rule, Artemie was prohibited from describing the precise content of the phone message.
In response, Artemie's attorney told Judge Volland that the wording of the phone message was not being offered for the truth of the matters asserted by the unidentified speaker. Rather, the defense attorney declared that the wording of the phone message was being offered to prove Artemie's state of mind. This led to the following colloquy between Judge Volland and the defense attorney:
The Court: But why can't he [testify] to what he believed he understood, rather than reciting the words [ verbatim]?
Defense Attorney: And he can do that. [I could ask him,] "What did you under[stand] the voice mail message was [saying]?" [And my client might answer,] "Something along the lines of `[N.J.], you're nothing but a bitch.'" I mean . . .
The Court: Well, that's what I don't want. . . . [I'll allow Mr. Artemie to] say he heard a threatening message. . . . But it seems to me the words themselves would be hearsay. If they're not introduced for the truth, . . .
Defense Attorney: Present sense impression. It could come in for that reason.
The Court: [There is no] foundation [for any] present sense impression from a hearsay statement about words on a tape. I don't know what the declarant is observing that they're giving a present sense impression of.
Defense Attorney: [The relevance of this evidence] really goes to what Mr. Artemie understood, and . . . his actions thereafter.
The Court: Well, I'll grant the State's protective order, to the extent that [Mr. Artemie intends to offer] a literal recitation of the words [recorded on the message machine]. But Mr. Artemie can certainly say, "I heard what I thought was a threatening message" directed at whomever. He can talk about his concern about [this message], his reaction to it. . . . That's all permissible to me.
Defense Attorney: That's fine.
[To other matters]
On appeal, Artemie argues that Judge Volland's hearsay ruling was wrong, and that this erroneous ruling substantially prejudiced Artemie's defense.
The hearsay ruling was indeed wrong. It was obvious, from the parties' discussion, that the phone message was not being offered to prove the truth of the speaker's assertion. (Specifically, it was not offered to prove that N.J. was, in actuality, a bitch.) The defense attorney argued that the phone message was relevant because (1) certain words were uttered in the course of the message, (2) Artemie heard those words when N.J. played the message in his presence, and (3) Artemie's ensuing conduct was shaped by what he heard — shaped in a way that was relevant, regardless of whether the words in the message were actually true. This is classic non-hearsay.
However, the issue in this appeal is not whether the content of the phone message was offered for a non-hearsay purpose. It clearly was offered for a non-hearsay purpose — and the State concedes as much in its brief. Instead, the issue is whether Artemie should be allowed to argue one non-hearsay theory of relevance at trial and a completely different non-hearsay theory of relevance on appeal.
On appeal, Artemie contends that the phone message in question was left by Richard Kammeyer. Artemie further contends that, because Kammeyer angrily addressed the word "bitch" to N.J. during this phone message, the precise wording of the message was important evidence tending to show that Kammeyer was the one who later assaulted N.J. — since, according to N.J.'s testimony, her assailant called her a "bitch" (along with other epithets).
But when Artemie's trial attorney argued to Judge Volland that the wording of the phone message was relevant, she did not assert that Kammeyer was the one who left the phone message on the answering machine, nor did she assert that the speaker's use of the word "bitch" was circumstantial evidence identifying Kammeyer as the one who later assaulted N.J.. Instead, as the above-quoted excerpt of the trial demonstrates, Artemie's trial attorney argued that the wording of the phone message was relevant because of its effect on Artemie's state of mind: "what Mr. Artemie understood, and . . . his actions thereafter".
This "state of mind" theory of relevance was fleshed out during Artemie's testimony. Artemie testified that he did not know who left the phone message for N.J. on the answering machine, but the message sounded threatening. Artemie then testified that, because of this threatening message, he altered his later behavior. According to Artemie, N.J. made a romantic overture to him in the apartment but, because of the threatening phone message, he was hesitant to respond to N.J.'s advances, so he told her that he "[did not] want to do this".
Even though Judge Volland was wrong when he characterized the testimony concerning the wording of the phone message as "hearsay", the gist of his ruling was correct. If the important aspect of the phone message was that (1) the message was threatening, (2) Artemie heard the message, and (3) the threatening nature of the message influenced Artemie's ensuing behavior, then the precise wording of the message was not particularly relevant. Rather, as Judge Volland suggested, Artemie's purpose could be accomplished equally well by simply having Artemie testify (1) that he heard the message, (2) that the message seemed to be threatening in nature, and (3) that Artemie altered his conduct because of this threat.
Moreover, the record shows that the defense attorney agreed with Judge Volland's analysis of this issue — because, when the judge announced his ruling, the defense attorney responded that this ruling was "fine":
Defense Attorney: [The relevance of this evidence] really goes to what Mr. Artemie understood, and . . . his actions thereafter.
The Court: Well, I'll grant the State's protective order, to the extent that [Mr. Artemie intends to offer] a literal recitation of the words [recorded on the message machine]. But Mr. Artemie can certainly say, "I heard what I thought was a threatening message" directed at whomever. He can talk about his concern about [this message], his reaction to it. . . . That's all permissible to me.
Defense Attorney: That's fine.
On appeal, Artemie's appellate attorney ignores the argument that his trial attorney made, and also ignores the trial attorney's apparent satisfaction with Judge Volland's ruling. Instead, Artemie's appellate attorney argues that the precise wording of the phone message was important for a completely different reason: The appellate attorney asserts that Kammeyer was the one who left the phone message for N.J. on the answering machine, and that Kammeyer's use of the word "bitch" during the phone message was circumstantial proof that Kammeyer was the man who assaulted N.J. — since N.J.'s assailant referred to her as a "bitch" during the attack.
A litigant who unsuccessfully offers evidence under one theory of admissibility at trial is not allowed to argue a different theory of admissibility on appeal. Thus, it is improper for Artemie to attack Judge Volland's ruling by advancing a new theory as to why the precise wording of the phone message was important, and why it was inadequate for Artemie to testify simply that the message was "threatening".
Jones v. State, 576 P.2d 997, 1000-1001 (Alaska 1978); Hughes v. State, 56 P.3d 1088, 1091 (Alaska App. 2002); Dyer v. State, 666 P.2d 438, 450-51 (Alaska App. 1983).
Conceivably, Artemie might been titled to relief if he could show plain error — i.e., if he could show that, under the circumstances, his alternate theory of relevance was so obvious that any competent trial judge would have perceived this theory of relevance, and acted on it, even though Artemie's trial attorney failed to articulate this theory. But that is not the case here.
Artemie's new theory of relevance hinges on the assertion that Kammeyer was the one who left the phone message on the answering machine in the apartment where N.J. was staying. In Artemie's brief to this Court, his appellate attorney indeed asserts that the phone message was left by Kammeyer.
In support of this assertion, Artemie's appellate attorney lists three references to the transcript of the trial proceedings: pages 780-83, pages 794-95, and page 832. But none of these three references supports the appellate attorney's assertion.
Pages 780-83 of the transcript contain the discussion among the parties and Judge Volland as to whether Artemie would be allowed to recite the exact wording of the phone message. During this discussion, no one asserted — or even mentioned the possibility — that Kammeyer was the one who left the message on the answering machine. Instead, the defense offer of proof was simply that Artemie heard the message, and that the person who left the message had a male voice.
Pages 794-95 of the transcript contain a portion of Artemie's trial testimony. In these two pages, Artemie testified that he heard a phone message on the answering machine when he was in the apartment, but Artemie made no assertion about the identity of the person who left this message, other than to say that the speaker had a male voice. A few minutes later, under cross-examination, Artemie conceded that he did not know who left this message, nor did he know when the message was recorded.
Page 832 of the transcript contains a portion of the defense attorney's cross-examination of Richard Kammeyer. The defense attorney asked Kammeyer if he had ever made a telephone call to the apartment where N.J. was staying. Kammeyer answered that he did not recall. This answer led to the following colloquy:
Defense Attorney: You can't recall? If [N.J.] testified that you had called her at the . . . apartment . . .
Prosecutor: Objection [to the defense attorney's] statement of facts. . . . [N.J.'s] brother . . . called [the apartment], not Mr. Kammeyer.
The Court: Objection sustained.
Defense Attorney: Judge, I asked that specific question to [N.J.] about [her brother]. And then I asked [the same question] about Richard Kammeyer. And I got the same answer. They both had called.
The Court: Go ahead and ask your question. . . . The jury is going to determine what the facts are. We have the record.
Defense Attorney: If [N.J.] said that she had received calls at [the] apartment on that weekend from you, would that be correct?
Kammeyer: I can't — I can't recall that I called [the apartment].
In sum, none of Artemie's three citations to the trial transcript contains any evidence to support his assertion that Kammeyer was the one who left the phone message on the answering machine.
In Artemie's reply brief, he implicitly acknowledges this problem — by arguing that, even if there was no direct evidence that Kammeyer was the one who left the phone message, the evidence at trial was at least sufficient to raise this inference. But Artemie must show that Judge Volland committed plain error when he failed to recognize, sua sponte, that Kammeyer was likely the person who left the phone message on the answering machine. The fact that there was some arguable possibility that Kammeyer left the message on the machine is not sufficient to establish that Judge Volland committed plain error — especially when Artemie's trial attorney did not mention this possibility when the evidentiary issue was being argued to Judge Volland.
Artemie also declares in his reply brief that "the record indicates" that N.J. testified "that it was Kammeyer who called her". But the only citation that Artemie provides for this assertion is pages 831-32 of the transcript. We have already discussed this portion of the transcript. In it, Artemie's trial attorney asserted that N.J. had earlier testified that Kammeyer called her at the apartment. The prosecutor objected to the defense attorney's characterization of the testimony, and Judge Volland ruled that the jury would have to decide which attorney had the better recollection of the testimony.
In short, this cited portion of the transcript does not indicate that N.J. testified that Kammeyer called her at the apartment. Rather, the cited portion of the transcript merely indicates that Artemie's trial attorney asserted that N.J. had given this testimony. But the record suggests that the trial attorney's assertion was mistaken.
N.J.'s testimony from Artemie's first trial on these charges is not available to this Court. The only issue in Artemie's first appeal was whether a second trial would violate Artemie's rights under the double jeopardy clause, so the parties only asked for transcription of the portion of the trial dealing with the jury's inability to reach a verdict.
See Artemie v. State, 158 P.3d 860 (Alaska App. 2007).
We do have a transcription of N.J.'s testimony at Artemie's second trial. On direct examination, N.J. testified that she did not remember receiving any phone calls at the apartment. On cross-examination, N.J. conceded that she had received phone calls at the apartment from "[her] sisters and one of [her] good friends", but she also stated that she usually did not check the answering machine. Artemie's attorney then showed N.J. a transcript of her testimony at the first trial. According to that transcript, N.J. had earlier testified that she occasionally checked the answering machine. N.J. apparently conceded that she had given that testimony at the first trial, although she did not remember it.
The defense attorney then referred to another question that was posed to N.J. at the earlier trial: whether it was possible that N.J. checked the messages on the answering machine when she walked in the door on the night of the assault. The defense attorney noted that, at the first trial, N.J.'s answer had been: "I don't recall checking the answering machine." N.J. affirmed that this had been her answer to this question at Artemie's first trial. The defense attorney then dropped the subject and did not discuss it further.
Given N.J.'s testimony at the second trial (in particular, the fact that she would not concede that Kammeyer called her at the apartment), it seems likely that if N.J. had indeed previously testified that Kammeyer was the one who left the phone message on the answering machine, Artemie's trial attorney would have confronted N.J. with that prior testimony when cross-examining her at the second trial. The fact that Artemie's trial attorney did not cross-examine N.J. in this manner is, itself, a strong indication that N.J. never gave such testimony.
We also note that, during the defense summation at the end of Artemie's second trial, the defense attorney criticized the police for not seizing and preserving the answering machine — but the defense attorney never explained why it might have been important to preserve the phone messages, and she never asserted that the answering machine might have contained a phone message from Kammeyer.
For these reasons, we conclude that Judge Volland did not commit plain error when he failed to rule, sua sponte, that the precise wording of the phone message was relevant under the theory — unmentioned by the defense attorney — that Kammeyer was the one who left the message on the answering machine.
The trial judge's ruling that the State could introduce evidence that Artemie tried to engage in "fisting" with another woman — that is, he tried to insert his entire hand into her vagina — during a consensual sexual encounter
Just before the selection of the jury began, the prosecutor asked Judge Volland for permission to introduce evidence that Artemie had engaged in consensual sex with Teresa Reedy several weeks before the assault on N.J., and that, during this sexual encounter, Artemie tried to insert his fist into Reedy's vagina. (Reedy would not consent to this sexual activity, and Artemie desisted.)
Judge Volland concluded that the sexual practice of "fisting" was sufficiently unusual that Artemie's desire to engage in this practice was substantially probative of his identity as N.J.'s assailant. The judge acknowledged the possibility that "maybe Mr. Artemie will educate the jurors otherwise", but the judge expressed his belief that, "for most common people, [this sexual practice] is sufficiently unusual that the fact that someone would know about it, [and would] be willing to engage in it, whether consensually or non consensually, does, in fact, go to identity[.]"
Judge Volland then considered whether this evidence would unfairly prejudice Artemie. Judge Volland noted that the prior sexual encounter was consensual, so the proposed evidence would not suggest that Artemie was the sort of man who characteristically assaulted women. At the same time, Judge Volland recognized that some jurors might find the practice of "fisting" to be offensive, and that evidence of Artemie's desire to engage in this practice might prejudice these jurors against Artemie. However, Judge Volland concluded that this danger of unfair prejudice could be alleviated by discussing this subject during jury voir dire, and excusing those jurors "[who] can't handle that [form] of penetration".
Based on this analysis, Judge Volland ruled that the proposed evidence was more probative than prejudicial, and that it should be admitted.
One week later, following jury selection and just before the parties' opening statements, Artemie's attorney asked Judge Volland to reconsider his ruling.
The defense attorney told Judge Volland that she had spoken with Teresa Reedy, and the attorney asserted that "what [Reedy will] describe is not similar enough to what [N.J.] has described so as to be relevant". The defense attorney also argued that the proposed evidence held a significant potential for unfair prejudice. The defense attorney conceded that the jury voir dire showed that "many of [the prospective jurors] were not as taken aback as others", and the attorney told Judge Volland that she did not know exactly how inflammatory the evidence would be. However, the defense attorney insisted that there was at least a chance that the jury was going to "focus on [this evidence] when they [got] back to deliberations", so she wished to renew her objection.
Judge Volland noted that the argument concerning the potential for unfair prejudice was basically the same argument that he had already considered. But Judge Volland recognized that a portion of the defense attorney's objection was new: specifically, the assertion that Artemie's sexual encounter with Reedy was not sufficiently similar to the assault on N.J. to be probative on the issue of identity. For this reason, the judge asked the prosecutor for a more detailed offer of proof. The prosecutor deferred to the lead investigator. The investigator told Judge Volland that, when Reedy was interviewed about this matter, she stated that Artemie tried to put his fist inside her, but when she told him that she "[was not] into that", he stopped.
Judge Volland concluded that if Reedy's testimony conformed to the State's offer of proof, then the evidence was admissible. But the judge warned the parties that his ruling might change if Reedy's testimony did not conform to the State's offer of proof — if, for instance, Reedy testified that Artemie tried to place his fingers inside her, rather than his entire fist.
The defense attorney later asked Judge Volland to consider this issue one more time, just before Teresa Reedy took the stand. At that point, Judge Volland allowed the attorneys to conduct a voir dire examination of Reedy on the issue of the alleged fisting, before Reedy answered questions in front of the jury.
In this voir dire, Reedy testified that, on one occasion within the two months preceding the assault on N.J., she had a sexual encounter with Artemie that involved activity that she did not want to engage in. Specifically, Reedy testified that Artemie "was trying to put his [whole] hand inside [her], his fist". He did this by inserting one finger after another into her body, to the point where he was trying to insert his whole fist. Reedy told Artemie that she "didn't want that to happen", and then she "got up and stopped him".
Upon hearing this testimony, Judge Volland concluded that Reedy's description of this event conformed to the State's earlier offer of proof — and, for that reason, the judge re-affirmed his decision to allow the prosecutor to present this evidence.
On appeal, Artemie challenges Judge Volland's conclusion that fisting is so unusual a sexual practice that evidence of Artemie's interest in engaging in fisting with Reedy was probative on the issue of whether Artemie was the one who attacked N.J.. Artemie argues that "[t]he record is completely devoid of anything that supports the . . . proposition that `fisting' is sufficiently uncommon or deviant" as to make this evidence probative of identity.
But if the record contains no affirmative proof that the sexual practice of fisting is rare, this is because Artemie's trial attorney did not litigate this issue.
It is true, as Artemie notes in his reply brief, that the defense attorney questioned the prosecutor's assertion that fisting was "deviant". But Judge Volland did not base his decision on whether fisting is "deviant" — that is, whether this sexual practice "deviat[es] . . . from what is considered normal in a group or for a society". Rather, Judge Volland's ruling was based on the conclusion that fisting is so uncommon ("deviant" or not) that Artemie's desire to engage in this practice had substantial probative force in identifying him as N.J.'s assailant.
Webster's New World College Dictionary (Fourth Edition, 2004), p. 394.
It is also true that, during the initial discussion of whether this evidence should be admitted, Artemie's attorney criticized the prosecutor for "drawing conclusions about . . . what's common practice and what's not common practice". But the defense attorney immediately stated that she was using the term "common" in the sense of "what Mr. Artemie commonly engages in [or] doesn't." In other words, the defense attorney did not question the prosecutor's assertion that the practice of fisting is rare among the population in general — the argument that Artemie's appellate attorney now wishes to pursue.
We note that, during the initial discussion of whether this evidence should be admitted, Judge Volland stated that he thought fisting was a fairly unusual sexual practice, but "maybe Mr. Artemie will educate [us] otherwise". Despite this apparent invitation, the defense attorney never challenged Judge Volland's conclusion that fisting was so unusual as to make evidence of Artemie's desire to engage in this practice probative on the issue of identity. Even though the defense attorney twice sought reconsideration of Judge Volland's ruling on the admissibility of this evidence, the defense attorney never asked Judge Volland to reconsider whether fisting was a rare sexual practice.
In Artemie's reply brief, he cites several books and articles in an apparent effort to have this Court take judicial notice that fisting is not so rare a practice as Judge Volland supposed. But Artemie never presented this information (or any similar information) to Judge Volland when this issue was litigated in the trial court. Moreover, it is improper for Artemie to present these books and articles for the first time in his reply brief, giving the State no chance to respond.
For these reasons, we conclude that Artemie has waived any attack on Judge Volland's finding that fisting is such an uncommon sexual practice that Artemie's desire to engage in this practice is probative on the issue of identity.
Artemie also argues, in the alternative, that even if this evidence had legitimate probative value, Judge Volland should have excluded the evidence under Evidence Rule 403, on the theory that its potential for unfair prejudice outweighed whatever probative value it might have. Specifically, Artemie argues that even if fisting is an unusual sexual practice, Artemie's attempt to engage in consensual fisting with Teresa Reedy had essentially nothing in common with the violent fisting that took place during the assault on N.J..
In the trial court, this issue arose during the second discussion of the evidence — i.e., when the defense attorney sought reconsideration of Judge Volland's initial ruling, just before opening statements. At that time, the defense attorney told Judge Volland that she had interviewed Teresa Reedy, and that Reedy's description of her sexual encounter with Artemie "[was] not similar enough to what [N.J.] has described so as to be relevant".
Judge Volland took this argument seriously: he immediately asked the State for a fuller offer of proof. After hearing this offer of proof, Judge Volland concluded that the challenged evidence was admissible if Reedy's testimony conformed to the State's offer of proof — but the judge warned the prosecutor that he might change his ruling if Reedy's testimony did not conform to the offer of proof.
Given Judge Volland's ruling, Artemie's attorney sought reconsideration once again, just before Reedy took the stand, at which time the defense attorney asked permission to conduct a voir dire examination to determine exactly what Reedy would say about the fisting, and whether her account conformed to the State's offer of proof. The voir dire was held, and Reedy's testimony did conform to the offer of proof. After hearing Reedy's voir dire testimony, Judge Volland re-affirmed his conclusion that the evidence was admissible.
Artemie argues that even though both Artemie's sexual encounter with Reedy and the later assaulton N.J. involved fisting, the distinction between fisting during a consensual sexual encounter and fisting during a sexual assault is so great that the first incident had essentially no relevance to the second incident.
There are two weaknesses in this argument. First, although Artemie's sexual encounter with Reedy was consensual at its inception, Reedy clearly testified that she did not consent to Artemie's act of trying to insert his fist into her vaginal canal, and that she actively resisted Artemie's attempt to do this. Second, and more importantly, Judge Volland concluded that the most significant aspect of Artemie's encounter with Reedy was not the fact that it began consensually, but rather the fact that Artemie was interested in fisting a woman, and that he attempted to do so.
Finally, Artemie argues that even if this evidence was probative, the danger of unfair prejudice clearly outweighed the probative value of the evidence. But as we explained earlier, Judge Volland carefully considered the danger of unfair prejudice, and he concluded that this danger would be minimal if the parties were allowed to voir dire the prospective jurors on the question of fisting. This was a reasonable approach to the problem. We note that, after jury selection was completed, Artemie's attorney acknowledged that "many of [the prospective jurors] were not as taken aback [by the idea of fisting] as others", and that it was unclear how inflammatory this evidence would be.
Given this record, we conclude that Judge Volland did not abuse his discretion when he decided to allow the State to present this evidence. As this Court noted in Sawyer v. State, 244 P.3d 1130, 1133 (Alaska App. 2010), a party claiming that a trial judge's ruling constituted an abuse of discretion must show that "the reasons for the exercise of the trial judge's discretion are clearly untenable or unreasonable." That is not the case here. Although some judges might not have reached the same conclusion as Judge Volland, Judge Volland's analysis of this evidence (both its probative force and its potential for unfair prejudice) was reasonable.
Accordingly, we uphold Judge Volland's ruling.
Artemie's claim that, under the double jeopardy clause, his conviction for first-degree sexual assault must merge with his conviction for first-degree assault
Artemie was convicted of first-degree sexual assault under AS 11.41.-410(a)(1) for using his hand to sexually penetrate N.J. without her consent. He was convicted of first-degree assault under AS 11.41.200(a)(1) for using his hand as a dangerous instrument — pushing his fist into N.J.'s vaginal canal, then grabbing and pulling her body tissue — thereby recklessly causing serious physical injury to N.J..
Artemie argues that these two convictions must merge into a single combined conviction because, under the facts of his case, it was impossible for him to have inflicted N.J.'s internal injuries without having first completed the act of sexual penetration. Artemie contends that, because the sexual assault had to be fully completed before the physical assault ( i.e., before the infliction of N.J.'s injuries), and because both crimes arose from the same transaction, the sexual assault must be deemed a lesser included offense of the physical assault, and therefore it is unlawful for Artemie to receive separate convictions for these two crimes.
There are many instances where a defendant's commission of one crime must have chronologically preceded the defendant's commission of a second crime, and where the defendant's commission of the first crime provided the defendant with the means or opportunity to commit the second crime. Two common examples are (1) a burglary followed by a theft of property from within the building, and (2) a felon's possession of a concealable firearm and ensuing use of this weapon to commit a homicide, robbery, or other violent crime.
The fact that two crimes may bear this type of temporal and logical connection to each other does not mean that the first crime must be considered a lesser included offense of the second, so as to bar separate convictions. For example, in Mead v. State, 489 P.2d 738, 741-42 (Alaska 1971), our supreme court held that a defendant may properly be convicted separately for an act of burglary and an ensuing act of theft.
Indeed, our supreme court has repeatedlyupheld separate convictions when a defendant's single act violated two statutes, as long as each statute protected a distinct societal interest. See Jacinth v. State, 593 P.2d 263, 266-67 (Alaska 1979), where the supreme court upheld separate convictions for arson and manslaughter in a case where the defendant set fire to a movie theater and accidentally killed a man who lived inside the building; Catlett v. State, 585 P.2d 553, 558 (Alaska 1978), where the supreme court upheld separate convictions for grand larceny and for stealing or removing parts of an aircraft based on the defendant's single act of removing a pair of landing skis from a float plane; and Drahosh v. State, 442 P.2d 44, 49 (Alaska 1968), where the supreme court held that a person can be separately convicted for leaving the scene of a motor vehicle accident and for failing to render aid to persons injured in that accident.
This Court addressed this same principle in Moore v. State, 740 P.2d 472 (Alaska App. 1987), albeit in a slightly different context. Moore dealt with the question of when, under Alaska's "cognate" approach to lesser included offenses, a particular lesser offense should be deemed to be "included" within the charged offense for purposes of instructing the jury on alternative ways of resolving the criminal case.
This Court declared that even when a lesser offense satisfies the normal requirements for an "included offense" under the cognate approach, this does not invariably mean that the lesser offense must be deemed to be "included" in the charged offense. There is one further requirement: the two statutes must be aimed at protecting the same general societal interest. Here is our discussion of this point in Moore:
The cognate approach to lesser-included offenses is . . . subject to an important qualification: . . . there must be an inherent relationship between two offenses before one may be deemed a lesser-included offense of the other. . . . In Reynolds v. State, 706 P.2d 708 [, 711] (Alaska App. 1985), we clarified the "inherent relationship" requirement of the cognate approach:
[W]e think it self-evident that . . . if two offenses are so fundamentally disparate — so different in their basic social purposes — that merger between them is not compelled and separate sentences would be permissible upon conviction of both, then no greater/lesser-included offense relationship can arise, no matter how clearly intertwined these offenses may be in the factual and evidentiary setting of a given case. . . . [T]he prosecution is free to charge, convict on and punish two offenses separately; the accused is in no position to insist that one offense be treated as a lesser-included offense and considered only as an alternative to the other.
Moore, 740 P.2d at 474.
In other words, even if Artemie is correct that, under the cognate approach, his act of unlawfully sexually penetrating N.J. would normally be viewed as a "lesser included offense" of his act of unlawfully inflicting serious physical injury on N.J. (a contention that we reject), Artemie would still be subject to separate convictions and punishments for first-degree sexual assault and first-degree physical assault because these statutes protect distinct societal interests.
The first-degree sexual assault statute protects a person's right to be free from sexual penetration that is committed without the person's consent. The first-degree assault statute protects a distinct societal interest — a person's right to be free from the unlawful infliction of serious physical injury. When a defendant violates both of these societal interests in a single transaction, even by a single act, the defendant can properly be convicted of both sexual assault and assault.
Jimmy v. State, 206 P.3d 750, 751 (Alaska App. 2009); Moore v. State, 123 P.3d 1081, 1093 (Alaska App. 2005).
Accordingly, the superior court properly convicted Artemie of both first-degree sexual assault and first-degree assault.
Artemie's argument that he was unlawfully subjected to a second jeopardy for these crimes when the State brought him to trial a second time, after Artemie's first trial ended in a mistrial
Artemie argues that he was unconstitutionally subjected to a second jeopardy when the State brought him to trial a second time, after Artemie's first trial ended in a mistrial because the jury was unable to reach a verdict. Artemie did not consent to the mistrial, and he argues that there was no manifest necessity to declare a mistrial. (That is, Artemie contends that the trial judge acted prematurely in declaring the jury hung.)
Artemie's claim was fully considered by this Court in Artemie v. State, 158 P.3d 860 (Alaska App. 2007). In that prior appeal, we held that, given the facts, Artemie's trial judge reasonably concluded that there was no probability of the jury's reaching a verdict, and that a mistrial was therefore necessary. Id. at 863.
Our ruling in Artemie's prior appeal means that Artemie's current double jeopardy claim is governed by the doctrine of res judicata. Under this doctrine, when two parties have previously litigated a claim, and a court has issued a final judgement on the merits of that claim, the parties are precluded from re-litigating the matter in another lawsuit between them.
Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010).
Because Artemie litigated his double jeopardy claim in his previous appeal, and because this Court issued a final judgement resolving that claim against him, Artemie is not entitled to raise this claim again.
Conclusion
The judgement of the superior court is AFFIRMED.