Opinion
Court of Appeals No. A-11824 No. 6454
04-12-2017
JOHN JOSEPH CHARLIE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan S. Bair, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-11-07130 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Appearances: Dan S. Bair, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. Senior Judge COATS.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Following a jury trial, John Joseph Charlie was acquitted of one count of second-degree sexual assault of an incapacitated person, but convicted of the lesser- included offense, attempted second-degree sexual assault. On appeal, Charlie contends that the superior court erred when it precluded him from asking a witness about her two reports that she had been sexually abused as a child. For the reasons explained in this decision, we conclude the superior court committed no error and, therefore, affirm Charlie's conviction.
AS 11.41.420(a)(3) & AS 11.31.100.
Charlie also contends that the superior court did not adequately delete facts from the presentence report that he successfully challenged as unproven at the sentencing hearing. The State concedes error; we find the concession well-founded and, therefore, return the case to the superior court to properly redact the presentence report.
Background
Charlie was charged with second-degree sexual assault based on incidents that occurred on June 18, 2011. That day, the victim, V.D., a homeless woman, was camping in Anchorage. That evening, while outside of Bean's Cafe, she consumed about a half of a fifth of R&R whiskey before passing out, intoxicated. She awoke the next day in the hospital with pain in her vaginal area. She was unable to remember what happened the previous evening.
Witnesses reported that she had been sexually assaulted by Charlie after she became unconscious from drinking alcohol. V.D. had known Charlie for approximately four years. He had asked her more than once if he could have sex with her, but she had always said "no," told him to leave her alone, and walked away from him.
Several people witnessed Charlie's interaction with V.D. Ellamae Clark first discovered Charlie assaulting V.D. that evening. She testified that when she came upon them, they were covered by a jacket. When Clark pulled the jacket away from them, she saw Charlie "fucking [V.D.] in the back."
Clark ran to the Brother Francis Shelter, which is next door to Bean's Cafe. There she found C.T., a shelter volunteer, standing outside. (C.T. is the witness who reported she was sexually abused as a child.) Clark was frantic and upset. She told C.T. that someone was trying to rape V.D.
Clark directed C.T. to V.D.'s location. C.T. saw that Charlie and V.D. were lying on the ground, covered up with a sleeping bag. She pulled the sleeping bag away. She testified that she saw that Charlie's pants were down. She said she grabbed Charlie by the back of his shirt collar and pulled him up and away from V.D. His pants were undone and down to just above the knees.
C.T.'s supervisor, Tonya Fowler, soon arrived. Fowler testified that she tried to rouse V.D., but was unable to do so. According to Fowler, V.D.'s pants and underwear were down, and Fowler could see that V.D.'s full buttock area, vaginal area, and pubic hair were exposed.
Fowler went back to the shelter and called the police. While Fowler was on the phone, C.T. went to check on V.D., with another shelter volunteer, Jason Robinson. As she left the building, C.T. saw that Charlie had already returned to V.D. C.T. testified that Charlie was under a sleeping bag with V.D., having sex with her.
C.T. testified that she could see Charlie's buttocks, that his pants were down around his ankles, and that V.D.'s pants had been pulled down below her knees. C.T. testified that she had to "pull [Charlie] off [of V.D.] and out of her." C.T. testified that Charlie's penis was erect, and that she had actually witnessed Charlie penetrating V.D.
Robinson, who was behind C.T. as she approached V.D., corroborated most of her testimony. However, because he was behind C.T., he could not see Charlie penetrating V.D. But Robinson testified that when C.T. pulled Charlie off of V.D., he could see that Charlie's penis was erect and wet.
Soon after Charlie was pulled away from V.D., police officers arrived. They found him walking away from the shelter and Bean's Cafe. When the police contacted him, he appeared intoxicated, smelled of alcohol, and spoke with extremely slurred speech. The officer who contacted him noticed — when he conducted a pat-down for weapons — that the tip of Charlie's penis was sticking out of the top of his pants.
The State charged Charlie with one count of second-degree sexual assault, and the case proceeded to trial. Charlie's defense was that because the State could not prove that he had penetrated V.D., he was guilty only of attempted third-degree sexual assault — that is, guilty of attempted sexual contact with an intoxicated person. He also argued that he was too intoxicated to form the intent to attempt to sexually penetrate V.D.
Before trial, Charlie requested that the superior court review in camera C.T.'s Office of Children's Services (OCS) records. The court reviewed the records and made some available to the State and to the defense. During the trial, Charlie's attorney asked permission to cross-examine C.T. about her disclosures in these records of having been sexually abused some years before as a child. The trial judge denied the attorney's request, finding the incidents were not relevant and lacked a nexus to Charlie's offense.
After deliberating, the jury found Charlie not guilty of second-degree sexual assault, but guilty of the lesser-included offense, attempted second-degree sexual assault. It appears that this verdict was the result of two flaws in the State's DNA evidence. First, the DNA evidence taken from V.D.'s genitalia contained no sperm cells, and no link to Charlie. In addition, the State mismanaged the collection of possible DNA evidence from Charlie's penis. The superior court gave a Thorne instruction that said: "when considering the DNA evidence in this case, you are to presume that had the proper evidence gathering technique been utilized, the resulting evidence would have been favorable to Mr. Charlie."
See Thorne v. State, Dep't of Pub. Safety, 774 P.2d 1326, 1331-32 (Alaska 1989).
Charlie now appeals.
Why we uphold the trial judge's ruling regarding evidence of C.T.'s personal history
After reviewing C.T.'s OCS records in camera, the trial judge provided some documents to the parties. The records showed that approximately six to seven years before Charlie's trial, C.T. had reported that she had twice been sexually abused — once in 2006, and once in 2001. It is unclear whether these reports were ever investigated by OCS or law enforcement. Near the end of the State's case — before the State called C.T. —Charlie's attorney requested permission to cross-examine C.T. about those reported incidents.
The defense attorney reasoned that the previous sexual abuse "explains [C.T.'s] emotional reaction and the reasons why she would be as explicit as she's being, ... saying 'I literally pulled him out of [V.D.]'" The superior court denied the request. The judge ruled that the prior abuse was collateral and not relevant. It was too remote in time, and there was an insufficient nexus between the current assault and the reported incidents to warrant the invasion of C.T.'s privacy.
On appeal, Charlie asserts that the evidence from the OCS records would have bolstered his argument to the jury that C.T. had exaggerated both her report to the police, and her testimony at trial. He argues that C.T.'s prior incidents were evidence of bias because the prior abuse might have colored her perception of what was happening, and thus resulted in her giving an account of what she saw that was more favorable to the State.
In other words, Charlie wanted to use C.T.'s prior statements to undermine her credibility at trial. In an unpublished case with a similar issue, we upheld the trial court's decision to refuse defense counsel's request to inquire into a witness's mental health commitment records from over a year prior to the murder the witness was testifying about, even though he was the only adult witness to the murder. Starr v. State, 2007 WL 293072, at *1-3 (Alaska App. Jan. 31, 2007) (unpublished).
In Starr, the trial court had ruled that the mental health records were of "questionable relevance" for determining the witness's credibility. Id. at *2. We held that the trial court was justified in focusing on the witness's mental health "at the time that the ... incident occurred and at the time that [the witness] testified before the jury." Id. at *3. That is, the judge could require Starr to offer credible evidence of a connection between the witness's hospitalization and his ability to observe the incident or his ability to testify about it at trial. Id. at *3.
Much like the defendant in Starr, Charlie did not show there was any credible evidence of a connection between C.T.'s possible prior victimization and her reaction when she went to help V.D. or her testimony about the incident at trial. Although Charlie characterized C.T.'s statements about what she saw as exaggerations, he provided no evidence or any other rationale for the trial judge to find that C.T. actually exaggerated her claims. Charlie did not identify or point to any action C.T. took that night, or anything she said, that was somehow abnormal under the circumstances.
None of the other trial witnesses provided any basis to believe that C.T. exaggerated what she saw, that she reacted abnormally to the assault, or that she was abnormally upset. And, more importantly, the testimony from other witnesses not only corroborated C.T.'s view of what happened, but that testimony strongly suggests that C.T.'s reaction to the assault was appropriate.
Consequently, we conclude that the superior court did not abuse its discretion when it ruled that the reported incidents were too remote in time, lacked any nexus to Charlie's offense, and were not otherwise relevant.
Moreover, even if the evidence Charlie wanted was marginally relevant, considering its remoteness in time, lack of any nexus or similarity to Charlie's offense, and C.T.'s privacy interest, the trial judge did not abuse his discretion when he excluded it. C.T. was an important witness, but she was just one of four eye witnesses who were able to describe what appeared to each of them to be a sexual assault on an unconscious victim. And C.T. was one of two witnesses who saw Charlie with his pants down and his penis erect when she pulled him away from V.D. the second time.
It is true that C.T. was one of the two witnesses who asserted they saw Charlie penetrating V.D., but there was no evidence that C.T. overreacted to the incident. And her testimony was otherwise corroborated by other witnesses.
That said, even if the trial judge committed error, the error was harmless. The verdict reflects that the jury must have discounted C.T.'s testimony that when she pulled Charlie off of V.D., Charlie's penis pulled out of V.D. Furthermore, the Thorne instruction requiring the jury to view certain evidence in Charlie's favor also countered C.T.'s testimony that Charlie had actually penetrated V.D.
Here, despite C.T.'s testimony, the jury found Charlie guilty only of attempted sexual penetration, instead of finding that Charlie had actually penetrated V.D. The jury could reasonably conclude that Charlie attempted to sexually penetrate V.D. based on the testimony of the other witnesses — Clark, Robinson, and Fowler — who corroborated C.T.'s testimony regarding Charlie's actions with V.D. So even though C.T. testified that Charlie had definitely penetrated V.D., the evidence supporting the lesser-included offense of attempted sexual penetration came from other witnesses, not just her.
In addition, the jury's verdict finding Charlie guilty of the lesser-included offense was supported by the evidence that fairly recently, in similar circumstances, Charlie had taken advantage of another unconscious homeless woman, and as a result, he had then been convicted of attempted third-degree sexual assault.
Finally, Charlie's defense regarding the attempted second-degree sexual assault was not that the witnesses were not credible, were mistaken, or were exaggerating — rather, his defense was that he was too intoxicated to form the necessary intent to attempt sexual penetration. In other words, regarding attempted second-degree sexual assault — the offense Charlie was convicted of — C.T.'s testimony was not critical to the State's case, and Charlie's questioning her about her reports of prior sexual abuse as a child would not have appreciably affected the jury's verdict.
See Love v. State, 457 P.2d 622, 634 (Alaska 1969).
The superior court's failure to properly redact the presentence report
At sentencing, Charlie successfully challenged some information in the presentence report. But rather than completely redacting this information, the sentencing judge only drew a line through the challenged information. As a result, the information is still legible. Charlie claims this was error, and the State agrees.
Based on Alaska Criminal Rule 32.1(f)(5) and Packard v. State, 2014 WL 2526118, at *5 (Alaska App. May 21, 2014) (unpublished), the State concedes that the sentencing judge should have completely blacked out or otherwise removed the information so it was no longer legible. The State's concession is well-founded. We remand this case to the superior court for the judge to completely redact the disputed information from the presentence report.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (when the State concedes error in a criminal case, the appellate court must independently assess whether the State's concession is well-founded). --------
Conclusion
Charlie's conviction is AFFIRMED. We REMAND this case to the superior court to correct the incomplete redactions in the presentence report.