Opinion
A-13340
04-06-2022
MARLON RAY INGA, Appellant, v. STATE OF ALASKA, Appellee.
Marjorie Mock, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Kodiak, Steve W. Cole, Judge. Trial Court No. 3KO-17-00312 CR
Marjorie Mock, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
ALLARD JUDGE
Marlon Ray Inga was convicted, following a jury trial, of first- and second-degree sexual assault and second-degree assault for sexually assaulting his cousin, J.I., and attacking her with a knife. Inga now appeals his convictions, arguing that the trial court erred when it restricted his cross-examination of J.I. regarding a prior unrelated sexual assault. For the reasons explained here, we see no reversible error in the court's ruling and we affirm Inga's convictions.
AS 11.41.410(a)(1), AS 11.41.420(a)(1), and AS 11.41.210(a)(1), respectively. Inga was additionally convicted of attempted first- and second-degree sexual assault and two counts of third-degree assault, which merged with the first-degree sexual assault and second-degree assault convictions.
Factual background
In early September 2017, J.I. reported to 911 dispatch that her cousin, Marlon Inga, had tried to rape her at her home in Old Harbor. Earlier in the day, J.I. was at a friend's home where she drank four beers between noon and 5:00 p.m. J.I. took "a couple of shots" of vodka when she returned home and started cooking dinner. Her cousin, Inga, came over and told J.I. that he was hungry. J.I. agreed to share her dinner with him, so Inga sat on the couch and waited. While J.I. was in the kitchen making dinner and dancing, Inga commented on J.I.'s body, which J.I. made clear was unwelcome.
At some point, J.I. sat on the couch next to Inga, and Inga reached out and grabbed J.I. with one hand. At trial, J.I. testified that she saw a knife in his hand. J.I. testified that she "froze up" and could not remember everything. However, she recalled that Inga pushed her down on the couch. From there, J.I. recalled a sharp pain on her thigh, and then Inga somehow removed her shirt and pants. J.I. later saw that her shirt and bra were torn, as though cut by a knife. Inga licked J.I. 's face and the outside of her vagina and put his tongue in her vagina. Inga then started to put his penis inside J.I.'s vagina. J.I. described feeling frozen and in shock until this point when she decided to fight back. J.I. grabbed a glass mug nearby and hit Inga over the head with it, shattering the glass. Inga asked why J.I. hit him, called her names, and left.
Alaska State Trooper Robert Casey in Kodiak received J.I.'s call through 911 dispatch. Trooper Casey arranged for J.I. to be transported to Kodiak for a Sexual Assault Response Team (SART) examination.
The SART exam revealed scratches on J.I.'s breasts and arms, circular reddened marks (like bite marks) on her bottom, bruising on her arm and inner thigh, small puncture wounds surrounded by bruising on her right thigh, and a round reddened area near her vagina. J.I.'s left big toe was badly bruised as well. The scratches and puncture wounds were consistent with J.I.'s story that a knife was used to poke her and cut her shirt. The SART exam did not note any internal vaginal injuries, but inner and outer vaginal swabs showed male DNA on J.I.'s body. The amount of DNA contained in the sample was too low to determine whom the DNA belonged to.
Trooper Casey also interviewed J.I. During the interview, J.I. had difficulty remembering the course of events. At trial, she stated that she was originally unable to remember much because of the trauma of what occurred and that her memory of the event improved over time but remained incomplete. J.I. also testified at trial to details (such as the knife) that she had not originally told Trooper Casey.
Procedural background
Before trial, Inga requested an evidentiary hearing under Morgan v. State, asserting that he had reason to believe that J.I. had made a false accusation of sexual assault against another man approximately eleven months before the incident with him.
Morgan v. State, 54 P.3d 332 (Alaska App. 2002).
In Morgan, we held that a defendant in a sexual assault prosecution may introduce evidence of a complaining witness's knowingly false prior accusation of sexual assault in order to challenge the witness's credibility with respect to the current accusation. However, in order to do so, the defendant must first present foundational evidence outside the presence of the jury that establishes by a preponderance of the evidence that (1) the complaining witness made another accusation of sexual assault; (2) this accusation was factually untrue; and (3) the complaining witness knew the accusation was untrue.
Id. at 340.
Id. at 333.
The trial court granted Inga's request for ¶Morgan hearing, which was held outside the presence of the jury before J.I.'s testimony at trial. The testimony at the evidentiary hearing established that, on October 27, 2016, J.I. had been drinking with a friend at a bar in Kodiak. She woke up the next morning naked in her hotel room with a bearded man who she did not know. She had no memory of what had occurred. The man had a hand on her butt, her genital area hurt, and she was bleeding "a little." J.I. stated that she did not report the incident for seven days because she was in denial about what had occurred, but she eventually reported the incident to the police.
There was disputed evidence at the hearing regarding how much J.I. had to drink that night. J.I. testified that she only remembered drinking two shots of tequila and a beer. Because she did not believe that was enough to cause an alcoholic blackout, she suspected that someone might have put something in her drink. J.I.'s friend testified that she had shared an entire bottle of tequila with J.I. before they went to the bar. The friend also testified that J.I. seemed happy to be leaving with the stranger.
J.I. also testified that since the incident, she had experienced recurring "waking nightmares." According to J.I., she would see "black" and "dark faces" as well as "multiple hands" "coming at [her]" and "touching [her]." J.I. stated she was unsure if these images were real memories from her subconscious or if they were something her mind had made up. J.I. testified that she had been in counseling to address these "post-traumatic stress" symptoms.
Following this testimony, Inga asserted that, even if the prior incident was not admissible under Morgan, he should still be allowed to question J.I. about whether she was in an alcoholic blackout that night. He also asserted that he should be allowed to question J.I. about her "waking nightmares" because this evidence was relevant to her ability to perceive reality and correctly recall past events.
At the close of the Morgan hearing, the trial court ruled that Inga had failed to show that J.I. had made a knowingly false accusation of sexual assault, and therefore evidence of the October 2016 incident could not be introduced on that basis.
The trial court nevertheless ruled that Inga could pursue two lines of questioning related to this incident without eliciting the fact that the incident involved an unrelated sexual assault. The trial court allowed Inga to question J.I. about whether she had an alcoholic blackout on that previous occasion and also to question her about her recurring "waking nightmares." The trial court noted that if J.I. denied being in an alcoholic blackout that night, additional details about what happened might be relevant.
At trial, Inga's defense was that J.I. was not credible and that her ability to perceive events was suspect. According to Inga, J.I. had consented to the sexual activity and did not remember doing so because she was intoxicated. During the cross-examination of J.I., Inga's attorney questioned J.I. about her history of alcohol use, and she admitted to having experienced alcoholic blackouts, including on October 27, 2016. The attorney also questioned her about her recurring "waking nightmares." She admitted to having them and distinguished them from what she experienced on the night of the incident with Inga.
Later, as part of the defense case, Inga called an expert witness, Dr. Robert Julien, to testify regarding the effects of alcohol consumption on memory and perception. Dr. Julien testified that alcohol affects the brain's ability to form memory, either in partial or full blackout. If the proteins are not formed to create the memory, it cannot later be recovered. Sometimes people who experience blackouts from alcohol will fill in the memory gaps with what they think happened. Dr. Julien testified that based on his reading of the discovery, J.I. likely experienced a partial or "fragmentary blackout."
In addition to the expert witness, Inga called a woman who had previously worked with J.I. When asked about J.I.' s character for truthfulness, the woman testified that, in her experience, J.I. had not always told the truth. Inga also called another woman who was related to both him and J.I. The relative stated that J.I. had told her of the assault, but she did not see J.I.'s ripped clothing when she went to J.I.'s house the night of the assault.
During closing argument, Inga's attorney attacked J.I.'s credibility, her perception of events, and her memory. The attorney argued that J.I. had consented to the sexual conduct while in an alcoholic blackout, so she did not remember consenting. The attorney asserted that J.I. had then changed her mind, which is why she hit Inga over the head with the mug. The attorney also argued that there had been no knife, emphasizing that J.I. had not mentioned the knife in her initial report.
The prosecutor argued that J.I. was telling the truth about what happened, and she pointed to the physical corroboration at the scene and on J.I.'s body.
The jury found Inga guilty of all of the charges, except for the first-degree sexual assault count that had alleged penile penetration.
At sentencing, the trial court merged several of the guilty verdicts and entered convictions for first- and second-degree sexual assault and second-degree assault. The court sentenced Inga to a composite sentence of 48 years with 10 years suspended (38 years to serve).
This appeal followed.
Inga's claims on appeal
On appeal, Inga does not challenge the trial court's ruling that J.I.'s prior sexual assault report was not knowingly false and therefore was not admissible under Morgan. Instead, he argues that the prior unrelated sexual assault was admissible for other reasons, namely (1) to impeach J.I. regarding the amount of alcohol that caused her to have an alcoholic blackout; and (2) to question her further regarding her recurring visions of dark men attacking her. We address each argument in turn.
J.I. 's alcoholic blackouts
Inga argues that the trial court erred when it prevented him from impeaching J.I. with her testimony in the Morgan hearing about blacking out after drinking only two shots of tequila and some beer. According to Inga, this evidence was material to his defense because it showed that J.I. had admitted to suffering an alcoholic blackout after drinking considerably less than she drank prior to the incident with Inga, where she claimed that she had not suffered an alcoholic blackout.
But, as the State points out, it is not clear that the trial court's ruling actually prevented this line of questioning. Nor is it clear that Inga requested to pursue this line of questioning in the manner he claims on appeal.
The trial court's ruling, excluding evidence of J.I.'s prior unrelated sexual assault allegation, was based on Alaska's rape shield statute, AS 12.45.045(a). This statute applies to sexual assault and sexual abuse of a minor prosecutions and functions similarly to the balancing test under Alaska Rule of Evidence 403. Under AS 12.45.045(a), a complaining witness's prior sexual conduct is inadmissible unless the defendant requests to introduce such evidence and the trial judge finds that the evidence is relevant and that its probative value outweighs "the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the complaining witness."
Jager v. State, 748 P.2d 1172, 1175 (Alaska App. 1988) (explaining that the balancing test established by AS 12.45.045 is "substantially similar" to the balancing test of Alaska Rule of Evidence 403).
If the prior sexual conduct occurred more than a year before the current offense, the evidence is presumed to be inadmissible; that presumption may be overcome by a "persuasive showing to the contrary." AS 12.45.045(b).
Here, the trial court's concern was that the prior unrelated sexual assault would be used in an improper manner - i.e., to argue that J.I. was a promiscuous drunk. However, the trial court recognized that the fact that J.I. had previously had an alcoholic blackout was highly relevant to Inga's defense. The court therefore ruled that Inga could ask J.I. if she had previously suffered an alcoholic blackout, including on October 27, 2016, and that he would only be allowed to question her further about the unrelated sexual assault if J.I. denied having experienced an alcoholic blackout.
See Heath v. State, 849 P.2d 786, 788 (Alaska App. 1993) (noting that "the rape shield law was designed to forestall [the argument] that people who have sexual experience are more likely to consent to a particular act of sexual intercourse").
See Milligan v. State, 286 P.3d 1065, 1068-70 (Alaska App. 2012) (holding that evidence that the complaining witness had been drinking and recently suffered alcohol-related memory loss was admissible extrinsic evidence to impeach the witness's memory and perception).
At trial, Inga's attorney extensively questioned J.I. about her alcohol use and history and whether she had ever experienced an alcoholic blackout. J.I. readily admitted that she had experienced alcoholic blackouts, including on October 27, 2016. At that point, Inga's attorney alerted the trial court that he wanted to impeach J.I. with her "prior inconsistent statement" in the Morgan hearing.
On appeal, Inga argues that his attorney meant that he wanted to question J.I. about the amount of alcohol that had caused her alcoholic blackout in October. But that is not clear from the record. Instead, it appears from the record that the attorney was asking to impeach J.I. with her "prior inconsistent statement" that somebody must have put something in her drink because she did not think she had enough to drink to cause her to blackout. We agree with the State that the trial court could reasonably deny this request as related to a non-material collateral matter-i. e., the underlying circumstances of the prior sexual assault.
Inga also argues on appeal that it was relevant that J.I. admitted to blacking out after drinking only two shots of tequila and some beer, given that she admitted to drinking much more alcohol prior to the incident with Inga. We agree with Inga that his attorney should have been allowed to question J.I. about how much alcohol she drank on the prior occasions when she blacked out. But such questioning could occur without any reference to the sexual nature of the October 2016 incident. And the record does not show that Inga ever clearly asked to pursue such a line of questioning.
In any event, Inga was not prejudiced by his failure to pursue this line of questioning. Inga was able to elicit testimony from J.I. that she frequently underestimated how much she drank and was also able to show that J.I. was inconsistent with regard to how much alcohol she had to drink on the night of the incident with Inga. Thus, it seems unlikely that questioning J.I. about her use of alcohol during a separate incident would have added to the defense attorney's arguments.
In sum, we do not find the trial court's ruling an abuse of discretion. Inga was allowed to question J.I. about her alcohol use and her experience of alcoholic blackouts, and it was not unreasonable for the trial court to conclude, given the context of this case and how it was argued, that the questioning did not need to extend into the underlying circumstances of the prior alcoholic blackout.
J.I. 's "waking nightmares "
The trial court ruled that Inga could ask J.I. about her "waking nightmares" of "dark faces" attacking her, but he could not ask her about the original source of those nightmares - the October sexual assault. On appeal, Inga argues that this was error. He asserts that the context of J.I.'s "waking nightmares" - i.e., that they were caused by the sexual assault - was necessary for the jury to understand his defense. We disagree.
At trial, Inga's attorney questioned J.I. about whether she had difficulty perceiving what was real and what was not. In the context of those questions, the attorney asked her whether she had previously experienced "images of dark figures or dark faces" attacking her. J.I. admitted she had, and she admitted that they happened when she was sleeping and when she was awake. She referred to them as "waking nightmares."
On appeal, Inga asserts that his defense was that "J.I. consented to sex during a fragmentary blackout and that she filled in her resulting memory lapse with visions of dark faceless figures attacking her." But, Inga's trial attorney did not actually refer to the waking nightmares or the dark faces in his closing argument. Instead, he argued in more general terms that J.I. was not credible and that her memory was flawed because she was in an alcoholic blackout. In other words, contrary to his claim on appeal, Inga's attorney did not argue to the jury that J.I. "filled in" the missing pieces of her memory with "visions of dark faceless figures" or "dark male faces" attacking her. Nor would it have made sense to do so. Inga was not a stranger to J.I., and she never had any confusion about the identity of the person who assaulted her. Moreover, when she described the assault, it bore no resemblance to her waking nightmares. None of her waking nightmares involved a knife or an attack by someone she knew. Because of these dissimilarities, the evidence of the "waking nightmares" had little probative value.
Under these circumstances, we conclude that the trial court did not commit reversible error when it prevented the jury from learning that the waking nightmares were caused by a previous sexual trauma.
Conclusion
The judgment of the superior court is AFFIRMED.