Opinion
Court of Appeals No. A-12221 No. 6847
01-15-2020
RICHARD COURTNEY LEVIEGE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Andrew Steiner, Attorney at Law, Bend, Oregon (opening brief), and Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage (reply brief), under contract with the Office of Public Advocacy, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-12-04967 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge. Appearances: Andrew Steiner, Attorney at Law, Bend, Oregon (opening brief), and Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage (reply brief), under contract with the Office of Public Advocacy, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Wollenberg, Judge, and Mannheimer, Senior Judge. Judge WOLLENBERG.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Richard Courtney Leviege was convicted of second-degree sexual assault for sexually penetrating an incapacitated woman, V.C. On the night in question, V.C. drank heavily and passed out in a bedroom at her friend K.C.'s house. Leviege, a friend of K.C.'s boyfriend, entered the bedroom where V.C. was sleeping. A few minutes later, K.C. went into the bedroom and found Leviege on top of V.C.; both were naked from the waist down. K.C. testified that V.C. was unconscious and non-responsive.
At trial, Leviege's attorney sought to introduce evidence that K.C. and V.C. had a sexual interaction at a club about a year before the alleged sexual assault. The defense attorney argued that if K.C. and V.C. were engaged in a sexual relationship at the time of the alleged assault, this relationship would demonstrate bias on the part of both K.C. and V.C.
The court held an evidentiary hearing outside the presence of the jury and took testimony from Tank Jones, an individual who claimed to have personal knowledge of the interaction between K.C. and V.C., as well as testimony from K.C. herself, who denied the existence of any sexual relationship. The court ultimately precluded Leviege's attorney from introducing evidence regarding a possible sexual or romantic relationship between K.C. and V.C.
On appeal, Leviege challenges this ruling. Having carefully reviewed the record, we conclude that, given the way this issue was litigated, the trial court did not abuse its discretion when it precluded this evidence. We therefore affirm Leviege's conviction.
Background facts
On May 21, 2012, Leviege hosted a social gathering, which K.C. and her boyfriend attended. At the time, V.C., the victim in this case, was K.C.'s close friend and housemate. Although V.C. did not attend the initial gathering, she joined the group later that evening.
While the group was playing cards, K.C. noticed V.C. becoming intoxicated. K.C. reported that V.C. drank a 24-ounce can of hard lemonade, some wine, and several shots of tequila. V.C. confirmed that she drank hard lemonade and three to five shots of tequila, and that she became drunk.
After playing cards, Leviege, V.C., K.C., and K.C.'s boyfriend returned to K.C.'s house. K.C. and V.C. went out on the balcony to smoke cigarettes, and Leviege soon joined them. According to K.C., V.C. was very intoxicated and had to lean against the railing for balance. K.C. testified that V.C.'s conversation did not make sense, and that V.C. eventually fell down and was "just slumped in a half sitting position on the ground."
K.C. then prepared a bed for V.C., and Leviege helped V.C. to the bedroom. According to K.C., "[t]here were sounds coming out of [V.C.'s] mouth," but it was "completely incoherent" — "[t]hey didn't seem like words at all." V.C. did not appear to be aware of what was happening.
K.C. went to check on V.C. between five to fifteen minutes later, to make sure she was not on her back (so she would not choke if she vomited). K.C. found V.C. still clothed and lying on her side in bed, partially covered by blankets. K.C. then went into her own bedroom across the hall, leaving both doors open.
A short while later, K.C. heard Leviege go into the bedroom where V.C. was sleeping. She heard the door close behind Leviege, and she assumed Leviege would go to sleep on a futon mattress that was on the floor, across the room from the bed. K.C., however, was unable to sleep, and she was worried that Leviege's truck was blocking a neighbor's vehicle. So, she got up and went to tell Leviege to move his truck.
K.C. did not knock before she opened the door to the bedroom. When K.C. opened the door, she saw Leviege on top of V.C., with her legs spread. Leviege and V.C. were naked from the waist down. Leviege "froze like a statue," and K.C. yelled at Leviege to get off V.C. Leviege moved off of V.C. and began muttering obscenities before leaving the house. According to K.C., V.C. did not move or say anything during this time; she appeared completely comatose.
In Leviege's statement to the police, which was introduced into evidence at trial, he largely corroborated K.C.'s account that V.C. was silent and motionless when K.C. opened the door. But he asserted that V.C. had in fact been "very much . . . awake" before K.C. entered the room, and that he and V.C. both "froze" when K.C. opened the door.
V.C. testified that, the next morning, she could not remember any part of her encounter with Leviege. But she felt a "little bit sore" — as if she had had sex. After K.C. told her what had happened, V.C. concluded that she had been raped, and she called the police.
A grand jury indicted Leviege for second-degree sexual assault (sexual penetration with a person who Leviege knew was incapacitated or unaware that a sexual act was being committed) and third-degree sexual assault (sexual contact with a person who Leviege knew was incapacitated or unaware that a sexual act was being committed). A jury subsequently found Leviege guilty of both counts. (At sentencing, the court merged these counts.)
AS 11.41.420(a)(3)(B) and/or (C), and AS 11.41.425(a)(1)(B) and/or (C), respectively.
Leviege's defense at trial and his attorney's offer of proof
At trial, Leviege's attorney argued that V.C. was not actually incapacitated or unaware of what was happening. Instead, he contended, V.C. consensually participated in the sexual activity.
Mid-way through the trial, Leviege's attorney sought to introduce evidence to show that K.C. and V.C. were "long-term lovers" at the time of the alleged assault. According to the defense attorney, the existence of such a relationship would explain why V.C. might pretend to be unconscious when K.C. opened the door (because she did not want to anger K.C. and then have nowhere to live), and why K.C. might exaggerate V.C.'s level of incapacitation (because she wanted to exact revenge on Leviege for sleeping with V.C.).
The court held a hearing outside the presence of the jury, where Leviege's attorney offered the testimony of private investigator Tank Jones, who had worked with the defense attorney on other cases. During K.C.'s testimony the day before, Jones had come into the courtroom to talk with the attorney about a different case. When Jones saw K.C. on the witness stand, he recognized her as someone with whom he used to work and socialize.
According to Jones, K.C. and Jones exited the courtroom together to catch up. When Jones asked K.C. why she was in court, K.C. told him that she was testifying in a case involving her friend, "Valerie." (We have used a pseudonym for V.C.'s first name.) Jones did not immediately remember who Valerie was. Only when K.C. explained that Valerie was the person who "used to come to the club with me all the time" did Jones conclude that Valerie was the woman he had once seen K.C. kissing and fondling.
Jones testified that, about three years before Leviege's trial (and one year before the alleged sexual assault), Jones, K.C., and Valerie were having a conversation outside a club called the Office Lounge. According to Jones, the topic of conversation was "women sleeping with other women." At one point, K.C. said, "I keep my bitch with me all the time." K.C. then pulled "[Valerie] over and kissed her" — with a "tongue kiss" — and then "opened [Valerie]'s shirt and . . . started sucking on her breasts."
But Jones had trouble identifying V.C. as the woman with K.C. at the Office Lounge. Jones could not remember the color of the woman's hair or eyes, had "no idea" how old she was, and did not know her last name. When shown a photograph of V.C. from several months after the Office Lounge incident, Jones did not recognize her; he said that V.C. "could be" the woman he saw years before, but he was not completely certain. Jones admitted he was so focused on the sensational event itself that he remembered little else. He also explained that, although he was a private investigator, he was not getting paid to be observant at the time of the incident.
Jones acknowledged that this was the only time that he saw the two women engage in sexual contact. But he contended that he knew the incident was more than a "one-time drunk kind of hookup" because he and K.C. "talked." He further suggested that K.C.'s conduct was more than "casual" and that "pulling out" another woman's breasts under these circumstances was "going far for a joke." But Jones did not know when the supposed relationship between K.C. and V.C. began or ended.
K.C. also testified at the hearing. But her testimony was cursory and covered only three topics.
First, when asked whether she had previously had a sexual relationship with V.C., K.C. answered, "No."
Second, Leviege's attorney asked K.C. whether she and V.C. had previously gone out together. K.C. responded that they had gone to clubs a "long time ago, like six to eight years ago," but not during the years between 2010 and 2012 (the time period in which the Office Lounge incident was alleged to have occurred).
Finally, Leviege's attorney asked K.C. if she had any other significant friend named "Valerie" in her life. K.C. responded that she did not.
Leviege's attorney never questioned K.C. about the Office Lounge incident, nor did he ask to have V.C. testify at the evidentiary hearing.
The trial court's rulings
Based on the testimony at this mid-trial evidentiary hearing, the trial court excluded the proposed evidence. The court gave three separate reasons for doing so: (1) there were serious doubts as to whether V.C. was the woman at the club with K.C. (i.e., "Valerie"); (2) even if V.C. was the woman at the club, the connection between the alleged past sexual encounter and the existence of bias or a motive to lie in Leviege's case was "extremely speculative"; and (3) the evidence was more prejudicial than probative under Alaska Evidence Rule 403.
After the jury found Leviege guilty, his attorney filed a motion for a new trial, arguing that the trial court erred when it precluded him from introducing evidence of a sexual relationship between K.C. and V.C. — either by cross-examining K.C. and V.C. or by calling Jones to testify. In a written order denying that motion, the court further explained its rationale for excluding the evidence. The court found that there was an insufficient foundation that a sexual relationship existed between K.C. and V.C., and that any probative value of Jones's testimony was outweighed by the potential for unfair prejudice given the limited factual basis for the evidence. (The court specifically noted that it was not excluding the evidence on the ground that a same-sex relationship or sexual interaction was more prejudicial than probative.) Even though the court found that Jones had credibly testified that he had observed K.C. make out with another woman at the Office Lounge, the court found "little indication" that the other woman was V.C.
Leviege's claim on appeal
On appeal, Leviege renews his claim that the trial court erred in excluding "evidence of a romantic relationship" between K.C. and V.C. Leviege contends that, under Alaska Evidence Rule 104(b), a jury could reasonably have concluded that V.C. was the same woman Jones observed with K.C. outside the Office Lounge. Leviege further argues that the trial court erred in excluding the evidence as speculative and more prejudicial than probative under Evidence Rule 403.
As an initial matter, we note that the trial court appears to have excluded not only Jones's testimony but also any cross-examination of K.C. or V.C. regarding a putative sexual relationship between them. On appeal, Leviege does not expressly differentiate between these two forms of evidence.
To the extent the court precluded Leviege's attorney from simply cross-examining K.C. and V.C. about the existence of a sexual relationship between them, this was likely error. K.C.'s and V.C.'s own testimony demonstrated the close bond between them at the time of the events in this case — they referred to one another as "sisters," had known each other for approximately ten years, and had lived together off and on during that period, including during the events in this case. Although K.C. testified that, by the time of trial, she and V.C. no longer associated at all, she explained that V.C. was "the closest person to [her] for several years, closer than [her] significant other." Arguably, K.C.'s and V.C.'s testimony alone, particularly when considered together with Jones's testimony, provided a good-faith basis for simply asking K.C. and/or V.C. in open court about the existence of any romantic relationship between them.
See Westfall v. State, 2004 WL 2389893, at *3 (Alaska App. Oct. 27, 2004) (unpublished) ("[A] party must establish a good faith basis before embarking into asking about the possible existence of a romantic relationship" (citing McIntyre v. State, 934 P.2d 770, 774 (Alaska App. 1997))).
But Leviege did not present a meaningful offer of proof as to K.C. or V.C.'s testimony on this point, and what little evidence he proposed would not entitle him to a reversal. At the evidentiary hearing, K.C. was asked only a single question about whether she previously had a sexual relationship with V.C., which K.C. denied. Leviege does not argue on appeal that he was prejudiced by being unable to ask this one question in front of the jury.
Moreover, Leviege's attorney was able to ask K.C. in the jury's presence whether she was "in love with [V.C.]," and K.C. responded, "No." Leviege's attorney could have argued that K.C.'s answer was false, and that her relationship with V.C. was a source of bias. Leviege's attorney did in fact argue to the jury, based on the formerly close relationship between K.C. and V.C., that there was an "element of control" in K.C.'s relationship with V.C. (who was staying rent-free at K.C.'s home) and that K.C. liked "hovering" over V.C.
Furthermore, at the mid-trial evidentiary hearing, Leviege's attorney never asked K.C. about the Office Lounge incident or sought to confront her with the assertions made by Jones. Nor did Leviege's attorney seek to question V.C. at all on this topic.
Accordingly, the only real offer of proof at issue in this appeal is Jones's testimony at the evidentiary hearing. We therefore interpret Leviege's claim as challenging only the trial court's exclusion of this evidence.
Why we affirm the trial court's exclusion of Jones's testimony
As we discussed earlier, the trial court offered several rationales for excluding Jones's testimony, including its serious doubt about whether V.C. was the woman at the club with K.C. Leviege argues this reasoning was erroneous under Alaska Evidence Rule 104(b).
Rule 104(b) governs issues of conditional relevance — i.e., situations where the relevance of a particular piece of evidence depends on the truth of another fact. The rule provides that "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." Evidence is "sufficient" for this purpose if there is enough evidence for a reasonable juror to find the preliminary fact established.
See Bennett v. Anchorage, 205 P.3d 1113, 1117 (Alaska App. 2009); see also Alaska R. Evid. 104(b) cmt. ("The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude either that fulfillment of the condition is or is not established, the issue is for them."); 1 Kenneth S. Broun et al., McCormick on Evidence § 53, at 374 (7th ed. 2013) (explaining that, when applying Evidence Rule 104(b), a judge must accept the testimony offered by the proponent at face value, and ask only whether there is a "rational, permissive inference of the existence of the preliminary fact").
Jones's testimony about a sexual encounter between K.C. and another woman at the Office Lounge was only relevant if the other woman was, in fact, V.C. Thus, under Rule 104(b), in order for Jones's testimony about the incident to be admissible, Leviege was required to present "evidence sufficient to support a finding" that the other woman was V.C.
We agree with Leviege that the burden imposed by Rule 104(b) is low: Leviege was only required to show that a reasonable juror could find that V.C. was the woman at the Office Lounge with K.C. But even assuming that the Rule 104(b) threshold was met, the court was still required to assess the admissibility of the evidence under Evidence Rule 403. And when we evaluate the circumstances as a whole, we cannot say that the court abused its discretion in concluding that the connection between the alleged past sexual encounter and the existence of bias or a motive to lie in Leviege's case was "extremely speculative," and that the evidence was therefore more prejudicial than probative under Rule 403.
Jones admitted that he was uncertain that V.C. was the same person he saw at the Office Lounge; he provided no identifying details in his testimony, and he did not recognize V.C. from her photograph. Additionally, the court specifically found that Jones did not actually remember the name "Valerie," and that "Jones filled the gap in his memory with information . . . that he received when talking with [K.C.]." And because Leviege's attorney did not pursue further questioning of K.C. or V.C., it remains unclear if V.C. was indeed the person whom Jones saw at the Office Lounge. In assessing the probative value of Jones's testimony, the court could reasonably question the strength of the evidence as to whether V.C. was involved in the prior encounter.
The court could also reasonably question whether Jones's testimony was probative on the point for which Leviege sought to admit it. When Leviege's attorney litigated the admissibility of this evidence in the trial court, he never argued that the existence of a past sexual relationship between K.C. and V.C. was relevant to K.C.'s or V.C.'s bias. Rather, Leviege's attorney consistently maintained that K.C. and V.C. were in a sexual relationship at the time of the alleged assault — and that K.C. therefore had an "excellent motive to lie — sexual jealousy."
But Leviege presented little evidence to support this assertion. The alleged sexual interaction between K.C. and V.C. occurred a year before the events in this case. Although Jones testified that he personally concluded that the incident between Valerie and K.C. was not a "one-time drunk kind of a hookup," this was based almost entirely on his personal view that their conduct was "going far for a joke" and was "over the line." Jones also testified that he and K.C. "talked" about this matter, but Jones provided no further basis for his conclusion that the sexual interaction between the women was more than a one-time event, particularly given the fact that he never witnessed any other sexual activity between them, and he knew nothing about when their relationship supposedly started or ended.
We contrast this case with our decision in McIntyre v. State. McIntyre was accused of assaulting his wife outside a neighbor's house. The neighbor (a woman) corroborated the wife's version of events. At trial, McIntyre, believing that the two were involved in a romantic relationship, asked the judge to allow him to inquire into the nature of the relationship between his wife and the neighbor. McIntyre claimed, and was willing to testify, that his wife was bisexual and that, just before the assault, he had seen his wife and the neighbor making out. The trial judge refused to allow this inquiry, finding that the issue was collateral and that the potential prejudicial effect of evidence of the wife's sexual orientation far outweighed its probative value.
McIntyre v. State, 934 P.2d 770 (Alaska App. 1997).
Id. at 772.
Id.
Id.
Id.
Id.
We reversed, holding that the trial court erred in ruling that the potential prejudice outweighed the probative value of the evidence. But we also cautioned that "the proponent of such evidence is not entitled to present baseless accusations or unfounded speculation."
Id. at 773.
Id. at 774.
For purposes of establishing bias, a single sexual interaction might be reasonably probative as to the existence of a sexual relationship at or near the time of the sexual encounter. In McIntyre's case, the defendant "offered to take the stand and testify that his wife was bisexual and that he had personally observed [his wife] and [his neighbor] 'making out'" just before the alleged assault.
Id.
But because Jones had described an alleged sexual interaction that took place a year prior to the events in this case, Leviege was making a different argument: that a single sexual encounter between K.C. and V.C. a year earlier demonstrated that K.C. and V.C. were (or at least, may have been) in a sexual relationship at the time of the alleged assault.
This argument necessarily asks the jury to engage in exactly the sort of "unfounded speculation" we cautioned against in McIntyre. The trial court could reasonably find that Jones's identification of V.C. as the woman at the Office Lounge was not based on his personal recollection — that "Jones filled the gap in his memory with information . . . that he received when talking with [K.C.]" — and that, in any event, it was mere speculation to conclude from this sexual encounter that K.C. and V.C. were in a sexual relationship one year later. We therefore cannot find that the trial court abused its discretion in precluding Leviege from introducing Jones's testimony.
Id.; see also Westfall v. State, 2004 WL 2389893, at *2-3 (Alaska App. Oct. 27, 2004) (unpublished) (reiterating that while a "romantic relationship" or "emotional attachment" between a witness and a party is relevant as a source of bias, "trial judges could properly regulate the presentation of this evidence to minimize possible prejudicial impact"); People v. Owens, 183 P.3d 568, 574 (Colo. App. 2007) (holding that "a trial court could, in its discretion, exclude evidence of a romantic or sexual relationship that was too remote or attenuated to be of significant probative value in suggesting a plausible motive to lie on the part of an alleged victim"). --------
Conclusion
The judgment of the superior court is AFFIRMED.