Opinion
Court of Appeals Nos. A-9969 A-9970.
January 27, 2010.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Randy M. Olsen, Judge, Trial Court Nos. 4BE-01-121 CR 4BE-05-1675 CR.
Rex Lamont Butler, Rex Lamont Butler Associates, Inc., Anchorage, for the Appellant. Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Leonard Olrun was convicted of two counts of sexual assault in the first degree for engaging in non-consensual genital and anal sex with L.R.K., a twenty-year-old woman. Olrun appeals, arguing that Superior Court Judge Randy M. Olsen erred in allowing the State to introduce certain evidence. Olrun also argues that there was insufficient evidence to support his convictions and that Judge Olsen imposed an excessive sentence. We affirm.
AS 11.41.410(a)(1).
Factual and procedural background
Olrun and L.R.K. are both from the village of Mekoryuk and are cousins. In the summer of 2004, Olrun had moved back to the village and was living at his uncle's house. L.R.K. has lived with her parents her entire life and in Mekoryuk since 1995. Although she was twenty years old in August 2004, the time of the alleged assault, she was born with hydrocephalia and had the mental capacity of a five-to seven-year-old. Mekoryuk is a small community of approximately two hundred people; people were generally aware of L.R.K.'s condition.
On direct examination at Olrun's trial, L.R.K. testified that in the summer of 2004, she was at the Game Room, an arcade game hall owned by Olrun's parents. Olrun asked L.R.K. to go to his uncle's house. She went to the house, and Olrun took her clothes off and had vaginal and anal sex with her. L.R.K. stated that she told Olrun to "stop it" and yelled, but Olrun continued his assault.
But on cross-examination, L.R.K. made a number of statements which appeared inconsistent with her testimony on direct. For instance she stated that when she went to Olrun's uncle's house, she just "turned around and walked out." She stated that people had scared her into saying things and that Olrun had only touched her. She also stated that, while making a videotaped statement to Alaska State Trooper Jerry Evan, she had been pressured to make certain statements.
Olrun testified at trial and stated that at the time of this incident, he was playing video games with two friends, Jim and Lance. L.R.K. knocked on the door, and he invited her in. He asked her what she wanted. She didn't say anything, so he told her to leave, and she left. He denied having intercourse with her. Olrun's testimony was corroborated by Jim Shavings. Shavings testified that one evening while he was at Olrun's house with Olrun and Lance, L.R.K. walked into the house. They asked what she wanted. She didn't say anything, so they asked her to leave, and she left.
The jury convicted Olrun.
Judge Olsen did not err in admitting into evidence the videotape of Trooper Evan's interview with L.R.K.
Trooper Evan was the State's second witness at trial, immediately following L.R.K. Trooper Evan was assigned to investigate L.R.K.'s reported sexual assault. On August 12, 2004, Trooper Evan interviewed L.R.K. in Bethel. The interview lasted about thirty-nine minutes.
The State moved to admit the tape of the interview into evidence. Over objection, Judge Olsen admitted the entire videotape as either prior inconsistent or prior consistent statements of a witness under Alaska Evidence Rules 801(d)(1)(A) and 801(d)(1)(B). Olrun argues this was error.
We conclude that Judge Olsen did not abuse his discretion in determining that L.R.K.'s videotaped statement to Trooper Evan was admissible as a prior inconsistent statement. Under Rule 801(d)(1)(A), a witness's prior inconsistent statements are excluded from the definition of hearsay and are admissible as substantive evidence.
Olrun argues that the statements in the videotape are not inconsistent because they are consistent with one version of the facts that L.R.K. testified to at trial. He argues that "where a witness has testified to two mutually contradictory stories, prior `inconsistent' statements are not, in fact, inconsistent." L.R.K.'s testimony on cross-examination appears to conflict with and undermine her testimony on direct examination. Judge Olsen could properly determine that L.R.K.'s statement to Trooper Evan shortly after the incident conflicted with her testimony at trial and that seeing and hearing her videotaped statement would be helpful to the jury in evaluating her testimony.
Olrun also argues that even if L.R.K.'s videotaped statement was admissible, the videotape should have been redacted to eliminate any statements which L.R.K. made that were neither consistent nor inconsistent. But Judge Olsen did not abuse his discretion in determining that admitting the entire interview was necessary to allow the jury to evaluate L.R.K.'s testimony.
Judge Olsen did not commit reversible error in explaining that an alleged rape victim's first report was admissible as an exception to the hearsay rule
At trial, Linda Richards, L.R.K.'s aunt, testified about seeing L.R.K. on the day of the alleged assault. Richards stated that she saw L.R.K., who had a strange demeanor. She asked L.R.K. what was wrong. Olrun objected to allowing Richards to testify about L.R.K.'s response. Judge Olsen overruled the objection, stating that he would allow Richards to relate L.R.K.'s answer under the exception to the hearsay rule for first reports by alleged rape victims.
Later, when the prosecutor asked Richards what L.R.K. said to her mother regarding the alleged assault, Olrun again objected. Judge Olsen explained to the jury: "This is allowed, ladies and gentlemen, even though it's a hearsay question and it's . . . proper to raise the objection. Under our rules of court, a person reporting a sexual assault, the first reports after it happens, can be explained by . . . witnesses who hear the first report." Olrun objected to the explanation. Following this explanation, Richards did not ultimately testify about what L.R.K. said to her mother. Later, Judge Olsen gave a curative instruction. Olrun did not ask for such an instruction.
Olrun claims Judge Olsen's explanation violated his due process rights and his right to a trial by jury guaranteed by the United States and Alaska Constitutions. Olrun's argument on appeal is twofold. First, he claims that by using the words "reporting a sexual assault" in his explanation to the jury, Judge Olsen impermissibly implied to the jury that the judge believed an assault had occurred. Olrun argues that Judge Olsen should have instead used the words "alleging a sexual assault." Second, Olrun claims that explaining this particular hearsay exception in detail encouraged the jury to accord the evidence more weight than other evidence. Olrun argues that by bringing attention to this evidence as an "exception," Judge Olsen made it seem more meritorious in the eyes of the jury.
Olrun is essentially arguing that a jury would have interpreted Judge Olsen's explanation as indicating the judge's belief that a sexual assault actually occurred. This does not appear to be a reasonable interpretation of Judge Olsen's remarks. The jury would have understood that the judge was simply referring to the fact that, according to the testimony, L.R.K. reported that she had been sexually assaulted. Furthermore, Judge Olsen later instructed the jury as follows: "When I allow testimony or other evidence to be introduced over the objection of an attorney, I am not indicating any opinion as to its weight or effect, but simply that the evidence is allowed." We find no error.
Judge Olsen did not err in admitting L.R.K.'s statements to Richards, Janet Van Norman, and her mother
We have previously discussed Richards's testimony. Richards testified that, on the day of the alleged assault, she saw L.R.K. and could tell that something was bothering L.R.K., so she asked L.R.K. what was wrong. L.R.K. pointed to her genital area. Richards did not question L.R.K. further. Olrun argues that Richards's testimony was inadmissible hearsay. But Richards only testified to her observations of L.R.K.'s behavior. Judge Olsen did not err in admitting Richards's observations. This was admissible as a first report, but it was only a partial first report.
Within an hour of seeing L.R.K., Richards called L.R.K.'s caseworker, Janet Van Norman. Van Norman, Richards, and L.R.K. met the following day. Van Norman testified that L.R.K. told her that Olrun touched her private parts, that he was on top of her, that her pants and panties were off, and that it hurt. In response to whether L.R.K. could say what caused the hurt, Van Norman stated that L.R.K. also said that she thought Olrun's "private part went into her." Judge Olsen could properly admit this testimony as L.R.K.'s first report of a sexual assault.
Greenway v. State, 626 P.2d 1060, 1060-61 (Alaska 1980); Nitz v. State, 720 P.2d 55, 62-63 (Alaska App. 1986).
L.R.K.'s mother testified that L.R.K. said Olrun told L.R.K. to go to his house and that "he undressed her and made sex with her." Even if admission of this testimony was error, any error would be harmless. L.R.K.'s mother's hearsay testimony was short and did not include any details of the offense. It did not include anything that L.R.K. had not testified to at trial. Judge Olsen did not commit plain error in allowing admission of L.R.K.'s statement about her virginity
Strumsky v. State, 69 P.3d 499, 506 (Alaska App. 2003); see Russell v. State, 934 P.2d 1335, 1344 (Alaska App. 1997) (holding that error in admitting hearsay was harmless because victim had "already testified to all of the details" contained in hearsay evidence).
The videotape of L.R.K.'s statement to Trooper Evan was admitted at trial over Olrun's objection. Olrun argued that during that interview, L.R.K. stated that she had not had sex prior to the alleged assault. Specifically, Trooper Evan asked her if she had ever had sex before. She responded, "No." Before the tape was played for the jury, Olrun argued that the tape should be redacted to exclude L.R.K.'s statements that were neither inconsistent nor consistent with L.R.K.'s trial testimony. But Olrun never specifically objected to the virginity statement.
After the videotape was played, Olrun's attorney argued outside the presence of the jury that L.R.K.'s statement about her virginity opened the door for him to present evidence of L.R.K.'s sexual history. He argued that he should be able to present evidence that L.R.K. was on birth control, and to question L.R.K.'s mother about L.R.K.'s sexual history. The prosecution stated that L.R.K.'s mother would testify that she had no reason to believe L.R.K. had any sexual experience. Olrun ultimately did not pursue the issue of L.R.K.'s past sexual history.
On appeal, Olrun argues that the court committed plain error by admitting L.R.K.'s statement about her virginity. He points out that the State made that statement "the centerpiece of its final argument."
To establish plain error, Olrun must show that the error was both obvious and prejudicial. Evidence that L.R.K. lacked any sexual experience before the alleged sexual assault was relevant to assessing the credibility of L.R.K.'s account, as the State argued to the jury. Furthermore, it appears that Olrun had a possible tactical reason for not objecting to or moving to strike L.R.K.'s statement that she was a virgin before the sexual assault. After this evidence was admitted, Olrun argued to the court that the statement made L.R.K.'s sexual history relevant. From the record, it appears that he abandoned delving into L.R.K.'s sexual history upon discovering that this would not be a fruitful inquiry. In his brief, Olrun appears to concede that he recognized he could move to strike the statement, but chose not to do so. Olrun has not established plain error.
See Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).
Judge Olsen did not commit plain error in admitting the testimony of Van Norman
Janet Van Norman was an in-home caregiver. She was employed by the Yukon Kuskokwim Health Consortium as a life skills coach for L.R.K. Van Norman had a master's degree in psychology, was licensed as a teacher with a special education endorsement, and had extensive classroom teaching experience. She had known L.R.K. since she was in eighth grade. (L.R.K. was twenty-three years old at the time of trial.) In either 2002 or 2003, Van Norman was hired to be L.R.K.'s vocational counselor as well as her life skills coach. For almost a year, she worked with L.R.K. approximately thirty hours per week. Later, she worked with L.R.K. around eleven hours per week. Van Norman testified about how she taught L.R.K. basic life skills. She also testified about L.R.K.'s inability to understand complex questions and said that L.R.K.'s ability to understand was similar to that of a five-or six-year-old.
On cross-examination, Olrun asked Van Norman, "Based on your communication with [L.R.K.] over the years, have you noticed that sometimes her communication is prone to exaggeration?" Van Norman replied, "I've noticed that a lot less since — I'm — I don't even know if it's fair to say sometimes. One problem [L.R.K.] has had all along as a learning deficit is that she was not capable of imagining things very much. Something was either happening right now or she. . . ." Olrun immediately objected to Van Norman's answer as non-responsive. Judge Olsen found that "the witness is explaining [L.R.K.'s] inability or ability to exaggerate so she's answering your question. You can continue." Judge Olsen then made sure the witness understood to specifically answer the question. Van Norman then stated that L.R.K. sometimes exaggerates.
In her closing statement, the prosecutor stated:
[I]t takes a very sophisticated person, not a six-year-old to tell a lie like this and it takes someone who has some knowledge beforehand and [L.R.K.'s] not that person.
Janet Van Norman didn't say she lacks imagination, she said she has no imagination and that was displayed to you when [Olrun's attorney] asked her do you ever play make believe. She didn't even understand the question. She doesn't understand what it is to pretend. How on earth else would she know that a penis is hard and a penis is big and it hurts when it goes inside you? How on earth else would she know that? She has no imagination and let's talk about this supposed lying.
On appeal, Olrun argues that Van Norman's testimony about L.R.K.'s lack of ability to imagine amounted to impermissible lay testimony. He claims that this testimony, combined with the prosecutor's closing statements, constituted plain error requiring the reversal of his convictions.
Alaska Evidence Rule 701 allows the admission of lay witness opinion testimony, but it limits this testimony to "opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue."
The record shows that Judge Olsen did not commit plain error in allowing Van Norman's testimony under Rule 701. Van Norman testified to her extensive experience interacting closely with L.R.K. She was in a position to observe and give an opinion about L.R.K.'s cognitive abilities. And Judge Olsen could determine that Van Norman's observations would be helpful to the jury in evaluating L.R.K.'s testimony.
Judge Olsen did not err in denying Olrun's motion for judgment of acquittal
Olrun argues that there was insufficient evidence to support his convictions for sexual assault in the first degree because there was insufficient evidence that he penetrated L.R.K. without consent. In reviewing whether there was sufficient evidence to support a jury's guilty verdict, we view the evidence in the light most favorable to upholding the verdict. We are to uphold the verdict if reasonable jurors could find the defendant's guilt beyond a reasonable doubt.
Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003) (citing Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994)).
Pinkerton v. State, 784 P.2d 671, 677 (Alaska App. 1989).
L.R.K. testified that during the incident she yelled and told Olrun to "stop it." But Olrun continued to assault her. From her testimony, the jury could have inferred that she was frightened at the time of the assault and felt like she was powerless to stop Olrun. This testimony, particularly when coupled with the evidence of L.R.K.'s limited mental abilities, supports the jury's verdict. Judge Olsen properly revoked Olrun's probation
See Ritter v. State, 97 P.3d 73, 77 (Alaska App. 2004).
Olrun argues that Judge Olsen erred in revoking his probation on his 2001 convictions for sexual abuse of a minor. But Olrun's argument is based on a contention that his current convictions for sexual assault in the first degree must be reversed. Since we have upheld those convictions, we reject Olrun's argument.
Olrun's sentence is not excessive
Olrun was convicted of two counts of sexual assault in the first degree. At the time of Olrun's offenses, the maximum sentence for sexual assault in the first degree was 40 years, and Olrun was subject to a presumptive term of 30 years of imprisonment as a third-felony offender. Olrun had two previous convictions for sexual abuse of a minor in the third degree and one prior conviction for sexual assault in the second degree. He had twenty-two prior misdemeanor convictions. Olrun was subject to several aggravating factors based upon his extensive criminal record and the fact that he was on felony probation when he committed his current offenses. (Olrun had been released from jail about a month before he committed the assault.)
Former AS 12.55.125(i).
Judge Olsen imposed concurrent sentences of 40 years of imprisonment for each count of sexual assault in the first degree. In addition, he revoked the 6 years of imprisonment which had previously been suspended on Olrun's prior convictions for sexual abuse of a minor in the third degree. Therefore, Olrun's composite sentence was 46 years of imprisonment.
Olrun contends that Judge Olsen erred in rejecting Olrun's proposed mitigating factor that his conduct was among the least serious conduct included in the definition of the offense. He argues that there was no evidence that he used a weapon or used threats. Judge Olsen rejected the mitigating factor, finding that Olrun coerced L.R.K., who had a limited capacity to resist. He found that Olrun had failed to establish the mitigating factor by clear and convincing evidence. We affirm this finding.
AS 12.55.155(d)(9).
Judge Olsen found that Olrun was a worst offender. He concluded that, although Olrun's current offenses were not among the most serious conduct included in the definition of the offense, Olrun's prior criminal history justified the worst offender finding. Judge Olsen considered the fact that Olrun had three prior felony convictions for sexual offenses, that he had offended within weeks of his release from jail on his prior sexual offenses, and that Olrun had taken advantage of a mentally handicapped person. He concluded that all of these things reflected poorly on Olrun's prospects for rehabilitation. Judge Olsen's findings and his sentence are supported by the record. We conclude that the sentence is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding a trial court's sentence is reviewed under the clearly mistaken standard).
The judgment of the superior court is AFFIRMED.