Opinion
A-13166 7062
06-14-2023
NACE MAX PAUL, Appellant, v. STATE OF ALASKA, Appellee.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Bethel, Dwayne W. McConnell, Judge Trial Court No. 4BE-16-00414 CR.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
ALLARD, JUDGE
Following a jury trial, Nace Max Paul was convicted of first-degree burglary and second-degree sexual assault for unlawfully entering the home of Kayleen Mesak and then engaging in sexual contact with Mesak's adult daughter, J.M., without J.M.'s consent. Paul's defense at trial was that he and Kayleen Mesak were close, and were "getting kind of cozy" and that, as a result, he reasonably believed that he had the right to enter Mesak's house. Paul also claimed that, after entering the house, he mistook J.M. for Mesak - because the two women are similar in appearance.
AS 11.46.300(a)(1) and former AS 11.41.420(a)(1) (2016), respectively.
On appeal, Paul argues that the superior court erred when it excluded phone records establishing that he and Mesak had exchanged over 500 text messages in the week leading up to the incident. Paul sought to admit this testimony after Mesak testified that she only texted Paul perhaps four times on the evening in question and not at all in the preceding week. The superior court ruled that the phone records constituted extrinsic evidence on a collateral issue and were therefore inadmissible.
For the reasons explained in this decision, we agree with Paul that this ruling was error. We conclude that this error was harmless with respect to Paul's conviction for sexual assault, but not harmless with respect to his conviction for burglary. We therefore reverse Paul's conviction for burglary and remand either for resentencing or, if the State elects, for a new trial on the burglary charge. Paul also argues, and the State concedes, that there is an error in his written judgment regarding his eligibility for discretionary parole. We therefore also remand for correction of the written judgment.
We note that Paul challenges the aggravated sentence he received for the burglary conviction. Because we are reversing the burglary conviction, this argument is moot.
Factual and procedural background
In the early morning of June 30, 2016, Kayleen Mesak, her nephew, Zach, and her daughter, Danae, left their house in Kipnuk to go drink alcohol at the family's steam house, which was detached from the main house. Two of Mesak's other adult daughters, Kiera and J.M., remained in the house, asleep in the same room and unaware that the other three had left the house. J.M.'s three-year-old daughter was also asleep in the room, right by her mother. Mesak's husband (who is J.M.'s father) was out of town.
When Mesak, Zach, and Danae got to the steam house, Paul was already there, and he had a bottle of whiskey. Mesak would later testify that, although she had invited Paul to join them in the steam house that night, he was not someone who visited their home regularly or who had general permission to be inside the home. Mesak also testified that, after they were finished drinking, she, Zach, and Danae left the steam house to take a walk (without Paul).
Later that morning, at around 4:00 to 5:00 a.m., J.M. was awakened by someone removing her pants. According to J.M., she felt someone touching her buttocks and at first she thought that the person was her boyfriend. J.M. could feel the man's erect penis pressed between her vagina and her anus. After about five to ten minutes, the man tried to kiss her cheek, and J.M. realized that the man was not her boyfriend. Upon this realization, J.M. began screaming and hitting him. This woke her sister, Kiera, who was sleeping in the same room on another bed. Kiera got out of bed and turned on the light, and J.M. recognized the man as Paul.
J.M. left the room to go find her mother, who she discovered was not in the house. Meanwhile, Paul pulled on his pants and fled, leaving his jacket in the bedroom and his shoes in the front entryway. As Paul was leaving the house, J.M. hit him with a boot, pushed him, and threw a slop bucket at him.
J.M. then called the tribal police. Approximately ten or fifteen minutes later, and before the police arrived, Mesak returned to the house, accompanied by Danae and Zach. J.M. told them what had happened, and Mesak became enraged. Mesak called the tribal police, telling them that she was going to look for Paul and "didn't know what would happen." She then left the house and walked to Paul's house where she and Zach (who had followed her) confronted Paul.
Both the tribal police and the Alaska State Troopers investigated the incident, and Paul was arrested a few days later. A grand jury indicted Paul for attempted first-degree sexual assault (attempted penetration without consent), attempted second-degree sexual assault (attempted penetration with an incapacitated victim), second-degree sexual assault (sexual contact without consent), and first-degree burglary (unlawfully entering a dwelling with the intent to commit sexual assault). The matter proceeded to a jury trial.
Former AS 11.41.410(a)(1) (2016) & AS 11.31.100; former AS 11.41.420(a)(3) (2016) & AS 11.31.100; former AS 11.41.420(a)(1) (2016); and AS 11.46.300(a)(1), respectively. Paul was also charged with third-degree assault based on the altercation that took place after he was confronted by Mesak and Zach. AS 11.41.220(a)(1)(A). The jury acquitted Paul of this offense.
Paul's defense was that Mesak had invited him to come over to drink with her and later to have sex with her, and that when he went inside her house, he got into bed with J.M. thinking she was Mesak. In keeping with this defense, Paul's defense attorney introduced two themes during his cross-examination of the State's witnesses - that Mesak was trying to keep her relationship with Paul secret from her husband (who was out of town at the time of the offense) and that Mesak and Paul in fact had a close relationship with one another.
J.M. was the first witness to testify at the trial. She testified that Paul had not been invited into the house at the time he sexually assaulted her. J.M. testified that Paul and her mother did not spend time together, and that Paul would not have come over to their house in order to meet her mother. She agreed with the defense attorney that her father would not be happy if her mother were to be spending time with Paul while he (her father) was out of town.
J.M.'s sister, Kiera, similarly testified that Paul was her parents' friend but he did not ever come over to the house. She had never seen him spend time with her mother. It was her understanding that Paul had not been invited into the house and had no reason to be there.
In contrast, Zach and Mesak both testified that they had been drinking whiskey with Paul inside the Mesak's steam house before the incident with J.M. They drank with Paul for about thirty minutes and then left to go for a walk, leaving Paul behind in the steam house. When they returned thirty to forty-five minutes later, they learned that Paul had entered the house and gotten into bed with J.M. After this, Zach and Mesak went looking for Paul.
When Mesak testified, she asserted during direct examination that the first time Paul had been to her house was when he came over to drink in the steam house on the morning of the incident with J.M. Mesak claimed that Paul did not have permission to enter the house if no one was home. However, when the prosecutor asked her whether something happened shortly before she met up with Paul in the steam house, Mesak responded that Paul knew that she was "pissed off" at her husband. And she later stated that she could tell that Paul had been drinking before she, Zach, and Danae got to the steam house because, although Paul is usually a shy person, that night he was very outgoing.
Mesak testified that she became "super-human pissed" when J.M. told her what had happened with Paul and that, in response to learning about the incident, she left her house and went to find Paul. Zach followed her to Paul's house, where they got into a fight with him.
During cross-examination, defense counsel asked Mesak whether she and Paul had a relationship such that they "text a lot or hang out a lot." Mesak denied this. Mesak also denied having an intimate or romantic relationship with Paul. But she admitted that she had texted Paul about meeting in the steam house to drink together on the night of the incident with J.M. In response to further questioning, she stated that she texted Paul perhaps four times that night and not at all in the preceding week.
Mesak also testified that her husband would not want her meeting up with Paul or having any other type of relationship with him. Mesak conceded that J.M. and Kiera did not know that she had been in the steam house with Paul that night and that they similarly did not know that she had been texting with Paul.
During redirect examination, the prosecutor asked Mesak, "Is it possible there could be more texts between you and Nace [Paul] than the ones you're talking about today? Is that a possibility that phone records would show that?" In response, Mesak claimed that she could not remember texting with Paul at any time since the previous year.
Mesak testified that after the incident with Paul, a tribal police officer, and then an Alaska State Trooper, contacted her as part of their investigation. She admitted that she did not tell the police officer or the trooper that she had seen Paul that night or that she had been drinking with him in the steam house. It was not until a week later, when the trooper interviewed her a second time and asked her directly whether she and Paul had been drinking together, that she admitted to being with Paul prior to the incident with J.M.
After the State rested, Paul's defense attorney sought to call a witness who would authenticate phone company records showing the number of text messages exchanged between Paul and Mesak. The prosecutor objected to this testimony on the grounds that it would constitute extrinsic evidence on a collateral matter, which is generally inadmissible.
See Worthy v. State, 999 P.2d 771, 774 (Alaska 2000).
The court conducted a hearing to determine whether to allow the witness to testify. At the hearing, the undisputed offer of proof established that the telephone records would show that Paul and Mesak exchanged over 500 text messages (253 texts from Mesak to Paul and 257 texts from Paul to Mesak) during the week preceding the offense, and that Mesak sent Paul fifty text messages on the night of the offense alone. The records also would show that Mesak texted Paul at 4:44 a.m., just a few minutes before J.M. called the police.
The superior court recognized that the proffered evidence "catches [Mesak] in an untruth" regarding the number of text messages she exchanged with Paul. But the court found that, because it did not know the substance of the text messages, it had no firm basis to find the records relevant. The court held that evidence regarding the timing and number of the text messages would merely impeach Mesak's testimony regarding a collateral matter, and the court sustained the State's objection. The defense ultimately did not call any witnesses.
On appeal, the State does not challenge the superior court's finding that Mesak's testimony about the number of text messages was false.
During closing arguments, the defense attorney moved for a mistrial, arguing that the case against Paul depended on the State's argument that Mesak and Paul did not have a relationship and that Paul had no right to be at the residence. The defense attorney argued that a mistrial was necessary because Paul had been denied the opportunity to introduce evidence that would call Mesak's credibility into question and establish a "clear and ongoing relationship" between Mesak and Paul, whether "sexual" or "platonic." The court denied the motion.
Paul was acquitted of both counts of attempted sexual assault. But he was convicted of second-degree sexual assault (for engaging in sexual contact with J.M. without her consent) and first-degree burglary (for unlawfully entering the Mesak home with the intent of committing sexual assault in the home). This appeal followed.
Why we reverse Paul's conviction for burglary
As we have explained above, the superior court excluded the phone records establishing the number of text messages exchanged between Paul and Mesak in the week preceding the incident on the grounds they were inadmissible extrinsic evidence on a collateral matter. This ruling was erroneous.
In general, "a party is not allowed to introduce extrinsic evidence to impeach a witness's answers . . . regarding collateral matters." Instead, "[i]f a matter is considered collateral, the testimony of the witness on direct or cross-examination stands - the examiner must take the witness's answer." Although there is "no clear, bright-line demarcation between collateral and non-collateral matters," the Alaska Supreme Court explained in its seminal case on the topic, Davenport v. State, that there are at least three kinds of facts that are not collateral.
Morgan v. State, 54 P.3d 332, 335 (Alaska App. 2002) (citing Worthy, 999 P.2d at 774). We note that in Morgan, we suggested that this rule holds that "a party is not allowed to introduce extrinsic evidence to impeach a witness's answers on cross-examination regarding collateral matters." Id. (emphasis added). This is a slight inaccuracy. Although "[m]any courts hold that collateral matters brought out on direct examination are subject to contradiction," our supreme court has held that "the better rule is that evidence which is offered to contradict a collateral matter is inadmissible, whether or not the matter was brought out on direct." Shane v. Rhines, 672 P.2d 895, 898 n.2 (Alaska 1983).
Worthy, 999 P.2d at 774.
Id.
The first kind of facts are those "which would be independently provable," which is to say, those facts that are already "relevant to the issues of the case." The second category includes facts that are "independently provable to impeach or disqualify the witness, whether or not introduced to contradict [them]." In other words, these first two categories simply describe evidence that was already admissible before the witness provided contrary testimony.
Davenport v. State, 519 P.2d 452, 454-55 (Alaska 1974).
Id. at 455.
The third category of facts is somewhat more complicated. It involves situations where a witness has testified to a seemingly trivial (i.e., arguably collateral) detail about an event crucial to the case, but where the detail, if proven false, would cast serious doubt upon the entirety of the witness's story. Here is how our supreme court described this category of facts in Davenport:
Suppose a witness has told a story of a transaction crucial to the controversy. To prove him wrong in some trivial detail of time, place or circumstance is 'collateral.' But to prove untrue some fact recited by the witness that if he were really there and saw what he claims to have seen, he could not have been mistaken about, is a convincing kind of impeachment that the courts must make place for, although the contradiction evidence is otherwise inadmissible because it is collateral .... To disprove such a fact is to pull out the linchpin of the story. So we may recognize this third type of allowable contradiction, namely, the contradiction of any part of the witness's account of the background and circumstances of a material transaction, which as a matter of human
experience he would not have been mistaken about if his story were true.
Id.
We conclude that all three categories are at issue in this case. As an initial matter, we note that the sheer volume of text messages exchanged between Paul and Mesak had some independent relevance to Paul's defense. The volume of text messages tended to support, rather than undermine, his claim that he had a close relationship with Mesak such that he could reasonably believe that his entry into the house was not unlawful and his actions in the house would not have been unwelcome (but for his mistake in directing them at the wrong person). The overall probative value of this evidence was tempered, however, by the fact that Paul was offering only the number of text messages, rather than any of their contents.
See, e.g., Smith v. State, 118 S.W.3d 542, 551 (Ark. 2003) (determining that a high volume of electronic messages "reflected the parties' intimacy" and, thus, the number of messages "ha[d] relevance and significance without regard to their content"); United States v. Lucas, 932 F.2d 1210, 1218 (8th Cir. 1991) (upholding a ruling that a large number of calls to a common number was evidence that callers were linked in a conspiracy).
But once Mesak testified that she only texted Paul four times on the night in question, and not at all in the preceding week, the volume of text messages became significantly more relevant. This is the sort of fact that Mesak "would not have been mistaken about if [her] story were true." Much like in Davenport, the extrinsic evidence Paul sought to introduce (i.e., the phone records) tended to suggest "deliberate fabrication by [Mesak] pertaining to [a] focal issue of the trial." The phone records were therefore not collateral, but directly relevant to the issues in the case, and the superior court erred when it refused to allow Paul to introduce this evidence as part of his defense.
Davenport, 519 P.2d at 455.
Id.
Moreover, exclusion of this evidence was not harmless - at least with regards to the burglary conviction. To prove that Paul committed burglary, the State was required to prove, inter alia, that Paul entered Mesak's home knowing he was not privileged to do so. (This requirement is distinct from the requirement that the State prove that Paul entered the house with intent to commit a crime - that is, even if Paul entered the home intending to commit sexual assault, his conduct would not constitute a burglary if he had general permission to enter the home.)
See AS 11.46.300(a)(1); AS 11.46.310(a); AS 11.46.350(a).
Here, the State's case as to Paul's illegal entry turned almost entirely on whether the jury credited Mesak's testimony - specifically her testimony that she and Paul did not have a close relationship, and that he would not have been permitted to enter her home. Paul was wrongly denied the opportunity to establish that Mesak had lied under oath about facts that were critical to the nature of their relationship and which would have cast doubt upon large swaths of Mesak's testimony. With the phone records excluded, the prosecutor was able to argue that Paul and Mesak were not close, and there was little Paul could do to combat that seemingly false claim.
By contrast, the lawfulness of Paul's entry into the home -and the number of texts he exchanged with Mesak - was largely irrelevant to whether Paul committed sexual assault. To prove sexual assault, the prosecutor was required to establish that Paul recklessly disregarded J.M.'s lack of consent to his sexual touching. Paul's defense, in effect, was that he did not act recklessly because Mesak had invited him over for a sexual encounter and that he mistakenly entered the wrong room and got into bed with J.M.
See former AS 11.41.420(a)(1) (2016); Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983).
But neither the number nor the timing of the text messages directly supported this defense. Although the sheer number of text messages exchanged by Paul and Mesak gave rise to a reasonable inference that Mesak and Paul had a close relationship, there was nothing about the volume of text messages that would suggest that the relationship was sexual or romantic. Nor did the timing of the messages support Paul's defense because, having recently exchanged texts with Mesak, Paul would presumably know that Mesak was not at the house at the time he crawled into bed with J.M. Indeed, as the prosecutor argued, Paul's claim that he had some type of romantic or sexual relationship with Mesak was actually at odds with his defense of mistake. If Paul and Mesak were in an ongoing relationship, Paul would presumably have been aware of the layout of the house and would not have entered the wrong room, and he would have quickly realized that the person he was in bed with was not Mesak. Knowing that Paul had exchanged hundreds of text messages with Mesak would not have altered the underlying implausibility of his mistake defense. Accordingly, we conclude that exclusion of the phone records was harmless with regard to the sexual assault conviction.
Why we instruct the superior court to remove the restriction on Paul's eligibility for discretionary parole
Paul next challenges the portion of the written judgment that restricts his eligibility for discretionary parole. At Paul's sentencing, the superior court did not state that it would restrict Paul's eligibility for discretionary parole. However, the written judgment entered by the court nevertheless includes such a restriction.
"Where, as here, a conflict exists between an orally imposed sentence and a subsequently issued written judgment, it is well settled that the oral pronouncement of sentence must govern." The State accordingly concedes that the restriction on Paul's parole eligibility was improper.
Graybill v. State, 822 P.2d 1386, 1388 (Alaska App. 1991) (citing Burrell v. State, 626 P.2d 1087, 1089 (Alaska App. 1981)).
We have independently reviewed the record of the superior court proceedings, and we find the State's concession to be well-taken. Therefore, we will remand this matter to the superior court so that it may amend the written judgment to conform to its oral pronouncement of sentence, by deleting the restriction on Paul's discretionary parole eligibility.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
Conclusion
We REVERSE Paul's conviction for burglary but AFFIRM his conviction for second-degree sexual assault. We REMAND this matter to the superior court with instructions to delete the restriction on Paul's eligibility for discretionary parole from the written judgment.