Opinion
Court of Appeals No. A-10998 Trial Court No. 3AN-07-3126 CR No. 5987
11-27-2013
GEORGE D. SMITH, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan S. Bair, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
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. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge ALLARD.
George D. Smith was convicted of five counts of sexual abuse of a minor for sexually abusing B.G., his girlfriend's seven-year-old niece. On appeal, Smith argues that the superior court erred in permitting the State to elicit testimony that Smith had committed other sexual misconduct against B.G. Smith claims that this evidence may have led the jury to convict him based on his pattern of sexual abuse, rather than for the specific incidents charged in the indictment. He argues that the prejudice to his case was compounded when B.G. volunteered testimony about sexual abuse that the court had previously ruled was inadmissible. Lastly, he argues that the superior court erred in failing to strike an alleged juvenile adjudication from his presentence report after supplemental information indicated that the adjudication did not occur.
We conclude that the superior court's evidentiary rulings were not an abuse of discretion. We also conclude that Smith's constitutional right to a unanimous jury verdict on each count was adequately protected by the jury unanimity instruction that Smith requested and received. We therefore affirm Smith's convictions.
However, we agree with Smith that the superior court erred in failing to make findings about the disputed allegation in the presentence report. We therefore remand Smith's case to the superior court for further findings and, if appropriate, issuance of a new presentence report.
Background facts
In 2006, George Smith was living with his girlfriend and her nine-year-old daughter, E.S. Over the summer, Smith babysat E.S. and his girlfriend's sister's three children, including seven-year-old B.G.
That winter, B.G. told her mother that she did not want Smith to babysit her because he touched her privates. Her mother initially believed that B.G. was referring to accidental touching that occurred when Smith roughhoused with the children. She reported the touching to her sister, Smith's girlfriend, and they both confronted Smith, who agreed to stop roughhousing with the children.
B.G. later told her mother that Smith had helped her in the shower and helped her get dressed, and that he would lock the door to the bedroom and tickle her and play with her "pee pee." B.G. reported that Smith inserted two fingers into her vagina and said "oh, you're gooey." After hearing this more detailed account, B.G.'s mother told B.G.'s school counselor and called the police.
In her interview with the police at a child welfare center, B.G. stated that when Smith babysat her, he would take her into the main bedroom and "play[] with [her] pee pee." She stated that Smith would touch her inside her vagina with two fingers and say "you're all gooey right there." He would not listen to B.G.'s requests to stop. B.G. also stated that Smith touched her butt and that it felt like scissors and "two claws and nails digging in my butt." B.G. said that this happened "a lot," but not every time Smith watched her. She said these incidents took place in both E.S.'s bedroom and in the main bedroom. B.G. told the police officer that Smith had also touched E.S.
After hearing that Smith had also touched E.S., the officer picked up E.S. from her school and brought her to the child welfare center to interview her. E.S. told the officer that over the summer, Smith would help her shower, and then they would go into her room and Smith would blow on her stomach and tickle her. E.S. also said that Smith "accidentally touched me inappropriately ... on my boobs and on my vagina," once on her bed and once when he gave her a "fireman's carry." E.S. said that Smith did not put anything inside her. E.S. told the officer that she was scared she would get sent to a foster home again because Smith had told her he could get arrested, and that children he had touched inappropriately could get sent to foster care.
In a later interview with the prosecutor prior to trial, E.S. denied that any touching, even accidental touching, had occurred. And at trial, E.S. fully recanted her previous statements to the police and denied that Smith ever touched her inappropriately.
Prior proceedings
Smith was charged with seven counts of sexual abuse of a minor. Count I was for first-degree sexual abuse of a minor for digital penetration of B.G.'s vagina in the main bedroom. Count II was for first-degree sexual abuse of a minor for digital penetration of B.G.'s vagina in E.S.'s bedroom. Count III and IV represented two counts of first-degree sexual abuse of a minor for the incident where Smith digitally penetrated B.G.'s vagina in E.S.'s bedroom and then turned her over to digitally penetrate her anus. Count V was for second-degree sexual abuse of a minor for touching B.G.'s vagina in the shower. Counts VI and VII of the indictment charged Smith with second-degree sexual abuse of a minor for touching E.S.'s vagina.
The day before trial was set to begin, B.G. told the prosecutor about two other incidents of sexual abuse that had occurred within the same time frame — one in the living room and one in the kitchen. The prosecutor disclosed the information to defense counsel but indicated that the State did not intend to bring additional charges. Judge Philip R. Volland granted the defense a thirty-day continuance to investigate this new information.
Prior to the new trial date, both parties filed motions in limine regarding the two uncharged incidents and other allegations of uncharged conduct involving B.G.
The State argued that it should be allowed to introduce the evidence of uncharged conduct to establish the duration and frequency of Smith's sexual abuse, and to provide context to the specific incidents charged in the indictment. The State asserted that the evidence was relevant to show why B.G. might have difficulty differentiating in her testimony among the specific instances of abuse. The State also argued that it should be allowed to elicit specific details about the uncharged conduct to show Smith's plan, intent, and absence of mistake, and to rebut the claim that B.G. had fabricated the claims of abuse.
See Evidence R. 404(b)(1).
Smith argued that the evidence should be excluded as unfairly prejudicial. He argued that the living room and kitchen incidents B.G. had recently disclosed to the prosecutor were particularly prejudicial and could lead the jury to convict him based on evidence that had never been the subject of a grand jury indictment. Smith also requested a jury unanimity instruction under Covington v. State — though he argued that such an instruction would not be adequate to protect his rights if the State were allowed to introduce evidence of uncharged conduct.
703 P.2d 436 (Alaska App.1985), modified on reh'g, 711 P.2d 1183 (Alaska App.1985).
The superior court granted the State's motion to introduce testimony on the duration and frequency of Smith's sexual abuse. The judge found that Smith would not be unfairly prejudiced by this evidence if the jurors were instructed under Covington that they had to be unanimous as to the specific act of sexual abuse underlying each verdict. The court ruled that cautioning the jury might be insufficient to guard against the "high risk of prejudice" presented by the specific details of the living room and kitchen incidents, and that this evidence was therefore inadmissible unless the defense opened the door.
The judge also found that instructing the jury that it could consider the uncharged act evidence only for limited purposes would prevent unfair prejudice, but Smith's attorney ultimately declined such an instruction.
At trial, during the prosecutor's questioning, B.G. twice volunteered that Smith had touched her in the living room. The prosecutor requested a sidebar discussion to ask the court for direction. Judge Volland instructed the prosecutor to stay away from the uncharged incidents, but stated that if B.G. volunteered information on them again, the prosecutor could follow up in her questioning. In response to further questioning regarding the frequency of the sexual abuse, B.G. volunteered that Smith had once abused her in the kitchen.
The jury convicted Smith of the five counts of sexual abuse of a minor involving B.G. The superior court granted Smith's motion for judgment of acquittal with regards to Count VII (one of the counts involving E.S.) and declared a mistrial on Count VI (the other count involving E.S.) after the jury was unable to reach a verdict.
Smith appeals.
Why we conclude that the trial court's evidentiary rulings were not an abuse of discretion
Smith contends that the trial court abused its discretion in allowing the State to introduce evidence regarding the duration and frequency of the sexual abuse. He claims that this evidence was pure propensity evidence that was highly prejudicial, and that it encouraged the jury to convict him even if the State had not proved beyond a reasonable doubt the specific instances of sexual abuse that had been charged.
We disagree. In a prosecution for a crime involving sexual abuse of a minor, Evidence Rule 404(b)(2) allows evidence of other acts by the defendant toward the same child to be admitted, as long as the other acts are similar to the charged offense and took place within the ten years preceding the charged offense, and are not precluded by some other rule of evidence. The evidence establishing the duration and frequency of Smith's abuse of B.G. was admissible under this rule. Moreover, the evidence was also admissible under Evidence Rule 404(b), to establish Smith's intent, to rebut any claim of mistake or accident, and to explain why B.G. might have difficulty recalling specific acts of sexual abuse in her testimony.
We note that Evidence Rule 404(b)(3) has recently been modified to eliminate the 10 year limitation. See Chapter 43, SLA 2013 (S.B. 22), effective nunc pro tunc to July 1, 2013.
Smith is correct that evidence admissible under Evidence Rules 404(b)(1) and 404(b)(2) is still subject to the balancing test under Evidence Rule 403, and should be excluded if the probative value of the evidence is "outweighed by the danger that it will engender unfair prejudice, confuse the issues, or mislead the jury." Smith's primary claim of prejudice is that the jury may have convicted him based on his pattern of sexual abuse, rather than on the specific incidents for which he was charged and indicted. But the superior court properly guarded against this risk by instructing the jury on the requirements of jury unanimity under Covington. In addition, during closing argument the prosecutor reminded the jury that, although they heard many different descriptions of abuse, the jury had to be unanimous as to the specific instances the State proved beyond a reasonable doubt in order to convict the defendant.
See Bingaman v. State, 76 P.3d 398, 413 (Alaska App. 2003).
Smith also asserts that the prosecutor "added to the prejudice of the uncharged conduct" by eliciting testimony from B.G. about the living room and kitchen incidents after the trial court had ruled that this evidence was inadmissible. But as the trial court found, B.G.'s statements about those incidents were volunteered by B.G., and not directly solicited by the prosecutor. Moreover, Smith acquiesced in the superior court's handling of this testimony, and did not request a ruling on his motion for mistrial or otherwise seek any additional curative instructions.
We find no abuse of discretion in the superior court's rulings on the evidence establishing the duration and frequency of Smith's sexual abuse. We likewise find no plain error in the admission of B.G.'s unexpected testimony about the kitchen and living room incidents.
Why we agree that a remand is necessary to correct Smith's presentence report
The criminal history section of Smith's presentence report states that Smith was adjudicated a juvenile delinquent for, among other offenses, sexual abuse of a minor. This allegation was apparently based on police reports and intake forms, because Smith's juvenile record had been destroyed. Smith's attorney argued that the information that he had been adjudicated for sexual abuse of a minor was inaccurate and should be deleted from the presentence report.
See Cragg v. State, 957 P.2d 1365, 1367 (Alaska App. 1998) (allegations of past misconduct must be verified to be included in presentence report).
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At the first sentencing hearing, Smith took the stand and denied the adjudications. The presentence report author then submitted an addendum to the presentence report, which indicated that the charge of sexual abuse of a minor had been dropped as part of a plea agreement.
At the second sentencing hearing, Smith renewed his request for the court to strike the alleged sexual abuse of a minor adjudication from his presentence report, pointing to the information that he had not been adjudicated for that offense. The superior court stated that it had earlier assumed the adjudication was true, but that "if what [the defense] points out is correct, and there is a statement that that [charge] was dropped as part of a plea agreement, if in fact that's the case, then I stand corrected." The court explained, however, that its sentencing decisions would not be any different even if Smith had never been adjudicated delinquent for this offense because it was the sexual nature of his past conduct, rather than the actual adjudications, that concerned him. The court took no other action on Smith's request.
We agree with Smith that this was error. Under Alaska Criminal Rule 32.1(f)(5), the court was required to make findings regarding whether the disputed allegation was true, untrue, or irrelevant. If the court found the allegation to be untrue or irrelevant, the court was then required under Rule 32.1(f)(5) to strike the allegation and issue a corrected version of the presentence report.
Conclusion
The superior court's judgment is AFFIRMED. The case is REMANDED to the superior court to resolve whether the disputed allegation regarding the juvenile adjudication for sexual abuse of a minor is true, untrue, or irrelevant. If the disputed allegation is found not true or irrelevant to the sentencing decision, the statement shall be struck from the presentence report and the superior court shall issue a corrected copy of the presentence report under the requirements set forth in Criminal Rule 32.1(f)(5).