Opinion
Court of Appeals No. A-10092.
June 16, 2010.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge, Trial Court No. 3DI-07-103 CR.
Alexandra Foote-Jones, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Christian Kenny Tugatuk was convicted of five counts of sexual abuse of a minor in the second degree. The charges involved abuse of Tugatuk's three nieces, A.C., D.C., and E.T. Tugatuk's brother, David, was also charged with abusing the same girls in a separate case.
AS 11.41.436(a)(2).
A.C. first reported the abuse to her adult cousin, Bertha Paul. Paul contacted Alaska State Trooper John Bump, who flew from Dillingham to the family fish camp in Igushik. After brief interviews, Trooper Bump arranged for the girls to be transported to Dillingham for formal interviews. Trooper Bump conducted audiotape and videotape interviews of each of the girls at the Child Advocacy Center. During the interviews, the girls told the trooper about Tugatuk's abuse, and also about abuse committed by his brother, David.
All three of the girls testified at trial, and the State played the audio recordings of their interviews during Trooper Bump's testimony. All three girls testified that Tugatuk had touched them in the vaginal area on various occasions.
Following jury selection, Tugatuk objected to the admission of the portion of the interview recordings which related to his brother David. Tugatuk argued that the jury might unfairly perceive Tugatuk as a member of a family of sexual predators.
Superior Court Judge Fred Torissi conducted a hearing on Tugatuk's objection outside the presence of the jury. After playing the recordings, the State agreed to redact a portion of D.C.'s interview discussing David, and to stop the recording of A.C.'s interview just before A.C. mentioned David's name.
It was more difficult for the parties to reach an agreement regarding E.T.'s interview. E.T.'s interview intermingled her reports of David's abuse and Tugatuk's abuse. Judge Torrisi decided that the references to David could not be redacted from E.T.'s interview. He concluded that the prejudice to the defendant would be minimal and ruled that the interview would be admissible. The judge offered to give a cautionary instruction, but Tugatuk declined. The News Report
On the morning after the hearing, Tugatuk's attorney announced that there had been an early morning radio report, which "broadcast the statement that yesterday afternoon there was a motion hearing to keep the jury from seeing tapes that discuss Mr. Tugatuk's brother, David . . . in connection to this trial." Tugatuk moved for a mistrial and asked the judge to individually voir dire the jury as to whether or not they heard the morning news.
Judge Torrisi questioned all thirteen jurors individually. Ten jurors either did not hear the report or turned it off as soon as it started. Three of the jurors had listened to the report, but all three answered that they could put aside the information. Judge Torrisi denied the motion for a mistrial, noting that it was not apparent that the information in the news report would be prejudicial. He stated that the three jurors who had heard the report were three of the more "mature" members of the jury panel and that none of them indicated any difficulty in setting it aside.
Tugatuk now argues that the judge did not effectively voir dire the jurors and that the publicity compromised the fairness of his trial. We review a trial court's decision on a mistrial request for an abuse of discretion. When publicity occurs while a trial is in progress, the trial court must first determine whether there is a substantial reason to fear prejudice; the judge should ask the jury whether anyone has been exposed to the publicity; and the court should conduct any further examination of individual jurors outside the presence of the other jurors to ensure that the fairness of the trial has not been compromised.
See Hewitt v. State, 188 P.3d 697, 699 (Alaska App. 2008).
Brown v. State, 601 P.2d 221, 232 (Alaska 1979) (explaining that the court does not have an independent duty to carry out a detailed examination following a jury's exposure to publicity, particularly where defense counsel has the opportunity to inquire).
Tugatuk argues that Judge Torrisi failed to adequately question the jurors as to what material they remembered from the broadcast, and failed to ask any questions about how the broadcast might have subjectively influenced their view of the case. But in the trial court, Tugatuk never claimed that the voir dire was insufficient, nor did he challenge the jurors' answers or ask for additional inquiry.
See Soundara v. State, 107 P.3d 290, 296 (Alaska App. 2005) (holding that an attorney who fails to ask sufficient questions to elicit all desired information from prospective jurors cannot complain about later revealed information); Saddler v. State, Memorandum Opinion and Judgment No. 5456 (Alaska App., Mar. 25, 2009), 2009 WL 793739, at *3-4 (explaining that defendant waives a claim concerning midtrial voir dire if he fails to make a contemporaneous suggestion that the judge's voir dire was insufficient).
Nonetheless, we conclude that Judge Torrisi conducted an appropriate and sufficient inquiry of the jury. Judge Torrisi had personally listened to the news report, and so he knew what it contained. He asked the three jurors who had heard the broadcast if they could put the information aside, and all three indicated that they could.
Judge Torrisi found that there was no substantial prejudice from the news report, and the record supports this finding. When Tugatuk asked for a mistrial, he merely noted that the news report had conveyed that there was a motion hearing to keep the jury from seeing tapes that discussed David. There was no obvious prejudice from this report because the jury heard numerous other references to the allegations against David during Tugatuk's trial.
Judge Torrisi also took steps to minimize any possible prejudice. He instructed the jurors that they were to put aside anything they heard in the broadcast, and he also issued a standard instruction to the jury that it was to render its decision based only on the evidence admitted at trial. We therefore conclude that Judge Torrisi did not abuse his discretion when he denied Tugatuk's motion for a mistrial based on the news report.
The References to Tugatuk's Brother, David
As noted above, Judge Torrisi overuled Tugatuk's objection to the introduction of E.T's interview. The State promised to redact portions of the interviews of D.C. and A.C. so that they would not mention David. However, when the State played the interview recording of A.C., the prosecutor failed to stop the tape in time to avoid a mention of David.
The pertinent portion of the interview contains A.C.'s description about how Tugatuk touched her on the inside and the outside of her pants. The trooper then asks, "Has anybody else ever done that to you?" A.C. responds, "David."
Tugatuk's attorney noted the prosecutor's mistake for the record. She also objected to the way that the State had presented the E.T. interview earlier that day. She stated that the State had promised to play only a short portion of the videotape interview of E.T. to set the stage for the audio interview. In response, the prosecutor noted that the court had clearly admitted the audiotape portion of the E.T. interview, which mentioned David's name throughout.
Judge Torrisi clarified that he had also believed that the State was only going to play a short portion of the videotape of the E.T. interview. But he noted that the mistaken references to David had not been made in bad faith.
Tugatuk moved for a mistrial on the following day based on these occasions when David's name had been inadvertently brought into the trial. In response, the prosecutor noted that Tugatuk had several times referred to David by name and referred to him as the victims' uncle. The court summarily denied the motion for a mistrial.
Tugatuk renews his arguments on appeal, contending that the court abused its discretion when it denied his motion for a mistrial. We will reverse the trial judge's ruling only if we are left with a definite and firm conviction that the court committed an error. Here, all of the unauthorized references to David were brief and inadvertent. And as Judge Torrisi noted in ruling on the news report, it is not at all obvious that any of these references were prejudicial to Tugatuk's defense. None of the references to David suggested that the brothers had acted together, or implied that they were members of a family of sexual predators. We conclude that Judge Torrisi did not abuse his discretion when he denied the motion for a mistrial based on references to Tugatuk's brother.
Hewitt, 188 P.3d at 699.
Tugatuk also argues that the judgment should be reversed for cumulative error based on the news report and the references to David during Tugatuk's trial. But we conclude that the unauthorized references to David were isolated, inadvertent, and insufficient to undermine the fairness of the trial.
Tugatuk's Prior Misconduct
Prior to trial, the State filed a notice that it intended to offer testimony that Tugatuk had sexually abused J.Y., who was D.C.'s and A.C.'s sister. J.Y. testified in an offer of proof that Tugatuk had sexually abused her by touching her both inside and outside of her clothing on her vaginal area from the time she was in preschool or kindergarten to around the time when she was sixteen or seventeen in 2000 or 2001. She reported the abuse to her mother, but it was never investigated, and Tugatuk was never charged.
Judge Torrisi admitted J.Y.'s testimony based on Alaska Evidence Rules 404(b)(1) and 404(b)(2). He concluded that the evidence was relevant to the issues of Tugatuk's intent and motive. He found that the incidents were not too remote, that they were within the ten years before the current charges arose or just slightly beyond that period. He found that J.Y. and the three alleged victims were all very small in stature and members of Tugatuk's extended family, that they were all touched in the same way, inside and outside their clothing at the fish camp in Igushik, and at their homes in Aleknagik and Manokotak.
The judge found that J.Y.'s testimony was "quite probative" to show that the defendant was attracted to prepubescent girls. The judge found that the testimony would not distract the jury from the main issues in the case. He found that the evidence was not unfairly prejudicial because it was similar to the evidence presented by the other victims and was presented by an adult who had a greater ability to describe the types of sexual misconduct.
The judge placed limitations on his ruling to protect Tugatuk. He ruled that J.Y. could testify only concerning acts that were not too remote, and only about abuse that occurred when she was the same age as the alleged victims, that is, about nine to twelve years of age. He ruled that the State could not argue that the evidence showed that Tugatuk had a general propensity to commit this crime, but only that he was attracted to his female relatives of that age, and that he took advantage of them in remote locations. When the State tried to present evidence of other types of sexual abuse, the judge limited J.Y.'s testimony to incidents when Tugatuk touched her in the vaginal area, the same type of abuse that was described by the alleged victims in this case.
In addition, after J.Y. testified, the judge instructed the jury to limit its consideration of her testimony:
It's up for you to determine whether or not [J.Y.'s abuse] happened, and if so, you may consider it along with all the other evidence in this case for its value in understanding what if anything happened in this case. But evidence of earlier acts standing alone is never sufficient to justify a conviction. You can't use the evidence to decide that the defendant is a bad person or one who deserves to be punished. . . . The State still has to prove beyond a reasonable doubt that the defendant committed the crimes charged in this case.
On appeal, the State argues that J.Y.'s testimony was admissible under Evidence Rule 404(b)(2). Tugatuk argues that this evidence was not admissible under the rule because it was not similar to the offenses charged in this case. He argues that the abuse detailed by J.Y. was far more extensive than the abuse alleged by the three victims because when J.Y. testified outside of the jury's presence she said that she was abused repeatedly from the time that she was in preschool until she was sixteen or seventeen years old. But the fact that the prosecution's offer of proof included more extensive abuse than the alleged victims experienced does not show that the admitted testimony was dissimilar.
A. R. E. 404(b)(2) provides:
In a prosecution for a crime involving a physical or sexual assault or abuse of a minor, evidence of other acts by the defendant toward the same or another child is admissible if admission of the evidence is not precluded by another rule of evidence and if the prior offenses (i) occurred within the 10 years preceding the date of the offense charged; (ii) are similar to the offense charged; and (iii) were committed upon persons similar to the prosecuting witness.
In Soper v. State, we extended an exception to Rule 404(b)(1) for "lewd disposition" to cover the testimony of the alleged victim's sisters who were abused under substantially similar circumstances at roughly the same age as the complaining witnesses. In that case, the prosecution's witnesses each testified to a continued pattern of sexual abuse taking place over a substantial period of time, and each victim was abused at approximately the same age, under similar circumstances.
731 P.2d 587, 590 (Alaska App. 1987).
Id.
Similar considerations support the admission of J.Y.'s testimony in this case. Judge Torrisi took care to limit J.Y.'s testimony to abuse that was similar to the testimony of the alleged victims. He required the prosecution to ask J.Y. about incidents that occurred when she was nine to twelve years old, the same age as the alleged victims. And he limited the testimony to vaginal touching inside and outside of the clothing, testimony that was similar to the testimony of the alleged victims.
In other respects, the testimony of J.Y. involved circumstances that were very similar to the charges that Tugatuk faced. J.Y. was Tugatuk's niece, and A.C.'s and D.C.'s older sister. She was abused at approximately the same ages as her sisters, and in similar locations. W e conclude that this evidence w as admissible under Evidence Rule 404(b)(2) with the limitations imposed by the trial court.
Tugatuk also argues that J.Y.'s testimony should have been excluded under Evidence Rule 403. He argues that this evidence was prejudicial because it was more extensive than the abuse as charged. But we conclude that this objection was adequately addressed by Judge Torrisi's orders limiting J.Y.'s testimony to the time period when J.Y. was the same age as the alleged victims, and limiting the type of sexual abuse she described to the abuse that the alleged victims had described.
Tugatuk also argues that the testimony of J.Y. was unduly prejudicial because it was more credible than the testimony of the alleged victims. But the fact that J.Y.'s testimony was believable and consistent with the testimony of the alleged victims is a factor which supports the judge's decision to admit this evidence. We conclude that Judge Torrisi did not abuse his discretion when he admitted J.Y.'s testimony. The Prior Conviction of a Witness
See Bingaman v. State, 76 P.3d 398, 415 (Alaska App. 2003) (explaining that when considering other misconduct evidence under Rule 404(b)(4) the judge must consider the strength of the State's evidence that the defendant actually committed the other acts).
The State also argues that J.Y.'s testimony was admissible under Rules 404(b)(1) and 404(b)(4), but we do not need to consider these alternate arguments because we find the testimony was admissible under rule 404(b)(2).
The State called Bertha Paul as a witness to testify about A.C.'s first report of Tugatuk's abuse. Paul testified that while they were at fish camp, A.C. showed her how Tugatuk had been abusing her. Paul radioed the troopers who came to Igushik to investigate.
Tugatuk made a request to cross-examine Paul concerning her prior conviction of sexual abuse of a minor in the second degree. Tugatuk represented that Paul had molested a ten-year-old boy, who was a foster child in her care. Tugatuk argued that this conviction showed that Paul had a motive and an opportunity to "feed the children information or to plant in the children's mind this type of allegations." Judge Torrisi denied Tugatuk's request, but he offered to reconsider the matter if it became more relevant during Paul's testimony.
Tugatuk renews this argument in his appeal. But he fails to show how Paul's conviction gave her a motive to influence the girls to make a false report. He likewise fails to show how her conviction established that Paul had any special opportunity to influence the children's testimony. (A person does not have to be convicted of sexual abuse of a minor to understand the acts that constitute this offense.) Despite the court's ruling, Tugatuk had a full opportunity to cross-examine Paul concerning the possibility that her questions, her statements, or her reactions might have influenced the girls' statements.
Tugatuk also argues that Paul's conviction was relevant to her credibility. But a conviction of sexual abuse is not a conviction involving dishonesty or false statement, which would be admissible to impeach Paul's credibility.
See A. R. E. 609(a).
We conclude that the judge did not abuse his discretion when he denied Tugatuk's request to question Paul about her conviction of sexual abuse of a minor.
Conclusion
We therefore AFFIRM the superior court's judgment.