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recognizing that evidence of a past accusation that fell short of the Morgan standard might conceivably be admissible for another purpose aside from casting doubt on the credibility of the victim
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Court of Appeals No. A-12044 No. 6592
02-28-2018
ANDREW RYAN BALL, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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. Trial Court No. 3PA-12-858 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Following a jury trial, Andrew Ryan Ball was convicted of second-degree sexual abuse of a minor for sexual contact with his thirteen-year-old stepdaughter L.T. On appeal, Ball argues that the superior court erred in excluding evidence of L.T.'s prior sexual experiences, which included (1) sexual touching with several young girls that allegedly occurred when L.T. was seven years old; and (2) sexual contact and/or sexual intercourse with Ball's thirteen-year-old son that allegedly occurred when L.T. was twelve years old. For the reasons explained here, we conclude that the superior court did not abuse its discretion when it excluded this evidence.
Ball also separately challenges a probation condition that requires Ball to disclose his sexual offense to any person who is "closely affiliated" with Ball or with whom he has a "significant relationship." The State concedes that this probation condition is unconstitutionally vague. The State's concession is well-taken in light of our recent decision in Smith v. State. We therefore vacate the special probation condition, and we remand this case for clarification of the intended scope and purpose of this probation condition consistent with the guidance provided in Smith.
See Smith v. State, 349 P.3d 1087, 1095 (Alaska App. 2015); see also Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (an appellate court must independently evaluate any concession of error by the State in a criminal case).
Smith, 349 P.3d at 1095.
Background facts and prior procedural history
In the spring of 2012, Andrew Ryan Ball, a retired Army veteran, was living in Wasilla with his wife of seven years, Kellee, and his three stepchildren — including thirteen-year-old L.T. Ball had two biological sons who lived in Missouri with their mother, although they would visit Ball on occasion.
Ball and his wife were having marital difficulties as a result of Ball's emotional affair with another woman. (Because of a botched surgical procedure on his testicles while in the Army, Ball had difficulty getting and maintaining an erection.) Ball's emotional affair with the other woman and his desire to divorce Kellee put a strain on his relationship with Kellee's children, particularly L.T. At one point, L.T. confronted Ball about his affair after seeing her mother upset.
In April 2012, while waiting in the car for their mother, L.T. told her brother that Ball had sexually abused her. When Kellee returned to the car, L.T.'s brother told Kellee about the abuse. Kellee asked L.T. whether it was true; L.T. said it was, and Kellee immediately drove to the police station to report the abuse. L.T. was then taken to the Children's Place, a child advocacy center in Wasilla, for a sexual assault examination and a forensic interview.
According to L.T., there were two instances of sexual abuse. The first instance occurred in March 2012, on a night when the rest of the family was out of the house for her brother's basketball game. L.T. testified that she was watching TV in her parents' room, and that Ball sat down next to her and asked her for a hug. L.T. testified that when she gave Ball a hug, he did not let her go. Instead, according to L.T., he began to touch her "private part and [her] bottom" underneath her clothes. L.T. testified that Ball then let her return to her room.
L.T. testified that the second instance of abuse occurred a few days later, when L.T. stayed home from the family's regular Wednesday night church service. In her original statement, L.T. said that she ate some bad sour cream and had to stay home that night. At trial, L.T. testified that Ball told her to say she was sick so that she could stay home alone with him. L.T. testified that when she went into her parents' room to get her dog out of the room, Ball was in the room, wearing only a shirt. L.T. testified that, on this second occasion, Ball touched her breasts and penetrated her vagina with his penis while they were on the bed. L.T. testified that Ball told her not to tell anyone what had happened.
Following the Children's Place interview, the troopers obtained a Glass warrant to record two conversations between Kellee and Ball. Portions of these conversations were later played for the jury at trial. The first monitored conversation, which took place on April 6, lasted about three hours. In this conversation, Kellee repeatedly pressed Ball to confess that he had sex with L.T., but Ball denied the allegation. The second monitored conversation took place on April 9 and lasted over an hour. In this conversation, Kellee again pressed Ball to confess to sexual impropriety with L.T. Ball offered to give L.T. a "general apology" where he would apologize for anything he did to hurt her, but Ball would not admit to doing what L.T. alleged. Eventually, after further urging from Kellee, Ball told her that "whatever [L.T.] said I did[,] I did it." Even though Ball admitted L.T.'s accusations were true, his description of what happened differed from L.T.'s account on specific details. Near the end of the second monitored conversation, Ball told Kellee that L.T. came on to him and was "pursuing" him. Ball also claimed that he did not get an erection and did not ejaculate. Ball then realized that he was being recorded, and the conversation ended.
Ball was subsequently indicted on one count of first-degree sexual abuse for penetrating L.T. and two counts of second-degree sexual abuse for engaging in sexual contact with L.T.
At trial, Ball took the stand and testified in his own defense. Ball testified that he had a good relationship with L.T. until March 2012, when L.T. confronted Ball about his affair with the other woman. Ball denied ever sexually touching L.T., and he disputed L.T.'s version of events. According to Ball, on the night of the basketball game, he was in his bedroom watching TV and tending to his coin collection when L.T. appeared at the bedroom door. Ball testified that L.T. got under the covers of the bed and that he climbed in bed with her, but stayed on top of the covers. Ball stated that, after L.T. finished watching TV, he told L.T. to leave and get ready for bed.
Ball testified that, on the night of the missed church service, he was sitting on the floor of his bedroom with his baseball and football cards watching TV when L.T. appeared at the door. According to Ball, he let L.T. watch TV for a few minutes and then sent her back to her bedroom.
During closing arguments, the prosecutor argued that L.T.'s account was credible and Ball's testimony was not credible. The defense attorney argued the opposite. The defense attorney asserted that L.T. made up these accusations because she was angry with Ball for having an affair and for upsetting her mother, and that L.T. had not realized the seriousness of her accusations until it was too late to tell the truth. The defense attorney emphasized the inconsistencies between L.T.'s trial testimony and her pre-trial interviews, the lack of physical evidence corroborating L.T.'s accounts, and the physical difficulties that Ball had in achieving an erection.
The jury convicted Ball of one count of second-degree sexual abuse of a minor for engaging in sexual contact with L.T. The jury was unable to reach a verdict on the other two counts of sexual abuse, and those counts were later dismissed by the State. At sentencing, the trial court imposed a sentence of 15 years with 10 years suspended (5 years to serve) and 15 years of probation.
This appeal followed.
Ball's claim that the trial court erroneously excluded evidence of L.T.'s prior sexual experiences
Before trial, the State filed a motion in limine to preclude Ball from introducing evidence of L.T.'s sexual history. Specifically, the State sought to exclude (1) an interview L.T. had in 2006, when she was seven years old, regarding a sexual touching experience with several young girls, and (2) allegations that L.T. had sex with one of Ball's biological sons the summer before the alleged sexual abuse (when the boy was thirteen years old and L.T. was twelve years old). The court granted the State's motion in limine over the defense attorney's objections, excluding this evidence under Alaska Evidence Rule 403.
At various points during the trial, Ball's attorney asked the court to revisit this ruling, asserting that the State had opened the door to this evidence and that introduction of this evidence was critical to Ball's defense. In each instance, the trial court reaffirmed its original ruling and continued to exclude this evidence. On appeal, Ball argues that exclusion of this evidence deprived him of his right to present his defense. We find no merit to this claim for the reasons explained here.
Why we conclude that the superior court did not abuse its discretion when it excluded the 2006 interview about L.T.'s sexualized touching with her peers
Relevant facts
In 2006, when L.T. was seven years old, she was interviewed about a sexual experience she reported to her mother that occurred while she was visiting her biological father in Chicago. L.T. told the interviewer that she, her two cousins (ages eight and five), and an older girl from the neighborhood all touched each other's "private area[s]" and "butts." According to L.T., a boy was involved in one of these instances, but he did not touch L.T. L.T. also reported that, while she was in Chicago, she saw adults watching a movie containing nudity. L.T. also told the interviewer that when she returned home from Chicago, she and her sister licked each other's buttocks.
The State moved to exclude any evidence related to this alleged incident. Ball's attorney objected, arguing that the evidence was relevant to show L.T.'s knowledge of sexual acts and to show that L.T. had a prior experience of reporting sexual acts to her mother (thereby undermining her claim that she was afraid to tell her mother about Ball's sexual abuse). The defense attorney also argued that the allegations in the 2006 interview were similar to the allegations against Ball.
The superior court rejected these arguments, concluding that the evidence was of minimal probative value because the incident occurred so long ago. The court also noted that there was no evidence suggesting that the 2006 allegations were false.
Analysis
A trial court's exclusion of evidence under Alaska Evidence Rule 403 is reviewed under the abuse of discretion standard. Under this standard, we will reverse the trial court's ruling only if we find that the court's reasons are "clearly untenable and unreasonable." We do not find an abuse of discretion here. Given the remoteness of the prior sexual experience and its dissimilarity to the current allegations, it was not unreasonable for the judge to exclude this evidence under Evidence Rule 403. The prior experience involved sexualized behavior among young children of similar ages and it bore little resemblance to the accusations L.T. made against her stepfather. Because there was no suggestion that the 2006 allegations were false, the evidence's primary purpose would have been to rebut any claim that L.T. was too naive or sexually unaware to make up the accusations against her stepfather. But the prosecutor was careful not to make any such claims. Given this, we conclude that the trial court was within its discretion to exclude this evidence.
Leopold v. State, 278 P.3d 286, 290 (Alaska App. 2012), as corrected on reh'g (May 25, 2012).
Osborne v. State, 623 P.2d 784, 789 (Alaska 1981) (citations omitted).
Why we conclude that the superior court did not abuse its discretion when the court excluded evidence that L.T. may have engaged in sexual intercourse with Ball's thirteen-year-old biological son the summer before the alleged sexual abuse
Relevant facts
During the first monitored conversation between Ball and Kellee, Ball told Kellee that L.T. had admitted to him that she had sex with Ball's biological son, who was roughly the same age as L.T. According to Ball, L.T. told him that she approached his son the previous summer while Ball's son was visiting, and she consented to have sex with Ball's son "every night" because she wanted Ball's son to be nice to her.
Ball's claim that L.T. had sex with Ball's son was partially corroborated by an erased section in a letter that L.T. wrote to her mother about Ball's sexual abuse. L.T. wrote the letter before she told her brother (and ultimately, her mother) about the abuse, but she did not send it. The police discovered the letter in L.T.'s room after the abuse was reported. The letter detailed the two instances of sexual abuse by Ball. The letter also included an erased, but still legible, portion in which L.T. stated that she had sex with Ball's son even though she did not want to:
One more thing you know [Ball's son]? He had sex with me too. I really told him to stop but he wouldn't. And I couldn't say stop the words wouldn't come out. So I let him do it ...
However, in the interview at the Children's Place, L.T. denied having sex with Ball's son.
Ball's son was also interviewed by the police and was questioned about whether he had sex with L.T. Ball's son told the police that he had never had sex with L.T., but that there was one night the previous summer when L.T. had acted sexually aggressive towards him. According to Ball's son, L.T. came into his room four to six different times, and woke him up by rubbing his penis. Ball's son told the police that he eventually got L.T. to stop by threatening to tell their parents what she was doing.
Prior to trial, the State moved to exclude any evidence related to the allegation that L.T. had sex with Ball's son as irrelevant and unfairly prejudicial. Ball's attorney objected. The defense attorney argued that this evidence was relevant and admissible for multiple reasons, including (1) to attack L.T.'s credibility because she lied about the sex when questioned about it during the Children's Place interview; (2) to support Ball's credibility because it would show that Ball was truthful when he told Kellee about the sex during their monitored conversation; (3) to show that L.T. had a motive to falsely accuse her stepfather of sexual abuse so as to deflect her mother's attention from L.T.'s sexual activities with Ball's son; and (4) to show that L.T. was knowledgeable about sex and had enough experience to be able to credibly describe a sexual encounter with her stepfather even if none had occurred. The defense attorney also argued that the erased portion of the letter was akin to a false accusation of sexual assault and it was therefore relevant because it showed L.T.'s willingness to falsely accuse another person of sexual crimes.
The superior court rejected these arguments and concluded that the evidence was inadmissible under Evidence Rule 403. The court viewed the question of whether L.T. had sex with Ball's son the previous summer as entirely collateral to the question of whether Ball sexually abused L.T. The court noted that any alleged consent or sexual provocation by L.T. was not a legitimate defense in a sexual abuse case, and the court expressed concern that the evidence might be misused this way by the jury. The court also noted that the prosecutor was not claiming that L.T. was sexually inexperienced or naive and that litigation on this collateral issue was likely to be distracting and time consuming, given the conflicting accounts of what occurred and the lack of agreement among the witnesses, including the defense witnesses.
This evidentiary issue arose again after the State used L.T.'s letter to refresh her recollection about what Ball had done to her. Ball's attorney argued that, because the State had used the letter to refresh L.T.'s recollection of Ball's sexual abuse, the defense should be allowed to introduce the erased portion of the letter (which related to her alleged sex with Ball's son). The superior court rejected this argument, and the court reaffirmed its earlier ruling excluding all evidence related to the alleged sexual relationship between L.T. and Ball's son.
Analysis
On appeal, Ball argues that the probative value of this evidence outweighed any unfair prejudice that might have resulted, and the superior court therefore abused its discretion when it excluded this evidence, which Ball claims was critical to his defense.
As was true in the trial court proceedings, Ball lists multiple ways in which he claims that this evidence was relevant to his defense. But many of these purported relevancy claims are marginal.
For example, Ball argues that the defense needed this evidence to attack L.T.'s credibility because L.T. denied having sex with Ball's son in her Children's Place interview even though she had written about it in the erased portion of the letter. But, as a general matter, a party is not permitted to impeach a witness's credibility with evidence of a specific instance in which the witness lied about a collateral matter. The trial judge obviously viewed this rule as governing this situation and Ball does not adequately explain why it was unreasonable for the judge to do so.
See Alaska Evidence Rule 405; Alaska Evidence Rule 608(b) (permitting parties to attack witness's credibility through reputation or opinion evidence but restricting inquiry into specific instances of truthfulness or untruthfulness to cross-examination of the character witness unless otherwise provided for by the evidence rules, other court rules, or by statute).
Ball also argues that the evidence would have bolstered Ball's credibility because the jury would have known that Ball was telling the truth when he referred to the sexual relationship in the monitored conversations with Kellee. But the trial judge excluded these references to the sexual relationship between Ball's son and L.T. so there was no need to bolster his credibility in this manner.
Ball also contends that the evidence suggested that L.T. was motivated to falsely accuse Ball of sexual abuse so as to deflect her mother's attention from L.T.'s sexual activity with Ball's son. The State argues that this "preemptive strike" theory does not make any sense. We agree. According to Ball, L.T. voluntarily told him about her sexual relationship with his son, and there is no suggestion that he would otherwise have been aware of the purported sexual relationship. We agree with the State that it does not make much sense to assume that, having voluntarily told Ball this information, L.T. would then falsely accuse Ball of sexual abuse in order to prevent Ball from telling her mother about information that L.T. could have kept secret. Nor does it follow that falsely accusing a person of sexual abuse would make that person more likely to keep such a secret. We therefore conclude that the court did not act unreasonably when it rejected this claim of relevancy.
We similarly find no error in the judge's rejection of Ball's claim that the evidence was admissible to show L.T.'s willingness to falsely accuse a person of sexual assault. In Morgan v. State, we held that in order to introduce evidence of a complaining witness's past false sexual assault allegations, a defendant must convince the trial judge by a preponderance of the evidence "(1) that the complaining witness made another accusation of sexual assault, (2) that this accusation was factually untrue, and (3) that the complaining witness knew that the accusation was untrue."
Morgan v. State, 54 P.3d 332, 333 (Alaska App. 2002); see also Covington v. State, 703 P.2d 436, 441-42 (Alaska App. 1985).
Ball claims that he met this standard. We disagree. In our view, the superior court could reasonably have rejected Ball's claim that L.T. made an accusation of sexual assault against Ball's son. As the State points out, L.T. erased the portion of the letter in which she described her sexual encounter with Ball's son. Moreover, LT.'s characterization of that sexual encounter is ambiguous. In one sentence, L.T. states that "I really told him to stop but he wouldn't." But in the next sentence, she states: "And I couldn't say stop the words wouldn't come out." Although the first sentence suggests potentially criminal behavior on the part of Ball's son, the second sentence does not. Given the contradictory accounts of what may have occurred between these two teenagers, and the amount of litigation that would be required to determine the truth of the matter, we conclude that the trial court did not err when it refused to allow this evidence in under Morgan.
We also find no error in the trial judge's rejection of Ball's argument that the prosecutor's use of L.T.'s letter to refresh her recollection opened the door to this evidence. Under Alaska Evidence Rule 612(a):
[a]ny writing or object may be used by a witness to refresh the memory of the witness while testifying. If, while testifying, a witness uses a writing or object to refresh his memory, any party seeking to impeach the witness is entitled, subject to subdivision (c), to inspect the writing or object, to cross-examine the witness thereon, and to introduce those portions which relate to the testimony of the witness.
Ball argues that he was entitled to introduce the erased portion of the letter under the last part of this provision. We disagree. Rule 612(a) entitles the opposing party to introduce "those portions [of the writing] which relate to the testimony of the witness" (emphasis added). It does not entitle the opposing party to introduce other portions of the writing that the court has already determined are not directly related to the witness's testimony.
Lastly, Ball argues that evidence of the sexual relationship between L.T. and his son was needed to provide narrative force to the defense theory that L.T. was lying about the sexual abuse. He contends that, without this evidence, he could not show that L.T. had the sexual knowledge necessary to fabricate a false claim of sexual abuse. He also contends that, without this evidence of the internal family dynamics, the jury lacked the proper context within which to judge L.T.'s and Ball's credibility.
See Daniels v. State, 767 P.2d 1164, 1166 (Alaska App. 1989).
This is probably Ball's strongest argument. Although the prosecutor was careful not to argue that L.T. was sexually naive or sexually inexperienced, the jury heard L.T.'s mother portray L.T. that way in her monitored conversations with Ball. The jury also heard Ball respond to that claim by asserting that L.T. knew a lot more than her mother realized. But the jury was not allowed to hear why Ball believed that to be true, or to understand the basis for his response.
That said, it appears that the defense affirmatively agreed to have the jury hear this exchange, knowing that the larger context would be redacted. Moreover, there were other ways to address this issue rather than to introduce the highly contested and largely collateral issue of whether L.T. had sex with Ball's son.
As we already explained, we will reverse a trial court's ruling under Evidence Rule 403 only if we find that the court's reasons are "clearly untenable and unreasonable." Here, the trial judge was concerned about the time-consuming and distracting litigation that would follow any introduction of this evidence to the jury. And the judge was also concerned about the ways that this type of evidence could be misused in a sexual abuse prosecution where consent was not a legitimate defense. Given these legitimate concerns, and given the relatively weak arguments for relevancy provided by Ball, we conclude that exclusion of this evidence did not constitute an abuse of discretion.
Osborne v. State, 623 P.2d 784, 789 (Alaska 1981) (citations omitted).
Conclusion
The judgment of the superior court is AFFIRMED, with the exception of Special Probation Condition #18, which is VACATED. The superior court is directed to reconsider the special probation condition in light of our decision in Smith v. State.
Smith v. State, 349 P.3d 1087, 1095 (Alaska App. 2015). --------