Opinion
Court of Appeals No. A-10256 Court of Appeals No. A-10276 Trial Court No. 3GL-07-132 CR Trial Court No. 3PA-02-82 CR No. 5842
05-02-2012
MICAH J. BESHAW, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Christine S. Schleuss, Law Office of Christine Schleuss, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal in File No. A-10256 from the Superior Court, Third Judicial District, Glennallen, Eric Smith, Judge. Appeal in File No. A-10276 from the Superior Court, Third Judicial District, Palmer, Beverly Cutler, Judge.
Appearances: Christine S. Schleuss, Law Office of Christine Schleuss, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Micah J. Beshaw was convicted of several charges related to an attempted sexual assault near the Glenn Highway. Beshaw makes several claims of error regarding the admission of evidence of four past incidents when he was accused of sexual assault. We conclude that the trial judge likely did not abuse his discretion in admitting some evidence of these incidents, but he did commit error in allowing the State to introduce an affidavit of an investigating trooper who did not testify. The State concedes that admission of this affidavit violated Beshaw's right to confrontation.
Beshaw also claims his kidnapping conviction is supported by insufficient evidence because there was no evidence that Beshaw held the victim beyond the restraint necessary to commit a sexual assault. Beshaw further argues that the jury was not properly instructed on the definition of "restraint" as it applies to kidnapping. The State concedes error on these points.
Background
In the summer of 2007, A.K. and approximately 38 other people participated in a 4,000-mile bicycle tour that began in Houston, Texas, and ended in Anchorage. A.K. testified that, on August 8, she and her fellow cyclists stopped in Glennallen for food before continuing on toward Anchorage. A.K., riding at her own pace, was alone as she rode her bike along the Glenn Highway. At approximately Mile 180 of the highway, Beshaw came out of the woods down a driveway and yelled to get her attention as she rode by. When she turned around, he told her that his vehicle was stuck and that he needed help pushing it out. A.K. was skeptical about his request and told him she wanted to wait for some of the other cyclists to catch up.
Beshaw suddenly grabbed A.K.'s arm and began to drag her toward the tree line, which was thirty to forty feet from the highway. After dragging A.K. fifteen to twenty feet, Beshaw threw her to the ground, and threatened to stab her if she did not stop screaming. A.K. was then able to kick Beshaw near the groin, and he ran off into the woods.
Another cyclist approached as Beshaw ran off. The cyclist flagged down a car and used the driver's cell phone to call 911. A short time later, Beshaw emerged from the woods, driving an old, black pickup truck. Beshaw was driving erratically and nearly hit a third cyclist as he turned onto the highway. The troopers arrested Beshaw a short time later, three miles up the highway.
Beshaw denied that he had attacked A.K. According to Beshaw's testimony, he left his home to run some errands and then drove to property located near Mile 183. Beshaw testified that he was extremely tired and fell asleep at the wheel. When he opened his eyes, he was about to hit another vehicle and ended up driving into a ditch. He drove up the ditch onto a driveway, heard a thud, and discovered that he had run into a cyclist. After a confrontation with the cyclist, Beshaw decided to try to get away. He drove back to the property where he was working. Beshaw admitted that, when the troopers arrived to question him, he did not tell them about the collision with the cyclist.
Beshaw was charged with attempted first-degree sexual assault, kidnapping, attempted kidnapping, two counts of third-degree assault, and one count of fourth-degree assault. Beshaw was convicted of all six charges following a jury trial. He now appeals.
Discussion
The admission of Investigator Wallner's affidavit violated Beshaw's right to confrontation.
Prior to trial, the State filed a notice of its intent to rely on Beshaw's prior acts of sexual assault. Specifically, the State sought to introduce evidence of sexual assaults Beshaw reportedly committed between October 2000 and September 2001 against four separate victims — L.C., R.W., I.T., and B.N. Only one of these reports resulted in a conviction — Beshaw pleaded no contest to one count of first-degree sexual assault against L.C.
Before Beshaw's trial, the prosecutor indicated that she would call L.C. to testify in person, but she later decided to rely on the indictment, the criminal complaint, the accompanying affidavit, and the judgment as evidence of this crime. Beshaw's attorney objected to the affidavit on confrontation clause grounds. Superior Court Judge Eric Smith allowed the State to introduce the judgment and Count 2 of the complaint (the count that formed the basis for Beshaw's plea). The judge later admitted the supporting affidavit as an exhibit, which was identified as the basis for the charges to which Beshaw pleaded no contest.
The affidavit is a five-page account of Trooper Leonard E. Wallner's investigation into the incident involving L.C. The affidavit stated that L.C. was walking home from work along the Glenn Highway in September 2001 when a masked man jumped out of the woods and dragged her to a nearby vehicle. The man threw her to the ground and raped her. Then he put her in the vehicle and drove for about fifteen minutes. After he stopped the vehicle, the man raped her again. Then he wiped her entire body with a moist cloth, saying that he was "washing away the evidence."
The remainder of the affidavit is a summary of Wallner's investigation. The affidavit contains information regarding the trooper's interviews with other witnesses, details of the incriminating evidence seized from Beshaw's truck, and the results of DNA testing, the sexual assault examination, and tire and footprint comparisons.
Additionally, Wallner references a "similar investigation" involving R.W., in which "a female victim was also kidnapped, transported by vehicle, sexually assaulted multiple times, and released." R.W.'s identification of Beshaw led the troopers to suspect Beshaw in L.C.'s case.
During closing arguments, the prosecutor displayed the affidavit to the jury, described the attack on L.C. in detail, and used the assertions in the affidavit to argue that the incident involving L.C. matched the incident with A.K. The prosecutor then discussed many aspects of the investigation recorded in the affidavit, including the evidence found in Beshaw's truck, the interviews the troopers conducted with various witnesses, and the fact that L.C.'s DNA was discovered on a brassiere found in Beshaw's truck. The prosecutor also repeated the portion of the affidavit that referenced the reported assaults against R.W. and linked Beshaw's attack on R.W. to his attack on L.C.
On appeal, Beshaw argues that admission of Investigator Wallner's affidavit violated his rights under the confrontation clause. The State concedes error on this claim. We give great weight to this concession, but we have an independent duty to ensure that the concession is adequately supported.
Schlagel v. State, 13 P.3d 275, 276 (Alaska App. 2000).
The confrontation clause prohibits the admission of a witness's testimonial out-of-court statements, including affidavits, unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. For example, in Davis v. Washington,the trial judge admitted a domestic violence victim's written affidavit and the testimony of the officer who questioned her, but the victim did not testify at the defendant's trial. The United States Supreme Court held that admission of this evidence violated the defendant's right to confront the witnesses against him.
See Davis v. Washington, 547 U.S. 813, 829-30 (2006) (holding that a domestic violence victim's written statements in an affidavit were testimonial and thus violated the confrontation clause); Crawford v. Washington, 541 U.S. 36, 54, 65 (2004) (indicating that the admission of out-of-court statements by defendant's wife to police officers, regarding incident in which defendant allegedly stabbed victim, violated the confrontation clause).
Id. at 834.
Beshaw's case presents a similar situation. The State wished to present evidence of the facts surrounding the incident involving L.C. But instead of bringing L.C. in to testify, the State introduced an affidavit that accompanied the complaint charging Beshaw with first-degree sexual assault against L.C. The affidavit was written and signed by the investigating trooper; it included statements made by L.C. describing the incident as well as an account of the trooper's own investigation and findings. The admission of L.C.'s statements and the trooper's statements regarding his investigation violated Beshaw's constitutional right to confront these witnesses.
The State argues that the admission of the affidavit was harmless error. The State points out that, in this case, the prosecution presented strong evidence that Beshaw dragged A.K. off her bike and toward the woods nearby. And the testimony of other alleged victims suggested that Beshaw intended to force A.K. into the woods or into his truck and rape her.
A constitutional violation requires reversal of a conviction unless the State proves that the error was harmless beyond a reasonable doubt. In this case, the affidavit could have influenced the jury in a number of ways. The facts relating to L.C. are very similar to the charges for which Beshaw was standing trial. L.C. was dragged off of the same highway and into Beshaw's truck, which appears to be exactly what Beshaw was attempting to do with A.K. Thus, the facts regarding L.C. were more damaging to Beshaw than the testimony of the other women (detailed below). Also, the jury was told that this incident resulted in a conviction; the others did not. The affidavit connected the incidents involving R.W. and L.C., arguably making R.W.'s testimony more credible. And the prosecutor focused the jury on the facts included in Investigator Wallner's investigation in her closing argument.
Adams v. State, 261 P.3d 758, 773 (Alaska 2011); Linehan v. State, 224 P.3d 126, 140 (Alaska App. 2010).
Based on our review of all of this evidence, we cannot say that the admission of Investigator Wallner's affidavit was harmless beyond a reasonable doubt.
The trial judge did not abuse his discretion when he allowed the other evidence of Beshaw's past sexual assaults.
As noted above, the State also offered the testimony of three other alleged victims of sexual assault committed by Beshaw. R.W., I.T., and B.N. appeared at trial and the trial judge heard from each of them prior to allowing the women to testify before the jury.
R.W. testified that in September 2001, she was abducted by a man posing as a coworker when she reported for her first day of work at the McDonald's in Palmer. R.W. testified that her abductor raped her twice on the seat of his red truck and later raped her again on the ground. When he was finished, he removed her clothes and wiped her down with a wet cloth. R.W. identified Beshaw as her attacker.
I.T. testified that in February 2001, while she was waiting for friends at the Fifth Avenue Mall in Anchorage, a man posing as a security guard approached her and offered to let her use his phone to call her friends. The guard then took her to an empty room and forced her to perform oral sex. He later drove her out of town in a beat up red truck. The man held her for two or three days and raped her multiple times. I.T. identified Beshaw as her attacker.
B.N. testified that in October 2000, a man posing as a security officer at the bus accommodation center in Anchorage approached her and told her he suspected her of dealing drugs. He then took her to an elevator room where he raped her. When he finished, he used a rag to wipe her off and then left her handcuffed to a pole. B.N. identified Beshaw as her who attacker.
The trial judge found these incidents to be similar to the attack against A.K., given Beshaw's use of deception, the nature of the force used, and the involvement of his truck. The trial judge determined that the women's testimony was more probative than prejudicial and permitted them to repeat their testimony in front of the jury. Beshaw now argues that the trial judge's decision to allow the testimony of R.W., I.T., and B.N. was an abuse of discretion.
Alaska Evidence Rule 404(b)(3) provides that, "[i]n a prosecution for a crime of attempt to commit sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible." This rule specifically allows the State to introduce evidence of a defendant's prior sexual assaults for the sole purpose of proving the defendant's propensity to commit sexual assaults. However, the trial judge must still determine, under Evidence Rules 402 and 403, whether the evidence is relevant and whether its probative value is outweighed by the danger of unfair prejudice.
Bingaman v. State, 76 P.3d 398, 405 (Alaska App. 2003); Wardlow v. State, 2 P.3d 1238, 1246 (Alaska App. 2000).
Bingaman, 76 P.3d at 410-11, 414-15; Wardlow, 2 P.3d at 1246-47.
In Bingaman v. State, this court set out a number of factors a court should consider before admitting evidence under Rule 404(b). In Beshaw's case, the trial judge expressly considered these factors and concluded that the prior incidents established a similar pattern, including the use of deception, the use of a truck, and the use of force when each woman resisted. The trial judge also found that the prior incidents were not too remote in time because Beshaw was imprisoned for nearly all of the time between the last incident and the incident involving A.K. We agree that the evidence of Beshaw's past sexual assaults against R.W., I.T., and B.N. was relevant circumstantial evidence of Beshaw's intent and that the trial judge did not abuse his discretion when he admitted this testimony.
The trial judge also concluded that the facts of the incident involving L.C. were sufficiently similar to the facts surrounding the incident with A.K. and allowed admission of evidence of this incident, including the judgment of conviction. Beshaw argues for the first time on appeal that the evidence of this conviction was inadmissible hearsay.
Evidence of a criminal conviction is hearsay "if it is offered to prove that the defendant actually engaged in the conduct that would justify that conviction." But evidence that would otherwise be inadmissible hearsay is admissible evidence if no hearsay objection is raised. Because Beshaw did not raise a hearsay objection before the trial court, he has waived this claim.
Douglas v. State, 166 P.3d 61, 85 (Alaska App. 2007); see also Jones v. State, 215 P.3d 1091, 1099 (Alaska App. 2009).
Douglas, 166 P.3d at 85.
Beshaw did preserve his claim that the probative value of the conviction did not outweigh the danger of unfair prejudice. On this claim, we conclude that the trial judge performed an adequate analysis under Alaska Evidence Rule 403 and did not abuse his discretion. In other words, if this case is tried again, the State should be allowed to submit evidence of the incident involving L.C. as long as the evidence does not violate the hearsay rule or the confrontation clause.
Beshaw also raises issues concerning the admissibility of a plea agreement in a prior case and the admissibility of a clerk's testimony about his sex offender registration. In view of our disposition of this case, we are not required to reach these issues.
There was insufficient evidence to support Beshaw's kidnapping conviction.
In order for Beshaw to be convicted of kidnapping, the State was required to prove that Beshaw "restrain[ed]" A.K "with intent to ... inflict physical injury upon or sexually assault" her. For purposes of the kidnapping statute, to "restrain" means "to restrict a person's movements unlawfully and without consent, so as to interfere substantially with the person's liberty by moving the person from one place to another or by confining the person." A person is restrained "without consent" if the restraint is "by force, threat, or deception."
AS 11.41.300(a)(1)(C).
AS 11.41.370(3).
AS 11.41.370(3)(B).
Beshaw argues that there was insufficient evidence of this element of restraint to support his kidnapping conviction. The State concedes error on this claim.
Beshaw relies on our decision in Alam v. State (Alam I). In Alam I, the defendant drove up to a woman who was walking on the side of the road, blocked her path with his vehicle, and attempted to have her get in the vehicle. When the woman ran, the defendant chased her and then struggled with her briefly before running away when the woman's screams attracted the attention of neighbors. We concluded that Alam could not be convicted of kidnapping because his restraint of the woman was at most incidental to his attempt to assault her. One of the things we relied on was a comment in the legislative history of this statute that "a defendant who forces a victim who is jogging along a bike path into the woods a few feet from the bike path in order to commit a sexual assault has not committed kidnapping."
776 P.2d 345 (Alaska App. 1989).
Id. at 346.
Id. at 346-47.
Id. at 349-50.
Id. at 349 (quoting Commentary and Sectional Analysis for the 1980 Amendments to Alaska's Revised Criminal Code, Senate Journal Supp. No. 44 at 6, 1980 Senate Journal 1418).
The facts supporting Beshaw's kidnapping conviction suffer this same defect. In this case, Beshaw's restraint of A.K. consisted of pulling her off of her bike and dragging her approximately fifteen to twenty feet toward the tree line along the highway. A.K. struggled and Beshaw eventually ran away. This evidence is similar to the comment from the legislative history — it does not establish any restraint of A.K. beyond that necessary to commit the sexual assault that Beshaw purportedly intended. We must reverse Beshaw's kidnapping conviction because it is supported by insufficient evidence.
The jury was not adequately instructed on the definition of restraint.
Beshaw also argues that the jury was improperly instructed on the definition of "restraint." He claims this requires the reversal of both his kidnapping and attempted kidnapping convictions. The State also concedes error with respect to this claim.
For attempted kidnapping, the jury must find that the defendant (1) intended to physically or sexually assault the victim and (2) intended to restrain the victim beyond what was necessary to effectuate the sexual assault. In addition, the jury must be instructed on a five-factor test for determining whether the restraint supporting a kidnapping charge is merely incidental to another offense. These factors include (1) how long the victim was restrained; (2) if the victim was moved, how far and to where the victim was taken; (3) whether the restraint exceeded what was necessary to commit the target crime; (4) whether the restraint significantly increased the risk of harm to the victim beyond the risk of harm inherent in the target crime; and (5) whether the restraint had some independent purpose.
Alam v. State (Alam II), 793 P.2d 1081, 1084 (Alaska App. 1990).
Hurd v. State, 22 P.3d 12, 19 (Alaska App. 2001).
Id.
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In Beshaw's case, the jury was not instructed that it was required to find an act of restraint that went beyond the restraint incidental to Beshaw's attempted sexual assault. The prosecutor argued that Beshaw's actions constituted a completed kidnapping and that a finding of restraint based on the statutory definition was all that was necessary to convict Beshaw.
The failure to give the proper definition of "restraint" could have allowed the jury to convict Beshaw of attempted kidnapping without first considering whether Beshaw intended to restrain A.K. beyond what was necessary to sexually assault her. We accept the State's concession of error. But we must remand this case for retrial, because we conclude that there was sufficient evidence to support the jury's verdict for attempted kidnapping.
Conclusion
The foregoing decision requires us to reverse Beshaw's conviction for kidnapping and remand for entry of a judgment of acquittal on that charge. We must also vacate Beshaw's convictions for attempted kidnapping, attempted sexual assault, assault in the third degree, and assault in the fourth degree, related to his alleged attack against A.K. Beshaw is entitled to a new trial on these charges. But our decision does not affect Beshaw's conviction for assault in the third degree for nearly hitting another cyclist as Beshaw entered the Glenn Highway. Thus the conviction on count 4 of the indictment in case no. 3GL-07-132 CR remains effective.
The superior court revoked Beshaw's probation in case no. 3PA-02-82 CR as a result of these convictions. We cannot determine what action the court would have taken based on the single assault conviction that remains effective. We therefore vacate the order revoking Beshaw's probation and remand that case for further proceedings.
We REVERSE the judgment of conviction in case no. 3GL-07-132 CR except for the conviction entered on count 4. The superior court shall enter a judgment of acquittal on the kidnapping charge in count 1. We VACATE the order revoking probation in case no. 3PA-02-82 CR.