Opinion
A-13202
10-13-2021
KANE HUFF, Appellant, v. STATE OF ALASKA, Appellee.
Rex Lamont Butler, Rex Lamont Butler & Associates, Inc., P.C., Anchorage, for the Appellant. RuthAnne Beach, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Third Judicial District No. 3PA-15-02277 CR, Palmer, Eric Smith and Jonathan A. Woodman, Judges.
Rex Lamont Butler, Rex Lamont Butler & Associates, Inc., P.C., Anchorage, for the Appellant.
RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM OPINION
HARBISON Judge.
Following a jury trial, Kane Huff was convicted of two counts of first-degree sexual abuse of a minor for conduct involving his stepdaughter, K.Y.
AS 11.41.434(a)(1). The jury acquitted Huff of third-degree assault of K.Y.'smother. AS 11.41.220(a)(1)(A).
Huff challenges his convictions on appeal. He first argues that the trial court erred when it denied his motion to suppress the evidence seized pursuant to several warrants that Huff claims were issued without probable cause. He next raises two claims of error related to the trial court's admission of evidence under Alaska Evidence Rule 404(b), arguing that the trial court abused its discretion by admitting the evidence and that the trial court committed plain error by failing to instruct the jury that it could not convict him solely on the basis of the Rule 404(b) evidence. Lastly, Huff contends that the trial court should have granted his motion for judgment of acquittal or, alternatively, his motion for a new trial.
For the reasons explained here, we reject Huffs claims and affirm his convictions.
Background facts and proceedings
The charges against Huff arose in September 2015, when his then thirteen-year-old stepdaughter, K.Y., disclosed that Huff had sexually abused her over a period of approximately six years. As a result of this disclosure, Office of Children's Services investigator Dolores Branin and Alaska State Trooper Shannon Fore interviewed K. Y. at The Children's Place, a local child advocacy center.
During the interview, K.Y. described that Huff had abused her by penetrating her vagina with his penis. K.Y. stated that these acts of abuse occurred approximately five to seven times starting in her second-grade year and ending in the winter of her sixth-grade year (approximately one and a half years prior to the interview). K.Y. also said that she had seen Huff hold a gun to her mother's head.
Later that day, Fore obtained a Glass warrant to record phone conversations between K.Y. and Huff. Fore executed the warrant the next day and recorded two phone calls between K. Y. and Huff. During these calls, Huff made several incriminating statements.
See State v. Glass, 583 P.2d 872 (Alaska 1978).
Shortly after recording the calls, Fore and Branin met with K. Y.' s mother, Channan Huff, at K, Y.'s school. In response to Fore's questions, Channan initially denied that Huff had threatened her with a gun or had been violent with her in the past. But after listening to a portion of the recorded conversations between K. Y. and Huff, Channan stated that almost everything K. Y. had described about domestic violence was true, including that Huff had "pull[ed] a gun on [her]."
The following day, the State filed a felony complaint and supporting affidavit charging Huff with two counts of first-degree sexual abuse of a minor. The complaint and affidavit included a description of the statements Huff made during the recorded conversation with K.Y. Based on these documents, a warrant was issued for Huffs arrest. When Huff was arrested, his cell phone was seized by the troopers executing the arrest warrant. The phone was later searched pursuant to an additional warrant.
A grand jury subsequently indicted Huff on two counts of first-degree sexual abuse of a minor and one count of third-degree assault (alleging that he threatened Channan with a firearm). Prior to trial, Huff moved to suppress the evidence obtained pursuant to the Glass warrant, the arrest warrant, and the search warrant, arguing that the warrants were not supported by probable cause. The trial court denied Huffs motion, and the matter proceeded to trial.
On the second day of trial, but before opening statements, the State announced its intention to ask K. Y. to describe not only the two charged acts of sexual assault, but also to testify that Huff repeatedly engaged in acts of sexual penetration of her during a period of several years. Relying on Alaska Evidence Rule 404(b), the court allowed the State to introduce this evidence. The parties agreed that the jury should be given a limiting instruction regarding this evidence, and the court ultimately gave the jury a limiting instruction incorporating language proposed by Huff.
At trial, K. Y. testified in detail about the two charged acts of penile-vaginal penetration. K. Y. also testified about an incident in which Huff pointed a gun at her mother during an argument. But when Channan testified, she denied that Huff had pointed a gun at her or threatened her with a gun. She also testified that she did not believe that Huff had sexually abused K. Y. in part because, according to Channan, there was never a time that Huff and K. Y. were alone together.
At various points during the trial, the court allowed the State-over Huff s objection - to introduce evidence under Evidence Rule 404(b) of several instances in which troopers had been called to respond to disturbances between Channan and Huff, and of text messages between Huff and K.Y. and between Channan and Huff.
The jury ultimately convicted Huff of both counts of first-degree sexual abuse of a minor but acquitted him of the assault charge. After the jury returned its verdicts, Huff filed a motion for a judgment of acquittal or, in the alternative, for a new trial. The trial court denied Huffs motion.
This appeal followed.
Why we conclude that the trial court did not err by denying Huff's motion to suppress evidence obtained from execution of the three warrants
On appeal, Huff challenges the trial court's denial of his motion to suppress the evidence obtained from the warrants issued in his case. In particular, Huff renews his contention that the Glass warrant was not supported by probable cause, arguing that K. Y. was not credible and that neither the investigating officer nor the judge issuing the warrant sufficiently corroborated details of K, Y.'s allegations.
Probable cause exists when sufficiently detailed information would "warrant a reasonably prudent person in believing a crime has been or was being committed." Reading the warrant application in a "commonsense and realistic fashion, " a finding of probable cause "requires only a fair probability or substantial chance of criminal activity, not an actual showing that such activity occurred."
Hart v. State, 397 P.3d 342, 344 (Alaska App. 2017); see also Erickson v. State, 507 P.2d 508, 517 (Alaska 1973) ("[P]robable cause for arrest exists if the facts and circumstances known to the officer would warrant a prudent man in believing that an offense had been or was being committed.").
State v. Koen, 152 P.3d 1148, 1151 (Alaska 2007).
State v. Joubert, 20 P.3d 1115, 1119 (Alaska 2001).
As we have explained, the record shows that Trooper Fore applied for and received the Glass warrant on the same day that he and Branin interviewed K.Y. The warrant application was supported by Fore's affidavit describing the interview.
Fore stated in his affidavit that, during the interview, K. Y. described Huff as an "alcoholic" who is abusive when he drinks. She additionally disclosed that, approximately two months before the interview, she saw Huff put a gun to her mother's head. K.Y. also related that, on the day before the interview, Huff sent her a text message calling her a "whore." According to K.Y., when she showed her mother the message, her mother broke the phone and threw it away.
According to Fore's affidavit, K.Y. initially denied that she had been sexually abused. She described "images in her head of things that aren't real sometimes," and indicated that she "wakes up in a sweat with her shorts down sometimes." But the affidavit also explained that when Branin informed K.Y. that someone had reported her disclosure of Huff s abuse, she became emotional and stated that Huff had raped her. She then admitted that she "just didn't want to talk about it because it was so scary" and recounted her fear that Huff would hurt her or someone else.
After a pause in the interview, K. Y. disclosed that Huff had abused her by penetrating her vagina with his penis. She stated that the acts of abuse began when she was in second grade, and occurred about five to seven times, ending when she was in sixth grade (approximately one and a half years before the interview).
On appeal, Huff notes that the Glass warrant application was based entirely on K, Y.'s statements during the interview, and he argues that inconsistencies in K, Y.'s statements, as well as her admission that she sometimes had images in her head of "things that aren't real," rendered her statements unreliable. According to Huff, this unreliable hearsay, without other corroboration, could not form the basis of the search warrant.
We reject this argument. In making it, Huff ignores that hearsay statements of an alleged victim such as K.Y. are presumptively reliable under Alaska law.
Generally, when a warrant application relies on hearsay statements rather than an affiant's direct, personal knowledge, the affidavit must establish: (1) the declarant's basis of knowledge; and (2) the declarant's credibility or the reliability of the declarant's information. State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985) (adopting the Aguilar-Spinelli test based on Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969)). However, minimal - if any- corroboration or assessments of prior reliability are required for victim declarants. See Burke v. State, 624 P.2d 1240, 1253 (Alaska 1980) (noting that victim statements do not necessarily require corroboration); Erickson, 507 P.2d at 518 (finding that victims qualify as citizen informants whose credibility does not require a showing of prior reliability, and whose information requires only minimal corroboration); Gustafson v. State, 854 P.2d 751, 756-57 (Alaska App. 1993) ("[T]he law examines the person's connection to the event and his or her probable motive for bringing the information to the police. When a person's primary motive is to obtain an official concession or reap some other personal benefit, the law requires greater corroboration of the person's information. If, however, the person comes forward without concern for personal benefit, the law requires less corroboration."); Goulden v. State, 656 P.2d 1218, 1220 (Alaska App. 1983) (holding that a warrant based primarily on the alleged victim's testimony in a child abuse case was not improper, even though there was no independent corroboration of the victim's statements).
We recently discussed the "corroboration" requirement for victim informants in the context of finding probable cause to issue an arrest warrant:
[I]n the case of citizen informants, only minimal corroboration of "some of the details" of the informant's report is necessary to establish probable cause; we have not required that the corroborated facts be independently incriminating. And as to victim informants, we have left unsettled the question of whether any corroboration is required.
King v. State, 487 P.3d 242, 246-47 (Alaska App. 2021) (internal citations omitted).
Reading the affidavit in this case in a "commonsense" fashion, and even assuming some minimal level of corroboration is required, we conclude that the warrant application provided sufficient information to allow a reasonably prudent person to believe a crime had been committed.
We reach the same result with regard to the arrest warrant and the warrant authorizing the search of Huff s cell phone. The affidavits that were provided as part of the applications for these warrants contained the same information provided in support of the Glass warrant. They also contained information about the statements Huff made to K. Y. during the recorded phone call. We accordingly conclude that the warrants were supported by probable cause, and we uphold the trial court's denial of Huff s motion to suppress.
Why we reject Huff's claims of error related to the trial court's admission of evidence under Rule 404(b)
Huffs next argument is that the trial court abused its discretion by admitting certain evidence under Alaska Evidence Rule 404(b), including: (1) evidence of several calls made to law enforcement during disputes between Channan and Huff; (2) testimony about text messages between K. Y. and Huff and between Channan and Huff; (3) testimony about Channan's reaction to the messages; and (4) evidence that Huff had sexually abused K. Y. repeatedly over the course of several years.
As we have previously noted, Channan testified at trial that Huff had never pointed a gun at her or threatened her with a gun. On direct examination, Channan also denied that she had ever called the police to respond to disputes between Huff and her. The trial court accordingly determined that testimony about incidents in which the troopers had been called to the Huff residence provided relevant context: this evidence suggested that Channan may have been biased in favor of Huff and that therefore her denial of the assault (and of the sexual abuse of K.Y.) might not be credible.
Channan also testified that, although she took seriously the allegations against Huff, she did not believe that Huff had sexually abused K. Y. Channan asserted that, not only had Huff and K. Y. never been alone together, but that K. Y. had behavioral problems and a developmental disability that may have impacted her perception of the truth. Based on this testimony, the trial court found that evidence of the text messages was relevant to explain the nature of the relationship between Huff and K.Y., to show Channan's bias for Huff and against K.Y., and to explain why K.Y. did not report Huff s actions to her mother. The court found that evidence that Huff had sexually penetrated K. Y. frequently over a period of several years was also relevant for similar reasons: it provided context to explain K. Y.' s delayed reporting by showing that the charged counts were part of a continuing pattern of abuse.
For instance, Channan testified as follows:
Channan: I felt that helping getting to the bottom of it would have been to take my child to a counselor who was equipped, who had dealt with her issues and that we would have got a fair analysis of what was going on.
Prosecutor: You thought [K.Y.] was lying?
Channan: I did not say [K.Y.] was lying. I don't know.
The court ruled that the evidence was admissible for non-propensity purposes under Alaska Evidence Rule 404(b)(1) and, with regard to the evidence of Huff s previous sexual abuse of K.Y., also under Alaska Evidence Rule 404(b)(2). The court additionally found that the probative value of this evidence outweighed any potential for unfair prejudice - as required by Alaska Evidence Rule 403 - and, with respect to the propensity evidence, made findings under Bingaman v. State.
Alaska R. Evid. 404(b)(1) (providing that evidence of other acts is admissible for non-propensity purposes "including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident").
Alaska R. Evid. 404(b)(2) (providing, in relevant part, that in a prosecution for a crime involving sexual abuse of a minor, evidence of other acts by the defendant toward the same child is admissible for propensity purposes if certain requirements are met).
Bingaman v. State, 76 P.3d 398 (Alaska App. 2003) (establishing the factors trial courts must consider when allowing admission of prior acts of domestic violence evidence for propensity purposes under Evidence Rule 404(b)(4)); see also Kasgnoc v. State, 448 P.3d 883, 888 & n.l4 (Alaska App. 2019) (recognizing the applicability of the Bingaman factors to the evaluation of evidence sought to be admitted under Evidence Rules 404(b)(2), (b)(3), and (b)(4)).
We have reviewed the record, and we conclude that the trial court did not abuse its discretion by admitting this evidence.
We next must consider Huffs claim that the trial court committed plain error when it failed to instruct the jury that it could not convict Huff solely on the basis of the 404(b) evidence.
In this case, the court provided an instruction that clearly explained the limited purpose for which the evidence was admitted. This instruction stated:
You have heard evidence that the defendant may have engaged in conduct other than the conduct for which he is on trial. Specifically other alleged acts of domestic violence and/or sexual abuse.
If you find that the defendant engaged in this other conduct, then you may only consider this evidence for the purpose of deciding whether you believe it shows he committed other acts of domestic violence or sexual abuse consistent with the charges. You may also consider it to the extent it aids you in putting the family relationships in context, or helps explain the state of mind of either Channan Huff or K.Y. You may consider this evidence for those limited purposes only. In doing so, you should weigh it in the same way as you do all of the other evidence in this case, and only give it the weight that you believe it deserves for
those limited purposes. If you find this evidence has no weight, then you should disregard it entirely.
Do not use this evidence for any other purpose, or even talk about it for other purposes in your deliberations. It would be improper and unfair for you to do so.
It is true that this instruction did not contain the precise additional language that Huff now claims was needed - i.e., an admonition that evidence of Huff s other acts is not sufficient, standing alone, to justify his conviction. But a cautionary instruction to this effect is "mandatory only if the defendant requests [such an instruction], or when the amount and nature of the other-crimes evidence introduced against the defendant demonstrates that the failure to give this instruction would amount to plain error."
Douglas v. State, 151 P.3d 495, 503 (Alaska App. 2006).
In the present case, Huff did not ask the trial court to give such an instruction. Instead, Huff suggested the very language that the trial court ultimately gave in its instruction. Moreover, during the trial, K.Y. testified at length about the acts charged in the indictment. Evidence about Huffs other acts occupied a comparatively small part of the trial proceedings. We have reviewed the record in light of all of the instructions given to the jury, and we conclude that there is little likelihood that the jury convicted Huff under an erroneous legal theory. Accordingly, Huff has not demonstrated plain error.
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
Why we reject Huff's contention that the trial court should have granted his motion for a judgment of acquittal or, alternatively, for a new trial
Huffs final contention is that there was insufficient evidence to sustain his convictions, and that, as a result, the trial court should have granted his motion for a judgment of acquittal or in the alternative, a new trial.
Alaska Rule of Criminal Procedure 29(a) provides: "The court, on motion of a defendant or on its own motion, shall enter judgment of acquittal of one or more charges ... if the evidence is insufficient to sustain a conviction of such offense or offenses."
Alaska Rule of Criminal Procedure 33(a) provides: "The court may grant a new trial to a defendant if required in the interest of justice."
When we review a trial court's denial of a motion for judgment of acquittal, we view the evidence in the trial record, and all reasonable inferences drawn from it, in the light most favorable to the verdict. We then assess whether a reasonable juror could conclude that the State had proved the charges beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Id. at 849.
In order to prove that Huff committed the crime of first-degree sexual abuse of a minor, the State was required to establish that Huff, being sixteen years of age or older, engaged in sexual penetration with a person who was under thirteen years of age.
AS 11.41.434(a)(1). The fact that Huff, born in 1979, was more than sixteen years old when the abuse occurred was not contested at trial.
At trial, K.Y. testified in detail about the two charged acts of sexual abuse. She testified that the first time Huff penetrated her vagina with his penis was when she was eight or nine years old. K. Y. stated that the incident occurred in the loft of their home after she returned from school, that it was scary and painful, and that Huff stopped because her siblings came home.
K.Y. then testified about a second incident that occurred when she was twelve years old and in sixth or seventh grade. According to K. Y., this incident occurred when her mother was at the store and the rest of her family was at her grandparents' house. She testified that, at the time of the incident, her family had recently moved into a new residence and that she had been painting her new room when Huff came into the room and inserted his penis into her vagina. K. Y. testified that Huff stopped when her mother returned from the store and the dogs began barking.
In addition to this testimony, the jury heard recordings of the two phone calls between Huff and K.Y.
When considering a claim of insufficient evidence, we do not assess witness credibility or weigh the evidence-these are questions properly left to the jury at trial.Here, the jury could reasonably conclude that the evidence at trial established beyond a reasonable doubt that the two specific incidents of abuse had occurred. We accordingly uphold the trial court's order denying Huffs motion for a judgment of acquittal.
Phornsavanh v. State, 481 P.3d 1145, 1156 (Alaska App. 2021) (citing Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990)).
Huff next challenges the trial court's denial of his motion for a new trial under Alaska Rule of Criminal Procedure 33(a). He asserts that the verdict was contrary to the weight of the evidence.
When a trial court rules on a motion for a new trial based on the weight of the evidence, that court must independently weigh the evidence and make its own credibility determinations. Because of this, a court may set aside a verdict as unjust even when the evidence is otherwise legally sufficient to support the verdict. We recently explained the scope of the trial court's discretion:
Id. at 1158 (citing Hunter v. Philip Morris USA Inc., 364 P.3d 439, 447 (Alaska 2015)).
Id.
When a trial court rules on a motion for a new trial based on the weight of the evidence, the trial court must take "a 'personal view of the evidence'" and '"exercise its discretion and independently weigh the evidence, '" without reference to what "reasonable jurors" could find. The trial court must then "use its discretion to determine whether a verdict is against the weight of the evidence-not merely whether the trial court disagrees with the verdict - and whether a new trial is necessary 'in the interest of justice,' that is, 'to prevent injustice. "'
Id. at 1159 (quoting Hunter, 364 P.3d at 448, 452-53).
We review the denial of a motion for a new trial under an abuse of discretion standard, and we will find an abuse of discretion only if the evidence supporting the verdict is "so slight and unconvincing as to make the verdict plainly unreasonable and unjust."
Id. (quoting Hunter, 364 P.3d at 449).
In this case, the record reflects that the trial court independently weighed the evidence and found that a new trial was not necessary to prevent injustice. Finding no abuse of discretion, we affirm the trial court's decision.
Conclusion
The judgment of the trial court is AFFIRMED.