Summary
applying the Wickham rule to bar an appellant from challenging the trial court's conditional admission of prior act evidence under Evidence Rule 404(b), where the defendant did not testify and the evidence was therefore never admitted
Summary of this case from Jones v. StateOpinion
Court of Appeals No. A-8715.
January 18, 2006.
Appeal from the Superior Court, Third Judicial District, Kodiak, William H. Fuld, Judge. Trial Court No. 3KO-02-835 CR.
Joseph R.D. Loescher, Spencer Loescher, LLC, Tacoma, Washington, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
On December 27, 2002, S.Z., a sister-in-law of Tim O. Melovedoff Sr., awoke in Melovedoff's house to discover Melovedoff on top of her engaging in sexual intercourse. S.Z. struggled to push Melovedoff off, and it took over a minute to get him to stop. For this misconduct, a jury convicted Melovedoff of first-degree sexual assault and second-degree sexual assault.
AS 11.41.410(a)(1) AS 11.41.420(a)(3), respectively.
In this appeal, Melovedoff attacks several of the superior court's trial rulings and its rejection of his motion for judgment of acquittal. We conclude that the superior court rulings were not an abuse of its discretion. We also conclude that sufficient evidence supported Melovedoff's convictions. Accordingly, we affirm the superior court but remand to correct an ambiguity in the judgment.
Background facts and proceedings
S.Z., Melovedoff's twenty-one-year-old sister-in-law, was living with Melovedoff and his wife, Glenda, in their Kodiak home. On the evening of December 26, 2002, Melovedoff and his wife went out for the evening, leaving S.Z. at home with her children and the Melovedoff children. At around 10:00 p.m., S.Z. began drinking. Over the course of the rest of the night, S.Z. had about six drinks, becoming moderately intoxicated. She went to sleep on the couch in the livingroom some time around 3:00 a.m. on December 27, about half-an-hour after Melovedoff and his wife returned home. When S.Z. went to sleep, she was wearing a t-shirt and pajama pants.
S.Z. awoke to find Melovedoff on top of her engaging in sexual intercourse. S.Z. tried to push Melovedoff off but could not. After a minute or two, Melovedoff stopped, got up, and returned to his room. S.Z. called a friend who came over to the house and sat with S.Z. through the rest of the night.
S.Z. went to the hospital the next day, where she submitted to a sexual assault examination. Sperm collected from S.Z.'s vagina during the exam contained DNA that was statistically likely to be Melovedoff's DNA.
The grand jury indicted Melovedoff on one count of first-degree sexual assault under AS 11.41.410(a)(1) (sexual penetration without consent); one count of second-degree sexual assault under AS 11.41.420(a)(3)(B) (sexual penetration with a person known to be incapacitated); and one count of second-degree sexual assault under AS 11.41.420(a)(3)(C) (sexual penetration with a person who is unaware the act is being committed). The second-degree sexual assault charges were later consolidated, and Melovedoff was charged only under 11.41.420(a)(3)(B).
Melovedoff's claim regarding the admissibility of his prior conviction
Before trial, the State notified Melovedoff that if he testified and used the defense of consent, the State would seek to introduce evidence that Melovedoff had abused another sister-in-law as shown by his prior sexual assault conviction. Melovedoff had been convicted for attempted second-degree sexual assault involving another of his wife's sisters, A.Z., who was fourteen years old at the time of that assault. Melovedoff was on felony probation for that crime when he assaulted S.Z.
Melovedoff moved for a protective order barring evidence of this prior conviction. The State opposed the motion, pointing out that Alaska Evidence Rule 404(b)(3) authorizes the introduction of evidence of a conviction for sexual assault or attempted sexual assault in a prosecution for sexual assault or attempted sexual assault if the defendant relies on the defense of consent. Superior Court Judge pro tem William H. Fuld denied Melovedoff's motion for the protective order, ruling that evidence of the prior sexual assault conviction would be admitted if Melovedoff testified and claimed the defense of consent. Melovedoff did not testify during trial, and the State never offered evidence of the prior sexual assault conviction.
The State argues that Melovedoff has not preserved the right to challenge Judge Fuld's decision to conditionally admit evidence of Melovedoff's prior conviction for sexual assault. The State asserts that Alaska law requires a defendant to testify to preserve a claim for improper impeachment by a prior conviction. Melovedoff argues that the cases cited by the State are not on point because they do not deal with the rule of evidence at issue in this case.
In State v. Wickham, the State notified Wickham that it would seek to admit evidence of his prior conviction for perjury if Wickham testified at trial. The superior court ruled that Wickham could be impeached with evidence of the perjury conviction under Alaska Rule of Evidence 609 if he testified. Rather than testify, Wickham made an offer of proof as to the substance of his testimony; he was subsequently convicted.
796 P.2d 1354 (Alaska 1990).
Id. at 1355.
A.R.E. 609(a). The pertinent part of the rule states: "For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is only admissible if the crime involved dishonesty or false statement."
Wickham, 796 P.2d at 1355.
Id.
On appeal, the Alaska Supreme Court found Wickham had not preserved his claim for improper impeachment because he did not testify. The court, following Luce v. U.S., reasoned that testimony was necessary for two reasons: first, for the appellate court to make an abuse of discretion determination concerning the trial court's weighing of the prejudicial nature of the evidence against its probative value; second, the court found that if the defendant did not testify and the prior conviction was not admitted, it was impossible for an appellate court to determine whether the asserted error was harmless or prejudical. The court noted that an offer of proof was insufficient to cure either of the above problems, primarily because the actual trial testimony could differ widely from the offer of proof.
Id. at 1358.
469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984).
Wickham, 796 P.2d at 1356, 1358.
Id. at 1358.
Id. at 1356-57.
In Sam v. State, the defendant filed notice of his intent to use the defense of diminished capacity. In response, the State sought an order under AS 12.47.070(c)(5), directing all experts examining the defendant to supplement their competency evaluation by indicating whether they believed the defendant was capable of forming the required mental state to commit the crime in question. The defendant moved for a protective order, seeking to preclude the State from calling experts on diminished capacity. The trial court denied the motion. The defendant abandoned his diminished capacity defense as a result of the denial of his motion for the protective order.
842 P.2d 596 (Alaska App. 1992).
Id. at 598.
Id.
Id.
Id.
Id.
On appeal, this court found that the core concern expressed in Wickham, the uncertainty created by the absence of testimony, was more problematic than it had been in Wickham, primarily because the defendant had not made an offer of proof, did not detail to the court his proposed defense of diminished capacity, and the State at no point equivocally committed itself to calling a rebuttal witness. This court found that "[a]ny attempt to divine the likely effect of the alleged error in these circumstances would amount to pure speculation."
Id. at 599.
Id.
Melovedoff argues that Wickham and Sam do not control this case because "those decisions deal with different topics and rules than does Melovedoff's point on appeal." Melovedoff maintains that in the present case it is Alaska Rule of Evidence 403 that is at issue, not Rule 609 as was the case in Wickham. But in Sam, we applied Wickham in the context of Sam's announced intention to rely on a diminished capacity defense.
Id. at 598.
We reject Melovedoff's argument that Wickham does not apply to the present case simply because this case centers on a different rule of evidence. The underlying concern of the Sam and Wickham decisions was the "factual vacuum" created when a defendant fails to trigger the conditional admission of evidence by testifying or relying on a specific defense, thereby making the appellate court's determinations of harmless error or prejudice difficult. In this case, Melovedoff did not testify. He did make an offer of proof comparing the facts of his prior conviction to the present case. But Melovedoff did not pursue a consent defense nor outline the details of that defense.
Wickham, 796 P.2d at 1358.
This lack of a record for review creates exactly the kind of factual vacuum the courts in Sam and Wickham sought to avoid. Because Melovedoff did not testify, we conclude that Melovedoff did not preserve his claim.
See Sam, 842 P.2d at 598; Wickham, 796 P.2d at 1358.
Because we conclude that Melovedoff did not preserve this claim, we need not decide whether the superior court properly concluded that Melovedoff's prior conviction was admissible under Evidence Rule 404(b)(3). Nor do we need to consider the State's claim that the prior conviction was admissible under Evidence Rule 404(b)(1).
Melovedoff's multiplicitous indictment claim
Melovedoff also moved the court to declare that the indictment was "multiplicitous" and require the State to proceed at trial on a single count. Melovedoff complained that the indictment charged him with several offenses for what essentially constituted a single sexual assault. While the State did agree to consolidate the two counts of second-degree sexual assault, Judge Fuld refused to merge the first- and second-degree assault counts and allowed both counts to go to the jury.
Melovedoff argues that both statutes he was indicted under, AS 11.41.410(a)(1) and AS 11.41.420(a)(3), serve the social purpose of protecting victims from "socially unacceptable sexual contacts," and both criminalize sexual contact without consent. Based on these similarities, Melovedoff contends his indictment, charging offenses under both statutes for his conduct, violates the state and federal constitutional right against double jeopardy.
Melovedoff misperceives the potential remedy when a defendant's conduct supports a jury verdict on more than one offense. In Whitton v. State, the Alaska Supreme Court held that, although a jury has found a defendant guilty of violating two separate criminal statutes, the sentencing court should impose sentence on only one conviction when the offenses are so closely related that there are no significant differences between the conduct proscribed and the societal values protected by the two statutes. Any differences in intent or conduct would then be examined in light of the basic interests of society to be vindicated or protected to determine whether those differences are "substantial or significant enough to warrant multiple punishments." The societal interests to consider include the nature of the "personal, property or other rights sought to be protected, and the broad objectives of criminal law such as punishment of the criminal for his crime, rehabilitation of the criminal, and the prevention of future crimes." If the differences in intent or conduct are "significant or substantial" in relation to the societal interests involved, multiple sentences may be imposed without offending the constitutional prohibition against double jeopardy.
479 P.2d 302 (Alaska 1970).
Id. at 312-13.
Id. at 312.
Id.
Id.
But the double jeopardy problem recognized in Whitton does not require a trial court to limit a jury's consideration of both offenses. In Robinson v. State, the supreme court rejected the contention that Whitton barred submitting two counts to the jury even if those counts would merge at sentencing. The supreme court reaffirmed the Robinson holding in Gilbert v. State.
487 P.2d 681 (Alaska 1971).
Id. at 682.
598 P.2d 87, 91 (Alaska 1979).
As the State argued to Judge Fuld when this issue was discussed, Melovedoff would have a Whitton argument if the jury found him guilty of both counts. Melovedoff claimed that he would suffer less prejudice if he faced only one offense at trial, but Judge Fuld rejected Melovedoff's argument and allowed the trial to go forward on both charges. We conclude based on Robinson and Gilbert that Judge Fuld did not err by allowing the trial to proceed on both charges.
The parties returned to the issue at sentencing. The State conceded at sentencing that the counts should merge and that the court should only sentence Melovedoff for first-degree sexual assault. From our review of the record, we agree that the two counts merged and that Judge Fuld could properly convict Melovedoff of only first-degree sexual assault.
Although Judge Fuld imposed sentence on only the one count of first-degree sexual assault, the written judgment does not explicitly reflect the merger of the two counts into one conviction. Therefore, we remand the case for the superior court to enter a corrected judgment that indicates the merger of the two counts and only one resulting conviction.
Melovedoff's claim that the court barred evidence of the victim's false claim of physical assault
During trial, the prosecutor asked a defense witness whether S.Z. had ever falsely accused someone of raping her; the witness answered "No." After this evidence was presented, Melovedoff told the court at the end of that trial day that he intended to call S.Z.'s father as a witness. Melovedoff said that he expected S.Z.'s father to testify that S.Z. had falsely accused her father of physical (but not sexual) assault. Melovedoff predicted that when trial started the next morning, he might ask for permission to have the father testify telephonically because the witness might not be able to fly to Kodiak from Anchorage because of the poor weather conditions. The State wanted the witness to appear personally. Judge Fuld said the witness would have to appear in person. Melovedoff did not return to the issue the next day, call the father as a witness, or request any other relief.
Melovedoff argues that Judge Fuld erred by not allowing him to present evidence of the victim's false claim of physical assault. But assuming that Judge Fuld's comment that the witness would have to appear personally was a ruling on Melovedoff's announcement that he would likely request telephonic testimony the next morning, it was a ruling only on the question of telephonic testimony. Judge Fuld's comment did not bar Melovedoff from seeking to introduce evidence of a prior false claim of physical assault, assuming that evidence was admissible.
See A.R.E. 405 608; Morgan v. State, 54 P.3d 332, 335-36 (Alaska App. 2002).
Telephonic testimony in criminal proceedings is governed by Alaska Criminal Rule 38.1, a rule not addressed in Melovedoff's briefing. Rule 38.1(a) provides that a judge may allow a witness to appear telephonically at trial "with the consent of the prosecution and the defendant." A review of the record shows that Judge Fuld was aware of the consent requirement and the record is clear that the State did not consent to the witness appearing telephonically. Judge Fuld did not err by announcing that Melovedoff's potential witness would have to appear in person.
Melovedoff's objection that the prosecutor was asking leading questions
During S.Z.'s testimony, Melovedoff objected three times on the ground that the prosecutor was leading the witness.
Prosecutor: Okay. And you say that [Melovedoff] was on top of you. Was he just laying on top of you or was he doing anything else?
S.Z.: Specifically, what do you want — what do you — what are you asking?
Prosecutor: Well, at that point, was he just holding you down? I mean was he just — was he having sex with you is what I'm . . .
Defense Attorney: Objection. Leading, Your Honor.
Court: I'll allow it as — it doesn't suggest a conclusion. It's slightly leading, but it's a difficult situation. She's reluctant to . . . volunteer the information.
Prosecutor: [S.Z.], when you woke up, was Tim Melovedoff having sex with you?
S.Z.: Yes.
Prosecutor: Okay. And in — there are a variety of ways for people to be engaged in sex. How was he having sex with you?
Court: Just relax. We are all adults and . . .
S.Z.: Yeah.
Prosecutor: Yeah. I know this is very — [S.Z.], I know this is very uncomfortable for you to talk about, but we've got to say — the jury doesn't know what you know so we need to tell them. And everyone's an adult here. Was he — were you engaged in what would be called normal genital intercourse?
Defense Attorney: Your Honor, I'm going to object to this type of leading questioning. I think it's . . .
Court: Try — see if she'll . . .
Prosecutor: Okay.
Court: . . . describe . . .
Prosecutor: [S.Z.], you told the jury and the Court that Tim Melovedoff was having sex with you. How was he having sex with you?
S.Z.: It was intercourse. Just — just regular, you know, sex.
Prosecutor: Okay. Could you feel his penis inside you?
Defense Attorney: Objection. Leading.
Court: Overruled.
S.Z.: Yes.
Melovedoff argues that the questions which drew his objections were leading and improper because they suggested Melovedoff was guilty of the conduct for which he was on trial. He asks this court to order a new trial.
The State argues the prosecutor's questions were permissible because S.Z. was emotionally distraught when she testified; she used her own words when she testified; and because two of the questions Melovedoff objected to as leading were clarifications of S.Z.'s previous testimony.
A question is leading if it suggests to the witness the answer desired by the examiner. Alaska Rule of Evidence 611(c) prohibits attorneys from using leading questions on direct examination unless: (1) the question is formal or preliminary; (2) the question is necessary to develop witness testimony; (3) the witness is hostile or adverse; or (4) the question is necessary to impeach the witness's testimony.
1 John W. Strong et al., McCormick on Evidence § 6, at 19 (5th ed. 1999).
A.R.E. 611(c).
This court has found leading questions permissible in situations where the witness was under stress in giving testimony and gave testimony in his or her own words, not directly in response to leading questions. Federal courts have also found leading questions permissible in situations where witnesses fail to divulge sufficient details using non-leading questions or where the witness is having difficulty testifying due to the personal nature of sexual assault.
See Hilburn v. State, 765 P.2d 1382, 1388 (Alaska App. 1988).
See, e.g., U.S. v. Archdale, 229 F.3d 861, 866 (9th Cir. 2000) (finding leading questions permissible where the witness failed to respond to seven of the prosecutor's questions regarding details of sexual abuse as well as where the witness was testifying to personal matters); U.S. v. Carboni, 204 F.3d 39, 45 (2nd Cir. 2000) (finding leading questions were permissible after the prosecutor tried repeatedly to obtain the same information through non-leading questions). But c.f. U.S. v. Shoupe, 548 F.2d 636, 641 (6th Cir. 1977) (finding the recitation of extended prior unsworn statements within a leading question impermissible during direct examination).
We cannot conclude that Judge Fuld abused his discretion. First, the witness was testifying about the sexual assault, and the record shows she was having some difficulty. Judge Fuld found the first question "slightly leading" but allowed the question for two reasons, because S.Z. was "reluctant . . . to volunteer information" (presumably because of the personally difficult nature of the subject matter) and because Judge Fuld found the question did not suggest a conclusion. When Melovedoff objected next, the prosecutor rephrased his question and put a non-leading question to S.Z. ("[Y]ou told the jury Melovedoff was having sex with you. How was he having sex with you?"). The last question that drew an objection ("Could you feel his penis inside you?") was not leading because it did not suggest the answer the prosecutor was seeking. We conclude that Judge Fuld did not abuse his discretion when he overruled Melovedoff's objections.
Melovedoff's claim regarding the report of DNA testing
During the trial, the State called Jessica Cohen, who was qualified as an expert witness on DNA testing. Cohen testified that she performed DNA analysis of three items: a vaginal swab taken from S.Z. following the assault; a known reference sample of blood from S.Z.; and a known reference sample of blood from Melovedoff. Cohen testified about the statistical likelihood that the sperm found in the vaginal swab was Melovedoff's. After Cohen testified, the State offered Cohen's report of the results of the test. Melovedoff objected that the report contained information that Cohen did not testify to. Judge Fuld admitted the third page of Cohen's report which contained a table of the numerical locators for DNA Cohen had described in her testimony.
Cohen specifically discussed the DNA locators in her report and explained to the jury the significance of the matching DNA typing results using a blown-up copy of the third page of her report. In cross-examination, Melovedoff did not question Cohen regarding these findings. Judge Fuld found that the information contained on the third page of the report was identical to the information Cohen had testified to without objection. Even if it had been error to admit the portion of the report, the error would be harmless. Melovedoff conceded at trial that he and S.Z. had had sex.
See Love v. State, 457 P.2d 622, 632-33 (Alaska 1969).
Melovedoff's claim that the prosecutor argued facts not in evidence
During closing argument, the prosecutor described a possible scenario of events just prior to Melovedoff sexually assaulting S.Z.:
Prosecutor:[W]hile he's there, it's either by accident or intention, he rubs up against [S.Z.] and when she doesn't move, he rubs up against her a little more. A little harder. When she doesn't move, he starts to pull her pajamas down a little bit and when she doesn't react, he [pulls] her pajamas all the way down.
Melovedoff objected that the prosecutor was arguing facts not in evidence. Judge Fuld overruled the objection, stating the prosecutor's comments regarding Melovedoff's behavior just prior to sexually assaulting S.Z. were permissible "argument" and "inference."
Melovedoff argues Judge Fuld erred in allowing the comments. Melovedoff asserts that the State wanted to "create an argument of a scheme or plan that started with touching, and proceeded to more touching to the point of seeing how far [Melovedoff] could go with the sleeping victim." By overruling the objection, Melovedoff contends, the court created an impression that these facts were in evidence and that the court "condoned the argument."
The State argues that the prosecutor made permissible inferences based on the evidence. The State contends the jury could reasonably conclude Melovedoff approached S.Z. with some caution and made initial contact with her to determine how asleep she actually was. In addition, because S.Z. went to sleep wearing pajamas and awoke without them on, the prosecutor's inference that Melovedoff took them off was reasonable.
In closing argument, an advocate may rely on the evidence admitted during trial and any inferences reasonably drawn from the evidence. We conclude that the argument offered by the State was based on reasonable inferences from the evidence. Judge Fuld properly denied Melovedoff's objection.
Lewis v. State, 862 P.2d 181, 189 (Alaska App. 1993). See also Dorman v. State, 622 P.2d 448, 461 (Alaska 1981); Sam, 842 P.2d at 600; 1 A.B.A. Standards for Crim. Just. § 3-5.8 (3rd ed. 1993).
Melovedoff also asserts that this argument was "calculated to inflame the jury." We have found that a prosecutor's argument improperly inflamed the jurors' passions where the prosecutor asked jurors to put themselves in the victim's place, or where the prosecutor asked the jury to consider the possible consequences of a not guilty verdict. In those cases, the prosecutors' statements did not rely on inferences drawn from the facts of the case, nor did the prosecutors discuss the law in question. But in this case, the prosecutor's argument described a possible scenario of how the assault occurred. This description used reasonable inferences drawn from the evidence. Melovedoff has not convinced us that the prosecutor's argument was intended to inflame the jury.
See Phillips v. State, 70 P.3d 1128, 1139 (Alaska App. 2003) (citing U.S. v. Teslim, 869 F.2d 316, 328 (7th Cir. 1989)) (holding it improper for a prosecutor to ask members of the jury to put themselves in the victim's place).
See Patterson v. State, 747 P.2d 535, 539 (Alaska App. 1987) (finding the closing argument improper because the prosecutor asked the jury to decide not on the strength of the evidence but rather on its concern for assuring the continued safety of the victim).
Melovedoff's motions for a judgment of acquittal
After the State presented its case-in-chief, at the conclusion of the evidence, and after the jury's verdicts, Melovedoff moved for a judgment of acquittal. The court denied Melovedoff's motion.
When we review the denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the State and determine whether reasonable jurors could conclude that the accused is guilty beyond a reasonable doubt. Here, the victim's testimony described in this opinion supports the jury's verdicts.
Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
Conclusion
The judgment of the superior court is AFFIRMED. We remand the case to the superior court to correct the judgment to reflect a single conviction for first-degree sexual assault, based on a merger of the two counts of which the jury found Melovedoff guilty.