Opinion
A-13781
04-05-2023
JONATHAN BOYD PACE, Appellant, v. STATE OF ALASKA, Appellee.
Michael Barber, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-19-10713 CR Eric A. Aarseth, Judge.
Michael Barber, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Following a bench trial, Jonathan Boyd Pace was convicted of third-degree assault stemming from an argument with his on-again, off-again girlfriend, Rachel Owens, during which Pace pinched her thigh, pulled her hair, and bit her ears, hands, and nose. Owens was the State's only witness at trial.
AS 11.41.220(a)(5). Pace was also convicted of four counts of unlawful contact that he does not challenge on appeal.
On appeal, Pace claims that Owens was incompetent to testify.
Pace first argues that Owens was incompetent based on her testimony that she used "substances" the night before she testified. But because Pace did not object to Owens's competency in the superior court, there is no information in the record about her substance use beyond her own testimony that she used substances the previous evening. There is no information about what substances she used, how much, or the extent to which she was still under their influence. Given this dearth of information, Pace has not established that Owens was impaired by substances at all when she testified, much less impaired to the extent that it affected her competency to testify.
Cf. Spencer v. State, 164 P.3d 649, 652-53 (Alaska App. 2007) (rejecting a categorical rule barring the testimony of a witness who has been drinking, and directing trial judges to evaluate competence based on the totality of the circumstances).
Pace also argues that Owens was incapable of telling the truth. To support this argument, Pace points to inconsistencies in Owens's trial testimony and her admission to previously lying to officers. But a witness's history of dishonesty and inconsistent testimony typically weigh on the fact-finder's determination of credibility, not competency. Such evidence of dishonesty is relevant to a witness's competency only to the extent it demonstrates that "the proposed witness is incapable of understanding the duty of a witness to tell the truth."
See Sevier v. State, 614 P.2d 791, 794 (Alaska 1980) ("[W]hile there were some inconsistencies in [witness's] testimony, it was for the jury to decide how much the weaknesses affected his credibility as a witness. Any inconsistencies should go to the weight of the testimony, and not its admissibility." (citations omitted)).
Although Pace did not object to Owens's competency, the superior court nonetheless made the following findings regarding Owens's competency in reaching its verdict:
[Owens] appeared competent to testify. She understood her oath and the obligation to tell the truth. She understood the directions given to her by the Court and counsel. She understood the questions posed to her and her answers were responsive to the questions asked.
We have reviewed the record and the superior court's factual findings are well-supported and not clearly erroneous. We therefore conclude that the superior court did not abuse its discretion in concluding that Owens was competent to testify.
See id. ("A person is competent to be a witness unless the court finds that (1) the proposed witness is incapable of communicating concerning the matter so as to be understood by the court and jury either directly or through interpretation by one who can understand the proposed witness, or (2) the proposed witness is incapable of understanding the duty of a witness to tell the truth."); Burton v. Fountainhead Dev., Inc., 393 P.3d 387, 392 (Alaska 2017) (noting that in a bench trial, the judge is the trier of fact, and factual findings are reviewed for clear error).
Blume v. State, 797 P.2d 664, 668 (Alaska App. 1990) ("The trial court is vested with broad discretion on the issue of competency, and its decision to allow a witness to testify is subject to reversal only for abuse of discretion - that is, only when there is no substantial evidence to support the competency ruling.").
The judgment of the superior court is AFFIRMED.