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Flood v. State

Court of Appeals of Alaska

June 28, 2013

BERT J. FLOOD SR., Appellant,
v.
STATE OF ALASKA, Appellee.

Appeal from the Superior Court, Second Judicial District, Kotzebue Trial Court No. 2KB-07-396 CR, Michael I. Jeffery, Judge.

Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. [*]

OPINION

COATS Senior Judge.

Bert J. Flood Sr. was convicted of sexual abuse of a minor in the first degree, sexual abuse of a minor in the second degree, and incest, for engaging in sexual penetration with S.A., his 15-year-old daughter. He raises two arguments on appeal.

Flood, who was in custody, asked to be absent from his trial. The State opposed the request. The trial judge denied the request and ordered Flood transported to Kotzebue for trial. Flood argues that this was error. But we uphold the trial judge's decision.

During Flood's trial, the doctor who performed the sexual assault examination on S.A. testified that S.A. stated during the examination that Flood had improperly touched her when she was five or six years old. Flood did not object to this statement at trial. But on appeal Flood argues that the statement should have been excluded under Evidence Rules 404 and 403 as unduly prejudicial evidence of prior acts, and that the failure to exclude the statement was plain error. We do not find plain error.

Factual and procedural background

S.A. testified that she was in Kotzebue for a wedding for a few days around December 11, 2006, although at the time she lived with her mother in Noatak. She remembered drinking some alcohol. She went to the library with some friends. She returned to her father's place a couple hours later.

S.A. testified that she did not remember much more from that night, since she was intoxicated. Between blackouts, she remembered her father being on top of her. Her pants and underwear were off, and she felt him inside her. The next thing she remembered was waking up in the hospital.

Some of S.A.'s friends found her a little bit after midnight, drunk and lying in the snow. She was fully clothed, but her jacket was unzipped. The police arrived and S.A. was taken to the hospital.

Tanya Hallgren was a counselor working in the emergency room. She testified that S.A. told her that Flood had sexually abused her. Dr. John Melville performed a Sexual Assault Response Team exam on S.A. and at trial was qualified as an expert in the area of forensic examinations for sexual assault victims. The prosecutor asked Dr. Melville, "[O]n December 12th of 2006 when you saw [S.A.], what were the statements that she made to you that were necessary for your medical treatment with regard to what happened to her?" Dr. Melville responded:

So she reported to me that (indiscernible) — from approximately 4:00 to 6:00 ... the previous day her father had given her about half a jug of R&R, which is a common form of alcohol up here, and that she had consumed (indiscernible) mixing it with Pepsi. At some time that evening she reports that her father, Mr. Bert Flood, quote, tried to touch my bottom. She really was not clear on a lot of other details. She could not recall if she was or was not wearing pants at that time. She reported no other recollection of the entire evening. She did report that her father had also "touched m e when I was five or six". ...

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