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Trout v. State

Court of Appeals of Alaska

June 24, 2016


         Appeal from the Superior Court, No. 3AN-09-10541 CR, Third Judicial District, Anchorage, Michael Spaan, Judge.

          Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]


          ALLARD JUDGE.

         A jury convicted Lisa Miranda Trout of two counts of first-degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor based on allegations that she sexually abused her oldest son, J.T.

         Trout challenges her convictions on appeal, raising four claims of error. She first argues that the superior court committed plain error when it failed to ensure that her decision to testify at trial was made knowingly, intelligently, and voluntarily. Second, she argues that the court should have instructed the jury to presume that a police detective's missing notes, had they been available, would have been favorable to her. Third, Trout argues that the court should have allowed the jury to hear more details about her ex-husband's prior domestic violence because it was relevant to prove that her ex-husband had manipulated their oldest son into making false allegations against her. Lastly, Trout argues that the trial court erred when it sentenced her to a term of active imprisonment beyond the presumptive range for her most serious offense without any finding of good cause.

         For the reasons explained here, we reject Trout's claims and affirm her convictions and sentence.

         Background Facts

         Lisa Trout and her ex-husband Dunovan Trout have three boys. The .couple married in 1993, separated in 2000, and divorced acrimoniously in 2002. There was domestic violence in the relationship. Trout had sole custody of the children from 2000 until 2009, and during that period, Dunovan saw the children only occasionally.

         Trout was a heavy drinker. And, according to all three of her sons, she was violent and abusive when she was intoxicated. J.T., Trout's oldest son, testified that he tried to protect his brothers from Trout when she became intoxicated.

         Trout was arrested in 2009 for felony driving under the influence. During her incarceration, Trout's children went to live with their grandfather (Trout's father) and his wife. J.T., who was fifteen years old at the time, located his father Dunovan on the internet. The boys began communicating and visiting with their father. After an argument with their grandfather, the boys moved in with Dunovan, his new wife Michelle, and their daughter.

         At some point while J.T. and his brothers were living with Dunovan, J.T. became angry and upset. Dunovan asked J.T. about his relationship with his mother and whether she hurt him. J.T. said "yes, " and his father continued asking questions, including whether she hit him and whether she raped him. J.T. began to cry and said "yes." Dunovan and J.T. told the pastor at their church that J.T.'s mother sexually abused him.

         Around the same time, Dunovan's wife Michelle reported to the police that Dunovan had driven while intoxicated and physically assaulted her. In response to these allegations, Dunovan told the police that Michelle had physically abused the children and, for the first time, he reported to the police that J.T. had alleged that his mother sexually abused him.

         Following this report, Michelle brought J.T. to a children's advocacy center, and J.T. told a social worker and Anchorage Police Detective Brett Sarber that his mother had been sexually abusing him since he was in kindergarten or first grade.

         Detective Sarber began an investigation and obtained a Glass warrant to record a conversation between J.T. and his mother.[1] To prepare J.T., Sarber wrote a list of questions on a notepad for J.T. to ask his mother. During the phone call, J.T. told Trout it had been bothering him for some time that she had sex with him. Trout denied having any memory of abusing J.T. and blamed any possible wrongful behavior on her excessive use of alcohol. When J.T. asked Trout if she ever sexually abused his brothers or if it was just him, Trout responded that it was "just [him]."

         Sarber also separately interviewed Trout. During this interview, Trout denied the allegations. At one point in the interview, however, she stated that she wondered if something might have happened between her and J.T. when she woke up after a night of drinking.

         Trout was charged with one count of first-degree sexual abuse of a minor for engaging in fellatio with J.T. and one count of first-degree sexual abuse of a minor for having sexual intercourse with him;[2] both incidents were alleged to have taken place in February or March of 2009 (i.e., shortly before Trout's 2009 arrest for felony DUI). Trout was also charged with a third count, second-degree sexual abuse of a minor for touching J.T.'s genitals in October 2008.[3]

         Trout's Trial

         The State's theory at trial was that J.T. protected his brothers from physical abuse and neglect in their home while Trout sexually abused J.T. for many years. The State submitted evidence of both parents' alcohol abuse problems, prior Office of Children's Services (OCS) involvement with the family, and Trout's physically abusive conduct toward her children when she was intoxicated. All three boys testified that their mother physically abused them when she was intoxicated. Dunovan also testified about his sons' reports of physical abuse, stating that, according to his sons, Trout beat them with wine bottles and curtain rods, and that they had sometimes slept in the car in winter to escape Trout's abuse.

         J.T. testified that his mother began abusing him sexually when he was in kindergarten or first grade. J.T. testified that sometime during this period, he woke up on the couch and his mother was drunk, naked, and on top of him, trying to have sex with him.

         J.T. described several instances of sexual abuse between ages 5 and 15, including the threeincidents for which Trout was charged and ultimately convicted. One of these incidents involved penile-vaginal sex that J.T. testified took place about two weeks before Trout's 2009 felony DUI arrest. J.T. testified that in the second incident, which occurred around the same time, Trout hit him several times and then performed oral sex on him. In the third incident, which occurred around Halloween 2008, J.T. testified that Trout tried to have sex with him by unzipping his pants and pulling out his penis, but he pushed her away.

         J.T. also testified that his mother initiated sexual acts or attempted sexual intercourse with him about once a month, but he never told his brothers because he did not want them to think she was a bad person. J.T. stated that he never reported the sexual abuse because he did not think anyone would believe him.

         In addition to J.T.'s testimony, the jury also heard the entire Glass warrant conversation between J.T. and Trout in which J.T. confronted Trout with his allegations of sexual abuse. The jury also heard the recorded interview between Trout and Detective Sarber.

         The defense theory at trial was that J.T.'s father manipulated J.T. to falsely accuse Trout of sexually abusing him. The defense emphasized that Dunovan hated Trout, had previously physically abused Trout, and had a pattern of deflecting attention from his own bad behavior by accusing others of bad behavior. The defense also emphasized that Dunovan had a financial motive to manipulate J.T. to accuse Trout of these serious crimes, because it would ensure that the children never returned to Trout and Dunovan would not have to pay child support. Lastly, the defense asserted that J.T.'s accounts of the sexual abuse were not credible, given how much bigger he was than his mother and given how long he waited to report this alleged conduct.

         Trout testified in her own defense. In her testimony, Trout admitted to her prior alcohol abuse and her history of sobriety followed by relapse. She also admitted to drinking to the point of blacking out, even when her children were present. She testified that she was afraid of Dunovan and that he was a violent person who was not truthful and who had threatened to take the children from her.

         Trout denied physically abusing her children. She admitted to spanking them with her hand when they were small, but she testified that she never hit them with any object.

         Trout also denied sexually abusing J.T. She testified that the very idea of her having sex with J.T. was "horrible." When questioned about her ambiguous statements on the Glass recording and to the detective, Trout said she felt sheer terror that she was going to jail and that she might have "done this." She explained that because of her drinking during 2009, she would not have been able to "refute anything." At one point, she was directly asked if she thought she might have sexually abused her son while in a black-out; Trout said "yes."

         The jury found Trout guilty on all three counts of sexual abuse of a minor. Following a sentencing hearing, Trout received a composite sentence of 31 years to serve.

         Trout now appeals her convictions and her sentence.

         Trout's claim that the court committed plain error by allowing her to testify at trial without first securing a knowing and ...

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