Appeal
from the Superior Court, Fourth Judicial District Trial Court
No. 4FA-11-366 CR, Fairbanks, Michael A MacDonald, Judge.
Appearances: Sharon Barr, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the
Appellant.
Diane
L. Wendlandt, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Michael C. Geraghty, Attorney
General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
OPINION
MANNHEIMER Judge.
JonDean
Willock appeals his conviction for first-degree sexual
assault. The question presented on appeal is whether the
trial judge should have allowed the State to introduce
evidence of Willock's prior conviction for sexual
assault. For the reasons explained in this opinion, we
conclude that the trial judge should not have allowed the
State to introduce this evidence, and that this error
requires reversal of Willock's conviction.
Underlying
facts
The
State's case was based on evidence that Willock lured a
woman, R.F., to his apartment by promising her that she could
use his telephone to call a cab. According to the State's
evidence, after Willock and R.F. entered the apartment,
Willock sat down next to her on a couch, put his arm around
her, and tried to kiss her. R.F. told Willock "no",
and she began to struggle. During this struggle, R.F.
wriggled to the floor. Willock then got on top of R.F. and
held her down. According to R.F., Willock stuck his hand down
her pants and digitally penetrated her. R.F. continued to
struggle (punching, scratching, and biting Willock), and she
screamed for help. After a few minutes, Willock stopped
attacking R.F., and she was able to run out of the apartment.
R.F.
sought help at a neighbor's apartment, where she called
911. When the troopers arrived to investigate, they saw
Willock walking through the parking lot near his apartment
complex. He had scratches on his face and fresh blood on his
nose.
When
the troopers questioned Willock, he admitted that he had been
with R.F. that evening. Willock said that R.F. had been in
his apartment, and he recalled R.F. leaving the apartment,
but he told the police that he had no memory of what happened
while R.F. was in his apartment.
Based
on the foregoing evidence, Willock was indicted on one count
of first-degree sexual assault.
The
trial judge's decision to allow the State to introduce
evidence of Willock's prior conviction for sexual
assault, and the prosecutor's use of this evidence at
Willock's trial
Before
trial, the State asked the superior court for permission to
introduce evidence that Willock had a prior conviction for
sexual assault.
In this
prior incident, Willock broke into a woman's apartment
and, despite her vigorous resistance, he assaulted her over
the next two hours. Willock ultimately pleaded no contest to
first-degree burglary and first-degree sexual assault. He
spent most of the next 10 years in prison. He was released
about 3 months before the incident in the present case.
The
superior court granted the State's request to introduce
evidence of this prior sexual assault. Based on what the
judge called the "great similarities" between the
facts of the present case and the facts of Willock's
prior burglary and sexual assault, the judge ruled that
evidence of Willock's prior offense was admissible under
Alaska Evidence Rule 404(b)(1) for four purposes: to show
Willock's "plan" to commit sexual assault, his
"intent" to commit sexual assault, his
"knowledge" that his conduct was "sexual in
nature", and Willock's "lack of reasonable
mistake" regarding R.F.'s willingness (or lack of
willingness) to engage in sexual activity with him.
The
evidence of Willock's prior conviction for sexual assault
formed a significant part of the State's case at trial.
During his opening statement, the prosecutor told the jury
that the present case "[was not] the first time that
[Willock] has had these kinds of difficulties." The
prosecutor described the facts of the prior sexual assault,
and he told the jurors that this prior sexual assault showed
that Willock "[knew] what is illegal activity, and what
is sexual activity, and what is reckless disregard of [the
nature of] a person's [own] behavior."
During
closing argument, the prosecutor returned to Willock's
prior conviction for sexual assault. The prosecutor argued
that Willock's assault on R.F. was similar to the prior
sexual assault, and he asserted that Willock's commission
of the earlier sexual assault showed that Willock recklessly
disregarded R.F.'s lack of consent in the present case.
An
overview of Alaska Evidence Rule 404(b), and a summary of a
trial judge's duties under this rule
Evidence
Rule 404(b)(1) is deceivingly simple in its wording. It
contains two sentences, each of which states an apparently
straightforward principle.
The
first sentence of the rule declares that evidence of a
person's past acts is never admissible "if the sole
purpose for offering the evidence is to prove the
[person's] character ... in order to show that the person
acted in conformity [with that character]." This is
simply a reiteration of the principle codified in Evidence
Rule 404(a): "Evidence of a person's character or a
trait of character is not admissible for the purpose of
proving that the person acted in conformity therewith on a
particular occasion[.]"
The
second sentence of Rule 404(b)(1) declares that evidence of a
person's past acts can be admissible if the evidence is
offered for other purposes (i. e., purposes
other than proving the person's character). This second
sentence lists several examples of non-character purposes:
"proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident." But as our case law clarifies, this list is
non-exclusive.[1] Evidence of a person's past acts is
admissible for any non- character purpose - subject
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