Cole v. State

          Appeal from the Superior Court, First Judicial District, Trial Court No. 1AG-13-00001 CR Sitka, David V. George, Judge.

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

          Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

          Before: Allard, Chief Judge, Harbison, Judge, and Suddock, Senior Superior Court Judge. ^[*]

          OPINION

          SUDDOCK JUDGE

         In 2012, L.P., a twelve-year-old girl residing in Angoon, disclosed that Joshua W. Cole had sexually abused her on two occasions. The authorities arranged for L.P. to give a videotaped statement describing this abuse. Cole was subsequently charged with first- and second-degree sexual abuse of a minor based on the first incident, and two counts of second-degree sexual abuse of a minor based on the second one.^[1]

         Although L.P. 's videotaped statement would normally be hearsay, Alaska Rule of Evidence 801(d)(3) provides that a pretrial videotaped statement "by the victim of a crime who is less than 16 years of age" is not hearsay if certain foundational requisites are met. Cole objected pretrial that two of these foundational requisites were not satisfied. Following a two-stage evidentiary hearing, the court overruled this objection, finding that the foundational criteria were met. But the court conditioned admission of the videotaped statement on L.P. testifying at trial before the video was played to the jury.

         Cole was convicted on all counts, and he now appeals, arguing that the trial judge erred when he found the foundational requisites of Rule 801(d)(3) to be satisfied. For the reasons explained here, we find no error.

         Cole also claims that the judge should have sustained his objection when, during the prosecutor's closing argument, she informed the jury that she was not required to prove the specific dates of Cole's crimes, even though the indictment charged that each incident occurred during a specific month of the year. But the prosecutor's evidence firmly placed each incident within the time frame specified in the indictment. And, contrary to Cole's argument in this appeal, he never raised the sort of alibi defense that might have made the timing of the crimes a significant issue. Accordingly, we conclude that Cole was not prejudiced by the prosecutor's remark.

         Facts and proceedings

         When L.P. was two years old, she was adopted by a couple living in Angoon. L.P. suffered from fetal alcohol spectrum disorder, and she had consequent learning disabilities. L.P.'s adoptive maternal grandmother, Marie Demmert, also resided in Angoon. L.P. visited her grandmother's house often and would sometimes stay there overnight.

         Demmert's biological granddaughter Eileen Hunter, and Hunter's boyfriend Joshua Cole, shared a bedroom in Demmert's house. In March 2011, while Hunter was away, Cole fondled L.P.'s breasts and digitally penetrated her vagina as she was resting on a bed at Demmert's house.

         In September 2011, L.P.'s mother brought L.P. to Alaska State Trooper Christopher Umbs, who interviewed her about whether Cole had sexually abused her. L.P. repeatedly denied that Cole had touched her sexually. L.P. was eleven years old at the time.

         About a year later, in October of 2012, while L.P. slept on a couch in her grandmother's living room, she awakened to find Cole crouching on the floor next to her. Cole attempted to digitally penetrate L.P.' s vagina, but she turned away. Cole then began fondling L.P.'s breasts through her shirt. He was almost immediately interrupted by Cole's girlfriend Hunter, who emerged from their bedroom and asked Cole what he was doing to L.P. According to L.P., Cole said "nothing," stood up, and accompanied Hunter back to their bedroom.

         Soon after this happened, L.P. told her older stepbrother, Norman Joseph, that Cole had touched her "private area." Shortly thereafter the family reported the matter to the authorities, and Trooper Umbs arranged for L.P. to be interviewed on videotape in Juneau at the Child Advocacy Center ("CAC").

         During this interview, L.P. described both incidents of her sexual abuse by Cole. She also recanted her earlier denials from the September 2011 interview with Trooper Umbs.

         Cole's challenges to the admission of L.P. 's videotaped interview

         Cole filed a pretrial motion opposing the admission of the CAC interview, contending that L.P.'s statement failed to satisfy the requirement of Evidence Rule 801(d)(3)(H) that the court must "determine that [the statement] is sufficiently reliable and trustworthy and that the interests of justice are best served by admitting the recording into evidence."

         The court held an evidentiary hearing at which L.P., her mother, and Trooper Umbs testified. Trooper Umbs testified that during L.P.'s interview at the Juneau CAC, he and another person had observed the interview via closed-circuit television in an adjoining room. (L.P.'s mother testified that she believed that three persons had observed the interview in this fashion.) Umbs further testified that, toward the end of the interview, interviewer Jennifer Narvaez briefly visited the observation room to consult about follow up questions. Narvaez then resumed the interview and posed questions along the lines suggested by the observers.

         During argument at the close of the hearing, Cole's defense attorney objected to admission of L.P.' s statement on the ground that L.P.' s interviewer had failed to identify "each person participating in the taking of the statement" on the video recording, as required by Rule 801(d)(3)(E). The defense attorney pointed out that Narvaez had identified herself on the videotape, but she had not identified the observers in the adjoining room.

         After the evidentiary hearing, the State filed a supplemental pleading identifying the persons in the adjoining room as Trooper Umbs, Keith Merrifield from Catholic Social Services, and Brian Messing, a CAC employee. (We note that these same observers are identified on the title page of the transcript for the CAC video recording.)

         The judge later issued a written order, conditionally finding that all of the foundational requisites of Rule 801 (d)(3) had been satisfied. As to subsection (d)(3)(E), the judge noted that "L.P. and Mrs. Narvaez, who took L.P.'s statement and conducted the interview, were identified on the recording."

         The judge set a second evidentiary hearing to afford the parties a further opportunity to present evidence on the issue of whether L.P.'s statement was "sufficiently reliable" to qualify for admission under Rule 801(d)(3)(H), and to clarify the meaning of that section's requirement that the judge find "that the interests of justice are best served by admitting the recording into evidence."

         During that hearing Jennifer Narvaez confirmed that, after a brief intermission late in L.P.'s interview, she had crafted followup questions based on suggestions from the persons observing the interview via closed-circuit television. After hearing further argument, the judge found that L.P.'s statement was sufficiently reliable and that its admission into evidence served the interests of justice.

         Why we conclude that the judge did not err in finding that the foundational requirement under Alaska ...