Joshua W. COLE, Appellant,
v.
STATE of Alaska, Appellee.
Page 705
Appeal
from the Superior Court, First Judicial District, Sitka,
David V. George, Judge. Trial Court No. 1AG-13-00001 CR
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
Page 706
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 prosecutors closing argument, she
informed the jury that she was not required to prove the
specific dates of Coles crimes, even though the indictment
charged that each incident occurred during a specific month
of the year. But the prosecutors evidence firmly placed each
incident within the time frame specified in the indictment.
And, contrary to Coles 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 prosecutors
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 grandmothers house often and would
sometimes stay there overnight.
Demmerts biological granddaughter Eileen Hunter, and
Hunters boyfriend Joshua Cole, shared a bedroom in Demmerts
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 Demmerts 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 grandmothers 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 Coles 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.
Coles 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
followup questions. Narvaez then resumed the interview and
posed questions along the lines suggested by the observers.
During
argument at the close of the hearing, Coles 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
...