JOSHUA W. COLE, Appellant,
STATE OF ALASKA, Appellee.
from the Superior Court, First Judicial District, Trial Court
No. 1AG-13-00001 CR Sitka, David V. George, Judge.
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. [*]
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
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.
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.
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
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.
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.
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.
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
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
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.
challenges to the admission of L.P. 's videotaped
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
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.
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.
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.)
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
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."
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.
we conclude that the judge did not err in finding that the
foundational requirement under Alaska ...