NOTICE

Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

COATS, Chief Judge.

BOLGER, Judge, with whom MANNHEIMER, Judge, joins, concurring.

A jury convicted Ronnie Moreno of two counts of sexual abuse of a minor in the first degree.1 Moreno appeals his convictions, raising several issues. We affirm.

Factual and procedural background

In a trial conducted by Superior Court Judge Philip R. Volland, a jury convicted Moreno of two counts of sexual abuse of a minor based upon evidence that, in May of 1998, he sexually abused V.G., who was twelve years old at the time.

During a police investigation of the incident, the police obtained a Glass warrant to record telephone calls from V.G. to Moreno. V.G. called Moreno, and during the telephone call, Moreno made admissions to having sexually abused V.G.

At Moreno's trial, V.G. testified that on May 16, 1998, Moreno digitally and orally penetrated her vagina. Moreno testified at trial and denied the accusations. According to Moreno, he was worried about V.G.'s well-being and was concerned, from her statements, that she was at risk of killing herself. He claimed that he was only trying to help V.G. He explained that, in the conversation which the police recorded, he had misunderstood what V.G. said. He said that he had agreed with some of the explicit things that V.G. said because he was worried that she might hurt herself.

At the conclusion of the testimony, the jury found Moreno guilty of two counts of sexual abuse of a minor in the first degree.

Why we affirm Moreno's convictions

Moreno first contends that Judge Volland erred in denying his motion to dismiss the indictment. During the indictment proceeding, the prosecutor represented that she would call as a witness Tara Henry, a nurse who participated in the sexual assault medical examination of V.G. The prosecutor stated that she expected Henry to testify that she had observed injuries to V.G.'s external genitalia that were consistent with digital penetration and cunnilingus. But Henry never testified as a witness. The prosecutor told the grand jury that it could deliberate without hearing from Henry, but she cautioned the grand jurors that they should disregard her representations about Henry's testimony. The record reflects that the prosecutor asked the grand jurors to raise their hand if they could not set aside her representations about what Henry would have said. No hands were raised in response to this inquiry. The prosecutor then advised the grand jurors that they could delay their deliberations until Henry appeared. The grand jury chose to deliberate and returned an indictment on both counts of sexual abuse of a minor in the first degree.

Moreno moved to dismiss the indictment, alleging that the grand jurors could not have disregarded the prosecutor's representation about Henry's testimony. Judge Volland denied the motion. He observed that the prosecutor had cautioned the grand jurors to disregard the representations about Henry's testimony and that the grand jurors had indicated that they would be able to do so. He also observed that the prosecutor had given the grand jurors the opportunity to adjourn until the witness could testify. Judge Volland noted the strength of the evidence that the State presented to the grand jury: not only had V.G. testified, but the State presented Moreno's admissions from the Glass warrant. He concluded that the prosecutor's reference to Henry's potential testimony "had no appreciable effect on the outcome of the jurors' deliberations." Judge Volland's findings are fully supported by the record. We conclude that Judge Volland did not abuse his discretion in denying Moreno's motion to dismiss the indictment.2

Moreno next argues that Judge Volland erred in denying his motion to dismiss which was based on Moreno's contention that the State violated his constitutional right to a speedy trial. Courts have identified three objectives in guaranteeing the right to a speedy trial: "(1) to prevent harming the defendant by a weakening of his case as evidence memories grow stale with the passage of time; (2) to prevent prolonged pre-trial incarceration; and (3) to limit the infliction of anxiety upon the accused because of longstanding charges."3 The United States Supreme Court in Barker v. Wingo4 directed courts to balance four factors in determining whether the defendant's constitutional right to a speedy trial was violated: the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and prejudice to the defendant.5

Moreno claims that the delay between the filing of the complaint against him and his arrest and arraignment violated his constitutional right to speedy trial. The complaint charging Moreno with sexual abuse of a minor was filed on September 22, 1999, and Moreno was not arraigned until September 28, 2001, after he was arrested on a warrant in California and extradited to Alaska. Moreno essentially argued that the two-year delay between the filing of the complaint and his arrest was unreasonable because the police did little to find him in California after the complaint was filed. The State acknowledged that it had simply waited for Moreno to return to Alaska or hoped that he would be arrested in California on the warrant.

While acknowledging Moreno's argument, Judge Volland concluded that the State's efforts were not necessarily unreasonable. He pointed out that the police had promptly obtained a warrant, that Moreno had established a pattern of returning to Alaska periodically, and that the police had talked to V.G.'s family and Moreno's family about where Moreno might be and had asked to be notified if he returned. Judge Volland pointed out that police in Alaska face unique challenges, because they cannot easily or inexpensively pursue suspects outside of the State. Ultimately, Judge Volland considered the fact that Moreno had not established any prejudice from the delay, outside of the mere possibility that, because of the delay, witnesses might have trouble remembering or could possibly become unavailable. He weighed the length and reasons for the delay against the nature and significance of the prejudice to Moreno and concluded that Moreno's right to a speedy trial was not violated.6 We conclude that Judge Volland's balancing of the Barker factors was not in error.

Moreno contends that Judge Volland erred in allowing the State to elicit from him, on cross-examination, that his nickname was "Evil." We have reviewed the record. It is certainly questionable whether Moreno's nickname had any particular relevance to this case. But Moreno was able to give a benign explanation for the nickname. We conclude that, if it was error to admit the nickname, any error was harmless.7

Moreno raises numerous other arguments in his pro se brief. He argues that the police failed to adequately investigate his case and ignored exculpatory evidence. He argues that the police exercised undue influence over V.G. and influenced her testimony. He argues that the police investigating the charges and the prosecuting attorneys procured perjured testimony and did not turn over exculpatory evidence. In general, Moreno had the opportunity to confront the evidence against him, including the opportunity to argue that the police investigation was inadequate and that witnesses committed perjury or were improperly influenced. Moreno has not demonstrated that he preserved an objection to these issues, has not demonstrated how he was prejudiced, or established that Judge Volland erred in how he addressed these issues. None of these arguments are adequately briefed. Upon reviewing the record, there is no indication that Moreno's due process rights were violated.

Moreno argues that the Glass warrant was invalid. But he never made a motion attacking the warrant in the trial court. He has therefore forfeited the claim.8 He argues that Judge Volland erred in not accepting his pro se pleadings. But Moreno was never co-counsel, so Judge Volland acted properly by rejecting Moreno's pro se pleadings and relying on the fact that Moreno was represented by an attorney.9

Moreno argues that Judge Volland erred in refusing to allow him to obtain evidence of V.G.'s prior sexual history and unfairly limited his ability to introduce the evidence that he did have. But the record shows that Judge Volland thoroughly considered this evidence and allowed much of it to be introduced. Moreno has not shown that Judge Volland abused his discretion.

Moreno argues that he was not allowed to present a mistake of age defense at trial. But Moreno did present this defense. The jury was instructed on this defense, and Moreno's counsel argued the defense to the jury.

Moreno argues that he did not have notice of Tara Henry's testimony. But the record shows that Moreno had notice of Henry's testimony — the State had attempted to call Henry as a witness at the grand jury proceeding. He also argues that Henry improperly vouched for V.G.'s credibility. Henry's testimony was essentially that the injuries which Henry observed were consistent with V.G.'s report of sexual abuse. Judge Volland did not abuse his discretion in admitting this testimony.

Moreno argues that Judge Volland erred in having Moreno, at the request of Moreno's counsel, testify out of the presence of the jury as an offer of proof. But the trial court did not commit plain error by allowing Moreno to present the offer of proof.10 Moreno also argues that the trial court erred in limiting his testimony. But the record shows that Moreno was allowed to testify at length. Moreno has not shown that Judge Volland abused his discretion in limiting his testimony. In addition, Moreno has not shown that Judge Volland erred in precluding testimony of various defense witnesses or in precluding evidence of other telephone calls between Moreno and V.G. The record shows that Moreno was able to present considerable testimony to support his claims that V.G. was not credible. It appears that the testimony which Moreno offered was inadmissible hearsay, was properly precluded under the rape-shield statute, or was properly precluded under Alaska Evidence Rule 403.

Moreno argues that "structural error" occurred because he was represented by several different attorneys, was in court before four different judges, and never received discovery which he requested. But Moreno was represented by counsel throughout these proceedings, and he has not shown how he was prejudiced by any change of judge. He has not shown that the State committed any discovery violations, much less how he was prejudiced.

Moreno argues that the trial transcript is either incomplete or inaccurate. There is no basis in the record to support this claim. Likewise, there is no support for Moreno's contention that he was deprived of access to the courts.

Moreno argues that his case should be reversed based upon cumulative error. Moreno has not established any error.

Moreno argues that the evidence was insufficient to support his convictions. But the evidence, in the light most favorable to the jury's verdict, was sufficient for a jury to find Moreno's guilt beyond a reasonable doubt.11

Conclusion

We have reviewed Moreno's claims of error. We conclude that these claims do not have merit. We accordingly AFFIRM Moreno's convictions.

BOLGER, Judge, with whom MANNHEIMER, Judge, joins concurring.

The lead opinion considers whether the delay between the filing of the felony complaint and Moreno's arrest violated his constitutional right to a speedy trial. I would analyze this claim differently.

The right to a speedy trial attaches only upon either formal charge or arrest, after the defendant suffers either a loss of liberty or the public disgrace of a formal criminal proceeding:1 "The general rule [is] that the speedy trial right attaches at the time of arrest or formal charge, whichever comes first ... ."2

A formal charge is defined as a charge "in a form that would vest the court in which it is filed with jurisdiction to try the accused."3 In other words, "a pleading does not constitute a `formal charge' for purposes of attaching the federal Constitution's speedy trial right unless the pleading is a formal accusation upon which a defendant may be brought to trial in the court with jurisdiction over prosecution of the offenses alleged."4

This definition means that a criminal complaint starts the speedy trial clock for a misdemeanor case.5 In my opinion, however, a complaint filed in district court is not a "formal charge" in a felony case because the defendant cannot be tried in district court on a felony complaint.6 I would not apply speedy trial analysis to the period before Moreno's arrest because there was no "formal charge" until the grand jury returned an indictment in the superior court following his arrest.

In my opinion, the proper question is whether the delay before Moreno's arrest and indictment violated his due process protection against unreasonable preindictment delay. But when I apply the due process analysis I come to the same conclusion as the lead opinion. Moreno's generalized claims of fading memories or the possibility of lost witnesses are not sufficient to establish a due process violation.7