Memorandum decisions of this court do not create legal precedent.
MANNHEIMER, Judge.
Gareth Demoski was indicted on various felony charges arising from his alleged sexual assaults on three different women over the course of a year. These charges were consolidated for trial. At this consolidated trial, the jury convicted Demoski of the charges arising from the assaults on two of the women, but the jury acquitted Demoski of the charges stemming from the alleged assault on the third woman.
In this appeal, Demoski argues that these charges were improperly joined in a single indictment, in violation of Alaska Criminal Rule 8(a). In the alternative, Demoski argues that even if the charges were properly joined in a single indictment, the trial court should have granted Demoski's post-indictment motion under Alaska Criminal Rule 14 to sever these charges for trial.
For the reasons explained in this opinion, we conclude that the charges were properly joined — and that, in any event, Demoski has failed to show that he was prejudiced by the joinder of these charges.
This case involves four separate incidents involving three different women: K.V., M.M., and L.M. The following description of the underlying facts is taken from the evidence presented to the grand jury, unless otherwise noted.
In 2008, K.V. was living with her companion, Richard Marshall, in a two-bedroom trailer in Fairbanks. K.V. was acquainted with Gareth Demoski because Demoski knew K.V.'s son.
One time when Demoski was a guest at K.V.'s home, Demoski followed K.V. as she walked from the living room to a bedroom. Demoski grabbed K.V.'s buttocks and attempted to shove her onto a bed. K.V. was able to get away from Demoski, and she told Demoski to stop. She then told Marshall what had happened. Marshall ordered Demoski to leave the residence and never return.
A few weeks later, in June 2008, K.V. was lying naked and asleep in bed with Marshall when she awoke to the feeling of pain in her vagina. K.V. opened her eyes and saw that Demoski was sitting on the bed. Demoski had inserted several of his fingers into K.V.'s vagina. K.V. woke Marshall up. Marshall, seeing Demoski in their bedroom, chased him out of the bedroom and down the hall.
Marshall left Demoski in the living room, and he returned to the bedroom to ask K.V. what had happened. When K.V. informed Marshall that Demoski had assaulted her, Marshall returned to the living room and struck Demoski in the head with a pair of nunchaku, causing Demoski's head to bleed profusely. Marshall then chased Demoski out of the trailer.
K.V. initiated a call to 911. While she was on the phone, she heard something hit the trailer door. When K.V. looked, she saw Demoski outside. Demoski proceeded to throw a rock at the trailer, followed by Vise-Grips (a pair of locking pliers), and then a caribou antler. One of these objects struck K.V.'s glass patio door, shattering it. K.V. later discovered that Demoski had also broken the window of her minivan and, inside the trailer, he had pulled a bedroom door completely off its hinges.
State troopers responded to K.V.'s 911 call. The troopers could see a trail of blood leading up to K.V.'s front door, and there were shards of glass everywhere. K.V. was distraught and crying.
One of the troopers located Demoski and interviewed him. At first, Demoski denied that he had been at K.V.'s trailer that night. Demoski then admitted he had been outside K.V.'s trailer, but he insisted that he never went into the trailer.
Demoski's face "was pretty much covered in blood", and he offered a variety of explanations for his injury. He stated that he had been injured in a bicycle accident. He also stated that he had received his injury during an attack by "some Mexicans". Alternatively, Demoski stated that he had been "roughed up by the people in [K.V.'s] unit ... because he owed them money."
Based on this episode, the grand jury indicted Demoski on four felonies: second-degree sexual assault (engaging in sexual penetration with an incapacitated person),
M.M. was acquainted with Demoski because they are first cousins. In June 2007, M.M. was visiting Fairbanks following her graduation from high school. She was staying with her aunt and uncle, Euphrasia and Peter Demoski — who are Gareth Demoski's parents.
On the evening of June 10, 2007, M.M. went drinking with another cousin; she returned to the Demoski residence in the early morning and fell asleep. Later, she awoke to find Demoski "bothering" her — "feeling [her] up [and] unbuttoning [her] pants."
Although M.M. was drifting in and out of consciousness, she remembered telling Demoski "no" three times. She also remembered waking up several times to find Demoski engaging in vaginal intercourse with her. M.M. repeatedly tried to push Demoski away. At one point, Demoski attempted to penetrate her anus.
When M.M. awoke the next day, she was completely naked. Demoski was downstairs using the computer. M.M. placed a telephone call to her sister and cousin, telling them "that [she] needed somebody to talk to." M.M. then contacted the police and underwent a sexual assault exam. DNA was collected from M.M.'s undergarments, and this DNA was consistent with Demoski's DNA.
When the police questioned Demoski about this incident, he told them that he had come home that night "and [M.M.] wasn't even here". Demoski stated that he had simply gone to sleep, and "nothing happened".
Based on this episode, the grand jury indicted Demoski on three felonies: first-degree sexual assault (engaging in sexual penetration with M.M. without her consent),
L.M. was not acquainted with Demoski. According to her testimony, she was assaulted in early June 2008 while she was walking along College Road in Fairbanks, on her way home. Demoski was walking on the other side of the street, and L.M. exchanged greetings with him. L.M. then crossed the street and began a conversation with Demoski. During this conversation, Demoski told L.M. that his name was "Jarod", and that he was on his way home from work at a Carl's Jr. restaurant.
Toward the end of their conversation, Demoski grabbed L.M.'s hand and kissed it. At first, L.M. thought Demoski was merely being flirtatious. However, L.M. perceived that Demoski might have other intentions when he continued to follow her, kissed her on the lips, and grabbed her by the arm when she made ready to leave.
When L.M. asked Demoski what he was doing, he grabbed her by the neck and forced her into a nearby wooded area. L.M. told Demoski that she "didn't want to do this", and she tried to fight him off, but he continued kissing her while he attempted to remove her clothes. L.M. struggled with Demoski, but he was eventually able to penetrate L.M.'s vagina with his penis. Then it began to rain heavily; Demoski left, and L.M. ran home.
L.M. reported this incident to the authorities, and she underwent a sexual assault examination. Based on L.M.'s description of her conversation with her attacker, a state trooper went to the Carl's Jr. restaurant and asked if there was an employee named "Jarod". The manager said that he had no employee by that name, but he allowed the trooper to examine the employee records for individuals who might match the description given by L.M. Demoski's employee photo matched L.M.'s description of her assailant, so the troopers prepared a photo lineup that included Demoski's photo. When L.M. was shown this photo lineup, she identified Demoski.
When the investigating trooper interviewed Demoski and showed him a photograph of L.M., Demoski denied ever seeing her before.
Based on this episode, the grand jury indicted Demoski on one count of first-degree sexual assault (engaging in sexual penetration with L.M. without her consent).
A few months after Demoski was indicted, he asked the superior court to order separate trials of the charges relating to each woman. Demoski argued that these charges were never properly joined in a single indictment in the first place. In the alternative, Demoski argued that even if the charges were properly joined in a single indictment under Criminal Rule 8(a), the charges should nevertheless be severed for trial under Criminal Rule 14, because Demoski would be unfairly prejudiced if a single jury heard all three groups of charges.
The superior court denied Demoski's motion. First, the court found that joinder of the three groups of charges was proper under Criminal Rule 8(a)(1). This rule allows charges to be joined in a single indictment if they are "of the same or similar character", and if "it can be determined before trial that it is likely that evidence of one charged offense would be admissible to prove another charged offense".
The court ruled that evidence of the assaults upon K.V. and M.M. would likely be cross-admissible, since (according to the State's grand jury evidence) both episodes involved Demoski's sexual penetration of women who were asleep in their beds. The court acknowledged that the assault on L.M. involved different circumstances, but the court concluded that evidence of the assaults on K.V. and M.M. would likely be admissible under Alaska Evidence Rule 404(b)(3) at any separate trial of the charge involving L.M.
(Evidence Rule 404(b)(3) states that when a defendant is on trial for sexual assault and defends by asserting that the sexual conduct was consensual, the State can introduce evidence of other sexual assaults committed by the defendant. Thus, the superior court implicitly found that, given L.M.'s identification of Demoski in the photo lineup, Demoski would likely raise a consent defense to the charge involving L.M.)
Finally, the superior court concluded that the joinder of these charges did not create a sufficient risk of unfair prejudice to justify severing the charges under Criminal Rule 14.
Accordingly, Demoski went to trial on all of these charges in November 2009. Demoski testified at trial, and he asserted his innocence.
With respect to the charges involving K.V., Demoski conceded that he entered K.V.'s trailer on the night of the assault, but he denied that he entered with the intent to sexually assault her. Demoski claimed that he went into the trailer because he was looking for someone named "Paul", and because he intended to steal some of K.V.'s possessions in retaliation for an earlier incident where he was "robbed" while "crash[ing]" at K.V.'s trailer.
Demoski admitted that he entered K.V.'s bedroom, looking for valuables to steal, but he denied sitting on K.V.'s bed, and he denied ever touching her. Demoski also admitted, after he was ejected from K.V.'s trailer, he threw objects at the trailer because he was angry that Marshall had attacked him with nunchaku.
With respect to the charges involving M.M., Demoski asserted that M.M. was conscious during the whole encounter, and that she consented to have sexual intercourse with him. With regard to the charge of attempted anal penetration, Demoski explained that, in the heat of the moment, while he "was trying to ... stick it in", he "almost stuck it in ... the wrong place."
With respect to the charge involving L.M., Demoski likewise asserted that the sexual encounter was entirely consensual. To explain why he told the troopers that he had never seen L.M. before, Demoski asserted that he had recently been arrested based on K.V.'s allegations of sexual assault, and he "didn't want to talk to [the troopers]."
At the conclusion of the trial, the jury found Demoski guilty of most, but not all, of the charges against him.
With respect to the charges involving K.V., the jury convicted Demoski of the sexual assault charges, as well as the criminal mischief and misdemeanor assault charges. However, the jury acquitted Demoski of the burglary charge — apparently because they had a reasonable doubt concerning his intent when he entered K.V.'s trailer.
With respect to the charges involving M.M., the jury convicted Demoski of all three charges.
With respect to the charge involving L.M., the jury was unable to reach a verdict, and the court granted a mistrial on this charge.
As we explained above, Criminal Rule 8(a)(1) allows charges to be joined in a single indictment if they are "of the same or similar character", and if "it can be determined before trial that it is likely that evidence of one charged offense would be admissible to prove another charged offense".
The primary charges against Demoski all involved sexual assault, so the first clause of Criminal Rule 8(a)(1) was satisfied: the charges were "of the same or similar character". The meaning of this phrase is discussed in Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, Criminal Procedure (3rd ed. 2007), § 17.1(b), Vol. 5, pp. 7-9. The authors explain that, in jurisdictions that allow joinder of offenses "of the same or similar character", the government can properly join different instances of the same statutory offense, even when the offenses "were committed ... at distinct times and places[,] and not as part of a single scheme".
Thus, the real issue in Demoski's case is whether the second clause of Criminal Rule 8(a)(1) was satisfied: whether the superior court could reasonably predict that evidence of these charges would be cross-admissible.
Given the fact that Demoski and M.M. are first cousins, the superior court could reasonably predict that identity would not be an issue in the trial of those charges. And because forensic testing revealed the presence of Demoski's DNA in M.M.'s undergarments, the superior court could reasonably predict that Demoski would concede that he had engaged in sexual activity with M.M., and that he would assert a defense of consent. Accordingly, the court could predict that, under Evidence Rule 404(b)(3), evidence of Demoski's sexual assaults upon K.V. and L.M. would be admissible at any trial of the charges involving M.M.
Demoski and K.V. also knew each other, so (again) the superior court could safely predict that identity would not be an issue in the trial of those charges. This left two potential defenses: an assertion that the sexual activity was consensual, or an assertion that no sexual activity occurred.
If Demoski's defense was going to be consent, then evidence of his other sexual assaults would be admissible under Evidence Rule 404(b)(3). If Demoski was going to assert that he did not engage in any sexual activity with K.V. (which was, indeed, Demoski's defense at trial), then evidence of Demoski's other sexual assaults would still be admissible for another purpose: this evidence would be relevant to the burglary charge, because it would tend to establish Demoski's intent when he broke into K.V.'s trailer.
With respect to the charge involving L.M., the superior court correctly predicted that Demoski's defense would be consent — thus making the evidence of the other sexual assaults admissible under Evidence Rule 404(b)(3).
For these reasons, we uphold the superior court's conclusion that evidence of the charges involving the three women would likely be cross-admissible — and, therefore, the charges were properly joined under Criminal Rule 8(a)(1).
This leaves the question of whether the superior court abused its discretion in concluding that there was not sufficient potential for unfair prejudice to justify severance of these charges under Criminal Rule 14.
Obviously, the fact that Demoski's various offenses are cross-admissible does not give rise to "prejudice" for purposes of Criminal Rule 14. Indeed, we have noted that when evidence of a defendant's different offenses is cross-admissible, "[a] defendant is hard-pressed to show actual prejudice from the failure to sever, since the evidence would have been admitted even if the judge had granted separate trials." Shorty v. State, 214 P.3d 374, 383 (Alaska App. 2009).
Demoski argues that even though evidence of his various offenses may have been technically cross-admissible (thus satisfying the requirements for joinder under Criminal Rule 8(a)(1)), the probative value of this evidence with regard to the other offenses was so slight, and the potential for unfair prejudice so great, that the superior court should have granted severance under Criminal Rule 14.
But a trial judge's decision to deny a motion to sever under Criminal Rule 14 is reviewed under the "abuse of discretion" standard.
(Although this is not the basis for our decision, we note that the results of Demoski's trial vindicate Judge Olsen's pre-trial assessment that the risk of unfair prejudice was small. Even though the jury heard the evidence relating to all of the charges, the jury acquitted Demoski of the burglary charge involving K.V.; that is, the jury apparently had doubts as to whether Demoski entered K.V.'s trailer with the intent to sexually assault her. And, despite hearing the evidence of Demoski's sexual assaults on K.V. and M.M., the jury was unable to reach a verdict on the charge involving L.M.; that is, the jury was unable to agree as to whether Demoski's sexual activity with L.M. was consensual.)
The judgement of the superior court is AFFIRMED.
