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 authority for any proposition of law.
MEMORANDUM OPINION
MANNHEIMER, Judge.
Sam Alexie Jr. was convicted of second-degree sexual assault for engaging in sexual contact with a woman while she was incapacitated and unconscious from drinking. At Alexie's trial, even though the victim was not available as a witness, the trial judge allowed the State to introduce evidence (through the testimony of police officers) concerning what the victim said when she was awakened by the officers and began to understand what had just happened to her. On appeal, Alexie contends that this testimony was introduced in violation of his constitutional right to confront the witnesses against him. We affirm Alexie's conviction because, to the extent his right of confrontation may have been violated, any error was harmless beyond a reasonable doubt.
Underlying facts
One afternoon in late July 2007, Rebecca Chapman was walking her dog near the intersection of 11th Avenue and Denali Street in Anchorage. When she reached the intersection, she saw a man (later identified as Alexie) and a woman (later identified as L.P.) lying on a lawn. As Chapman got closer, she could see that L.P. was lying on her back, unconscious, and her shirt was pushed up to just below her breasts. Alexie was sitting in the grass next to L.P..
As Chapman walked by, Alexie threw a jacket over L.P.'s abdomen, and he also put one of his hands inside L.P.'s pants, down toward her crotch. Chapman could see movement back and forth inside L.P.'s pants. Alexie then put his other hand inside L.P.'s pants.
Chapman walked to her home, about two blocks away, and called the police. Officers Sheila Bender and Dawn Wilson of the Anchorage Police Department responded to Chapman's report. When they arrived on the scene, Alexie was still lying next to L.P., and L.P. was still unconscious. L.P.'s legs were spread open, and both of Alexie's hands were underneath a shirt that was covering L.P.'s pelvic area. When Bender approached, Alexie sat up and removed his hands from underneath the shirt. When the officers removed the shirt, they could see that L.P.'s pants were unzipped and pulled down low on her hips, exposing the top portion of her pubic hair.
Alexie told the officers that L.P. was "his woman". To verify Alexie's assertion, the officers woke L.P. up. (The officers tried to wake L.P. by talking to her, but she was unresponsive. The officers finally succeeded in rousing L.P. by applying pressure to her sternum and to a point behind her ear.)
When L.P. regained consciousness, she was confused and apparently extremely intoxicated; it was several minutes before the officers were able to engage in meaningful conversation with her.
When L.P. was able to speak, the officers asked her if she knew where she was, and if she was acquainted with the man beside her. L.P. answered that she did not know where she was, and that she did not know Alexie. The officers then asked L.P. why her pants were unzipped. In response, L.P. looked at Alexie and started to cry. Then she yelled, "What did you do to me?", and she attempted to strike Alexie. L.P. told the officers that she had never had sex with a man before.
At trial, Alexie's attorney objected to having the police officers testify about what L.P. said when she was awakened and apprised of the situation (the testimony described in the preceding paragraph). The trial judge ruled that L.P.'s words constituted an "excited utterance", and that L.P.'s statements were not "testimonial hearsay" for purposes of the confrontation clause as construed in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The judge therefore allowed the police officers to give this testimony.
The State brought L.P. to Anchorage to testify at Alexie's trial, but L.P. could not be located on the morning of her expected testimony. The State proceeded without her — thus creating the confrontation clause issue.
Our analysis of the challenged testimony, and why we conclude that any error was harmless
To analyze the challenged testimony, we must examine it piece by piece.
L.P.'s first statement was that she did not know where she was. The State's apparent purpose for offering this statement was to bolster its case that L.P. was unconscious at the time of the sexual contact, or at least unaware of the sexual contact — a necessary element of second-degree sexual assault as charged in the indictment.
Technically, L.P.'s out-of-court statement was not offered for the truth of the matter asserted (i.e., to prove that she currently did not know where she was). Rather, her words were offered as circumstantial evidence that she had been unconscious, or at least unaware of what was happening to her, when the police arrived, and during the time shortly before the officers' arrival. Accordingly, L.P.'s statement was not hearsay. See Alaska Evidence Rule 801(c) (the definition of hearsay).
Because L.P.'s statement was not hearsay, the introduction of this statement did not violate Alexie's rights under the confrontation clause. In footnote 9 of Crawford v. Washington, 541 U.S. at 59, 124 S.Ct. at 1369, the Supreme Court declared that out-of-court statements offered for a non-hearsay purpose do not implicate a defendant's Sixth Amendment right of confrontation: "The [Confrontation] Clause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (We previously noted this rule of law in Estes v. State, 249 P.3d 313, 316 (Alaska App. 2011).)
For these reasons, Alexie had no valid objection, either under the hearsay rule or the confrontation clause, to the officers' testimony concerning L.P.'s first statement.
We additionally note that the evidence of this first statement could not possibly have affected the jury's verdict. It was undisputed that L.P. was unconscious until well after the police arrived.
L.P.'s second statement was that she did not know Alexie. The State offered this statement for the truth of the matter asserted — because, if L.P. was not acquainted with Alexie, this tended to prove that L.P. had not consented, and would not have consented, to any sexual contact by Alexie.
The trial judge concluded that this statement was an excited utterance, admissible under Evidence Rule 803(2), and that the statement was non-testimonial for confrontation clause purposes. But even if one or both of these rulings were incorrect, any error was harmless beyond a reasonable doubt — because, at Alexie's trial, it was undisputed that Alexie and L.P. were not acquainted with each other. Alexie did not assert that he engaged in sexual contact with L.P. with her consent. Rather, Alexie asserted that he had not engaged in sexual contact with L.P.. He argued that he was a bystander who happened upon a woman who was intoxicated and partially disrobed, and that he tried to render assistance to this woman by covering her up — an action that was mistaken for a sexual assault.
Accordingly, even if L.P.'s second statement should have been excluded on hearsay grounds or on confrontation grounds, any error was harmless.
L.P.'s third utterance, "What did you do to me?", was the question that L.P. directed to Alexie after the police alerted her to the fact that her pants were unzipped. This utterance was not a "statement" for purposes of the hearsay rule.
Evidence Rule 801(a) declares that, for purposes of the hearsay rule, the term "statement" refers only to assertions — and, under Evidence Rule 801(c), if an utterance is not a "statement" in this specialized sense, then it is not hearsay. The question that L.P. posed to Alexie was not an assertion. It was therefore not hearsay.
With regard to Alexie's confrontation clause objection, we have already explained that the confrontation clause does not bar the State from introducing evidence of an out-of-court statement if that statement is offered for a non-hearsay purpose. This principle applies with even more force to out-of-court utterances which do not even qualify as "statements" for purposes of the hearsay rule — that is, utterances which are not assertions. Accordingly, the admission of testimony describing L.P.'s third utterance did not violate either the hearsay rule or the confrontation clause.
In addition, we note that this utterance could not possibly have affected the jury's verdict. It was undisputed that L.P. was unconscious until well after the police arrived, and that she had no personal knowledge of what had just occurred. It was therefore obvious to the jurors that, even if L.P. suspected that Alexie had sexually molested her, her angry question to Alexie was founded only on suspicion — a suspicion arising from the fact that her pants were unzipped, and that she was in the company of a man she did not know.
During the defense summation to the jury, Alexie's attorney openly admitted that these circumstances looked suspicious — even though Alexie offered an innocent explanation for them. Accordingly, even if the officers should not have been allowed to testify about L.P.'s question to Alexie, any error was harmless.
This same analysis applies to the last of L.P.'s out-of-court statements — her assertion that she had never previously had sex with a man.
It does not appear that this statement was offered to prove the matter asserted. During the State's summation to the jury, the prosecutor referred to this statement, not as proof that L.P. was a virgin, but rather as circumstantial proof that "she's not in a sexual relationship with this guy".
On this issue of fact — i.e., that there was no pre-existing sexual relationship between L.P. and Alexie — L.P.'s statement was completely cumulative of her earlier statement that she was unacquainted with Alexie. As we have already explained, it was undisputed at trial that Alexie and L.P. did not know each other. Thus, even if L.P.'s statement about never previously having sex with a man were viewed as an assertion that L.P. had no prior sexual relationship with Alexie, any error would be harmless beyond a reasonable doubt.
Conceivably, one might view L.P.'s statement as hearsay under the theory that, when L.P. denied previously having sex with any man, she implicitly declared her belief that Alexie had just engaged in sexual relations with her. This implicit statement would be hearsay, and one could argue that it would not fall under the "state of mind" exception codified in Evidence Rule 803(3) because, at least potentially, the statement was offered to prove that what L.P. believed was, in fact, true.1
But this statement could not possibly have affected the jury's verdict. As we have already explained, it was undisputed that L.P. was unconscious until well after the police arrived, and that she had no personal knowledge of what had occurred. If L.P. believed that Alexie had sexually molested her, it was obvious to the jurors that L.P.'s belief was founded solely on the suspicious nature of the circumstances she found herself in. And as we have also explained, Alexie's attorney openly admitted to the jury that the circumstances did seem suspicious (although the defense attorney offered an innocent explanation for them).
Accordingly, even if the officers should not have been allowed to testify about L.P.'s statement that she had never previously had sex with a man, the error was harmless.
Conclusion
The judgement of the superior court is AFFIRMED.
