BOLGER, Judge.
N.P. was drinking at a bar with a group of people, including Moses Milligan. After the bar closed, N.P. invited the group to continue drinking at her house. N.P. testified that she woke the next morning to find Milligan on top of her, engaging in sexual penetration. Milligan was convicted of sexual assault in the first and second degrees.
At trial, Milligan claimed that N.P. experienced memory loss and did not remember consenting to sexual intercourse. He attempted to introduce evidence that N.P. experienced other alcohol-related memory losses near the time of this incident, but the trial judge excluded this evidence. We conclude that the evidence that N.P. had recently suffered alcohol-related memory loss was admissible to impeach her memory and perception. We therefore reverse Milligan's convictions for sexual assault and remand for a new trial.
Milligan also argues that his indictment should be dismissed because there was insufficient evidence supporting the charge of first-degree sexual assault, and because the prosecutor failed to present exculpatory evidence relating to this charge. We conclude that there was sufficient evidence to support this charge and that the evidence in question was merely an inconsistency that was not clearly exculpatory.
Milligan also argues that, during the grand jury presentation, a police officer mischaracterized
N.P. testified that she worked as a nurse at Quyanna Care in Nome. One evening, N.P. left work at approximately 11:30 p.m. with a co-worker, Melissa Hart, and decided to go to the Polaris Bar. N.P. and Melissa were joined by Buford Sallafie, Gary Evans, and Moses Milligan. N.P. was familiar with Milligan because he was the boyfriend of a traveling nurse who worked at Quyanna Care. At closing time, N.P. invited the group to walk to her apartment for more drinks.
After the group arrived at the apartment, they played music, drank vodka, and smoked marijuana. After they ran out of vodka, N.P. drove Evans to the store to buy two more bottles of liquor. N.P.'s roommate, Jonel Fergerson, also began drinking with them.
The group drank and danced until approximately 5:00 a.m. Fergerson and Milligan began kissing and then retired to Fergerson's bedroom. Around 8:00 a.m., N.P., Hart, and Evans went to breakfast at the Polar Café. After breakfast, N.P. drove Hart and Evans to their homes and returned to her apartment.
When N.P. returned to her apartment, she noticed that Fergerson's door was closed. N.P. went into her bedroom and removed her pants, but left on her shirt, bra, and underwear. N.P. got into bed at approximately 9:30 a.m. and fell asleep promptly.
About forty-five minutes later, N.P. woke to find Milligan on top of her with his penis inside her vagina. N.P. was in shock and did not know what to do. Milligan did not appear to be paying attention to N.P., and N.P. believed Milligan looked as if "he didn't think that [she] was going to wake up."
N.P. demanded to know what Milligan was doing. When Milligan replied that N.P. wanted him there, she said, "[N]o, I didn't and you took my panties off." N.P. ordered Milligan to leave and Milligan replied, "I'm just really attracted to you."
N.P. was "in shock" and "scared" because she did not know Milligan very well and was concerned about "what might happen next." N.P. ordered Milligan to "get out." Milligan waited ten to fifteen seconds before removing his penis from N.P.'s vagina. Milligan proceeded to masturbate and ejaculate on N.P.'s bed before leaving the room.
Milligan was indicted on one count of first-degree sexual assault
At trial, Milligan testified that, when N.P. had returned to the apartment, he had followed her into her bedroom and sat on the bed with her. Milligan testified that N.P. had told him he had a "nice body," and they had started touching and having sex. Milligan testified that he had told the police that he did not remember the previous night, and that he had made that statement to the police because he panicked.
The jury found Milligan guilty of first- and second-degree sexual assault, and Milligan now appeals.
During cross-examination, N.P. denied that she had ever experienced blackout. In response, Milligan asked the court to allow him to introduce evidence that N.P. had previously experienced alcohol-related memory losses. Milligan made an offer of proof based on the testimony of Chad Yates and Darlene Stumbaugh.
Yates testified that he had dated N.P. for a short period of time before and after the incident in this case. Yates testified that, on one occasion, he had been drinking with N.P. and she ended up staying at his house. The following morning, she had asked Yates how
Stumbaugh testified that she worked with N.P. at Quyanna Care Center. Stumbaugh recalled that one morning N.P. had mentioned that she had had so much to drink that she was unsure how she got home the night before. Stumbaugh could not remember the exact date when N.P. had informed her of the incident, but recalled that the conversation had taken place before the incident with Milligan.
Judge Esch ruled that this evidence was inadmissible impeachment on a collateral issue. The judge also stated that the evidence regarding N.P.'s past memory loss constituted inadmissible propensity evidence. On appeal, Milligan contends that the trial court's decision excluding this evidence violated his due process right to present a defense.
Generally, a party may not introduce extrinsic evidence to contradict a witness's testimony if the extrinsic evidence relates to a collateral matter.
Judge Esch apparently recognized that evidence is not collateral if it is relevant to a material issue. But he ruled that the evidence that N.P. had suffered alcohol-related memory loss was "propensity" evidence barred by Evidence Rule 404(b)(1). Under this rule, evidence of a character trait is generally inadmissible to show that a person acted in conformity with that trait at the time in question.
On the other hand, evidence of flaws in a witness's memory and perception is generally admissible.
We agree with this reasoning. When there is evidence that a witness has been drinking
In this case, there was evidence that N.P. had been drinking with her friends from at least 11:30 p.m. until 5:00 a.m. before the incident in question. Milligan's offer of proof included two or three occasions when N.P. had suffered from memory loss near the time of this incident. Darlene Stumbaugh would have testified that, shortly before this incident, N.P. told her that she had so much to drink that she could not remember how she got home. Chad Yates would have testified that, on one occasion, after a night of drinking, N.P. asked him how they got home. Yates would also have testified that on another occasion, after a night of drinking, N.P. could not remember that she and Yates had intercourse, even though she had been talking and coherent at the time. The evidence of these other incidents was admissible to impeach N.P.'s memory and perception.
When evidence is erroneously excluded, we ask whether the absence of the evidence had a substantial effect on the jury's verdict.
The trial judge's ruling left Milligan without any evidence to support his argument. But if the trial court had admitted the testimony from Stumbaugh and Yates, then Milligan would have had an evidentiary basis for his argument that N.P.'s memory and perception were compromised. We therefore conclude that we must reverse Milligan's convictions because this error may have appreciably affected the jury's verdict.
Milligan also argues that the State presented insufficient evidence to the grand jury to support the charge of first-degree sexual assault. Milligan argues that there was no evidence that Milligan threatened N.P. with harm, and that there was no evidence to show that N.P. was coerced.
When we consider a challenge to the sufficiency of the evidence supporting an indictment, we draw "every legitimate inference" in favor of the indictment.
Under AS 11.41.410(a)(1), "[a]n offender commits the crime of sexual assault in the first degree if the offender engages in sexual penetration with another person without consent of that person." "[W]ithout consent" means that a person, "with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone."
We addressed this issue under similar facts in Nicholson v. State, where a teenage girl woke to find the defendant naked in bed
Similarly, in Ritter v. State, the defendant was charged with four counts of second-degree sexual assault for engaging in sexual contact with four clients while working as a massage therapist.
Milligan asks us to reexamine our holdings in Nicholson and Ritter. We are not convinced that we should do so. These holdings appear to control our ruling on this issue. N.P. testified that she had gone to bed alone, then awoke to find Milligan on top of her, with his penis in her vagina. N.P. testified that she had been shocked and frightened because she did not know Milligan very well and did not know what Milligan would do to her. This evidence was sufficient to allow the grand jury to conclude that N.P. was temporarily coerced to allow this sexual conduct to continue by an implicit threat of imminent physical injury. And this conclusion supports the charge of first-degree sexual assault.
Milligan also asserts that the State failed to present exculpatory evidence to the grand jury with respect to the charge of first-degree sexual assault. He argues that the State failed to present evidence that N.P. told the investigating officers and a SART examiner that Milligan had immediately removed his penis from her vagina after she told him to get off of her. N.P.'s testimony to the grand jury was that Milligan had removed his penis a couple seconds after she told Milligan to stop.
Alaska Rule of Criminal Procedure 6(q) requires a prosecutor to present exculpatory evidence to the grand jury.
N.P.'s statements to the investigating officers and the SART examiner are merely inconsistent with N.P.'s testimony before the grand jury. This evidence was not substantially favorable because the inconsistency does not tend, in and of itself, to negate Milligan's guilt.
Before trial, Milligan moved to dismiss the charge of second-degree sexual assault. Milligan argued that Officer Byron Redburn had negligently omitted material information when he testified to the grand jury about Milligan's statements to two other police officers. Milligan contends that Redburn was misleading when he testified that Milligan told the officers that N.P. might have been passed out when they had sex, without noting
In his ruling on Milligan's motion, Judge Esch compared the transcript of Milligan's interview with the testimony offered to the grand jury. The judge found that, during the interview, in response to an open-ended question about the incident, Milligan stated, "Yeah, we was out at [the] Polaris. We all went back to her place. We was drinkin' ... and the next thing you know everybody was just passed out."
The judge also found that, later in the interview, the police asked Milligan about his knowledge of whether N.P. was passed out:
Milligan began to further discuss his drinking that evening, but Chief Burke interrupted him and asked him again whether N.P. had said anything during the sexual act. Milligan said no, and Chief Burke asked again whether N.P. might have been passed out:
Milligan then stated that N.P. consumed the least amount of alcohol out of the individuals present that evening and noted that N.P. drove other people home.
The record also indicates that Officer Harreus prepared a police report that summarized Milligan's interview. Harreus's report stated that, when Chief Burke asked Milligan if N.P. had been passed out when Milligan had sex with her, Milligan replied, "very well as I was" and "she could have been passed out." Harreus's report does not note that Milligan later denied that N.P. was passed out.
During the grand jury proceeding, Officer Byron Redburn was asked to summarize the statements Milligan made to the police following his arrest. Redburn testified that Milligan's story had evolved. At first Milligan denied that he had sex with N.P. Then he admitted that they had sex, but insisted that he would have stopped if she had said to stop. Then he admitted that he did stop, and then masturbated on the bed.
The prosecutor asked Redburn, "Did anyone ask [Milligan] whether or not [N.P.] was passed out when he had sex with her?" Redburn replied that Officer Harreus and Chief Burke had asked that question. Redburn explained, "[I]t seems to me his response was along the lines of, `She might have been.'"
Milligan argues that Redburn's testimony constituted inadmissable hearsay evidence. Ordinarily, hearsay evidence may not be presented to the grand jury without compelling justification.
However, the rule also provides that, if the testimony presented by a peace officer to the grand jury "is inaccurate because of intentional, grossly negligent, or negligent misstatements or omissions, then the court shall dismiss an indictment resulting from the testimony if the defendant shows that the inaccuracy
Judge Esch initially concluded that Redburn's testimony was not hearsay. He reasoned that a criminal defendant's statements are generally admissible as the statement of a party opponent.
In an alternative ruling, Judge Esch concluded that Redburn did not make any "misstatements" within the meaning of this rule. The judge found that, during Milligan's interview, he had first stated that everybody was passed out, then acknowledged that N.P. might have been passed out, then denied that she could have been passed out. The judge concluded that Redburn's testimony was not a misstatement of Milligan's interview because Redburn accurately described Milligan's second statement on this issue — the statement that suggested that N.P. might have been passed out.
We conclude that the trial judge's analysis was incomplete. Under Criminal Rule 6(r)(3), an officer's summary may be "inaccurate" even if the testimony does not contain an outright misstatement. Under the text of this rule, an officer's testimony may also be inaccurate if it contains "negligent omissions." And Redburn's failure to mention Milligan's third statement on this issue — the statement denying that N.P. was passed out — could have been a negligent omission under this rule.
We cannot tell from this record whether Redburn's testimony was a negligent omission. It may be necessary for the superior court to hold an evidentiary hearing to resolve this issue. And if the court concludes that Redburn's testimony was a negligent omission, then it must also consider whether this inaccuracy prejudiced Milligan's substantial rights. These issues must be resolved before the superior court can determine whether to dismiss the charge of second-degree sexual assault.
In view of our disposition, we are not required to address the other issues raised in Milligan's appeal. We REVERSE the superior court's judgment of conviction and REMAND for further proceedings consistent with this opinion.
