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 AND JUDGMENT

COATS, Chief Judge.

Fred Esguerra was convicted of two counts of sexual abuse of a minor in the first degree and one count of attempted sexual abuse of a minor in the second degree. Esguerra filed an application for post-conviction relief in which he alleged that his attorney, Scott Sterling, who represented him in the trial court and on appeal, provided him ineffective assistance of counsel. Esguerra argues that Sterling was ineffective because he did not call certain witnesses, because Sterling admitted two aggravating factors at sentencing, and because Sterling delayed supplementing Esguerra's brief on appeal with an argument based on a United States Supreme Court decision that was decided after Sterling had filed the brief. Superior Court Judge Gregory L. Heath granted the State's motion for summary judgment and dismissed the application. Esguerra appeals that decision. We affirm.

Discussion

First, Esguerra claims that his trial attorney Scott Sterling was ineffective because Sterling should have called six additional witnesses at trial and sentencing. Esguerra first claims that Sterling did not conduct an adequate investigation because Sterling never talked to these witnesses. But Judge Heath pointed out that Sterling, in his affidavit, alleged that he had his investigator contact the proposed witnesses. Sterling said that not only would the testimony of these witnesses have been unhelpful, it would possibly have been damaging to Esguerra's case. Sterling therefore decided not to call them. Judge Heath noted that Esguerra had not presented any information that would contradict that Sterling had contacted these witnesses through his investigator, had concluded that the witnesses would not have been helpful, and had therefore made a reasonable, tactical decision not to call the witnesses. Judge Heath therefore granted summary judgment to the State on this issue.

There is a strong presumption under Alaska law that a defendant's counsel has acted competently.1 When counsel makes a tactical decision, that decision will be subject to challenge only if the defendant can show that the tactic was unreasonable — that it was a tactic that no competent attorney would have used.2 Esguerra did not present any evidence contesting Sterling's statements in his affidavit that Sterling had contacted the witnesses through his investigator and made a tactical decision to not use those witnesses. Furthermore, Esguerra never presented any affidavits from these proposed witnesses, so the court had no reason to question Sterling's tactical decision that the testimony of these witnesses would not have benefitted Esguerra's case. Judge Heath therefore properly granted summary judgment.

Second, Esguerra argues that Sterling erred in admitting two aggravating factors at sentencing. Judge Heath pointed out that Sterling, in his affidavit, stated that he conceded the aggravators for the tactical reason that he wanted to focus on the weight, rather than the existence, of the aggravators. Judge Heath pointed out that the decision whether to admit an aggravating factor is a tactical decision for the defense attorney.3 He concluded that the record showed that Sterling had made a tactical decision to admit the aggravating factors and that there was no evidence that this was an unreasonable tactic. Judge Heath therefore properly granted summary judgment.

Finally, Esguerra contends that Sterling provided ineffective assistance of counsel because Sterling should have more promptly asked to supplement the brief on appeal to address the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Supreme Court decided Crawford while Esguerra's case was on appeal. Crawford constituted a significant shift in the legal analysis of the application of the Confrontation Clause in criminal cases. Several months after Crawford was decided, Sterling moved to supplement Esguerra's brief on appeal to address whether Esguerra's right to confrontation had been violated in light of the decision. This court denied the motion to supplement the brief, and the Alaska Supreme Court denied a petition for hearing from this denial.

Judge Heath concluded that Esguerra did not overcome the presumption of competence because he failed to show that any effective attorney would have more promptly moved to supplement the brief on appeal. He also concluded that there was no basis to find that, had Sterling acted more promptly, this court would have granted the motion to supplement the brief.

A major problem with Esguerra's contention is that there is no legal support for his Crawford claim. Esguerra was convicted of sexually abusing his two young daughters, B.E. and C.P. B.E. testified at trial.4 B.E. testified that her father (Esguerra) taught her to play with herself, but she did not remember the other two things she was planning to discuss.5 She testified that she remembered talking to a state trooper, that when she talked to the trooper she remembered the other two things, and that she told the trooper the truth.6 The trooper testified about her interview with B.E. in which B.E. told her about Esguerra's sexual abuse.7 A videotape of this interview was admitted into evidence as a prior inconsistent statement under Alaska Rule of Evidence 801(d)(1).8

Esguerra argues that allowing the trooper to testify about B.E.'s statements violated his rights under the Confrontation Clause under the analysis in Crawford. But in Crawford itself, the Supreme Court stated that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of [her] prior testimonial statements."9 Therefore, under Crawford, Esguerra had no claim that the state trooper's testimony about B.E.'s prior statements violated his rights under the Confrontation Clause. The issue that Esguerra argues Sterling should have raised more promptly has no merit.

Judge Heath did not err in finding that Esguerra failed to present a case of ineffective assistance of counsel.

The judgment of the superior court is AFFIRMED.