Judge ALLARD, writing for the Court.
Following a jury trial, Stephen W. Alvarado was convicted of four counts of first-degree sexual abuse of a minor based on evidence that he sexually abused his six-year-old daughter, S.S., on two separate occasions.
Alvarado argues first that the superior court erred when it took judicial notice of Alvarado's date of birth and then instructed the jury that it was required to accept this fact as "proven." Alvarado contends that by taking conclusive judicial notice of his date of birth, the trial court violated Alvarado's constitutional right to a jury trial on one of the essential elements of the charged offenses. Alvarado further contends that this error is structural error that requires automatic reversal of his convictions. For the reasons explained here, we conclude that the trial court's action, which Alvarado's attorney consented to, was not reversible error.
Alvarado argues next that the trial court committed plain error when it failed to sua sponte issue a limiting instruction after the victim's out-of-court statement was admitted under the first-complaint doctrine. We find no merit to this claim.
Alvarado's last two claims of error relate to his sentencing. Alvarado argues that the trial court erred when it refused to merge the two sets of first-degree sexual abuse convictions that were based on the same underlying acts of fellatio. The State concedes that these convictions should have merged. Alvarado also argues that the trial court erred when it failed to order the Department of Corrections to produce a corrected copy of his presentence report. The State also concedes error on this claim.
For the reasons explained here, we conclude that the State's concessions are well-founded.
In August 2011, S.A. (Alvarado's seven-year-old son), and S.S. (Alvarado's six-year-old daughter) reported to their cousin that their father (Alvarado) had been forcing both of them to "suck his wiener." The cousin told other members of the family, who reported these accusations to the police.
S.A. almost immediately recanted this accusation. S.S. was interviewed by a caseworker from the Office of Children's Services. During this interview, S.S. recounted three different incidents of fellatio — two incidents in the trailer next to the family home and one incident in the bedroom in the house.
Based on S.S.'s interview, Alvarado was indicted on nine felony counts — three separate counts for each alleged incident. For each alleged act of fellatio, Alvarado faced the following three charges: (1) first-degree sexual abuse of a minor under AS 11.41.434(a)(1) (sexual penetration of a minor under thirteen years old), (2) first-degree sexual abuse of a minor under AS 11.41.434(a)(2) (sexual penetration of a child by a parent), and (3) incest under AS 11.41.450(a)(1) (sexual penetration of a descendant).
All three of these criminal offenses required the State to prove that Alvarado was over a certain age at the time he committed the offenses. Alaska Statute 11.41.434(a)(1) required the State to prove that Alvarado was over sixteen years old; AS 11.41.434(a)(2) and AS 11.41.450(a)(1) required the State to prove that Alvarado was over eighteen years old.
Alvarado's age was not a contested element at trial: Alvarado was thirty-nine years old at the time of trial and thirty-six years old at the time of the alleged abuse. It was also undisputed that Alvarado was the natural father of S.S., who was six years old at the time of the alleged abuse. In order to have been under the threshold age, Alvarado would had to have fathered S.S. when he was between ten and twelve years old.
Near the end of Alvarado's trial, the prosecutor noted that he was required to prove that Alvarado was over sixteen and eighteen years old at the time of the alleged incidents. The prosecutor also noted that there did not appear to be any dispute regarding Alvarado's age. The prosecutor therefore requested that the trial court take "judicial notice" of Alvarado's date of birth, which was listed on the indictment. The trial court agreed that it could take "judicial notice" of this fact, and the trial court asked the defense attorney "Is that fine?" The defense attorney replied, "Yep." The trial court subsequently instructed the jury as follows:
Although this instruction was improper for the reasons explained in this opinion, Alvarado's attorney did not object to this instruction.
Following deliberations, the jury convicted Alvarado of the charges relating to two of the incidents of fellatio that S.S. described in her trial testimony. The jury acquitted Alvarado of the charges relating to the third incident, which S.S. could not recall at trial.
At sentencing, the parties agreed that the incest convictions for each incident should merge with the corresponding conviction for AS 11.41.434(a)(2) (sexual penetration by a parent). However, the prosecutor argued that Alvarado's convictions under AS 11.41.434(a)(1) (sexual penetration of a minor under 13 years old) involved "different societal interests" and therefore required separate convictions. The trial court agreed. The trial court therefore entered two first-degree sexual abuse of a minor convictions for each act of fellatio — for a total of four convictions. The court then imposed a composite sentence of 57 years and 6 months to serve.
This appeal followed.
Alaska Evidence Rule 203(c) requires trial courts to treat judicially noticed facts in criminal cases differently from judicially noticed
As the Commentary to Evidence Rule 203(c) explains, "the rule opts for the greater protection of the accused's right to a jury trial afforded by the limited instruction that the jury may, but is not required to, accept as conclusive any fact judicially noticed."
On appeal, both parties agree that the trial court violated Evidence Rule 203(c) when it instructed the jury that they were required to take the judicially noticed date of birth as a "proven fact." The parties disagree, however, regarding the effect of this error and whether it is amenable to a harmlessness review.
Alvarado takes a bright-line approach. According to Alvarado, any conclusive judicial notice of a fact relevant to an element constitutes a violation of the defendant's right to a jury trial and requires automatic reversal of the defendant's conviction. In support of this position, Alvarado relies on three prior decisions of this Court: Smallwood v. State,
Alvarado argues that these three cases dictate the result in his case. We disagree for a number of reasons. First, Alvarado's case is distinguishable on its facts. In Fielding, the defendant directly objected to the judge taking conclusive judicial notice of an element of the charged offense.
Here, in contrast, the record shows that the defense attorney did more than just fail to object to the court's conclusive judicial notice instruction. Instead, the defense attorney affirmatively agreed that the date of birth on the indictment was correct and that this fact could be "judicially noticed" to the jury. Courts in other jurisdictions have refused to apply structural error under circumstances where the error is affirmatively waived by the defendant.
On appeal, Alvarado does not object to the court taking judicial notice of his date of birth. Instead, he is only challenging the court's decision to take "conclusive" judicial notice of this fact. But, as the concurrence points out, the term "judicial notice" under these circumstances is a misnomer. As a general matter, it is improper for a trial court to take judicial notice of facts asserted in a pleading if the pleading is offered to prove the truth of the facts asserted.
We acknowledge that Smallwood, Fielding, and Rae are written in a manner that suggests all conclusive judicial notice instructions constitute structural error, regardless of circumstances and context. But we reject such a broad reading of those cases. When, as here, the defendant has affirmatively conceded the truth of the fact being judicially noticed, and has agreed that the judge can so instruct the jury, we conclude that automatic reversal is not appropriate. Instead, we conclude that the court's error should be subjected to a harmlessness analysis and the conviction affirmed if the error is determined to be harmless beyond a reasonable doubt.
This conclusion is in accord with the Alaska Supreme Court's recent discussion of structural error in Jordan v. State.
Jordan was a felony marijuana case in which the trial court refused to allow the defendant to testify to the reasonableness of his belief that he was growing less than four ounces of marijuana (the legal limit under Ravin v. State for possession of marijuana for personal use in one's own home).
The Alaska Supreme Court concluded that the court's failure to instruct the jury on this contested material element of the offense constituted structural error requiring automatic reversal of the defendant's conviction.
In other words, the primary problem when a material contested element is omitted from the jury instructions is that the effect of that error is not "quantifiable" for purposes of determining whether it was (or could be) harmless. This was the basis of Justice Scalia's dissent in Neder v. United States,
The difficulties in assessing harmlessness identified in the Jordan decision are not present in the current case. Here, the jury was instructed on all of the essential elements of the offense — including the threshold age element that is the main issue in this appeal. Moreover, the prosecution was not required to prove that Alvarado was born on a particular day or that he was a particular age in order to convict him of these alleged acts of sexual abuse. Instead, the prosecution was only required to prove that Alvarado was at least sixteen or eighteen years old at the time the alleged sexual abuse occurred. To find this element proved beyond a reasonable doubt, the jury did not need to know Alvarado's exact birth date. The jury could have relied on Alvarado's physical appearance at trial. (As we noted previously, Alvarado was thirty-nine years old at the time of trial.) The jury could also have relied on the evidence establishing that Alvarado was S.S.'s natural father and that the alleged abuse occurred when S.S. was six years old, which would have required Alvarado to have fathered S.S. when he was between ten and twelve years old in order to put Alvarado under the threshold ages required for the alleged crimes. In other words, the jury had before it evidence that already established the threshold age element beyond a reasonable doubt, and the trial court's additional "judicial notice" of Alvarado's actual birth date was not necessary to the jury's determination of that element.
Alvarado's case is therefore distinguishable from the circumstances in Jordan. Here, the judge's error was in instructing the jury with the language of "judicial notice" when the language of a stipulation would have been more appropriate. But unlike in Jordan, the jury was properly instructed on all the elements of the crime. Moreover, the defendant directly conceded the truth of the fact contained in the erroneous judicial notice instruction. As a result, there is no reasonable possibility that this erroneous instruction affected the reliability or trustworthiness of the verdict the jury reached. Nor is there any need to engage in the type of hypothetical scenarios disapproved of in Jordan and in Justice Scalia's dissent in Neder. Here, we can confidently say that there is no reasonable possibility that this erroneous instruction affected the jury's verdict or that it had any effect on the outcome of this trial.
Accordingly, we reject Alvarado's claim that the taking of conclusive judicial notice in this case requires automatic reversal of his convictions.
At trial, the State presented testimony from a cousin of S.S. and S.A. This cousin testified that S.S. and S.A. told him that Alvarado made them suck his "wiener."
The error here was not sufficiently obvious to meet the standard for plain error. Alaska Evidence Rule 105 requires courts to issue appropriate limiting instructions when parties request them. But our cases suggest that, as a general matter, a court does not have an affirmative obligation to issue a limiting instruction in the absence of a request.
There was no plain error here. The first-complaint testimony from the cousin was brief and was not used heavily by the prosecutor, who instead focused on S.S.'s trial testimony and her interview with the Office of Children's Services. We also do not find any place where the prosecutor used this evidence improperly — i.e., as anything other than corroboration of the credibility of S.S.'s account at trial.
Given these circumstances, we conclude that the court's failure to sua sponte provide an appropriate limiting instruction for this evidence did not amount to plain error requiring reversal of Alvarado's convictions.
At sentencing, Alvarado argued that Count I (sexually penetrating a child when the defendant is the parent of that child) and Count IV (sexually penetrating a child under thirteen years old) should merge because they were both based on the same act of fellatio in the same incident. Alvarado also argued that Count II and Count V should merge for the same reason. The prosecutor objected to this merger, and the trial court refused to merge these counts, ultimately entering four convictions for first-degree sexual abuse of a minor rather than two.
On appeal, the State concedes that the court erred and that the four counts should have merged into two because each pair of counts simply represented two different theories of how a single act could constitute first-degree sexual abuse of a minor.
At sentencing, the trial court modified Alvarado's presentence report, making handwritten changes to certain statements and deleting other statements. But the court failed to order preparation of a clean copy of the presentence report under Alaska Criminal Rule 32.1(f), and the original language of
On appeal, the State concedes that a clean copy of the amended presentence report must be ordered in accordance with the requirements of the rule. We agree.
We REMAND this case to the superior court for correction of the presentence report, merger of two of the convictions as described above, and a resentencing. In all other respects, the judgment of the superior court is AFFIRMED.
Judge MANNHEIMER, concurring.
Judge MANNHEIMER, concurring.
I write separately because my analysis of the "judicial notice" problem is different from the analysis contained in the majority opinion.
Even though the trial judge and the two attorneys used the phrase "judicial notice" to describe what they were doing, the record shows that the attorneys stipulated that Alvarado's date of birth was, in fact, the date recited in the indictment.
Because this fact was stipulated, the trial judge did not commit error when he instructed the jurors to take the stipulated fact as proved. For this reason, I conclude that there is no need for this Court to subject the judge's action to a "harmlessness" analysis. A harmlessness analysis is appropriate only when an error has been committed — and, in Alvarado's case, there was no error.
Here is my analysis in more detail:
Under Alaska law, when a judge presiding over a criminal trial takes judicial notice of some fact, it is error for a judge to tell the jurors that they must accept this fact as conclusively proved. See Alaska Evidence Rule 203(c).
Indeed, in Alvarado's case, even if the judge had not told the jurors that they were required to accept Alvarado's date of birth as conclusively proved, it still would have been error for the judge to take judicial notice of Alvarado's date of birth — because the recitation of Alvarado's birth date in the indictment was not an adequate legal foundation for taking judicial notice of that birth date.
As explained in Alaska Evidence Rule 201(b), a fact is not a proper subject of judicial notice unless that fact is not subject to reasonable dispute because it is either "(1) generally known within this state or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
But even though Alvarado's trial judge used the phrase "judicial notice" to describe what he was doing, the record shows that the judge actually obtained the parties' stipulation regarding Alvarado's date of birth.
Alvarado was in his mid-thirties when he committed the acts of abuse alleged here, and it was plain from his physical appearance alone that he was older than eighteen when he committed these crimes. In this context, Alvarado's attorney affirmatively told the trial judge that he had no objection if the judge instructed the jury that the date of birth recited in the indictment was conclusively proved.
As a matter of law, this was a stipulation — a "voluntary agreement between opposing parties concerning some relevant point".
This Court has held that the correct legal characterization of a pleading is determined by its subject matter, not by the title chosen by its author.
Here, Alvarado's attorney told the judge that he had no objection if the judge told the jurors that Alvarado's correct date of birth was recited in the indictment, and that the jurors should take this date as proven. This was a stipulation regarding Alvarado's date of birth — and, because it was a stipulation, the judge could properly tell the jurors that they should consider this date of birth to be conclusively proved.
Alternatively, it is possible to understand "contested" as referring to whether the defendant preserved his objection to the trial court's omission of an essential element from the jury instructions. This reading is more consistent with Scalia's dissent in Neder. See id. at 34-35, 119 S.Ct. 1827 (noting that even when jury instructions omit an essential element of the offense, the failure to make a timely objection "will preclude automatic reversal"); see also Jordan, 420 P.3d at 1151-52 (explaining why Jordan preserved his right to appeal the jury instructions).
In any case, the potential ambiguity of the term "contested" is irrelevant here because Alvarado failed to "contest" his age in either sense of the term.
