Velez v. State

charges not joined this case was the two BRYNER, C.J., and Before COATS suffered cross-admissible. Velez therefore SINGLETON, and JJ. regard rule error without to the prejudicial Accordingly, Ve- we reverse Johnson. OPINION a and remand this case for lez’s convictions SINGLETON, Judge. new trial.1 charged separate Santiago Velez was one counts of an indictment with count FACTS degree, 11.- in the first AS sexual assault reported that A number women 41.410(a)(1), one and count three assaulted them. Evidence of Velez degree, in the AS 11.- sexual assault first presented at trial: a sexual incidents 11.41.410(a)(1). 31.100(a) AS Each and 1985, on C.S. October assault on incident and a count involved different on No- attempted sexual assault G.J. on unsuccessfully sought He different victim. 14, 1985, on and a sexual assault vember two for and severance of the counts trial 23, 1985. The incidents S.F. on November on counts. Alaska was convicted both in the charged and were with G.J. S.F. arguing He appeals, that R.Crim.P. indictment, and incident C.S. was denying trial erred in his motions act. introduced evidence as bad severance, and that for a continuance testified that she met Velez at a bar its discretion in ad- S.F. the trial court abused Anchorage 1985. Dur- mitting, objection, pri- November over his ing evening she and Velez talked uncharged sexual assaults. that had a car danced. She mentioned she our argues apply that should Velez we her painting, needed and Velez told that recent decision Johnson v. body shop would that he worked at a (Alaska App.1986), in which we P.2d 175 happy give repairs an estimate on her denying granted pretrial of an order review shop car bring would her she reversed, concluding that severance and he a cou- where worked. Velez called S.F. be ordered automatic severance should ple go out nights later and asked her to any timely request the de upon case conversation, During this S.F. with him. joined solely are fendant where counts headlights of her mentioned one they are of the same basis bring out, suggested she and Velez similar character. also Stevens he day and shop her car to the the next (Alaska 1978). The P.2d 621 fix it. would was decided state counters Johnson took her car to given November S.F. trial and should On after Velez’s . worked, shop where Farleigh body v. An retroactive effect See (Alaska 1986) (dis repairs late afternoon. completed chorage, 728 P.2d 637 Velez, S.F., individuals and several other cussing judi- under which a circumstances arguments to the com- will consider Velez’s Our to reverse renders Velez’s decision likely retrial. to reoccur at plaints denial a continuance moot. extent about sexually waiting room of the Velez was assault- in the then remained smoking attempting sexually mari- shop drinking S.F. and auto beer everyone except charges joined had left These juana. After were trial. Velez, down onto pushed S.F. addition, heard from Velez’s pants un- and removed her the couch C.S., girlfriend, former who testified as a struggle, As continued to derpants. she rebuttal witness. C.S. testified that she aggressive and forced Velez became September place met Velez at her intercourse with him. When S.F. to have employment. he She indicated that was got attempted to up from the couch she friendly come into and would often to get clothing. her He then wrestled her liquor Initially, store where she worked. again. her After ground and assaulted out, go she refused his invitations to but assault, Later, Velez let S.F. leave. eventually she succumbed and went out home, returning her S.F. went to after gen- perfect with him. She said he was a hospital for an examination. during tleman their first few dates. at an acquainted with Velez G.J. became 24, 1985, approximately On October Anchorage part-time she worked bar where G.J., three weeks before the incident with in an a nude dancer. Velez worked spent evening drinking Velez and C.S. body shop nearby and was a automobile people body shop at the with several other regular lunch-time customer at bar.' drinking where Velez worked. Velez was boyfriend her Velez visited G.J. and blackberry brandy Later that and beer. trailer on several occasions and GJ.’s evening, apart- drove to his Velez C.S. helped boyfriend work on his truck. G.J.’s ment and he invited her in for a drink. 14, 1985, G.J. went to the On November C.S., According they when were his body shop pick up Velez worked to where apartment aggressive and Velez became working lent him he was coat she had while him tried to kiss her. She told that she did boyfriend’s Velez drove on her truck. G.J. They have sex with him. not want home, way purchase stopping on the began struggled, cry. and C.S. Velez they blackberry brandy and beer. When pulled on the floor and forced C.S. down trailer, at G.J.’s G.J. invited Velez arrived initial- her to have sexual intercourse. C.S. drinking in for a drink. After to come restraining ly obtained a order Ve- beer, brandy per- Velez asked G.J. to lez, allowed it to be dismissed. She him. re- striptease form a dance for She through that she did not follow testified sug- made fused to dance. Velez several restraining order or file formal with the gestive wanting body, comments about charges against she was Velez because referring to sexual intercourse. When she of him. afraid leave, requested that he he threw her down held her down with on the couch. Velez DISCUSSION attempted to unbutton her his knees and erred contends that the trial court get screamed and told Velez to shirt. G.J. He alone, denying motion for a severance. and leave her but Velez struck out testimony of G.J. would not strug- argues that the her in the face and continued to in a trial of picked admissible gle. managed get away otherwise argues charges. He further telling she S.F.’s up telephone, ad- testimony should not have been police. After a few min- C.S.’s going to call the thereafter, charges or and, in trials of either G.J.’s utes, shortly G.J. mitted Velez left 404(b),2403.3 charges. A.R.E. S.F.’s See police. called the intent, preparation, plan, knowl- portunity, provides: Evidence Rule 2. Alaska edge, identity, mistake or acci- or absence of Crimes, Wrongs, or Acts. Evidence of Other dent. crimes, wrongs, or acts is not admissi- other person of a in order ble to the character provides: Rule 403 3. AlaskaEvidence conformity there- that he acted in to. show on Grounds Exclusion Relevant Evidence may, be admissible for with. It motive, Confusion, Prejudice, or Waste Time. proof op- purposes, such as showing character of the apart have con from appellate of Alaska courts the defendant’s admissibility, in sexual assault order to show sidered the defendant sexually cases, question. the accused of evidence that crime in propensity commit the sexually assault solely assaulted evidence is offered show When person on other occa the victim or another If the court propensity, it is inadmissible.4 Burke v. of cases. sions a number some rele- evidence has determines State, P.2d 1246-51 from then it must apart propensity, vance Freeman v. 1980); nonpropensity if the relevance determine (Alaska 1971); Soper v. outweighs prejudicial impact of the evi- (Alaska App.1987); John course, if there under Rule Of dence (Alaska App. son relevance, genuine nonpropensity is no State, v. Johnson 1986); 727 P.2d 1062 P.2d balancing step is reached. 697 never State, v. Bolden (Alaska App.1986); 720 at 315-16.5 Plet 957, (Alaska App.1986); P.2d 960-61 State, (Alaska v. App. P.2d 1039 719 frequently per Alaska courts nikoff State, v. (Alas Oswald 1986); P.2d 276 715 state mitted the to introduce State, Moor v. P.2d App.1986); 709 498 oper- ka other sexual assaults to show modus (Alaska App.1985). andi, thereby identify the defendant identi perpetrator of the offense when State, In Lerchenstein v. P.2d 312 697 v. issue. See Coleman disputed ty was a aff'd, (Alaska App.1985), 726 P.2d 546 State, 1980), 869, (Alaska 621 P.2d 874-76 1986), two-step (Alaska applied analy we denied, 1090, 653, cert. 454 102 S.Ct. U.S. prior bad acts sis to determine whether State, v. Stevens (1981); L.Ed.2d 628 70 Rule evidence is admissible under (Alaska 1978); Nix v. First, P.2d 628-29 if the evi the court must determine State, (Alaska P.2d sought to has relevance 1096-1100 dence be admitted (Tillers relevant, Although Wigmore, ed. 1AJ. 58.2 rev. § exclud- Evidence by probative outweighed 1983) (citations omitted). ed if its value is danger prejudice, Second, Alaska, of of confusion prohibiting prior unfair the rule jury, misleading issues or or considera- 404(b) is one of bad acts evidence under Rule time, delay, undue waste of or need- tion of exclusion, v. not one of inclusion. Oksoktaruk presentation evidence. less of cumulative 1980). (Alaska & n. 9 524-25 prior bad acts A rule of inclusion allows use of means, open Precisely what this any purpose prosecution’s relevant to the present purposes, evidence some doubt. For except propensity. In criminal case contrast, show propensity, show and therefore violates used to precludes of 404(b), a rule of use exclusion Rule whenever the is asked infer any purpose except engaged prior fact in cer- bad acts evidence for from the that a defendant past recognized excep- generally that the defendant had tain conduct number of limited engage disposition propensity Thus, or in similar rule. bad acts evidence tions to the occasions, on other and to further infer just admissible because it is offered is not that the defendant acted in accordance prosecution’s case a fact material to the disposition engaging in the conduct which propensity. one than It must fall within or constitutes one more of the elements recognized exceptions specifically to the of the question. Wright C. & K. Gra- crime in ham, See 22 exclusionary also State v. rule. Id. at 524. See Procedure § Federal Practice and Lerchenstein, (Alaska n. 8 726 P.2d (1978 (hereinafter Wright Supp.1987) & C. K. & C.J., 1986) (Rabinowitz, dissenting). The dis- Graham). defining the rule as a rule tinction between discussed in exclusion or one inclusion is First, pro- important. 5. Two observations are supra, 5239 at 428- C. & K. pensity evidence because has is not excluded 404(b) upon rule a federal Rule based value, probative it has but because too too little generally interpreted as one of inclusion that is much: rather than exclusion. Moor 498, tendency of The natural and inevitable Alaska, recognition 505-06 n. 5. In give judge jury—is tribunal—whether 404(b) requires exclusionary character of weight record to the vicious excessive substantially curtailing that trial the discretion to allow it crime thus exhibited and either Rule 403 in would otherwise have under courts determining charge strongly present too bear evi- crimes whether to admit other proof justifying it as a condemna- take Lerchenstein, tion, guilt Id. But see irrespective dence. accused’s C.J., (Rabinowitz, dissenting). charge. present testimony’s probative value its in this Identity is not an issue App.1982). Id. prejudicial effect. at 1250-51. knew both Ve- ease because G.J. S.F. operandi of modus Therefore, proof lez. Soper, 590-91, In 781 P.2d at we extend- irrelevant. disposition exception to include ed this lewd Burke, 1249-50, of an immedi- the su sexual assaults on members P.2d at In family under circumstances that would recognized evidence of a “lewd ate preme court i.e., engage exception.6 not fall within a “motive” propensity to disposition,” excep Bolden and Moor we were asked to extend activity, sexual as a limited unlawful exception testimony regarding proof akin to of motive. sexu- to Rule tion 1102, 1104 Patterson persons conduct with other than the vic- al family disposition tim and members of her immediate App.1987). The lewd who, nevertheless, similari- limited to those cases substantial exception was victim, e.g., ages to the similar or sim- sexual acts involved the ties relationships part ongoing of an relation ilar accused. We de- victim as same Bolden, 960; separate to do so. 720 P.2d at ship consisting of several clined Moor, Bolden, Pletni- acts, of the entire 709 P.2d at 506. and in which evidence and Moor we also koff, place rejected the state’s relationship necessary in order to explain arguments that such evidence was admissi- alleged incident context and Burke, to common 624 P.2d at. ble based its relevance show the victim’s actions. motive,7 cautioned, plan, scheme or or to corroborate supreme 1249-50. See, e.g., Pletni- prejudicial prosecuting effect of such witness. koff, 719 P.2d at 1042-44. substantial, I adhere to testimony is and before admit rulings. carefully weigh those ting it the trial court must sexual, context, ocally plausible, such defense is motive can mean a sexual desire In Patterson, alleged victim of the offense. use of such evidence to show intent violates P.2d at 1104. If the state seeks to show an rule of evidence now codified in Alaska Evi- 732 Moor, generally, illicit ever, in women how- Id. at sexual interest dence Rule 403. 979. Cf. (because relationship the evidence ceases to show motive be- at 510 & n. 8 of the Oswald, propensity. simply shows criminal friend tween the defendant and the adolescent niece, regarding Evidence a motive to possible P.2d at 279. it is not that he could have of his digitally with one woman does not le- innocently, inadvertently, penetrat- have intercourse but gitimately support an inference that the defend- vagina). ed her with a ant was motivated to have intercourse permit of such Pletnikoff, 7. We have declined to admission P.2d at 1043. second woman. plan.” Plan is not Using past willingness evidence to show a "common incidents to show a to admissible, engage person of sexual assault. To be coerce another to an element force or activity proof propensity, "plan” have to be relevant to an ele not motive would theory or to a of the de or intent. Id. ment of the offense assault, of a sexual fense. In the context frequent- The terms "motive" and "intent” “plan" might be construed to include term goal, object, ly interchangeably to mean used pre-exist- the assailant had a situation in which inter- desired result. If the defendant concedes favors, women, ing plan seek sexual to meet consent, however, goal course and claims sexually refused. To then assault them dispute; the issues are intercourse is not assaults on this evidence of other sexual admit recklessly disregarded the defendant whether basis, however, policy Rule undermines the lack of consent or used force or a the victim’s 404(b) by permitting the use of evidence force to coerce her. The term "intent" threat of propensity We have adhered to conduct. generally is also sometimes used to describe admissibility the rule under to the view that mens rea. I will discuss the inter- defendant’s showing requires that each incident more than a play rea and the between the defendant’s mens factors, time, may has common is close in defense later. consent way. planned in same to have been be said 404(b) allows evidence of other acts Rule also common-plan exception qualify to under the To accident. Never- to show absence of mistake or theless, rule, required of the that each we have rape misleading in the case of date it is parts overall of some incidents be constituent raising speak defense as issues of to of a consent 2; Bolden, n. Plet 720 P.2d at 961 scheme. See n. 4. In con- or mistake. Id. at 1044 accident Oswald, 2; contact, n. trast, nikoff, P.2d at 1043-44 & short of inter- in cases of sexual 2; Moor, custodian, 709 P.2d at 506-07. course, at 279-80 & n. by parent with children conclusions, reaching relied on we have these defense "mistake” or innocent motive a true may Graham, supra Freeman, analysis & K. in 22 C. interposed. P.2d at unequiv- When the conceded contact 978-79. complaining came across the state, companion on Davis partial reliance witness, having difficulty with App.1981),asks was P.2d 481 who general exception car, give a ride. recognize a to her

that we her and offered car, in which a to cover situations Davis made sexual inside the Once intercourse, genital concedes ignored defendant the victim and overtures to alleged victim consented. claims that the Ultimately, at 483. she resistance. Id. necessary, exception particularly an Such spot sexually taken an isolated was rape in urges, in cases of date the state at 484. order assaulted. Id. testimony is uncorrob which the victim’s case, theory kidnapping under its orated, show that defendant can and the Davis compelled show that state previ relationship with victim victim, sexually intending restrained his ously have involved friendly and even n. her. at 483 2. Evidence assault Id. instances or conceded corroborated in which and the other occasions Davis activity. When inci consensual sexual companion rides and same offered women victim is privacy and the dent occurs sexually provid- then them Davis assaulted greater coerced defendant’s ed some evidence that Davis formed strength threats of vio or unconsummated sexually intent assault his victim lence, may have for deter no basis her, restraining satisfying part of the mining of the incident is which version In ad- prove kidnapping. state’s burden worthy If the state is of belief. dition, possible that Davis and corroborating the victim’s precluded from pick companion pre-existing plan had a by showing that the defendant testimony young up hitchhikers and other vulnerable consistently forces sexual demands ac them, sexually women quaintances, apparently the state concludes a common might qualify for admission as rapists acquitted will and many be plan. Davis, P.2d Compare or 635 scheme encouraged their in may even to force Bolden, n. n. 3 at 961 at 485 720 P.2d acquaintances social in tentions on other Oswald, at n. 2. 2 715 P.2d 279-80 & and led the su the future. Similar concerns Nevertheless, to the extent that Davis an preme exception to create proposition that evidence of stands on victim in for assaults the same by on prior all sexual assaults a defendant Burke, we extended to members of which similarly victims becomes admissi- situated family Soper.8 the immediate any concedes sexual ble time the defendant in Davis and We addressed argues complain- intercourse and that, part because the defend- concluded consented, goes Davis ing witness believe issue, prosecu- placed intent in ant his far, disapprove specifically too I would offering justified tion was holding. other sexual assaults contradict de- degree, in the first based Sexual assault his con- alleged claim that victim fendant’s anoth- Davis, however, theory that one adult coerced P.2d at 485. sented. 635 intercourse, adult does er into distinguishable on its facts from this or require any showing of sexual motive kidnapping ease. Davis was Moor, beyond act 709 interest itself. as well sexual assault. Davis as 560, Jackson, (1983); Cal.App.3d jurisdictions People divided v. 110 8. Courts are 915, (1980). CaI.Rptr. People v. But see 167 918 permit this issue. A number courts 567, Tassetl, 77, CaI.Rptr. P.2d 201 679 36 Cal.3d rebut assault on other women to a of sexual (1984). 1 specific State consent in a case. See v. defense reject similar evidence A number of courts 59, 1290, Huey, Ariz. 699 P.2d 1292-93 145 con- a based on when offered to rebut defense 127, (1985); Hampton, P.2d 130 State v. 529 888, Cal.App.3d 203 People Key, sent. v. 153 (Kan. 1974), grounds overruled related 144, (1984) (criticizing CaI.Rptr. 147-50 Salazar Cantrell, (Kan.1983); v. 673 P.2d 1147 State 358, Saltarelli, Jackson; Wash.2d State v. 98 830, 694, State, 95 603 P.2d Williams v. Nev. Annotation, 697, (1982); Ad- 699-701 655 Fears, 606, Or.App. (1979); v. State 690 Case, Ac- missibility, Rape Evidence Willis, (1984); 88, State Raped Attempted Rape Other Person cused or (S.D.1985). People also N.W.2d Prosecutrix, (1980 and 2 A.L.R. 4th 330 Than Salazar, Cal.App.3d CaI.Rptr. Supp.1987). thing against at 510 n. 8. “In order to a is forced to act his or her 11.41.410(a)(1) will.” Id. as- violation AS [sexual degree], in the first the state must sault issue, Whenever consent is the sole knowingly en-

prove that the defendant penetration act of sexual intercourse or recklessly gaged in sexual intercourse presumed questions three related disregarded First, his victim’s lack of consent.” presented. what was the attitude or (Alas- complaining motivation of the re- Reynolds v. witness and, garding the act of pre- intercourse App.1983). ka In order to determine particularly, alleged victim induced it cisely what is at issue when is contended by specific to assent fear of one of the place that sexual intercourse took “without statute, i.e., results set out in the fear of consent,” defining we should look to the violence, kidnapping, injury property? or 11.41.470, statute, provides in AS Second, what conduct did the defendant pertinent part: engage alleged in to coerce the victim? purposes For of sections Definitions. Third, consciously did the defendant dis- offenses], 11.41.410-11.41.470 AS [sexual regard alleged risk that the substantial otherwise, requires unless the context Reynolds, victim failed to consent? P.2d at 625. (3) “without consent” means that a issues, When we examine these three person is clear that the defendant’s (A) resisting, with or without is irrelevant to the first issue. It is rele- by coerced the use of force vant second issue to the limited person property, express or or or extent that the state can death, implied imminent immi- threat of disposition propensity or defendant has a physical injury, kidnap- nent or imminent engage in forcible sexual relations and act- ping anyone; inflicted on disposition ed accordance with that propensity by assaulting complaining (B) incapacitated result of an witness. defendant’s conduct is act the defendant. only marginally relevant to the third issue. 11.81.900(b) Alaska defines “force” Statute issue, As to the first the defend “physical injury” as follows: past conduct is irrelevant to the ant’s vic (22) any bodily impact, “Force” means tim’s state of mind unless the victim is restraint, or confinement or the threat of case, present In it is aware of it. not restraint, impact, bodily imminent or con- alleged that was aware of Velez’s ac G.J. finement; deadly “force” includes and S.F., aware of Velez’s tions with or S.F. nondeadly force.... person’s Because a state actions with G.J.9 of mind cannot affected matters of (40) “Physical injury” physi- means a necessarily they ignorance, are in it impairment physical pain cal or an conduct with S.F. was follows that Velez’s condition.... mind, state of not to show G.J.’s relevant and vice versa. The code does not further define “coerced,” and we must therefore look to whether, The second issue turns on meaning.' general usage for its AS 01.10.- extent, engaged in coer and to what compel by 040. “Coerce” means “to likely engaged in conduct cive behavior force,” threats or American Dic- if she denied his to induce fear in his victim Oxford (1980), “compel” means tionary 120 and intercourse. Velez’s ac request for sexual (a per- marginally “to use force or influence to cause women were tivities with other son) action_ something, himself to do to allow no choice to show how he conducted relevant victims, and to that extent person compelled

A to do some- with each of his experience G.J.'s cross-admissi- apparently of Velez’s actions It does not make G.J. was aware C.S., ignorance was aware of Velez’s actions were in with and S.F. S.F.’s because ble with knowledge This experiences. with certain women in Illinois. of each other’s will be discussed later. raises other issues which his con- determination of whether Velez’s actions testimony their about corroborated relevant to show that he with G.J. were them, pure propensity this is duct risk was aware of substantial that S.F. evidence, by Evidence absolutely forbidden to sexual did not consent intercourse.10 Thus, 404(b). cannot offer the state Rule Arguably, past experiences with Velez’s support Velez coerced S.F. to evidence that charged him women who with assault and disposition he had a an inference that restraining battery and swore out orders women, unwilling his on force affections him, experiences if particularly disposition that he then infer from that offenses, were close in time to the Despite its forced his affections might dating his alert him to the risk that pre- relevance, absolutely this evidence is behavior, consistently habitually pur- Lerchenstein, cluded. at 315-16. sued, might result intercourse sexual nonconsenting The final issue concerns the defendant’s partners.11 The evi- context, requires might case therefore minimal- mens rea. this issue a dence this 895, ever, Rhines, (Alas- Virtually, to a 899 n. 3 testified violent assault. 10. Shane 1261, 1983), anyone ka Abruska should realize that such conduct would (Alaska suggest App.1985), resulting seem create a substantial risk inter- person's past experience a when arrested a each course coerced. If believed driving might be relevant to while intoxicated complaining testimony witness’ that she was person would, show recklessness when the became in- attacked, violently unlikely it that it thereafter. See also United toxicated drove nevertheless, not conclude that Velez did realize (4th Fleming, States v. 739 F.2d Cir. consenting risk that his victims were not the subsequent cert, 1984), denied, 469 U.S. 105 S.Ct. Thus, relations. the real use (1985). experiences Past of be- 83 L.Ed.2d 973 of duct, is to con- the evidence establish the coercive driving may alert arrested while drunk one accompanying rea. Under not the mens presents the risk that one to others when one circumstances, argue such that the evidence least, At is intoxicated and drives car. (to red) ig- show mens should admissible community's disapproval provides notice of the prohibition on character nores driving. drinking See Rhodes v. contained in Alaska Evidence 986). App.l case Contrast the incidents in which always presents A driver the same risk drunk alleged each victim testified to overt coercive community large. does The risk punctuated behavior with violence with a case any particular depend potential victim’s ac- alleged in which each victim denied that her contrast, responses. presented tions overtly assaulted or threatened assailant had acquaintances particular risk certain women, nevertheless, testi- her. If number An arrest under certain circumstances. existing fied to common circumstances when driving drunk focuses the arrested driver's at- they were with a common assailant which alone specific prohibited behavior. In con- tention on trast, isolation, but when were innocuous viewed relationship charge between a of sexu- together created an ominous atmo- considered specific prohibited behavior is al assault terrorizing sphere effectively into them involun- probative ambiguous. value of the activity, might tary sexual the evidence companions past social to his reaction of Velez’s probative outweighing prejudicial ef- value its sexual overtures to show notice his conduct Any testimony might dis- one victim’s fect. coercing risk noncon- activity depends created a substantial senting by jury product of an missed the the overac- partners into sexual whole, imagination. as a tive morbid Viewed upon similar his conduct with each woman how however, might jury infer the that defendant probability to the was. The issue comes down successfully developed procedure for could on occasions be in- that Velez several communicating overt menace without violence. partners in conduct viewed as volved rape highly probative becoming Such an inference would its true without his aware of ambiguous ap- Wright supra an otherwise or even innocent K. nature. See C. & pearing prejudice state of mind. The in such § hypothetical be low because none of the would appear to be correct and Graham testifying any particularly victims would be they prior point that crimes to when out use only outrageous behavior. It is when all of knowledge or recklessness somewhat show cynical testimony viewed in context that inferences knowledge would lack where one will be drawn. This adverse the defendant question. See id. 5245 n. 15 at 497-98 Wig- may hypothetical illustrate also serve to expe- (Supp.1987). In order find that Velez’s n. doctrine of “chance” discussed in more’s riences with one woman should have alerted any that one or even two of fact to the risk of nonconsensual intercourse him infra. woman, alleged the circumstanc- victims was terrified have would with another might as mistake on her es well be dismissed woman Velez’s actions toward each find that woman, testify part, essentially but when three or more witnesses same. Each how- was G.J., not with sexual assault. prong of the Lerchen- assault ly satisfy the first out Evi- and take the case The state was therefore under an obli- test stein intent, i.e., prove specific dence Rule gation to Velez’s goal regard his motive or with to his believe, however, proba I sexually restraint of G.J. was to assault value of this evidence establish tive her. outweighed by the is more than mens rea juryA potential prejudice. faced with Davis, Arguably, experi- under Velez’s may multiple accusers not be convinced might other ences with women accurately any one accuser describ prove any if relevant to intent there was past experience, may, her but his or regarding doubt his intentions. When the nevertheless, weigh the numerous accus an assault and bat- establishes ers’ testimonies and conclude that the de unclear, tery, assailant’s motive is punishment. fendant deserves Conse acts be relevant to quently, the evidence cannot survive regarding show the assailant’s intentions balancing required under Evi test Alaska question. occasion event, any 403. In S.F.’s reac dence Rule testimony, unequivocal GJ.’s put tions to Velez could not have him on regarding whether Velez’s motivations consent, notice of GJ.’s lack of because were sexual. testified that he She asked Velez encountered S.F. on November him, striptease put to do a that he although allegedly assaulted G.J. nine her, his arm around and that he told her days earlier on November he had not had a woman a while and wanted someone to hold him. Velez told justify In order to denial of sever her, on, you “Come I want it and want it ance, experiences Ve S.F.’s G.J.’s couch, pushed too.” He her down on the lez must be cross-admissible. Because the her, top attempted sepa- laid on foregoing analysis establishes that G.J.’s legs rate her with his knees. Under the experiences were not admissible to circumstances, truth, telling complaints, S.F.’s severance was incorrect sexual, blatantly ly experience denied even if Velez’s intentions were S.F.’s was ad unnecessary G.J.’s accusation. and it was to offer other evi- missible conclusion, reaching recognize clarify dence to his intentions when he grabbed Velez was her.12 To use the other evidence defendant, defense, anticipated were terrified evidence to rebut an likely objec- seriously delaying becomes more that there was some trial court should consider prosecution’s tive basis for their fear. the offer until the rebuttal anticipated order to ensure that the defense Moor, 12. In we addressed the state’s need for will in fact be raised. other-crimes evidence and said: (citations omitted). 709 P.2d at 506 evaluating probative value of the supreme ques- considered a related evidence, probative order to balance value [in tion in Mullins v. against prejudicial effect under Evidence Rule 1980). excludes from Alaska Criminal court must consider whether or not 403] trial, computation delay before re- of time there was sufficient evidence introduced sulting granted prose- to the from a continuance purpose. for the same If sufficient other evi- "unavailability of cution because of the introduced, dence has been the evidence of material to the state’s case.” The court con- other crimes must be excluded so that “[t]enu- "important mean or neces- strued "material” to marginal probative ous or value of case,” sary prosecution’s and not to be evidence never be allowed crimes to [will] (inter- synonymous at 767 with “relevant." Id. implanting prejudice serve as an excuse for in 401). analysis preting Evidence Rule A similar jury.” the minds of the that evidence of a should lead us to conclude that, suggest We do not in order to be ad- only be admit- defendant’s other bad acts should missible, other crimes evidence must be strict- necessary important to the ted when it is necessary ly prosecution’s case in the 403, 404(b). prosecution’s also case. A.R.E. See to admit sense that failure the evidence would Lerchenstein, (Rabinow- 726 P.2d at 550 State v. subject leave the case to a motion for directed itz, C.J., (in balancing dissenting) prejudice stress, judgment acquittal_ We do how- value, ever, against probative prosecution’s need upon that the which evidence consideration; important truly disputed for the evidence is an be in the case. offered must Thus, strong prosecution government a case on the where the wishes to use the if the has consenting testimony that he vio- sexual relations without to to corroborate her her, simply rely Moor, however, in lently As we stressed assaulted them.13 Ler- propensity evidence violation of of other crimes or other bad acts evidence chenstein. necessary may only be admitted when it is point in issue. 709 at up come on retrial One other issue vigorously that she re- 506. G.J. testified and here. G.J. was should be addressed assault, and sisted Velez’s the evidence testify permitted Velez her told undisputed that she was successful this involving ex-girl- his about an incident engaging regard and he left without friend, C.S., in which struck C.S. and Because did resist sexual intercourse. upon said told forced himself her. She he prevented inter- successfully sexual her “he her that she wanted knew course, justification there for offer- allegedly too.” told G.J. was no wanted him ex-girlfriend explained accused him of evidence that would restraining order rape and obtained a lack of resistance had she not resisted. These him. comments Velez’s evidence will not come in assume this aggressive frightened G.J. This behavior on retrial. explain moti- offered to G.J.’s was and fear of the defendant.

vation CONCLUSION Although longer re resistance is relatively easy to It is demonstrate that assault, quired many jurors other sexual assaults to rebut a use of might nonresisting disbelieve witness’ consent defense cannot be reconciled with that sexual intercourse non- testimony 404(b). Evidence Rules 403 and Alaska Thus, consensual. the evidence Velez’s courts admit evidence in Those such regarding experi statements to G.J. C.S.’s apply. ignore purport fact rule might ences be to show that G.J. admissible To their does frightened explain follow lead violence and would her lack why might engage policy underlying the rules.14 of resistance she admitted, issue, disputed act when the criminal act is bad readily). should excluded be of some miti- innocence claimed basis factor, gating exculpatory becomes intent The court trial found the admissible (citing Wig- issue. at 198 n. 6 2 J. material Id. 404(b)—“proof exception as an to Rule of mo- more, (3d 1940)). Evidence 307 at 207 ed. § tive, intent, plan.” preparation, We ad- [or] rationale, whenever a defendant re- Under holding Pletnikoff, dressed a similar where defense, upon justification as an lies affirmative we said: history the defendant’s criminal comes overlap permissi- While there is some (general into evidence. See AS 11.81.300-.450 evidence, ble uses of other bad acts it is un- Thus, justification). principles of if the accused likely that evidence would ever admissible victim, striking admits but claims self-de- given in a case for reasons all the mentioned fense, any prior nonprovoked would assaults in A.R.E. 498, See Moor v. 709 P.2d People admissible Simon, refute defense. See (Alaska App.1985). trial 504-06 Cal.App.3d CaI.Rptr. carefully should therefore evaluate J., (Weiner, (1986) concurring). and, Alaska admissibility offered for if it reasons admissible, appear contrary. be to law would finds the evidence indicate the & nn. 23-27 precise Keith v. 612 P.2d basis for its admission. A should 1980); Lerchenstein, at 314-19. not be that certain evidence is told admitted purposes spelled out A.R.E. all the dissent, degree a lesser the concur- and to 404(b), purposes most of irrele- those rence, by the is troubled doctrine chance. Wright C. vant to the case. See 22 & K. 5242; supra & II J. § See C. K. Graham, Federal Evi- Practice Procedure: (Chad- Wigmore Wigmore, on Evidence (1978) (referring dence at 479 to a § 5240 1974). ap- Rev. ed. That doctrine'would bourn failure to differentiate between the various inapplicable pear to this case for a number of purposes permitted Federal of Ev- under If the concedes or does not reasons. defendant " ‘smorgasbord’ approach idence conduct, argues dispute all relevant evidence”). analysis of other crimes it leads and the result to which oc- Pletnikoff, 1042-43 n. chance, significant then a curred accident or Willis, (S.D.1985), of conduct number of other instances identical In State 370 N.W.2d 14. occurring leading in close justified to identical results the admission of a court disprove proximity is accident or rebut a defense noted relevant assault to consent hand, 404(b) the other the state makes a between Alaska Rules On Evidence problems compelling argument of inquiry, 403. The trial court’s deter- we cases, rape coupled mined, in date proof the dealing cases of probative value of evidence similar in- “First, bad acts is two-fold. the court to corroborate the victim’s testimo- stances sought must determine that the evidence special exception ny, warrant Rule apart admitted has pro- relevance from exception recognized similar to the Second, pensity. the court must determine Soper. in Burke recognize the I force nonpropensity the relevance out- argument. Considering of this our su- weighs presumed highly prejudicial the ” court’s of preme policy consistent restrict- impact the evidence. 697 P.2d at 315- of evidence, see, ing the use of other-crimes (emphasis added). 16. State, e.g., Oksoktaruk v. Whenever a defendant defends a sexual 1980), argument I believe that this ground assault case on the alleged the court, supreme be made to the must consented, victim the defendant’s intent at adopt court any excep- is that that should engaged time the the defendant in the sex- policy to the in Rules tions established act ual becomes an the case. In 404(b).15 defendant, order to convict jury the the judgment superior of the only must find not the victim did not and this REMANDED REVERSED case consent, but the also that defendant reck- trial. for new lessly disregarded the victim’s lack of con- Therefore, sent. Velez’s attack on S.F. COATS, concurring. Judge, relevant disregard was to show his reckless join the decision reverse Velez’s of whether G.J. consented. The case in- My doing conviction. reasons for so are G.J., volving however, really appears to be Judge Single- somewhat different from question jury of the whether believed briefly I will my ton’s. therefore set out jury G.J., Velez or G.J. If the believed separate view of this case. question was no there that Velez In Lerchenstein v. sexually 697 P.2d 312 If jury assault her. the be- affd, (Alaska App.1985), Velez, question 726 P.2d 546 lieved there was that he (Alaska 1986), inconceivable, interplay course, we discussed the did not. It is not chance, many normally if common sense indicates that so sexual intercourse which conceded. seen, however, although happened instances could not have we coincidental- As consent Wigmore ly. example primarily respec- uses the of three shots under Alaska law turns vicinity alleged in succession fired in the an individu- tive states of mind of the assailant and miss; victim, narrowly alleged al. The first two the third it also includes consideration strongly suggests injure. might as it § intent to Id. defendant’s conduct affect fact, propensity by parties’ at is not violated In rule both states of mind. in cases of alleged rape probably date will use evidence because relevant the case turn on causing jury results and the conduct those results whether engaged believes defendant only conceded and the advertence or inadvert- in coercive because such con- conduct duct, established, readily accompanying permit ence conduct is in issue. would was, fact, Wigmore prepared per- jury alleged For this reason was to infer that the victim to. contemporaneous mit evidence of events, and that the knew or similar coerced defendant anonymous. alleged even if the of a that the vic- actor was Id. aware substantial risk When, being the time intercourse 247-48. relevant tim coerced at when, here, leading question summary, only is con- as conduct result occurred. In tested, occurred, there is a risk that will use the conduct real issue is whether coercive propensity evidence to infer infer that the of the law of chance that such use engaged prohibited "propensity defendant in the rule.” conduct occurred violates committing 404(b). the offense because defendant past. engaged in similar conduct in Such an growing prob- There is a literature devoted to precluded inference A.R.E. Estrich, cases, proof rape date cases. See prejudice flowing lems I believe such Note, (1986); Rape, Culpable 95 Yale LJ. pro- 1087 Eliminating admission of the evidence exceeds its from Rape: value as a Mistake

bative matter of law. Defense of rape Mistake Fact to Victim Con- a case of date when the defense is Unreasonable consent, sent, (1985). part of the is an act 89 Dick.L.Rev. 473 relevant conduct

1308 a sound exer- peremptorily overrides might try to reconcile the two sion jury and unneces- that of trial court discretion They might then conclude cise stories. highly consent, sarily admission of relevant she did not bars the did not G.J. criminal intent in a case where convey lack of consent to adequately however, affirmatively intent has unlikely, the issue of This seems Velez. dispute by the defendant. placed testi- in on the facts of the case. GJ.’s based very strong concerning her re- mony was in is the ad- pivotal The this case of that re- her communication sistance and of missibility of evidence other misconduct sistance to Velez. the assault case when defend- in a sexual affirmatively Evi- the claims consent.1 against this relevance ant Balanced of sexual was admit- dence three assaults presumed highly prejudicial effect of evi- on Velez. The first occurred prior ted of crimes. Faced with the tes- dence 24, 1985, his raped victims, when Velez October timony alleged of each claim- three ap- The second occurred girlfriend, C.S. raped them, jury would that Velez later, on proximately three weeks Novem- certainly to that Velez was tend conclude 14, 1985, attempted rape when Velez to ber by he three guilty because stood accused G.J., Anchorage he met at an bar. woman use the evidence people. different This of 23,1985, later, days on Nine November propensity, forbidden to show forcibly Velez third assault occurred when me, appears It there- under Rule S.F., met raped another woman he at a bar. fore, of the evidence of the relevance w;as charged with clearly assaults was the two other sexual degree assault in the first Novem- impact outweighed prejudicial of sexual as- ber attack with Accordingly, join I in the evidence. degree in first the November sault decision to reverse.1 23 attack on S.F. BRYNER, Judge, dissenting. Chief trial first The as majority charged of indicated that G.J. worked agree with the am unable topless in as a dancer at a bar majority’s part-time in this case. deci- the court difficulty distinguishing charged he was would have been cross-admissi- I have little Davis and, further, (Alaska App.1981). separate of Davis ble in trials initial, kidnap rape uncharged assault would have been of M.M. See, e.g., gave car in both cases. State and Smith M.M. ride after her admissible Davis York, Wash.App. P.2d down. Davis and Smith then drove had broken (1987). holding raped in Johnson is not to off a secluded area where Davis Our M.M. trial, right contrary. upholds argued of auto- At Davis Smith was Johnson her. consent. joined solely testify permitted matic severance when cases are that on two occasions similarity given the basis of the offenses and Davis had women rides and Davis he charged. Implicit sev- sexually in the rule of automatic the women. The testimo- attacked adopted recognition Johnson is the ny show Davis’ intent when erance in was admissible to why admissibility up evidence of other miscon- picked and to Smith he M.M. show testimony depend specific context did. at 484. The duct will often acted Id. trial, it placed in a evidence is offered at and that the incident with M.M. context. which the jury danger frequently predict would difficult to There was little therefore being charged cross-admissibility accuracy because he was advance convict Davis separate separate Nothing purports vic- incidents three establish three trial. Johnson improper victims never testified. per tims because the other se reversal in the event a rule of question governing joinder in Davis came down whether the usual rules alter M.M., or believed believed Smith error. When a trial court errs harmless Davis, concerning testimony appears, denying Davis. In automatic severance and merely trial, tended to flesh out incidents following of the that evidence each story. charges properly Smith's version joint have been admissi- would others, separate in a trial on the the error ble failing grant severance will Although an automatic the issue is couched terms some the defendant establishes improper joinder, harmless unless see Stevens v. 1978), specific prejudice stemming (Alaska from the mis- Johnson v. Here, specific joinder. Velez has shown App.1986), it is clear that possible prejudice apart lack of cross- prejudice misjoin- from the from could have suffered no admissibility. two assaults with which der if evidence

13Q9 acquainted Anchorage. Velez became with talked and danced. Velez invited S.F. to regular he was a lunchtime bring shop G.J. because body get her car to his to bar danced. customer at the where she estimate on some work S.F. needed to have boyfriend Velez visited G.J. and her at 23, 1985, done. On November S.F. went to trailer on several occasions and G.J.’s body shop headlight repaired. to have a boyfriend helped G.J.’s work on his truck. shop Velez was at the with several other 14, 1985, November G.J. went to On Ve- people. installing While Velez was body shop pick up lez’s to a coat. Velez headlight, suggested he that S.F. and the home, stopping way drove on the to G.J. shop girlfriend buy owner’s some blackber- purchase blackberry brandy and beer. returned, ry brandy they and beer. When trailer, they When arrived G.J.’s she everyone brandy drank the and beer and invited Velez in for a drink. marijuana. time, During smoked Ve- Velez told about an incident involv- G.J. charges lez mentioned to that he had S.F. girlfriend in his former which he had pending against him in another state for upon hit her and forced himself her be- battery assault and and that he had come cause “he wanted her and he that she knew get away to Alaska to from them. him.” He wanted told G.J. that his former shop, After the others left the S.F. asked girlfriend rape had accused him of and had fixing Velez what she owed him for her restraining against him. obtained order headlight. replied, hug.” Velez “A S.F. beer, drinking brandy After and Ve- gave hug pushed Velez a and he her down lez asked to dance for him. re- G.J. She said, “No,” began couch. S.F. and got up put fused. Velez and his arms struggle. grabbed to Velez her G.J., saying around that he had not been clothing. throat and tried to remove her with a woman for a while. kissed G.J. groin; S.F. tried to knee Velez in the the cheek and told him Velez on to calm menacingly, you said “Don’t ever do that down, reminding him boy- that she had a again.” removing pants After S.F.’s and aggressive friend. Velez became underwear, Velez had sexual intercourse against again held G.J. himself. G.J. told got up placed her. He with a blanket calm Velez to down or leave. She moved floor, couch, dragged on S.F. off the away from Velez and sat down on the again. and had sexual intercourse approached again, say- couch. Velez G.J. subsequently permitted Velez S.F. to leave. on, ing, you “come ... want it and want reported rape police later S.F. get up, it too.” G.J. started to but Velez evening. pushed her back down on the couch. He lay top attempted sepa- of G.J. and Velez testified his own behalf at trial. knees, her, legs telling rate her with his Concerning the November 14 on, you you “come know want it.” G.J. rape, kissing he admitted G.J. hugging get screamed and told Velez out. Velez screaming but claimed that she started face, struck her in the continued reason, apparent go so he let of her and struggle. Eventually, managed G.J. Velez, According she fell he left down. get away long enough pick up apartment soon thereafter when ef- G.J.’s telephone. po- threatened to call the She proved unavailing. forts to calm her down lice. left the trailer. deny making the statements Velez did not reported police. the incident to the G.J. concerning his assault on a former investigation, After an initial a misdemean- testified, however, girlfriend. He that he or citation was issued Velez for rape not as a result battery, ap- the case was girl- and that his former of the incident Anchorage parently referred to the Police restraining or- friend’s efforts obtain Department investigation for further she failed der had been dismissed because charges. more serious appear hearing. for a On cross-examina- tion, forcing girl- his former Velez denied

On November Velez met S.P. at him. Anchorage friend to sexual intercourse with another bar. Velez and S.F. pose proving character is to establish 23 sexual as- Concerning the November committing S.F., having the defendant’s admitted sault oper- charged. The rule offense does episode but claimed that intercourse of other misconduct ate to forbid evidence entirely consensual. it is relevant to show the defendant’s when rebuttal, permitted trial the On the culpable mental state—or mens rea—as C.S., girlfriend, former state to call Velez’s to the defendant’s conduct—or ac- opposed that she met as a witness. C.S. testified reus: tus September 1985 and went out with Velez is proof the of other acts of- Where 1985, 24, him times. On October several person engaged fered show evening drinking spent the she Velez conduct, disputed probative the the weak shop; people body at the several other crimes, of the evidence of other value drinking blackberry brandy and Velez swamped wrongs, by or the coun- acts evening, Velez invited beer. Later that tervailing considerations of fairness and apartment According for a to his drink. Therefore, efficiency. general the rule C.S., aggressive Velez tried became is, 404(b), stated in Rule that other she not kiss her. told him that did She may prove used to the acts not be con- They strug- sex with him. want But once it has been duct of actor. began cry. pulled gled and C.S. by evidence that the act was shown other floor forced her to her down on the act and the issue is who did the done subsequent- have sexual intercourse. C.S. state, what mental the balance order, restraining ly to obtain a probative The worth of the evi- shifts. through or for- she did not follow file pur- when for some other dence offered charges against of assault Velez be- mal prove pose may higher, be need to him. cause she was afraid of great- requisite may mental state be attempt- The convicted Velez er, prejudice the defendant and of the sexual ed sexual assault Hence, the may be less. balance cannot appealed. He thereafter S.F. automatically struck admissi- that, separate appeal, claims On bility. charges, trials been held on each of the two Graham, 22 C. & K. Federal Prac- other acts of evidence of his two (1978) 5239 at 438-39 tice and Procedure § misconduct would have been inadmissible. (hereinafter Graham). Wright & starting analysis for of proper point The evidence of other misconduct is When is Alaska Rule of Evidence Velez’s claim to have relevance to some issue shown 404(b): propensity other than defendant’s Crimes, (b) Wrongs, or Acts. Other charged, conduct similar to the conduct ad- crimes, wrongs, or acts Evidence of “is the appli- mission of evidence left to prove admissible character of normal of rele- cation rules person in show of a order to also v. vance....” Id. See Huddleston conformity may, acted in therewith. It — States, -, U.S. 108 United S.Ct. pur- admissible for other 1496, (1988). Primary 771 99 L.Ed.2d motive, poses, proof opportu- such as of relevance,” rules among the “normal of of intent, nity, plan, knowledge, identity, or course, 403,2 of is Alaska Rule Evidence mistake absence of or accident. court, permits the trial as matter discretion, plain language of Rule bars of to exclude relevant evidence outweighed probative use of other misconduct when its value prove prejudicial impact. Wright its only potential when it is admitted to the de- character, only & at 439. also Ler- pur- when the 5239 fendant’s danger prejudice, provides: confusion A.R.E. unfair 403 issues, misleading jury, or consider- Evidence on Grounds Exclusion Relevant time, Prejudice, Confusion, delay, waste of need- or Waste Time. ations undue relevant, Although presentation be exclud- of cumulative evidence. less outweighed by probative ed its value

13H State, 312, See, v. e.g., chenstein 315-16 defendant’s intent. (Alaska App.1985), affd, P.2d 546 Oglen v. (Ala. 1172, 726 440 So.2d (Alaska 1986). Cr.App.1983); People Salazar, v. 144 Cal. 799, Peo- App.3d Cal.Rptr. 1, (1983); admissibility present Jackson, ple Cal.App.3d 560, initially question turns case thus 915, Cal.Rptr. (1980); 918-19 O’Neal v. whether, in relation to each of the two Ga.App. 637, 318 S.E.2d against Velez, charges of his (1984); Baker 449 N.E.2d other misconduct was relevant (Ind.1983); Gonzales, State v. something propensity besides his commit (1975); Kan. charged. of conduct oth- type the If some State, Williams v. 830, 95 Nev. 603 P.2d established, legitimate er relevance is Fears, 694, (1979); State v. Or.App. 697 69 404(b) inapplicable; is A.R.E. the issue of 606, 88, (1984); State v. 688 P.2d 89-90 admissibility balancing shifts to the formu- Willis, 193, (S.D.1985); 370 N.W.2d 198 la articulated A.R.E. 403. State, Rodriguez v. 539, 646 S.W.2d 542 purposes One of York, State v. (Tex.App.1982); 50 Wash. of other misconduct is expressly allowed App. 446, 683, (1987). P.2d 749 688-90 404(b) under A.R.E. is to show intent. Annotation, generally, Admissibility, theory upon of “The which evidence Case, Rape Evidence that Accused of crimes is admissible on issue of [the intent] Raped Attempted Rape Person Oth- 404(b) under Rule is that its use Prosecutrix, er than 330, 2 A.L.R. 4th mental element offense does not (1980). require an inference as to the of character Alaska, In the issue is con- squarely Wright the accused or as to his conduct.” State, trolled by Davis v. Graham, 635 481 excep- & 5242 at P.2d 487-88. This § (Alaska 404(b) recognized App.1981), virtually case that is broadly tion to A.R.E. is See, broadly indistinguishable from In e.g., Huddle- applied. and as Velez’s case. Davis, ston, expressly approved S.Ct. we 108 Í496. Intent is one of the the use exceptions expressly listed in similar evidence to A.R.E. crimes the intent defendant, clearly recognized and is thus charged under Alaska who was law, though even the rule has charac- sexual who kidnapping, been assault terized as one of exclusion than in- affirmatively rather asserted the con- defense of clusion. See Oksoktaruk v. 611 sent: (Alaska 521, 1980). 524 case, present In the when Davis took engaged stand and testified that he had exception might Because the for intent M.M., in sexual intercourse with broadly

threaten to swallow the rule if too consensual, af- intercourse applied, two limitations com- are is- firmatively specifically placed in First, monly imposed. of in- issue “[t]he sue Given testimony, his intent. seriously disputed.” Wright tent must be highly probative nature of the evidence Graham, Free- See also & at 489. § concerning recent similar assaults man v. 486 P.2d manifest, Davis is and the trial court’s And, second, 1971). the evidence of other allowing the evidence decision misconduct must be similar to act of heard is not an abuse misconduct with which the accused discretion. charged. & 5242 at 490-92; Adkinson v. omitted). Id. at 485 (citations (Alaska 1980); Oksoktaruk, majority of the court in this case at 524. distinguish whether unable decide it, Davis or overrule specific they attempt context so to do of sexual consent, attempt distinguish cases where defendant claims a little of both. wholly Davis jurisdic- unconvincing. ease While it there is abundant law other kidnap- allowing tions the admission of evidence true that Davis was crime, showing ping, specific sexual intent as well as with similar acts order prejudicial in Davis—where it was assault, less passage from Davis testimony an ac- through the presented it clear that our hold- quoted above makes eyewitness—than complice it who was Davis’ the relevance of addressed present case—where was issue his intent in misconduct on the the vic- presented through testimony assault, committing the sexual tims themselves. committing the kid- issue of his intent napping. found the evidence We in support of over- The reasons advanced intent, “highly probative” on issue unconvincing. equally ruling Davis purpose relevance and we found its au- and the numerous opposition to Davis Id. to be "manifest.” jurisdictions reaching thorities from other facts, Judge Sin- like conclusions on similar Moreover, holding our in Davis ad- opinion People gleton’s cites two decisions: challenged admissibility of the dressed the Cal.App.3d 888, Cal.Rptr. Key, intent, not, as the on the issue of Saltarelli, (1984), State implies, majority of the court 697, 699-701 Wash.2d Indeed, plan. if com- of common scheme or (en banc). (1982) plan had at issue in mon scheme or Davis, wholly have been unneces- would poorly These decisions are reasoned. rely sary for court to on the fact that this rape They begin premise the that is a expressly raised the defense of Davis crime, they point general intent out thereby placed his intent in consent and a who claims consent ad- that defendant issue, plan because the common scheme engaging in an act of sexu- knowingly mits 404(b) the use of exception A.R.E. allows to this, prema- From cases al intercourse. the crimes, prove to either con- evidence defendant, the turely that conclude Graham, Wright & duct or intent. See consent, claiming has admitted both the (“evidence plan at of a also § culpable reus and the mental state actus doing show of the admissible to the They only the that the offense. reason act”). criminal dispute in remaining fact is the victim’s lack of consent—an as- Judge suggests concurrence that Coats’ to sume to be unrelated the defendant’s necessary explain it was Davis’ intent Key, Cal.Rptr. mental state. at Yet, explain the need to toward victim. 148; Saltarelli, at 701. See also respect his victim Davis’ intent with Houghton, v. N.W.2d State hardly greater explain the than need to Willis, (S.D.1978) (overruled by State respect to G.J. and S.F. Velez’s intent with (S.D.1985)). 370 N.W.2d distinguishing sug- bases for Davis Other per- gested by Judge Coats are no more foundation, Atop analytical Key, this Sal- suasive. To the extent that the actions of tarelli, cases the conclu- and similar build Smith, explana- accomplice, Davis’ needed rape that defendants cases who sion tion, certainly explanation could place intent in do not their claim consent specific provided reference to shaky without is as as its issue. This conclusion Davis, prior sexual assaults. As the are flawed. These logical underpinnings first, respects: evidence Velez’s misconduct in two are mistaken eases “in placed understanding scope case his actions a context.” Just in their Davis, and, guilt 404(b), issue of exception as was case intent to Rule sec- credibility ond, understanding here came to a contest of in their of the elements down rape—more particularly, and the defense. And the crime of between the victims prove suspect requirement state there is little reason consent.3 any victim’s lack of sexual assault addition, justifying significance the admission of Key place on as basis for seems to that, permitted. that would not otherwise because the state bears conclusion reasoning, Key, Cal.Rptr. at This proving the of consent See however, the burden of lack with, misinterprets expressly simply the common re- begin fact that the defendant excep- intent element striction limits reliance on defense no new raises consent adds 404(b) cases intent is in which cannot be relied tion the state’s burden and therefore starting point analysis Key person etration with another without con- person.” 11.41.410(a)(1). sent of rape general intent AS is that is a Saltarelli provision We construed this underlying premise Reynolds seems to crime. The App.1983). exception to Rule be that the intent interpretation adopted Under the we application—or has no least less Reynolds, prove crime, in order to significance—in involving only cases know- state must first show an conduct; act of sexual or reckless cases seem to penetration by the defendant. This is the exception assume for the intent conduct, prohibited reus, or actus apply, specific intent must somehow be at prosecution offense. The must next show simply issue. This is incorrect. Rule that the victim did not consent. Lack of 404(b) uses the word “intent” as a conve- consent, surrounding circumstance, com- any nient form of shorthand to denote as- prises the second element of the state’s pect culpable of the accused’s mental state elements, case. As to each of these two prose- that is included as an element of the required the state is the defend- cution’s ease: culpable ant’s mental state. respect With exception The ‘intent’ should be read prohibited to the conduct—the act of sexual broadly any required so as to cover men- penetration—the state must show that tal element of the crime whether malice defendant knowingly. respect acted With mistake, knowledge or the absence of surrounding circumstance—the vic- accident, or duress or intoxication. tim’s lack of consent—the state must Wright & 5242 at 487. that the defendant recklessly.4 acted The second Key mistake made duty prove The state’s lack of consent characterizing Saltarelli lies in their the actually encompasses thus a two-fold obli- duty state’s lack of consent as one gation: portion duty the first of the deals only deals with the conduct of the establishing the victim’s state of mind nothing victim and that has to do with the conduct; portion the second addresses culpable mental state of the accused. Even the defendant’s awareness of the victim’s Judge Singleton’s opinion present in the mind, conduct and state of and the defend- expressly case this disavows view and ac- subjective response ant’s own to that knowledges significant that it amounts a aspects awareness. These two of lack of oversimplification. interwoven, and, inextricably consent are law, rape— Under Alaska the crime of contrary to the in Key conclusions reached sexual degree—is Saltarelli, the first de- aspect plainly the second any pen- culpa- fined to include act of “sexual the involves defendant’s intent—his State, actually disputed. any separated See Freeman v. elements of crime into 967, (Alaska 1971); Wright conduct, P.2d ham, & Gra- categories: surrounding four stance, circum- significance § 5242 at 489. The result, culpable mental state. defendant’s reliance on a consent defense is not specific provision culpable for a Where men- imposes duty that it on the state the a offense, tal is made in the of an state definition element, places new but rather that it into actu- following AS 11.81.610 makes the states mental that, dispute al and serious an element while conduct, applicable: prosecution the must outset, might there from the otherwise not have knowingly; acted a show that the accused actively contested. circumstance, prosecution result or a the must recklessly. show that the defendant acted The interpretation Reynolds 4. Our based on assault, first-degree set definition of sexual as previous ruling our 325, v. Neitzel 11.41.410(a)(1), specify (Alaska out in AS does not a App.1982), where we construed culpable Reynolds, relying on provisions mental state. In of the Alaska Revised Criminal governing general principles interpretation Code of criminal of AS 11.81.600 and AS Neitzel’s 11.81.600(a), responsibility. 11.81.610, that, prohibit- Under AS the mini- we concluded requirement liability mal for criminal is "con- penetration—the applicable ed conduct—sexual involving voluntary duct" act or omission. “knowingly”; as to the surround- mental state instances, prohibited all but rare conduct applica- of consent—the circumstance—lack culpable accompanied by must be mental “recklessly.” ble mental state is 11.81.610, 11.81.600(b). state. AS Under AS Saltarelli, Key like cases ble mental state.5 exactly opposite wrongly reach conclu- notion of con- precisely It is because the Judge sion. And in the same breath as willingness to the victim’s sent intertwines acknowledges the theo- Singleton’s opinion awareness of and the defendant’s consent mis- of other retical relevance willingness that a defendant cannot intent, summarily issue of it affirmatively the former without invoke insignificant. relevance as invoking integral dismisses the the latter. Both also fabric, opinion when a de- parts process, of the same overlooks In the he an act of asserts that committed fendant point A.R.E. The limited reach of penetration with victim’s con- dissent made at outset bears sent, necessarily own he also asserts his 404(b) categor- repetition: operates Rule in- good benign faith—that acted with ically exclude evidence of other misconduct tent, knowing disregarding neither of nor evi- only when the sole relevance of consent. the victim’s lack con- dence is to establish the defendant’s that, follows when a defendant affirm- It by proving propensity engage duct consent, atively culpable claims the issue of conduct; any apart relevance like once actually state and serious- mental becomes established, propensity from ly prevail by disputed: the state will not shifting operate prohibition, as a ceases convincing jury merely of the victim’s question admissibility to the bal- unwillingness engage in sexu- subjective process ancing established Rule 403. defendant, al penetration with balancing test set out A.R.E. de- also must convince primarily for the one recklessly disregarded knew fendant of or apply. trial court to Northern De- Alaska wishes. these circumstanc- the victim’s Alyeska Pipeline velopment, Inc. v. Ser- es, of other similar misconduct (Alaska Company, 666 P.2d vice legitimately avail- the defendant should 1983); Hawley state—subject course able to the (Alaska 1980); Dyer balancing process of A.R.E. 403—to shed light App.1983). intent. opinions defendant’s by majority written of the court Although actually acknowledging that meaningful give case deference to that incorporates of of the notion lack consent superior is- court’s command over factual intent, although the defendant’s actual- a opinion sues. Neither advances satisfac- conceding—albeit reluctantly—that ly evi- explanation tory conclusion that the may dence of similar misconduct have rele- in applying its issue, Judge Singleton’s opin- trial abused discretion on this vance balancing test.6 inexplicably ion in this case adheres to 404(b). might argued Key exception to be eluded in the intent It Saltarelli Graham, Thus, distinguishable Wright sex- because Alaska construes its & 5242 at 487. differently ual assault statute from California taking potential differ- even into account the Washington by requiring proof of reckless- ences between Alaska law and substantive culpable ness as the mental state defendant governing provisions assault in Califor- regard possess lack of must with comparable victim’s Washington, Key are in- nia and and Saltarelli requirement No consent. mens rea concluding correct consent defense many jurisdictions. explicitly recognized in place in issue. does not the defendant's intent distinction, does not restore the This validity analysis Key of and Saltarelli. Judge Singleton’s opinion also somewhat Although may unique affirmatively Alaska with a discussion of Alaska clouds proof respect to requiring of recklessness with considering exceptions to A.R.E. cases consent, virtually juris- the victim’s lack of all disposition" It rule discusses "lewd least, very recognize, at the reason- dictions State, in Burke articulated. as to the victim’s able mistake of fact defense 1980), (Alaska ap- subsequently 1248-50 effect, then, virtually all of consent. lack by plied this court Moor v. jurisdictions recognize must that the defendant (Alaska App.1985), 505-07 Bolden v. negligently shown to have acted least (Alaska App.1986), and respect to the lack of consent. Accord- victim’s Soper v. Wright of mistake is & absence culpable App.1987). address a sui among aspects in- All of these cases of mental state that, concluding pur- dealt with the Alaska Revised Criminal summarily Code, expressly provides reck- poses proving of the November 23 sexual only by not S.F., lessness be established probative value of Ve- assault of evidence of reckless but also attempted lez’s November 14 assault showing higher one of the levels outweighed by “more than G.J. was culpable state. mental Alaska Statute prejudice,” Judge Singleton’s potential for 11.81.610(c) states, part: relevant “If only con- opinion seems to assume that the acting recklessly suffices to establish an attempted as- ceivable relevance of Velez’s element, that element also is established tendency to show sault on G.J. lies in its person intentionally knowingly.” acts establishing recklessness Velez’s conduct was he had notice that his placed Because Velez culpable his mental and that he was therefore offensive G.J. consent, by claiming state in issue S.F.’s unjustifiable aware a substantial entitled, provision, state was under this might risk that similar conduct be offen- knowledge to establish that he acted with certainly point sive to This one S.F. of S.F.’s lack of consent. The evidence of willing Although relevance. am far less just Velez’s recent assault on G.J. did that. majority than the of this court to dismiss Quite apart from its more tenuous tenden- probative out of hand the value of the cy to show that earlier Velez’s attack on theory, point evidence under this is not placed him on notice of the risk that separate the- determinative. For there is a offensive, might his S.F. find advances ory under which Velez’s directly attack G.J. tended to and force- directly on G.J. is more relevant to fully probability establish the that Velez culpable assaulting his mental state in S.F. fully aware of S.F.’s state of mind and knowingly disregarded that he it. important preliminarily It is to note required relevance, the mere fact that the state was theory commonly This re- recklessly theory probabilities, that Velez acted at least ferred to as the has regard long recognized legitimate. to S.F.’s lack of consent could preclude presentation theory of evidence & Graham ascribe the showing knowingly probabilities Wigmore point and make a that he acted or inten- noting distinguishable tionally. Obviously, that it is from the it would be irrational use of evidence of other misconduct to argue raped deliberately that a man who propensity: show pre- a woman should thereafter be able to proving culpable clude the from state exception The “intent” should be read mental state because the evidence estab- broadly any required so as to cover men- intentionally that he acted rather lished tal element of the crime whether malice mistake, regard recklessly knowledge than to lack of con- or the absence of accident, situations are foreseen and duress or intoxication. The the- sent. Such woman; undisputed, generis exception that is akin to the "motive” fendant and another however, it was exception expressly provided prior in A.R.E. that sexual contact was con- 404(b); reversing exception permits of A.R.E. use of evidence sensual. 404(b) as violative showing prior sexual contact between the de- the trial court’s admission of evidence victim, person closely dealing prior episode, with the our decision in fendant and the or a victim, rejected various of the related to the in order to establish the considered and Pletnikoff rule, including particular affinity exceptions of a between the listed common existence exception plan, operandi, modus and motive. defendant and the victim. This obvi- scheme argued ously nothing exception, not has to do with the issues of ad- The intent relevance; here, theory missibility presented and our decisions or considered as dealing exception inapposite. apparent: for this seems because with this reason pertinent prior contact more is our decision in incident of sexual Somewhat Pletnikoff consensual, acknowledged App. it to have Pletnikoff 1986), by Judge Singleton’s opin- relevance on the could have had no conceivable also discussed exclusively by the extent that Velez on issue of intent. To ion and relied on almost Pletnikoff exception any appeal. discussion of the intent involved a sexual assault contains Pletnikoff dicta, 404(b), clearly prosecution to Rule addressing the discussion in which the defendant claimed only was not unneces- evidence of a an issue that consent. The trial court allowed episode sary raised. between the de- but also not of sexual contact probability that the weight crimes of other ory upon which evidence im- under court confuses it with majority on these issues of the is admissible on the mental ele- propensity. is that its use permissible evidence of require does not ment of the offense Velez’s other Certainly, the evidence of ac- as to the character inference case must have sexual misconduct conduct_ Wig- As to his cused or as in all likelihood compelling impact, and had intent can explains, the evidence of relatively simple task a jury’s made the it theory probabilities. be offered Yet, convincing force of the the chief one. that an ac- accept the defense We can testimony lay in its indirect disputed good faith car thief had a belief cused guilt by show- tendency Velez’s to establish take an auto- permission that he person who type he was the ing that occasion but when on one mobile that he assaults and committed sexual he made similar shows that conformity acted in must therefore have before, grow. It our doubts “mistakes” committing the sexual character in with his of these fortuities improbability Rather, charged. assaults as to the char- any than inference rather impact immediate obvious and had more supports the accused that acter of the directly refuted Velez’s claim because guilt. belief That innocent intent. that he acted with (foot- Graham, 5242 at 487-88 & § rape falsely accused of might omitted). me that this is It seems to lez’s therefore rape that he must commits outweighed by potential its substantially rapes with which he have committed impact. prejudicial improbability of charged: “It is the contrary reaching a conclusion any inference rather than these fortuities Velez’s other finding that the evidence of accused that of the as to the character proba- prejudicial than was more assaults guilt.” Id. the belief supports appears to tive, of the court majority testimony as disputed The force of the the dis- relevance of misunderstand view, is, my far probability of theory proba- of testimony under the puted as evi- impact its compelling than more Ironically, perhaps it is because bilities. fact that The mere propensity. dence of forceful testimony has such disputed C.S., girlfriend, compelling evidence of Ve- his former remains to be the evidence guilt hardly serve as a lez’s should basis considered. While the circumstantial sim- for its exclusion. perhaps ilarities of the October assault are great not as similarities between the theory probabilities, more- Under the S.F., they on assaults G.J. are none- over, of Velez’s sexual assault the evidence significant. theless The October assault on is at least as relevant to establish S.F. closely was also related time to the two committing intent in as- his charged significant- offenses. Even more attempt evidence of the sault on G.J. as the ly, the the October assault on on is to show his intent the assault G.J. rebuttal, was admitted C.S. in direct chronological order of the two on S.F. The response testimony by Velez that inaccu- probative unimportant assaults is value rately explained prior his differences with theory probabilities, because under the context, C.S. In this admission of C.S.’s “prior no- the issue of whether Velez testimony concerning offense was simply his conduct was offensive tice” that not an abuse of discretion. germane. is the fact of the two is not It occurrences that renders the existence cross-admissibility of the chal- Given culpable significantly mental state misconduct, lenged evidence of other case, regardless probable in each of would conclude that the trial court’s failure the offenses occurred. the order which was, most, grant a severance harm- any extent that there dis- To the Accordingly, I less error.7 would affirm value, subsequent probative tinction in Velez’s conviction. greater would seem to have sexual assault as evidence of intent the earli- relevance case,

er because the earlier assault attempt, offense as an

involving specific intent. admissibility relating the evidence uncharged assault on

to Velez’s October argues claim that his trial counsel afforded him inef- 7. Velez also that the trial court erred given denying The time to Velez’s a motion for continuance made fective assistance. continuance, requesting preparation to trial—a trial counsel for trial counsel. however, certainly only period approximately five weeks—is Velez’s trial counsel asserted give generalized prepare, in and of itself so short as to rise to an need for additional time to not any particular effective assistance could not be specifying matter that inference that without showing specific appeal, provided. a more Velez has Absent remained to be done. On any specific deficiency prejudice, I would find no abuse of discretion in point failed to out having inadequate denial of Velez’s motion for a from the trial court’s omission as resulted preparation the denial continuance. Patterson trial counsel from (Alaska App.1984). requested continuance. Velez does notes inter- engaging in consensual sexual after theory upon which we have precise not, in the one woman would course with to have comparable proof previously found abstract, But the evidence implausible. of intent. relevance as evidence manifest period in a one-month here showed Davis, 635 P.2d at 485. engage in engaged go on to Wright & Graham observe separate with three intercourse important “[similarity of offenses is an women, rape. claimed all of whom of other when the evidence consideration Wig- intent on crimes is offered evidence, probability light of this improbability theory of more’s [sic].” reasonable and acted out of a that Velez at 491. In the Wright & engaging in good faith that he was belief correctly Judge present case Johnstone stag- seems sexual intercourse consensual similarity of factual points numerous noted Crucially, the conclusion geringly low. S.F. between Velez’s improbable defense is that Velez’s consent Judge Johnstone assault on G.J. earlier exclusively from one that derives the two properly considered also false accusa- improbability of three sheer time, occur- closely related crimes were circumstances arising under similar tions weeks of ring approximately two within of time. This conclu- period a short such the circumstantial other. Given each entirely indepen- from and sion is distinct of- similarity the two temporal between disputed any tendency of the evi- dent of concluding fenses, utterly no basis for see not entail propensity; it does to show dence his discretion Judge abused Johnstone intermediate, infer- impermissible, finding probative value of Ve- type person who Velez is the ence that attempted assault on G.J. was

Case Details

Case Name: Velez v. State

Court Name: Court of Appeals of Alaska

Date Published: Oct 7, 1988

Citation: 762 P.2d 1297

Docket Number: A-1642

Court Abbreviation: Alaska Ct. App.