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Jones v. State (9/18/2009) ap-2239

Jones v. State (9/18/2009) ap-2239

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


NEKIDA JONES,                      
                                   
                    Appellant,          Court  of Appeals No.  A-
                                   10142
               v.                            Trial Court No. 3AN-
                                   06-042 Cr
STATE OF ALASKA,                   
                                   
                    Appellee.                      O  P  I  N   I
End of Caption                     O  N
                                   
                                   
                                    No. 2239    September 18, 2009
                                   
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Philip R. Volland,
          Judge.

          Appearances:    Renee  McFarland,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Tamara   E.  de  Lucia,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and Wayne Anthony  Ross,
          Attorney General Designate, Juneau,  for  the
          Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          MANNHEIMER, Judge.

          Nekida  Jones was prosecuted for second-degree  assault
based  on  the  allegation that he assaulted  his  girlfriend  by
striking  her  repeatedly on the head  and  strangling  her.   At
Joness  trial, the State wished to introduce evidence that  Jones
had  committed a similar domestic assault in the past  i.e.,  had
assaulted  another girlfriend by striking her repeatedly  on  the
head and strangling her.
          However, rather than calling the victim of this earlier
assault  to the stand, the State offered documentary evidence  to
establish  this prior act of assault.  Specifically, 
the State sought to introduce (1) the criminal complaint that was filed in connection with the earlier incident (charging Jones with the crime of assault under section 08.10.010(B)(1) of the Anchorage Municipal Code), and (2) the ensuing criminal judgement that was entered against Jones for this misdemeanor, after Jones pleaded no contest to the charge.
The trial judge questioned the admissibility of the assertions of fact contained in the complaint, noting that these statements were double hearsay. However, the judge ultimately ruled that the statements were admissible under the theory that Jones must have expressly adopted or conceded the truth of the allegations in the complaint when he entered his no contest plea.
The question presented in this appeal is whether the superior court was correct when it ruled that the assertions of fact contained in the earlier assault complaint were admissible against Jones over a hearsay objection. We conclude that the assertions of fact in the complaint were inadmissible hearsay and that they should not have been admitted at Joness trial. Moreover, there is a reasonable likelihood that the error in admitting these statements appreciably affected the jurys verdict. We therefore reverse Joness conviction.
The trial courts ruling  on  the
admissibility of the assertions of fact contained in the prior
complaint

          When  the  State  proposed to  introduce  its
documentary  evidence  the judgement from Joness  prior
assault  conviction, and the complaint  that  initiated
that  earlier assault prosecution  Jones did not object
to  the  criminal judgement, but he did object  to  the
complaint.
          In  the  complaint  or more specifically,  in
the    affidavit   supporting   the   complaint     the
investigating officer made several specific  assertions
of   fact:    that  Jones  had  grabbed   [his   former
girlfriend] by the arms, that he had struck her in  the
face  several  times with an open  hand,  that  he  had
struck  her at least once with a closed fist, and  that
he  had  grabbed her with both hands around  the  neck.
These   assertions  were  not  based  on  the  officers
personal  knowledge, but rather on his  interview  with
Joness girlfriend.
          The  State  wished to rely on  these  factual
assertions  to  show that Joness prior assault  on  his
former  girlfriend  was  sufficiently  similar  to  the
currently charged assault to warrant admission of  this
evidence at Joness trial under Evidence Rule 404(b)(4).
          The  trial judge, Superior Court Judge Philip
R. Volland, questioned whether the statements contained
in  the complaint were admissible.  Judge Volland noted
that,  because these statements were being offered  for
the  truth  of the matters asserted, they  were  double
hearsay.   In  other  words,  the  assertions  of  fact
contained in the complaint were statements made out  of
court  by  the investigating officer, and the  officers
statements were themselves based on still other out-of-
court statements:  the report of the victim.
          The problem facing the State was that if only
the judgement was admissible, and not the assertions of
fact  in the complaint, then the States offer of  proof
would  be  insufficient  to establish  that  the  prior
assault  was  sufficiently  similar  to  the  currently
charged  assault to warrant admission of this  evidence
under Rule 404(b)(4).
          The   criminal  judgement  described   Joness
criminal  conduct  only  by  reference  to  the  charge
specified  in  the complaint  the crime of  assault  as
defined  in AMC 08.10.010(B)(1).  Under this  provision
of the municipal code, the crime of assault consists of
the  intentional or reckless use of force  or  violence
upon   the  person  of  another.   Thus,  the  criminal
judgement  described  Joness conduct  in  only  generic
terms.
          It  was  the  complaint  that  contained  the
crucial  assertions that Jones had grabbed [the victim]
by  the arms, had struck her in the face several  times
with an open hand, had struck her at least once with  a
closed fist, and had grabbed her with both hands around
the  neck.   Judge  Volland expressly relied  on  these
assertions   in particular, the assertions  that  Jones
struck  the former girlfriend repeatedly in  the  face,
and  that  he  began to strangle her   when  the  judge
concluded  that  Joness prior assault was  sufficiently
similar  to  the currently charged assault  to  warrant
admission of this evidence at Joness trial.
          When  Judge  Volland raised the  question  of
whether  the  assertions of fact in the complaint  were
inadmissible  hearsay,  the prosecutor  responded  that
Jones,  by  pleading no contest to the earlier  assault
charge,  had relinquished his right to contest  any  of
the assertions of fact contained in the complaint:
     
          Prosecutor:    The  complaint   is   the
     factual basis upon which the plea was  taken.
     The  defendant accepts those facts  when  the
     judgment and the conviction is entered.   ...
     [So] Mr. Joness ability to dispute [the facts
     asserted  in the complaint] is over and  done
     with.
          .  .  .
     
     If  there  wasnt  a  conviction,  Judge,
[then] absolutely,  I would need to bring  in
[witnesses]  so  that [Jones] could  confront
them,   and  [these  assertions]   could   be
presented  to  the jury, and the  jury  could
decide  those  things.  But once  we  have  a
conviction,  were supposed to be beyond  that
point.

          In  reply,  Joness attorney  argued
that, as a legal matter, this was not true:

     Defense Attorney:  When defendants enter
no  contest  pleas, theyre  choosing  not  to
challenge the [government].  Theyre  choosing
not to fight ... .  Its not necessarily their
acquiescence [in the governments allegations,
or  that]  theyre  agreeing  with  everything
thats  stated in the complaint.  ...  So  its
not correct to say that, once they enter a no
contest plea, they no longer have the ability
or  they are in complete agreement with whats
been said in the complaint.

          The  defense attorney also  pointed
out   that   any  single  one  of  the   four
allegations of force or violence contained in
the  complaint,  standing alone,  would  have
been  a legally sufficient basis for a charge
of assault; thus, there was no way of knowing
which  of these assertions formed the factual
basis for Joness conviction.
          After   hearing   these   competing
arguments, Judge Volland declared that he was
persuaded  by  the  States  argument  that  a
defendants entry of a no contest plea  is  an
admission of all assertions of fact contained
in  the  complaint.  Based on this  analysis,
the  judge  concluded that the complaint  was
admissible  against Jones  as  proof  of  the
factual matters asserted in the complaint:

     The Court:  Every time I take a plea,  I
do  precisely what [the prosecutor] says:   I
ask  the  defendant or ... his or her counsel
...  , Do you accept the factual basis of the
complaint  for  the limited  purpose  of  the
factual support for the plea?  And the answer
is always yes.  Otherwise, I wouldnt take the
plea.
     .  .  .

     [So]   Im   persuaded  by   the   States
arguments  here, and Ill permit admission  of
the  ...  complaint in [this earlier] matter.
I  think  that  [the prosecutor]  is  correct
that,   having  pled  [no  contest]  to   the
assault, Mr. Jones has admitted the  acts  as
alleged  [in  the complaint as]  the  factual
basis of the plea.

          In other words, Judge Volland found
that,  under  Alaska criminal procedure,  the
district court could not have accepted Joness
no  contest  plea  to the  earlier  municipal
assault  charge unless Jones conceded (either
personally,  or  through  his  attorney)  the
truth of all the assertions of fact contained
in  the complaint.  It appears that, based on
this assumption, Judge Volland concluded that
all  of  the assertions of fact contained  in
the  complaint were admissible against Jones,
over   a  hearsay  objection,  because   they
qualified  as  admissions of a party-opponent
under  clause  (A), (B),  or  (C)  of  Alaska
Evidence Rule 801(d)(2).1

Why the assertions of fact contained in the earlier
complaint were not admissible as admissions  of  a
party-opponent

          When  Judge  Volland  ruled  that  Jones  had
conceded  the truth of the assertions of fact contained
in the earlier complaint, the judge did not require the
State to present any evidence concerning the particular
inquiries that might have been addressed to Jones or to
his  attorney  at  the change-of-plea  hearing  in  the
earlier  municipal assault case.  Nor did Judge Volland
require  the  State to present any evidence  concerning
the statements or admissions that Jones or his attorney
might   have  made  at  that  change-of-plea   hearing.
Instead, Judge Volland essentially took judicial notice
that,  whenever  a defendant pleads  no  contest  to  a
criminal  charge  in  Alaska,  the  defendant  (or  the
defendants   attorney)   will   be   called   upon   to
affirmatively confirm or concede the assertions of fact
contained  in  the  indictment or  complaint,  and  the
change-of-plea  proceeding will not go  forward  unless
the defendant concedes the truth of these assertions.
          This is not the law of Alaska.
          First,  Alaska  law only requires  judges  to
ascertain  the  factual  basis  of  a  plea  when   the
defendant  offers a guilty plea, not when the defendant
offers  a no contest plea.  Alaska Criminal Rule  11(f)
states  that a court shall not enter a judgment upon  a
plea of guilty without first being satisfied that there
is a reasonable basis for the plea.  (Emphasis added)
          This  provision was added to Alaska  Criminal
Rule  11  in 1968 by Supreme Court Order No. 98.   (See
page 9 of that order.)  The supreme courts amendment of
the rule appears to have been prompted by the fact that
an analogous clause (i.e., a provision requiring judges
to find that there is a supporting factual basis for  a
guilty plea) was added to Federal Criminal Rule  11  in
1966.   See Charles Alan Wright and Andrew D.  Leipold,
Federal  Practice  and  Procedure   Criminal  (4th  ed.
2008),  170, Vol. 1A, p. 145.
          We  note that the other pertinent subsections
of  Alaska Criminal Rule 11  subsections (c), (d),  and
(h)   refer  to both pleas of guilty and  pleas  of  no
contest,  while subsection (f) refers only to pleas  of
guilty.   This in itself suggests that the  requirement
of  ascertaining a factual basis for the  plea  applies
only  when  a defendant is offering a guilty plea,  and
not when a defendant is offering a no contest plea.
          This  is,  in  fact,  how  the  corresponding
federal rule is interpreted:

     There  are  two significant  differences
     [in  federal procedure] between  a  nolo
contendere  plea and a guilty  plea.   First,
[Federal Criminal] Rule 11(b)(3) requires the
court  to  find a factual basis for a  guilty
plea  but  not  for  a nolo contendere  plea.
Although  at one time the Advisory  Committee
proposed  a  rule that would prohibit  courts
from  accepting  a  no contest  plea  without
first  being  satisfied  that  the  defendant
[had]  committed  the crime  charged,  [that]
proposal  was never adopted.  As  an  earlier
edition  of  this treatise pointed  out,  the
rationale  for  dispensing with  the  factual
basis  requirement [for no contest pleas]  is
that  an  innocent person  may  not  wish  to
contest  the charges against him,  and  a  no
contest plea is the means to accomplish this.
The  result  is  that  a  defendant  may   be
convicted of a crime without the court having
any  basis  to believe that the defendant  is
guilty in fact.

Federal  Practice and Procedure,   175,  Vol.
1A, p. 190 (citations omitted).
          This same reasoning was adopted  by
the  Alaska Supreme Court in Miller v. State,
617  P.2d 516 (Alaska 1980).  In Miller,  the
supreme  court  confronted a situation  where
the  superior  court refused  to  accept  the
defendants  pleas  of no  contest  after  the
defendant  insisted that  he  was  innocent.2
The superior court told the defendant that he
would  have to admit to the court that  there
was  a  reasonable [factual]  basis  for  the
pleas,  ...  or the pleas would be considered
withdrawn.3   When the defendant  refused  to
acknowledge that he was factually guilty, the
superior  court directed that his no  contest
pleas  were  to  be ignored.4  The  defendant
then appealed.
          The   supreme  court  reversed  the
superior court, declaring that [i]n Alaska, a
defendant  may  plead nolo  contendere  as  a
matter   of   right.5   The   supreme   court
clarified that when a defendant offers a plea
of no contest,

the only inquiry permitted the trial court by
Criminal  Rule  11  is  that  of  determining
whether  the  plea is knowing and  voluntary.
Alaska  [Criminal Rule] 11(c) and  (d).   ...
[O]nce the trial court determines that a plea
of  nolo contendere is knowing and voluntary,
[the court] is bound to accept that plea  ...
.

Miller, 617 P.2d at 518.
          The  supreme  court then  expressly
rejected the argument that the factual  basis
inquiry  mandated  by  Criminal  Rule   11(f)
applies to pleas of no contest:

     The  state  argues  that  Criminal  Rule
11(f)  permits  the court to  inquire  as  to
whether  there is a reasonable  basis  for  a
plea   of   nolo  contendere.   We  disagree.
Subsection (f), by its terms[,] applies  only
to guilty pleas.  ...  Moreover, to require a
defendant  to show that there is a reasonable
basis for a plea of nolo contendere puts  the
defendant  in the awkward position of  having
to  demonstrate  his guilt  in  order  to  be
allowed  to  plead nolo contendere.   Such  a
practice destroys the unique purpose  of  the
nolo  [contendere] plea, which  is  that  the
issue of guilt shall not be contested.

Id. (citations omitted).
          For   these  reasons,  we  conclude
that,  in the present case, it was error  for
the  superior  court to assume,  or  to  take
judicial  notice, that whenever  a  defendant
offers  a  plea of no contest, the  defendant
(or the defendants attorney) will be required
to   expressly   confirm   or   concede   the
assertions   of   fact   contained   in   the
indictment  or  complaint  before  the  court
accepts the plea.  The law is the opposite in
this state.  When Jones pleaded no contest to
the  municipal  assault charge,  he  was  not
required  to confirm or concede  any  of  the
governments factual allegations.
          Of  course, it is possible that, at
the  change  of plea hearing,  Jones  or  his
attorney  did  in fact expressly  confirm  or
concede some or all of the assertions of fact
contained in the municipal assault complaint.
If  so, then these statements about the facts
of  that  earlier offense would  arguably  be
admissible against Jones at his trial on  the
current  charge, as admissions  of  a  party-
opponent.
          But  as  we  explained  above,  the
State  did  not offer any evidence concerning
what   occurred   at  Joness   change-of-plea
hearing  in  the  earlier  municipal  assault
case.   Rather, the superior court relied  on
the  mistaken  principle or  assumption  that
anyone  who  pleads no contest to a  criminal
charge will be required, as part of the plea-
acceptance  process,  to  admit  all  of  the
factual  assertions contained in the charging
document.
          Because this assumption was  wrong,
and  because the State failed to present  any
other  evidence to establish that  Jones  had
conceded  or adopted the assertions  of  fact
contained  in the earlier assault  complaint,
it  was error for the superior court to admit
those  statements under the theory that  they
were statements of a party-opponent.

The States alternative argument that, even if Jones
never   expressly   confirmed  or   conceded   the
assertions  of  fact in the earlier complaint,  he
was  nonetheless precluded from contesting any  of
these assertions of fact

     On  appeal, the State proposes an alternative
theory  of  why  the assertions  of  fact  in  the
criminal complaint were admissible against  Jones.
The  State  argues that, because Jones pleaded  no
contest  to  the  earlier assault charge,  he  was
precluded  by  law  from  contesting  the  factual
assertions  contained  in the  assault  complaint,
even  if  he  never conceded the  truth  of  these
assertions.
          It  is  true  that when defendants  plead  no
contest,  they  authorize the court to enter  judgement
against  them  as  if  each necessary  element  of  the
offense had been proved, even though the defendants may
maintain their factual innocence.  Scott v. State,  928
P.2d  1234,  1235, 1238 (Alaska App. 1996); Ashenfelter
v. State, 988 P.2d 120, 123 (Alaska App. 1999).
          And,  under  Alaska law, if  a  defendant  is
convicted  of  a serious crime based on a  plea  of  no
contest, the doctrine of issue preclusion will  operate
to  bar the defendant from later disputing any issue of
fact  that was necessary to the entry of that  criminal
judgement.  In Scott v. Robertson, 583 P.2d 188 (Alaska
1978),   the   supreme  court  held  that  a   criminal
conviction  may be introduced in later civil litigation
as conclusive proof of the factual matters litigated in
the  criminal case if:  (1) the prior conviction is for
a   serious   criminal  offense;  (2)  the   [criminal]
defendant in fact had a full and fair hearing  [in  the
criminal  proceeding]; and (3) ... the [factual]  issue
[for]  which  the  judgment is offered was  necessarily
decided in the previous [criminal] trial.6
          The   Scott  decision  dealt  with  a   civil
litigant who had been convicted of a crime following  a
jury trial.  But in Burcina v. Ketchikan, 902 P.2d 817,
822  (Alaska  1995), Howarth v. Alaska Public  Defender
Agency, 925 P.2d 1330, 1333 (Alaska 1996), and Lamb  v.
Anderson, 147 P.3d 736, 742 (Alaska 2006), the  supreme
          court held that this same rule of issue preclusion
applies to civil litigants who were convicted of crimes
based on their pleas of no contest.
          The State asks us to apply a similar rule  of
issue  preclusion in Joness case.  In other words,  the
State argues that, because Jones pleaded no contest  to
the  earlier  assault charge, the  assertions  of  fact
contained in the assault complaint must now be  treated
as  conclusively  proved for purposes  of  the  current
criminal litigation between Jones and the State.
          The  first  difficulty with this argument  is
that  all  of  the pertinent cases cited by  the  State
involve application of the doctrine of issue preclusion
in   later   civil   litigation,  not  later   criminal
litigation.   As our supreme court noted  in  Scott  v.
Robertson,  the  rule at common law was  that  criminal
convictions [were] not competent evidence of the  facts
supporting      them     in     later      litigation.7
      Alaskas     gradual    departure    from     this
common-law    rule   has   been   based    on    policy
considerations.8  The States suggestion in Joness  case
that  we  extend  the  issue-preclusion  effect  of  no
contest  pleas  to  later criminal  litigation   raises
questions  of policy that are potentially difficult  to
answer,  and  which  have not  been  addressed  in  the
parties briefs.
          These  policy issues are addressed  obliquely
in  the  Commentary  to  Alaska Evidence  Rule  203(c).
Evidence   Rule   203(c)  prescribes  differing   rules
regarding  the  conclusiveness  of  judicially  noticed
facts, depending on whether the litigation is civil  or
criminal.   In civil litigation, the jury is  bound  by
judicially noticed facts, while in criminal litigation,
the  jury  is  instructed that it may, but  it  is  not
required   to,  accept  judicially  noticed  facts   as
conclusive.   The  Commentary to Evidence  Rule  203(c)
explains:
     
     Authority  [on] the propriety of  taking
judicial  notice  against  an  accused  in  a
criminal  case  ...  is  relatively   meager.
While it may be argued that the right of jury
trial  does not extend to matters  which  are
beyond  reasonable dispute, [Alaska  Evidence
Rule  203(c)] opts for ... greater protection
of  the accuseds right to a jury trial ... by
[adopting the rule] that the jury may, but is
not  required  to, accept as  conclusive  any
fact judicially noticed.
     .  .  .

     The  jury  simply is to be told  that  a
[judicially]  noticed fact is treated  as  if
evidence  of it ... [had been] submitted.   A
defense lawyer can argue that any fact should
     be  disbelieved by the jury[,] and  this
[applies to] a judicially noticed fact.

          Our   hesitancy  to  resolve   this
question  (whether  issue preclusion  can  be
employed  against a defendant in  a  criminal
trial)  is bolstered by the fact that,  under
federal law, a criminal conviction based on a
no  contest plea is not admissible  to  prove
the  facts asserted in the charging document.
As  explained in Wright and Leipolds  Federal
Practice  and  Procedure, a  nolo  contendere
plea [does not] establish the fact of a prior
crime,  as  opposed  to  [the  fact  of  the]
defendants  conviction for that crime,  in  a
later criminal action.9  (Emphasis added)
          This  principle  is illustrated  by
the  Ninth Circuits decision in United States
v.  Nguyen,  465 F.3d 1128 (9th  Cir.  2006).
The  defendant in Nguyen was convicted  under
federal  law  for willful failure  to  comply
with  the terms of his supervised release  by
the immigration authorities.10  The terms  of
Nguyens  release required that he not  commit
any   crimes.11   Nguyen  was  convicted   of
violating  this  condition  based  solely  on
proof that he was convicted in state court of
two  misdemeanors under Alaska law  after  he
entered   pleas  of  no  contest   to   those
charges.12
          At   Nguyens  trial,  the   federal
governments   only  evidence   consisted   of
certified  copies  of  the  two  state  court
judgements  that  resulted  from  Nguyens  no
contest  pleas.13   Nguyen  objected  on  the
grounds that the judgements were hearsay  and
that his no contest pleas were not admissions
of  factual guilt, but these objections  were
overruled.14
          In   his   federal  appeal,  Nguyen
argued that, because a no contest plea is not
an    admission   of   factual   guilt,   his
misdemeanor convictions based on  no  contest
pleas did not, standing alone, prove that  he
had  committed  any crimes.   Nguyen  further
argued  that, because his Alaska  convictions
were  based on no contest pleas, they  should
not  have been admitted into evidence at  his
trial    because  they  did  not  prove   any
assertion  of  fact.15   The  Ninth   Circuit
agreed with Nguyen.

     [A  plea  of no contest] is ...  not  an
admission  of factual guilt. ...   It  merely
allows  the defendant so pleading to waive  a
     trial and to authorize the court to treat him
as  if  he were guilty[,] ... even if  he  is
unwilling    or   unable   to    admit    his
participation  in  the  acts  constituting  a
crime.   ...   The availability of  the  nolo
contendere  plea  to  the criminally  accused
reflects   societys   desire   to   encourage
compromise resolution of criminal cases.  ...
A conviction resulting from a nolo contendere
plea  under  these circumstances  is  not  by
itself   sufficient  evidence  to   prove   a
defendant committed the underlying crime.

Nguyen,  465  F.3d at 1130-31 (citations  and
internal quotations omitted).
          The  Ninth Circuit then noted that,
under Federal Evidence Rule 803(22), evidence
of  a  final felony judgment entered after  a
trial or after a plea of guilty is admissible
to  prove  any fact essential to sustain  the
judgment   but that this rule expressly  does
not  apply to judgments entered after a  plea
of no contest.16
          The  State argues that this federal
authority is distinguishable because some  of
the  federal evidence rules cited  in  Nguyen
differ  from  the Alaska rules  of  evidence.
But,  on  this issue, the primary  difference
between the federal rules of evidence and the
Alaska rules of evidence is that the drafters
of  the Alaska rules expressly decided not to
adopt   a   rule  corresponding  to   Federal
Evidence Rule 803(22).
          As  the Ninth Circuit explained  in
Nguyen, Federal Evidence Rule 803(22)  allows
the  government  to  introduce  a  defendants
prior  felony conviction as evidence  of  any
fact essential to sustain the judgment if the
conviction was based on a trial verdict or  a
guilty  plea,  but not if the  conviction  is
based on a no contest plea.  But the drafters
of  the Alaska rules of evidence chose not to
adopt this provision of federal law.
          The  Alaska  drafters reasoning  is
explained  in  the  final  paragraph  of  the
Commentary to Alaska Evidence Rule 803,  Note
on Omission:

     Omitted from [Alaska Evidence Rule  803]
is  an exception for [previous] judgments  of
...  conviction.  See Federal [Evidence] Rule
803(22).   [G]uilty pleas and  statements  in
connection therewith are [already] admissible
[as  statements  of a party  opponent]  under
Rule 801(d)(2)[(A)], unless banned under Rule
     410, [so] the only reason to include  [a
hearsay]  exception for [previous]  judgments
of  ... conviction is to permit [the] finding
of  one  trier of fact to come before another
[trier  of  fact].  [But if]  a  judgment  of
guilt[]  in  a criminal case ... is  to  have
[an]  impact in subsequent cases, the  impact
should be by way of collateral estoppel,  not
by admitting the previous judgment.  The judg
ment[,  standing  alone,]  tells  the  second
trier  of  fact nothing; that [second]  trier
[of  fact]  will either disregard [the  prior
judgment]  or defer to it, neither  of  which
...   is   intended  by  the  [corresponding]
Federal Rule.

          In other words, Alaska law provides
that a prior judgement of conviction  whether
based  on  a trial verdict or on a defendants
plea of guilty or no contest  can trigger the
doctrine    of    issue   preclusion,    thus
prohibiting  a civil litigant from  advancing
or contesting certain issues of fact.  But no
provision  of  the Alaska rules  of  evidence
authorizes the evidentiary use of a  criminal
judgement (again, regardless of its basis) to
prove  the  facts underlying that  judgement.
See Douglas v. State, 166 P.3d 61, 85 (Alaska
App. 2007) (evidence of a criminal conviction
is  inadmissible hearsay under Alaska law  if
it  is  offered  to prove that the  defendant
actually  engaged in the conduct  that  would
justify that conviction).
          The   supreme  court  discussed   a
related point in F.T. v. State, 862 P.2d  857
(Alaska  1993).  In F.T., a child-in-need-of-
aid  case,  the superior court took  judicial
notice   of   the  fact  that   a   long-term
restraining order had been issued against the
father  of  the  child, for  the  purpose  of
establishing  that the father  was  factually
guilty of the acts of violence that justified
the issuance of the restraining order.17  The
supreme court held that this was error.  Id.,
862 P.2d at 863-64.
          In  reaching  this conclusion,  the
supreme   court   cited  cases   from   other
jurisdictions holding that judicial notice of
another courts factual findings may [not]  be
used  ... to establish ... the truth  of  the
matters  asserted.18  This rule is  based  on
the  fact that the truth of evidence received
in another court case (as opposed to the fact
that  the  evidence  was offered)  is  not  a
proper  subject  of  judicial  notice.    See
          Alaska Evidence Rule 201(b), which declares
that  a court can take judicial notice  of  a
fact only when that fact [is] not subject  to
reasonable  dispute for one of  two  reasons:
either  it  is  generally known  within  [the
State  of  Alaska],  or  it  is  capable   of
accurate and ready determination by resort to
sources  whose accuracy cannot reasonably  be
questioned.
          In  a  footnote to its  opinion  in
F.T.   (footnote  13),  the   supreme   court
discussed  the possibility that,  instead  of
improperly  relying on the  issuance  of  the
restraining  order  as evidentiary  proof  of
disputed facts, the superior court might have
relied on the doctrine of issue preclusion to
rule  that  F.T. was estopped from  disputing
the  fact that he had committed earlier  acts
of  violence.   However,  the  supreme  court
concluded that it should not delve into  this
question  because  it was  by  no  means  ...
inevitable   that  the  doctrine   of   issue
preclusion would apply to the facts of  F.T.,
and  because none of the factual  issues  and
policies relevant to the proper resolution of
this  issue were explored in the trial court.
Id., 862 P.2d at 864 n. 13.
          This    Court   faces   a   similar
situation  in  the  present  case.    It   is
arguable that Jones might be estopped,  under
the   doctrine  of  issue  preclusion,   from
disputing  the facts underlying  his  earlier
assault  conviction.  But resolution of  this
question    involves    both    issues     of
constitutional law and issues  regarding  the
policies  underlying the  doctrine  of  issue
preclusion.   And, as was the case  in  F.T.,
these  matters were not explored in the trial
court.
          That  being said, we conclude  that
we  need  not resolve the question of whether
the prior assault conviction had a preclusive
effect  in Joness case  because, even  if  it
did,  that  preclusive effect  would  be  too
limited  to  support  the  admission  of  the
disputed evidence.
          As  we  explained earlier  in  this
opinion,   when  Judge  Volland  ruled   that
evidence   of   the   earlier   assault   was
admissible under Evidence Rule 404(b)(4),  he
expressly relied on the fact that the details
of  that earlier assault, as described in the
complaint,  were strikingly  similar  to  the
assault for which Jones was being tried.   In
other   words,  the  admissibility  of  these
details  was  the underlying  foundation  for
Judge Vollands ruling.
          But  even  if  we assume  that  the
State  could have relied on the prior assault
conviction  for its preclusive  effect,  that
preclusive effect would not have included the
details  of  the  assault  described  in  the
complaint.  As the supreme court explained in
Scott  v.  Robertson, the doctrine  of  issue
preclusion is limited to factual issues  that
were   necessarily  decided  by  the  earlier
judgement.19
          In  its appellate brief, the  State
points  out  that, in Scott v. State,20  this
Court stated that rule more broadly; we  said
that  a  plea  of no contest is in  effect  a
consent that the court may proceed to  accept
the  allegations in the indictment as true.21
     This   statement   suggests   that,   by
pleading no contest, a defendant concedes the
truth  of  every  assertion of  fact  in  the
charging document.
          But  this  isolated statement  does
not  accurately describe the true rule.   The
true  rule   which  is quoted  in  Scott  two
sentences  before the passage that the  State
cites   is  that a plea of no contest  is  an
admission of every essential element  of  the
offense   well-pleaded  in   the   charg[ing]
[document].22   (Emphasis  added)   In  other
words, the true rule is the rule set forth by
our supreme court in Scott v. Robertson:  the
preclusive  effect of a no  contest  plea  is
limited  to the elements necessarily included
in  the charge.  A no contest plea is  not  a
concession of other, non-essential assertions
of fact contained in the affidavit supporting
the complaint.23
          In  Joness  case, the complaint  in
the   prior   assault  case  contained   four
allegations  of  assaultive  conduct:    that
Jones grabbed [the victim] by the arms,  that
he  struck her in the face several times with
an  open  hand, that he struck her  at  least
once  with a closed fist, and that he grabbed
her with both hands around the neck.  But any
one   of  these  allegations  was  apparently
sufficient  to support Joness conviction  for
assault under section 08.10.010(B)(1) of  the
Anchorage   Municipal  Code,   which   merely
requires  proof of an intentional or reckless
use  of force or violence upon the person  of
another.
          Joness attorney pointed this out to
Judge Volland; she argued that even if Joness
          no contest plea had a preclusive effect of
some  kind, there was no way of knowing which
of these allegations formed the factual basis
of  Joness conviction.  Judge Volland did not
reach   this  issue,  because  he  mistakenly
concluded that Joness no contest plea  should
be  deemed  an express concession of  all  of
these allegations.
          If we follow the rule prescribed in
Scott  v.  Robertson and limit the preclusive
effect of Joness no contest plea to the facts
minimally necessary to support each essential
element  of  the  crime charged  (misdemeanor
assault as defined in section 08.10.010(B)(1)
of   the   Anchorage  Municipal  Code),   the
preclusive  effect of Joness  plea  would  be
confined   to   the  assertion   that   Jones
recklessly used force or violence against his
former girlfriend.
          Thus, even assuming for purposes of
argument that the State was entitled to claim
issue  preclusion based on Joness no  contest
plea  in the earlier assault case, the  State
would  not  have been able to rely on  Joness
plea for proof of the facts that were crucial
to Judge Vollands ruling on the admissibility
of  the  prior  assault under  Evidence  Rule
404(b)(4).   In particular, the  State  could
not  rely  on  the specific allegations  that
Jones  repeatedly struck his girlfriend  with
his open hand and that he strangled her.
           We  therefore  conclude  that  the
States    argument   regarding   the   issue-
preclusive  effect of Joness no contest  plea
is  moot.   Even if the State is  correct  in
arguing that the doctrine of issue preclusion
applies to this situation, the details of the
prior  assault   the details on  which  Judge
Volland relied when he ruled that evidence of
this   assault  was  admissible  under   Rule
404(b)(4)   would not be encompassed  by  the
issue    preclusion   arising   from   Joness
no contest plea.

The States argument that the admission of this evidence
was harmless error

     Finally,  the State argues that any error  in
admitting  evidence  of  the  prior  assault   was
harmless.  We disagree.
     The current charge against Jones is based  on
the   allegation  that  he  assaulted  his   then-
girlfriend, Marilyn McGregor, by striking  her  on
the  head several times with his open hand and  by
strangling her.  At Joness trial, McGregor refused
to  admit that Jones assaulted her in this manner,
even  when  she was confronted with  her  previous
statements   to  law  enforcement   officers   and
hospital personnel.  The State therefore faced the
task  of convincing the jury that McGregors  trial
testimony  was not credible, and that the  assault
had occurred as alleged.
          In  these circumstances, independent evidence
that Jones had committed a markedly similar assault  on
a  previous girlfriend  striking her several  times  on
the  head  with an open hand, and strangling  her   was
obviously important to the States case.  We can not say
that  the  error in admitting evidence  of  this  prior
assault  did not appreciably affect the jurys  verdict.
We therefore must reverse Joness conviction.24

Conclusion

          For  the  reasons explained here, we conclude
that  the criminal complaint from Joness prior  assault
prosecution was hearsay when offered to prove the facts
of the prior assault.  The assertions of fact contained
in  that  complaint  were  not admissible  over  Joness
objection.   We further conclude that the admission  of
these out-of-court statements likely affected the jurys
verdict.  We therefore reverse Joness conviction.
          The  judgement  of  the  superior  court   is
REVERSED.

_______________________________
1Alaska Evidence Rule 801(d)(2), Admission by Party-Opponent,
states   (in   pertinent  part)  that  an  out-of-court
statement is not excluded by the hearsay rule if  [t]he
statement  is offered against a party and  is  (A)  the
partys  own  statement, in either an  individual  or  a
representative  capacity, or (B) a statement  of  which
the  party has manifested an adoption or belief in  its
truth, or (C) a statement by a person authorized by the
party to make a statement concerning the subject.

2Miller, 617 P.2d at 517.

3Id.

4Id.

5Id. at 518.

6  Scott, 583 P.2d at 191-92 (listing the three foundational
elements) & 193 (holding that, if these elements are  shown,
the criminal judgement will be deemed conclusive proof in  a
civil lawsuit).

7 Scott, 583 P.2d at 190.

8  See Scott, 583 P.2d at 192-93; Burcina v. Ketchikan,  902
P.2d at 822; Lamb v. Anderson, 147 P.3d at 741-43.

9Charles Alan Wright and Andrew D. Leipold, Federal Practice
and  Procedure   Criminal (4th ed.  2008),   175,  2009
Supplement, p. 15.

10  Nguyen, 465 F.3d at 1129.

11  Id.

12  Id.

13  Id. at 1130.

14  Id.

15  Id.

16  Id. at 1131 (quoting Federal Evidence Rule 803(22)).

17  F.T., 862 P.2d at 860.

18  Id., 862 P.2d at 864, citing Liberty Mutual Insurance Co.
v.  Rotches Pork Packers, Inc., 969 F.2d 1384,  1388-89
(2nd Cir. 1992).

19  Scott, 583 P.2d at 191-92.

20  928 P.2d 1234 (Alaska App. 1996).

21  Id. at 1237, quoting C. T. Dreschsler, Annotation:  Plea
of  Nolo Contendere or Non Vult Contendere, 89 A.L.R.2d
540 (1963),  2 at 547.

22  Id., quoting Charles A. Wright, Federal Practice and
Procedure  Criminal (1982),  177, Vol. 1, pp. 662-64.

23  See Lashbrook v. Lashbrook, 957 P.2d 326, 330 n.  2
(Alaska  1998)  (holding that a litigant was  precluded
from   challenging  the  facts  which  constitute   the
elements  of the offenses to which he pled  no  contest
(emphasis added)); Burcina v. Ketchikan, 902 P.2d  817,
822  (Alaska 1995) ([A] civil plaintiff is collaterally
estopped  from relitigating any element of  a  criminal
charge to which he has pled nolo contendere.  (emphasis
added)).

24See Love v. State, 457 P.2d 622, 632 (Alaska 1969) (holding
that, in cases where  non-constitutional error has occurred,
the  error does not require reversal if the appellate  court
can  reasonably conclude that the error did not  appreciably
affect the jurys verdict).

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