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Angasan v. State (12/6/2013) ap-2403

Angasan v. State (12/6/2013) ap-2403

                                                NOTICE
  

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        errors to the attention of the Clerk of the Appellate Courts:   



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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



TRYGVE ANGASAN,  

                                 Appellant,                   Court of Appeals No. A-10948  

                                                            Trial Court No. 3NA-09-267 CR  

                         v.  

                                                                      O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                 Appellee.                   No. 2403  - December 6, 2013  



                Appeal  from  the  Superior  Court,  Third  Judicial  District,  

                Naknek, John W. Wolfe, Judge.  



                Appearances:    Colleen  A.  Libbey,  Libbey  Law  Offices,  

                Anchorage,  for  the  Appellant.    Kenneth  M.  Rosenstein,  

                Assistant Attorney General, Office of Special Prosecutions  

                 and Appeals, Anchorage, and Michael C. Geraghty, Attorney  

                                                 

                 General, Juneau, for the Appellee.  



                Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,  

                                                     

                                 * 

                 Senior Judge  .  



                Judge MANNHEIMER.  



    *   Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  11  of  the  Alaska  



Constitution and Administrative Rule 23(a).  


----------------------- Page 2-----------------------

                   Trygve Angasan was convicted of second-degree sexual abuse of a minor.  

                                                                                         



The State's case against Angasan was based on evidence that, in the early morning hours  

                                                                                      



of September 19, 2009, Angasan used his mobile phone to trade dozens of text messages  



with the thirteen-year-old victim, and that he then drove to her house in a silver-colored  

                                                            



Chevrolet owned by his family.  The victim got into the vehicle, and she and Angasan  

                                                                                             



drove off together.  When Angasan stopped the car, he engaged in sexual penetration  

                              



with the victim.   



                   Several months after he was sentenced, Angasan filed a motion seeking a  



new trial under Alaska Criminal Rule 33. Angasan's motion was based on the claim that  

                                                                                                        



he had new evidence that tended to exculpate him.  In support of his motion, Angasan  



submitted  the  affidavits  of  four  of  his  relatives:    his  brother,  Shawn  Angasan;  his  



grandmother,  Clara  Angasan;  his  grandfather,  Ralph  Angasan;  and  his  uncle,  Peter  



Angasan (the son of Clara and Ralph).  



                   The superior court found that essentially all of the information contained  



in these four supporting affidavits was known to either Angasan or his attorney at the  



time of trial.  Accordingly, the superior court ruled that the information presented in  

                                                                           



these affidavits  was not "newly discovered evidence" under the test adopted by the  



Alaska Supreme Court in Salinas v. State, 373 P.2d 512 (Alaska 1962).   



                   (Under the Salinas test, evidence is considered "newly discovered" if the  



defendant shows both (1) that the evidence was unknown to the defense at the time of  



trial, and (2) that the evidence could not have been discovered with a reasonably diligent  

                                                        



investigation.)  



                   Because the superior court concluded that Angasan's offered evidence was  

                                                                              



not  "newly  discovered"  as  defined  in  Salinas,  the  superior  court  viewed  Angasan's  



motion as essentially "an oblique way of arguing ineffective assistance of counsel".  In  



other  words,  the  court  concluded  that  Angasan  was  really  arguing  that,  given  the  



                                                         - 2 -                                                     2403
  


----------------------- Page 3-----------------------

availability of the information described in the four affidavits, his trial attorney should  

                                                                                                     



have  pursued  a  different  strategy  at  trial  -  a  strategy  that  entailed  presenting  the  



information contained in the four affidavits.  



                    Viewing  Angasan's  pleadings  in  this  manner  (i.e., as  an  attack  on  the  

                                                                                                              



competence  of  his  trial  attorney,  rather  than  a  claim  based  on  newly  discovered  



evidence), Angasan's motion for a new trial was filed several months late - because  

                                   



Criminal  Rule  33(c)  declares  that,  with  the  exception  of  claims  based  on  newly  



discovered evidence, motions for a new trial must be filed within five days after the  

                                                                



verdict.  The superior court declined to extend this five-day filing deadline, because the  

                     



court reasoned that there was no need to relax the deadline - since Angasan could  



pursue  his  claim  of  ineffective  assistance  of  counsel  by  filing  a  petition  for  post- 

            



conviction relief under Criminal Rule 35.1.  



                    But instead of following the superior court's suggestion and filing a petition  



for post-conviction relief, Angasan filed this appeal.   



                    Angasan contends that the superior court both misunderstood the nature of  

                                                                                  



his claim and committed legal error in rejecting it.  Angasan contends that his request for  

      



a new trial is, in fact, based on a claim of new evidence, and that he is not asserting (at  

                                                



least at this time) that he received ineffective assistance from his trial attorney.   



                    Angasan acknowledges that the information contained in three of the four  

                                                                                                                    



affidavits  presented  to  the  superior  court  does  not  qualify  as  "newly  discovered  

                                     



evidence" under the Salinas test.  Nevertheless, Angasan argues that Criminal Rule 33  

                                                    



allows a defendant to seek a new trial based on any evidence that was not presented at  



trial - even though this evidence was known to the defense at the time of trial, or could  

                                                                                           



have been discovered through diligent inquiry.  



                    Angasan further contends that the superior court could not properly deny  

                                                             



his motion for a new trial without holding an evidentiary hearing, so that the superior  

                                  



                                                             - 3 -                                                         2403
  


----------------------- Page 4-----------------------

court could assess the strength of the new evidence and the credibility of the people who                                



submitted the four affidavits - thus allowing the superior court to reach an informed  



opinion as to whether this new evidence was likely to have changed the jury's verdict.  

                                                                                                               



                      For the reasons explained in this opinion, we reject Angasan's contention  



that "new" evidence (for purposes of Criminal Rule 33) includes any and all evidence  

                                                         



that was not presented at trial.  Rather, we hold that when a defendant seeks a new trial  

                                                   



based on evidence that was not presented at trial, the defendant must normally show that  

                                                                              



this evidence qualifies as "newly discovered" under the Salinas test:   that it was not  

                                                                                                                              



known at the time of trial, and that it was not discoverable through diligent inquiry at the  

                                                                       



time.   



                      Given the contents of the four affidavits submitted by Angasan's relatives,  

                                                         



the superior court could properly find that none of this evidence was "newly discovered"  

                                                                                                            



under the Salinas test - that all of the evidence was either known to the defense at the  

                                                                                     



time  of  trial  or  could  have  been  discovered  through  reasonably  diligent  efforts.  

                                                                                                                



Accordingly, we affirm the superior court's denial of Angasan's motion for a new trial.  

                                                                                                                    



           When  a  defendant  seeks  a  new  trial  under  Criminal  Rule  33  based  on  

           evidence that was not presented at the defendant's trial, the defendant must  

                                                                                                   

           normally  show  that  this  evidence  meets  the  Salinas  criteria  for  newly  

           discovered evidence  



                      Alaska Criminal Rule 33(a) declares that a trial court "may grant a new trial  

                                                                                                                           



to a defendant if required in the interest of justice."  Rule 33(c) specifies the time limits  

                                                                                                                    



that apply to motions for a new trial:  the motion must normally be filed within five days  



after  the  verdict  is  rendered,  except  that  a  motion  based  on  the  ground  of  newly  



discovered evidence "may be made [at any time] before or within 180 days after final  



judgment".  



                                                                 - 4 -                                                            2403
  


----------------------- Page 5-----------------------

                            From the wording of Criminal Rules 33(a) and 33(c), it would appear that                                               



all new trial motions are governed by the "interest of justice" test set forth in Rule 33(a)     



-   and that, among all potential new trial motions, those based on a claim of newly   



discovered evidence have a special, more lenient filing deadline.   



                            But  Angasan  interprets  Rule  33  in  a  different  way.    He  argues  that  



section (a) of the rule and section (c) of the rule each establish a separate ground for  



seeking a new trial.  According to Angasan, section (c) of the rule authorizes a trial court  

                                                                                                                          



to grant a new trial on the basis of "newly discovered evidence" as that phrase has been  

                                                                         



defined in Salinas, while section (a) of the rule, on the other hand, authorizes a trial court  

                                                                                                                                           



to  grant  a  new  trial  for  any  reason  "in  the  interest  of  justice"  -  even  when  the  



defendant's request for a new trial is based on evidence that does not qualify as "newly  

                                                                 



discovered" under the Salinas definition.  



                            Under Angasan's interpretation of Rule 33, subsection (a) gives trial judges  



the authority to circumvent the Salinas restrictions that apply to new evidence claims -  

                                                                                   



to grant a new  trial "in the interest of justice" even when the defendant's  proposed  

                                                                                                                                         



evidence was known to the defense at the time of trial, or could have been discovered  

                                                                                                                                           



through reasonable diligence.  



                             There is one narrow sense in which Angasan's interpretation of the rule  



comports with current Alaska law.  This Court has repeatedly recognized that a motion  

                                                                                                                                                                      

for a new trial can be based on a claim of ineffective assistance of counsel. 1 

                                                                                                                                                                And claims  



of  ineffective  assistance  often  rest  on  the  claim  that  the  defendant's  trial  attorney  



                                                                                                                 

incompetently failed to present exculpatory evidence that was known at the time of trial,  



       1      See, e.g., Bryant v. State , 133 P.3d 690, 691 (Alaska App. 2006);                                                                  Alexander v. State ,  



838 P.2d 269, 274-75 (Alaska App. 1992); Barry v. State , 675 P.2d 1292, 1296 (Alaska App.   

 1984).  



                                                                                       - 5 -                                                                                         2403  


----------------------- Page 6-----------------------

or  that  the  attorney  failed  to  diligently  investigate  the  case  and,  as  a  consequence,  



incompetently failed to discover exculpatory evidence.  



                    But Angasan has expressly declared that he is not claiming that his trial  

                                               



attorney was ineffective.  Rather, Angasan is making a different, broader claim:  a claim  

                                                                



that, regardless of the competence or incompetence of a defendant's trial attorney, Rule  

                                                                             



33(a) allows a defendant to seek a new trial by arguing that there is additional evidence  



that should have been presented at trial - even when this evidence was known at the  



time  of  trial,  or  even  though  this  evidence  could  have  been  discovered  through  

                                    



reasonable diligence.  



                    We acknowledge that the authority conferred on trial judges by Criminal  



Rule 33(a) - the authority to grant a new trial when "required in the interest of justice"  

                                                                     



- is meant to be interpreted broadly.  Generally speaking, a motion for a new trial may  



be based on "[any claim of] trial error or pretrial error that would justify reversal of a  

                                                                                                             



conviction",  or  upon  the  assertion  that  the  verdict  is  against  the  weight  of  the  

evidence. 2  

                       



                                                  

                    See State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003) (declaring that the  



                                                              

rule gives a trial judge great discretion to determine whether, under the particular facts  



                                    

of the defendant's case, "the verdict effectuates substantial justice between the parties");  



Love v. State , 621 A.2d 910, 914 (Md. App. 1993) ("The list of possible grounds for the  



granting of a new trial by the trial judge ... is virtually open-ended."); State v. Guerra,  



278 P.3d 1031, 1042 (N.M. 2012) (same concept); Reyes v. State , 849 S.W.2d 812, 813- 



 14 (Tex. Crim. App. 1993) ("[Criminal] Rule 30(a) does not limit the grounds under  

                                                                                                     



     2    Wayne  R.  LaFave,  Jerold  H.  Israel,  Nancy  J.  King,   and  Orin  S.  Kerr,  Criminal  



Procedure (3rd ed. 2007),  24.11(b), Vol. 6, p. 560.  



                                                            - 6 -                                                          2403  


----------------------- Page 7-----------------------

which a motion for new trial may be granted[,] but rather provides the trial judge the  



general authority to grant such a motion.").  



                         The corresponding federal rule of criminal procedure also uses the phrase  

                                                                                                                                      



"the interest of justice", and the federal courts have construed this phrase to cover a host  

                                                     

of potential situations. 3  

                                              



                                                                                                                         

                         However, in essentially all American jurisdictions, motions for a new trial  



                                                                                                                            

based on claims of newly discovered evidence are not favored by the courts, and these  



                                                                                                                               

claims are viewed "with great caution".  Wayne R. LaFave, Jerold H. Israel, Nancy J.  



                                                                                                                                                      

King, and Orin S. Kerr, Criminal Procedure (3rd ed. 2007),  24.11(d), Vol. 6, p. 562.  



                                                                                               

This  principle  -  that  claims  of  new  evidence  are  viewed  with  caution  -  finds  



                         

embodiment in the kind of standards that the Alaska Supreme Court adopted in Salinas.  



As explained in LaFave ,  



                           

                                                                                                             

                         Courts are naturally skeptical of claims that a defendant [who  

                                                                            

                         was] fairly convicted, with proper representation by counsel,  



      3     See   Charles Alan Wright and Sarah N. Welling, Federal Practice and Procedure:  



Criminal (4th ed. 2011),  589, Vol. 3, pp. 547-555.  In addition to motions for a new trial  

based on newly discovered evidence,                                 Federal Practice and Procedure lists these potential  

grounds  for  seeking  a  new   trial  under  Federal  Criminal  Rule  33:    an  allegation  that  the  

verdict was against the weight of the evidence; that there was misconduct by, or misconduct         

affecting, the jury, the judge, or the attorneys; that the trial judge improperly failed to sever         

the trial of co-defendants or the trial of different charges; that the trial was rendered unfair   

by the absence of an important witness; that there was a flaw in the jury selection process,   

or that a particular juror was improperly allowed to sit; that the government failed to provide         

discovery;  that  the  defendant's  waiver  of  jury  trial  was  invalid;  that  the  defendant  was  

incompetent to stand trial; that the trial was rendered unfair by the defendant's absence from  

                                                                                                               

portions of the trial; that the trial judge improperly admitted or excluded evidence; that the  

                                                                                            

trial judge allowed the jury to find out, in a joint trial of co-defendants, that one co-defendant  

had pleaded guilty in the middle of the trial; that there was a variance between the allegation  

in the charging document and the government's proof at trial; and that the trial judge gave                     

incorrect or improper jury instructions.  



                                                                            - 7 -                                                                        2403
  


----------------------- Page 8-----------------------

                     should now be given a second opportunity because of new  

                    information that has suddenly been acquired.  ...  Accord- 

                    ingly, rather exacting standards have been developed for the  

                                              

                    motion for new trial based on newly discovered evidence.  ...  

                                                                                                      

                     [T]he basic [standards are that] (1) the evidence must be new  

                    to the defense, (2) the failure to learn of the evidence earlier  

                    must not be due to a lack of proper diligence, (3) and the  

                                                                     

                     evidence must reach a certain level of significance [when]  

                    measured in reference to the other evidence in the trial.  



Id. at 562-63.  



                    Essentially every American jurisdiction has adopted some version of the  



                                            

Salinas test - in particular, the requirements that the defendant show that the proposed  



                                                                                  

new evidence was not known to either the defendant or the defense attorney at the time  



            4 

of  trial,    and  that  the  evidence  could  not  have  been  discovered  through  reasonable  

diligence. 5  (In many federal and state jurisdictions, these standards are referred to as the              



"Berry rule", because the standards were first articulated by the Georgia Supreme Court  

                                                                                            



                                                                       6  

in Berry v. State , 1851 WL 1405 (Ga. 1851).)     



                                                                                                        

                     One of the main purposes of this restriction on claims of new evidence is  



to prevent defendants from obtaining a new trial simply because the defendant or their  



attorney, having received an adverse result at trial, now believes that a different strategy  

                                                         



would have worked better.   



                    With regard to evidence that was known to the defense at the time of trial,  

                                                           



the Salinas restriction prohibits defendants from using Rule 33 as a vehicle "to change  

                                                                                                      



[their] strategy after an unfavorable verdict and use evidence [that they] chose not to  

                                                                                                                  



     4    Federal Practice and Procedure:  Criminal ,  584, Vol. 3, pp. 454-55.  



     5    Id . at 451-52.  



     6    Ibid. ; LaFave ,  24.11(d), Vol. 6, p. 563.  



                                                              - 8 -                                                             2403  


----------------------- Page 9-----------------------

                               7  

present at the trial".            And with regard to evidence that was not known at the time of  



trial, but could have been discovered through reasonable diligence, the social policy  

                                                                                                         



behind the Salinas restriction was explained by the Alaska Supreme Court in Lindhag  

                                                                                          



v. Department of Natural Resources , 123 P.3d 948 (Alaska 2005):  the defendant must  

                        



prove that the proposed new evidence could not have been discovered earlier through  

                                                                                          



reasonably diligent effort, because a rule allowing a party to seek relief from a trial  

                                                                                                                



verdict "should not serve as a back-door route to retrying a case [whenever the] party  



thinks he can make a better showing on a second attempt."  Id. at 956.  



                    All of this leads us to reject Angasan's  contention that the "interest of  



justice" standard set forth in Criminal Rule 33(a) allows a litigant to evade the two  



Salinas restrictions on what qualifies as "newly discovered" evidence.  We conclude  

                                                                          



instead  that  these  two  restrictions  comprise  a  judicial  gloss  on  the  meaning  of  "the  

                                                                     



interest of justice" in situations where the defendant's motion for a new trial is based on  

                                                                                                                  



a claim of new evidence.   



                    Although  this  Court  has  never  confronted  Angasan's  precise  argument  



before, this Court addressed a similar argument - and reached the same conclusion -  

                            



in Lewis v. State , 901 P.2d 448 (Alaska App. 1995).   



                    The defendant in Lewis sought post-conviction relief under Criminal Rule  

                                                                                                             



35.1(a)(4), which permits a court to grant relief from a criminal judgement whenever  



"evidence of material facts, not previously presented and heard, ... requires vacation of  

                                                 



the conviction ... in the interest of justice."  Lewis conceded that his proposed evidence  

                                                    



would not qualify as "newly discovered" under the Salinas test, but he argued that the  



     7    Federal Practice and Procedure:  Criminal ,  584, Vol. 3, pp. 457-58.  



                                                             - 9 -                                                           2403  


----------------------- Page 10-----------------------

Salinas test applied only to motions for a new trial under Criminal Rule 33, and not to        



                                                     8  

petitions for post-conviction relief.     



                                                                                         

                    Specifically, Lewis argued that a more liberal standard should apply when  



                          

new evidence is advanced as a basis for post-conviction relief, because the language of  



               

Criminal Rule 35.1(a)(4) does not explicitly require a defendant's new evidence to be  



"newly  discovered".    Rather,  Rule  35.1(a)(4)  only  states  that  the  evidence  must  be  



material, that it must not have been previously presented, and that it "requires vacation  

                                                                                                    



of the conviction ... in the interest of justice".  Based on this, Lewis contended that a  

                                                                                              



defendant petitioning for post-conviction relief should not have to prove that the new  



evidence was unknown at the time of trial, and that the evidence could not have been  

                                                                                                   



discovered through diligent inquiry.  Instead, Lewis argued that the only question was  

                                                                      



whether the new evidence required vacation of the defendant's conviction "in the interest  

                                                                      

of justice". 9  



                    This Court rejected Lewis's argument:  



                      

                              [A]lthough  the  language  of  Rule  35.1  makes  no  

                                                    

                    explicit mention of a newly discovered evidence requirement  

                    and speaks  broadly of granting relief as necessary "in the  

                    interest of justice," we fail to see how the interest of justice  

                    would be served by allowing an award of post-conviction  

                    relief  based  on  new  evidence  that  would  not  result  in  the  

                                                   

                    award of a new trial under the standard embodied in Criminal  

                                  

                    Rule 33.  Construing Rule 35.1(a)(4) to allow new trials to be  

                    awarded on more permissive grounds than those provided for  

                    under Rule 33 - the rule specifically governing new-trial  

                    motions - would elevate form over substance, permitting  

                    identical claims of newly discovered evidence to be decided  



     8    Lewis , 901 P.2d at 449.  



     9    Ibid.  



                                                            - 10 -                                                           2403  


----------------------- Page 11-----------------------

                   differently  based  solely  on  the  procedure  chosen  to  assert  

                   them.  



Lewis , 901 P.2d at 449-450.  



                   Because  the  phrase  "interest  of  justice"  is  intended  to  be  broadly  



interpreted, and is meant to be applied in all the various situations that might present  



themselves in criminal litigation, we hesitate to conclusively declare that, aside from  



claims of ineffective assistance of counsel, a motion for new trial could never be based  

                                                              



on  previously  available  or  previously  discoverable  evidence.    However,  in  such  



situations, we believe that the reasons for granting relief would have to be extraordinary  

                                      



and compelling - because granting relief in these situations would normally tend to  

                                                      



undercut the social policy that bars a defendant from seeking to relitigate their criminal  

                                                                                        



case simply because the defendant or their attorney has come up with a different trial  



strategy that appears more promising.  



                   In Angasan's case, the new evidence that Angasan offered - even if it was  

                                                          



wholly believed - did not constitute convincing proof of Angasan's factual innocence.  

                             



At  best,  the  new  evidence  merely  cast  doubt  on  the  State's  case.    We  accordingly  

                                                    



conclude that there is no extraordinary and compelling reason to exempt Angasan from  



the Salinas requirements that the new evidence (1) was not previously available and  



(2) was not previously discoverable through diligent inquiry.   



          Whether  the  affidavit  of  Peter  Angasan  qualified  as  newly  discovered  

          evidence under the Salinas test  



                   As we explained at the beginning of this opinion, Angasan presented the  



affidavits of four potential witnesses in support of his motion for new trial.  With respect  

                                                                       



to three of these affidavits, Angasan does not dispute the superior court's ruling that the  

                                       



                                                         - 11 -                                                     2403
  


----------------------- Page 12-----------------------

affidavits fail to qualify as "newly discovered" evidence.  However, with respect to the  

                                                                                      



fourth affidavit - the affidavit submitted by Peter Angasan - Angasan argues that  



Peter's proposed testimony is newly discovered.  



                    Peter  Angasan's  affidavit  contained  three  assertions  of  fact  that  were  

                                                                            



pertinent to Angasan's case.  First, Peter asserted that the victim of the sexual abuse had  

                                           



at least some social interaction with another young man, Bjorn King.  Second, Peter  

                      



asserted that Bjorn King repeatedly had possession of, and used, Trygve Angasan's  



mobile phone in the days surrounding the offense - thus suggesting that King, and not  

                                       



Angasan, might have been the one who exchanged the large number of text messages  



with the victim.  And third, Peter asserted that, on the night of the offense, Clara Angasan  

                                                                                                           



asked Peter to collect the keys to all of the family's motor vehicles and bring them to her,  



and that Peter did this - thus suggesting that Trygve Angasan did not have access to the  

                                                                              



silver Chevrolet at the time the offense was alleged to have occurred.   



                    The superior court found that, with one possible exception (the assertion  



that Bjorn King repeatedly possessed and used Trygve Angasan's mobile phone), all of  



the information contained in Peter Angasan's affidavit was known to Angasan's attorney  

                                                                                      



at the time of trial.  



                    With respect to the allegation that Bjorn King repeatedly possessed and  

                                                                                                           



used Angasan's mobile phone in the days surrounding the offense, the superior court  



concluded  that  this  assertion,  even  if  true,  did  not  constitute  newly  discovered  



information because "the defendant himself would have been aware of that fact", and  

                                                       



thus Angasan's trial attorney "must have known" about it.  



                    In his briefs to this Court, Angasan does not challenge the superior court's  

                                                                                     



finding that the information contained in Peter Angasan's affidavit was known to the  

                                                                                                                        



defense  at  the  time  of  trial.  However,  Angasan  argues  that  Peter  should  still  be  

                  



considered a newly discovered source of evidence.  

                                                          



                                                           - 12 -                                                       2403
  


----------------------- Page 13-----------------------

                         According to Angasan's offer of proof in the superior court, (1) Peter left           



for the Philippines a few months after Angasan was indicted; (2) Peter was essentially   



incommunicado  during his stay in the Philippines; and (3) until Peter returned from the  



Philippines, neither Angasan nor his trial attorney had reason to believe that Peter was   



a potential witness in Angasan's case.  



                         Angasan notes that when a court is asked to dismiss a litigant's case on the  

                                                                                                                                               



pleadings (i.e., without an evidentiary hearing or trial), the court is required to examine  



the litigant's pleadings, treat all of the well-pleaded assertions of fact in those pleadings  

                                                             



as true, and then decide whether these assertions of fact (if ultimately proved) would  

entitle the litigant to relief. 10  

                                                                                                                                                    

                                                            Relying on this principle, Angasan contends that  the  



                                                                                                                                           

superior court was required to treat Peter Angasan as a newly discovered witness - in  



the sense that the court was required to presume the truth of Angasan's offer of proof  



that Peter's existence as a potential witness was newly discovered.  



                         But as this Court explained in LaBrake v. State , 152 P.3d 474 (Alaska App.  

                                                          



2007), even though a court must normally presume the truth of all of a litigant's well- 

                                                      



pleaded assertions of fact, this presumption does not extend to each and every assertion  

                                                                                                    



in the litigant's pleadings:  



                           

                         [A] court deciding a motion for judgement on the pleadings  

                                                                                                           

                         need not assume the truth of the [party's] conclusions of law,  

                                                                

                         nor the truth of the [party's] assertions concerning facts that  

                                                                                                                         



       10   J & L Diversified Enterprises, Inc. v. Anchorage , 736 P.2d 349, 351 (Alaska 1987)   



(an  appellate  court  reviewing  a  dismissal  on  the  pleadings    must  accept  as  true  all  

well-pleaded allegations of fact contained in the appellant's trial court pleadings);                                                              LaBrake  

v. State , 152 P.3d 474, 480 (Alaska App. 2007) (same); Steffensen v. State, 837 P.2d 1123,   

 1125-26 (Alaska App. 1992) ("[W]hen the superior court decides whether the defendant's  

petition states a prima facie  case for relief, the superior court is obliged to view the factual                                                

allegations of the defendant's petition in the light most favorable to the defendant.").  



                                                                            - 13 -                                                                        2403
  


----------------------- Page 14-----------------------

                    are legally impossible, or the party's assertions concerning  

                    matters that would not be admissible in evidence.  Moreover,  

                    the  court need  not assume  the  truth  of assertions  that  are  

                                                                                                

                   patently false or unfounded, based on the existing record or  

                   based on the court's own judicial notice.   



                                                                                                        

LaBrake , 152 P.3d at 481.  Under our decision in LaBrake , and based on the record in  



Angasan's case, the superior court did not need to hold a hearing to reject Angasan's  



assertion that Peter Angasan's existence as a witness was "newly discovered" under the  

                                              



Salinas test.   



                    The Salinas test required Angasan to show both (1) that Peter's existence  

                                             



as a potential witness was not known to either Angasan or his attorney at the time of trial,  

                                                                                                                     



and (2) that Peter's existence as a potential witness could not have been discovered  

                                                                                         



through reasonably diligent efforts.   



                    The first question - whether Angasan and his attorney were aware at the  

                                                                



time of trial that Peter was a potential witness - is a question of fact, and in the absence  

                                                                                          



of conclusive evidence to the contrary, the superior court was required to presume the  



truth  of  Angasan's  assertion  that  neither  he  nor  his  attorney  knew  that  Peter  was  a  

                                                                                



potential witness (assuming that this assertion was properly supported by affidavit or  



other evidence).   



                    However, the second question - whether Peter's existence as a potential  

                                                                                                            



witness could have been discovered through reasonably diligent efforts - is a mixed  



question of fact and law. The answer to this question hinges both on matters of historical  

                                      



fact and on the court's legal assessment of what would qualify as "diligent" investigative  



efforts under the circumstances.   



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----------------------- Page 15-----------------------

                     In  Angasan's  case, the  superior  court could  properly  conclude, on  the  

                                                                                                                           



record before it, that Angasan's offer of proof failed to satisfy this "diligence" aspect of  

                          



the Salinas test.   



                     As we explained earlier, Peter Angasan asserted in his affidavit (1) that his  

                                                                                                        



mother, Clara, asked him to collect the keys to all of the family's vehicles on the evening  

                                                                                                   



preceding the offense, and (2) that he collected the keys and gave them all to Clara.   



                     Clara Angasan, for her part, asserted in her affidavit that she told Angasan's  

                                                                                                          



attorney about having the car keys for the vehicles, and that she was surprised when the  

                                                            



attorney did not call her to testify at Angasan's trial.  



                     Based on these assertions in Clara's affidavit, the superior court found that  

                                             



Angasan's attorney was aware of Clara's evidence - and, thus, this evidence was not  

                                                                                                                          



"newly discovered" for purposes of Salinas.  And  as we noted earlier, Angasan does not  



dispute  the  superior  court's  ruling  that  Clara's  evidence  failed  to  qualify  as  "newly  

                                                               



discovered".   



                     But if Clara's evidence concerning the car keys was not newly discovered,  

                                                                                                          



it  necessarily  follows  that  Peter's  existence  as  a  potential  witness  was  not  newly  

                                                                                 



discovered either.   



                     According to Peter's affidavit, it was Clara who asked him to collect the car  



keys,  and  he  delivered  the  keys  to  her  personally.                           Assuming  the  truth  of  Peter's  

                                                                                                      



affidavit, either (1) Clara told Angasan's attorney that Peter was a potential witness when  

                                                               



she described how she got possession of the car keys, or (2) Angasan's attorney would  

                                                                      



have found out that Peter was a potential witness if he had diligently questioned Clara  



about this matter.  In either event, Peter's existence as a potential witness in Angasan's  

                                                                                                     



case was not "newly discovered" under the Salinas test.  



                     Accordingly,  the  superior  court  properly  concluded  that,  of  the  four  

                                                                                                                        



affidavits that Angasan submitted in support of his motion for a new trial, none of them  

                                                                                                          



                                                              - 15 -                                                          2403
  


----------------------- Page 16-----------------------

qualified as "newly discovered" evidence under the Salinas test.  The superior court  

                                                               



could therefore deny Angasan's new trial motion on the pleadings.  



         Angasan's remaining claim  



                   Apart from his motion for a new trial, Angasan argues that his conviction  

                                                                            



must be reversed because the trial judge refused to allow Angasan's defense attorney to  

                                                                                                               



introduce evidence tending to show that the thirteen-year-old victim had engaged in other  



"sexualized behavior" - in particular, sending text messages with sexual overtones to  



a "guy in Florida".  



                   But the defense attorney did not offer this evidence directly.  Rather, the  



defense attorney only sought conditional admission of this evidence.   



                   The information in question was included in the report prepared by the  



nurse who examined and interviewed the victim following the allegation of sexual abuse.  



At trial, Angasan's attorney argued that if the State introduced the nurse's report, then,  

                                                                            



under  the  principle  of  testimonial  completeness,  the  jury  should  be  apprised  of  the  

                                   



portion of the report where the nurse described the victim's "sexualized behavior".  



                   Angasan's trial judge initially ruled that this portion of the nurse's report  

                                                                               



was not particularly relevant, and that this portion would be excised from the report  



when the State offered the report into evidence.  However, the judge invited the defense  

                                                                                     



attorney to renew his request "if ... something comes up that makes [this evidence] more  

                                                                                 



pertinent to the issues [in dispute]."  



                   But the situation changed later in the trial - because, when the prosecutor  

                                                                         



called the nurse to the stand, the prosecutor made no attempt to introduce the nurse's  

                                                                               



report, and Angasan's attorney never raised the issue again.  Indeed, at the end of the  



                                                          - 16 -                                                      2403
  


----------------------- Page 17-----------------------

trial, the prosecutor noted on the record that he had not introduced the nurse's report, and     



Angasan's attorney responded, "Oh, so that whole argument is moot."  



                                 Given  these  circumstances,  Angasan's  attorney  failed  to  preserve  an  

                                                                                                                                                             



objection to the trial judge's preliminary ruling on the admissibility of this portion of the  

                                                                                                                                                                           



nurse's report.  



                 Conclusion  



                                 The judgement of the superior court is AFFIRMED.  



                                                                                                   - 17 -                                                                                                2403
  

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