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Trout v. State (6/24/2016) ap-2504

Trout v. State (6/24/2016) ap-2504

                                                     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 @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



LISA MIRANDA TROUT,  

                                                                    Court of Appeals No. A-11365  

                                    Appellant,                   Trial Court No. 3AN-09-10541 CR  



                           v.  

                                                                            O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                    Appellee.                         No. 2504 - June 24, 2016  



                  Appeal  from  the  Superior  Court,  Third  Judicial   District,  

                                                                                        

                  Anchorage, Michael Spaan, Judge.  



                  Appearances: Kelly R. Taylor, Assistant Public Defender, and  

                                             

                  Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                              

                  Eric  A.  Ringsmuth,  Assistant  Attorney  General,  Office  of  

                                                                         

                  Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  

                  General, Juneau, for the Appellee.  



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

                                                       

                  Superior Court Judge. *  

                                                 



                  Judge ALLARD.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                                                                                    A jury convicted Lisa Miranda Trout of two counts of first-degree sexual                                                                                                                                                                                                                                                                                                                                                             



 abuse of a minor and one count of second-degree sexual abuse of a minor based on                                                                                                                                                                                                                                                                                                                                                                                                                    



 allegations that she sexually abused her oldest son, J.T.                                                                                                                                                                                                                                                                          



                                                                                     Trout challenges her convictions on appeal, raising four claims of error.                                                                                                                                                                                                                                                                                                                                                                                                       



 She first argues that the superior court committed plain error when it failed to ensure that                                                                                                                                                                                                                                                                                                                                                                                                                                             



her   decision   to   testify   at   trial   was   made   knowingly,   intelligently,   and   voluntarily.   



 Second, she argues that the court should have instructed the jury to presume that a police                                                                                                                                                                                                                                                                                                                                                                                                                        



 detective's missing notes, had they been available, would have been favorable to her.                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



Third, Trout argues that the court should have allowed the jury to hear more details about                                                                                                                                                                                                                                                                                                                                                                                                                                     



her ex-husband's prior domestic violence because it was relevant to prove that her ex-                                                                                                                                                                                                                                                                                                                                                                                                                                                      



husband had manipulated their oldest son into making false allegations against her.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



Lastly, Trout argues that the trial court erred when it sentenced her to a term of active                                                                                                                                                                                                                                                                                                                                                                                                                                  



imprisonment beyond the presumptive range for her most serious offense without any                                                                                                                                                                                                                                                                                                                                                                                                                                                       



 finding of good cause.                                                                                                                         



                                                                                    For the reasons explained here, we reject Trout's claims and affirm her                                                                                                                                                                                                                                                                                                                                                                                 



 convictions and sentence.                                                                            



                                          Background Facts   



                                                                                     LisaTrout                                                        and her ex-husband Dunovan Trouthavethreeboys. Thecouple                                                                                                                                                                                                                                                                                                          



married in 1993, separated in 2000, and divorced acrimoniously in 2002.                                                                                                                                                                                                                                                                                                                                                                                                                  There was   



 domestic violence in the relationship.                                                                                                                                                                                                     Trout had sole custody of the children from 2000                                                                                                                                                                                                                                     



until 2009, and during that period, Dunovan saw the children only occasionally.                                                                                                                                                                                                                                                                                                                                                       



                                                                                     Trout was a heavy drinker. And, according to all three of her sons, she was                                                                                                                                                                                                                                                                                                                                                                         



violent and abusive when she was intoxicated.                                                                                                                                                                                                                                                        J.T., Trout's oldest son, testified that he                                                                                                                                                                                                  



tried to protect his brothers from Trout when she became intoxicated.                                                                                                                                                                                                                                                                                                      



                                                                                                                                                                                                                                                                  - 2 -                                                                                                                                                                                                                                                    2504
  


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

                                                   Trout was arrested in 2009 for felony driving under the influence.                                                                                                                                                                                      During  



her incarceration,Trout's                                                                       children went tolivewith                                                                      theirgrandfather (Trout's                                                                        father) and   



his wife.                          J.T., who was fifteen years old at the time, located his father Dunovan on the                                                                                                                                                                                                           



internet.     The   boys   began   communicating   and   visiting   with   their  father.     After   an  



argument   with   their   grandfather,   the   boys   moved   in   with  Dunovan,   his   new   wife  



Michelle, and their daughter.                                             



                                                   At some point while J.T. and his brothers were living with Dunovan, J.T.                                                                                                                                                                                              



became angry and upset. Dunovan asked J.T. about his relationship with his mother and                                                                                                                                                                                                                                     



whether  she   hurt   him.     J.T.   said   "yes,"   and   his   father   continued   asking   questions,  



including whether she hit him and whether she raped him.                                                                                                                                                                          J.T. began to cry and said                                                            



"yes."    Dunovan and J.T. told the pastor at their church that J.T.'s mother sexually                                                                                                                                                                                                                 



abused him.   



                                                   Around the same time, Dunovan's wife Michelle reported to the police that                                                                                                                                                                                              



Dunovan had driven while intoxicated and physically assaulted her. In response to these                                                                                                                                                                                                                              



allegations, Dunovan told the police that Michelle had physically abused the children                                                                                                                                                                                                                   



and, for the first time, he reported to the police that J.T. had alleged that his mother                                                                                                                                                                                                                    



 sexually abused him.                                          



                                                   Following   this   report,   Michelle   brought   J.T.   to   a   children's   advocacy  



center, and J.T. told a social worker and Anchorage Police Detective Brett Sarber that                                                                                                                                                                                                        



his mother had been sexually abusing him since he was in kindergarten or first grade.                                                                                                                                                                                                                                                       



                                                   Detective Sarber began an investigation and obtained a                                                                                                                                                           Glass  warrant to   



                                                                                                                                                                                                1  

record a conversation between J.T. and his mother.                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                       To prepare J.T., Sarber wrote a list  



                                                                                                                                                                                                                                                                                                                        

of questions on a notepad for J.T. to ask his mother.  During the phone call, J.T. told  



                                                                                                                                                                                                                                                                                                              

Trout it had been bothering him for some time that she had sex with him.  Trout denied  



                                                                                                                                                                                                                                                                                                                           

having any memory of abusing J.T. and blamed any possible wrongful behavior on her  



             1           See State v. Glass, 583 P.2d 872, 879-81 (Alaska 1978).  



                                                                                                                                                           - 3 -                                                                                                                                                 2504
  


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

excessive use of alcohol. When J.T. asked Trout if she ever sexually abused his brothers                                                                                                                  



or if it was just him, Trout responded that it was "just [him]."                                                                            



                                   Sarber also separately interviewed Trout.                                                                       During this interview, Trout                                 



denied the allegations.                                        At one point in the interview, however, she stated that she                                                                               



wondered if something might have happened between her and J.T. when she woke up                                                                                                                                          



after a night of drinking.              



                                  Trout was charged with one count of first-degree sexual abuse of a minor                                                                                                    



for engaging in fellatio with J.T. and one count of first-degree sexual abuse of a minor                                                                                                                      



                                                                                                    2  

for having sexual intercourse with him;                                                                                                                                                                           

                                                                                                       both incidents were alleged to have taken place  



                                                                                                                                                                                                                                  

in February or March of 2009 (i.e., shortly before Trout's 2009 arrest for felony DUI).  



                                                                                                                                                                                                                       

Trout was also charged with a third count, second-degree sexual abuse of a minor for  



                                                                                                          3  

                                                                                           

touching J.T.'s genitals in October 2008. 



                                      

                  Trout's Trial  



                                                                                                                                                                                                          

                                  The State's theory at trial was that J.T. protected his brothers from physical  



                                                                                                                                                                                                                     

abuse and neglect in their home while Trout sexually abused J.T. for many years.  The  



                                                                                                                                                                                                                         

State  submitted  evidence  of  both  parents'  alcohol  abuse  problems,  prior  Office  of  



                                                                                                                                                                                                            

Children's Services (OCS) involvement with the family, and Trout's physically abusive  



                                                                                                                                                                                                                    

conduct toward her children when she was intoxicated. All three boys testified that their  



                                                                                                                                                                                                                 

mother physically abused them when she was intoxicated. Dunovan also testified about  



                                                                                                                                                                                                                  

his sons' reports of physical abuse, stating that, according to his sons, Trout beat them  



                                                                                                                                                                                                               

with wine bottles and curtain rods, and that they had sometimes slept in the car in winter  



                                              

to escape Trout's abuse.  



         2       AS 11.41.434(a)(2).  



         3       AS 11.41.436(a)(3).  



                                                                                                         - 4 -                                                                                                  2504
  


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

                                                                                  J.T. testified that his mother began abusing him sexually when he was in                                                                                                                                                                                                                                                                                                                           



kindergarten or first grade.                                                                                                                                          J.T. testified that sometime during this period, he woke up                                                                                                                                                                                                                                                                                               



 on the couch and his mother was drunk, naked, and on top of him, trying to have sex                                                                                                                                                                                                                                                                                                                                                                                                                                      



with him.                                                     



                                                                                  J.T.   described several instances of sexual abuse between ages 5 and 15,                                                                                                                                                                                                                                                                                                                                                                



 including the three incidents for which Trout was charged and ultimately convicted. One    



 of these incidents involved penile-vaginal sex that J.T. testified took place about two                                                                                                                                                                                                                                                                                                                                                                                                                               



weeks before Trout's 2009 felony DUI arrest.                                                                                                                                                                                                                                             J.T. testified that in the second incident,                                                                                                                                                      



which occurred around the same time, Trout hit him several times and then performed                                                             



 oral sex on him.                                                                                         In the third incident, which occurred around Halloween 2008, J.T.                                                                                                                                                                                                                                                                                                                                            



testified that Trout tried to have sex with him by unzipping his pants and pulling out his                                                                                                                                                                                                                                                                                                                                                                                                                                    



penis, but he pushed her away.                                                                                                                         



                                                                                  J.T.  also testified that his mother initiated sexual acts or attempted sexual                                                                                                                                                                                                                                                                                                                                        



 intercourse with him about once a month, but he never told his brothers because he did                                                                                                                                                                                                                                                                                                                                                                                                                                     



not want them to think she was a bad person. J.T. stated that he never reported the sexual                                                                                                                                                                                                                                                                                                                                                                                                               



 abuse because he did not think anyone would believe him.                                                                                                                                                                                                                                                                                                                



                                                                                  In addition to J.T.'s testimony, the jury also heard the entire                                                                                                                                                                                                                                                                                                         Glass  warrant  



 conversation between J.T. and Trout in which J.T. confronted Trout with his allegations                                                                                                                                                                                                                                                                                                                                                                                      



 of sexual abuse. The jury also heard the recorded interview between Trout and Detective                                                                                                                                                                                                                                                                                                                                                                                              



 Sarber.     



                                                                                  The defense theory at trial was that J.T.'s father manipulated J.T. to falsely                                                                                                                                                                                                                                                                                                                                        



 accuse Trout of sexually abusing him.                                                                                                                                                                                                            The defense emphasized that Dunovan hated                                                                                                                                                                                                                  



 Trout, had previously physically abused Trout, and had a pattern of deflecting attention                                                                                                                                                                                                                                                                                                                                                                                                 



 from his own bad behavior by accusing others of bad behavior.                                                                                                                                                                                                                                                                                                                                                                The defense also                                                                      



 emphasized that Dunovan had a financial motive to manipulate J.T. to accuse Trout of                                                                                                                                                                                                                                                                                                                                                           



these serious crimes, because it would ensure that the children never returned to Trout                                                                                                                                                                                                                                                                                                         



                                                                                                                                                                                                                                                          - 5 -                                                                                                                                                                                                                                            2504
  


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

 and Dunovan would not have to pay child support.                                                                                                                                                                                                                                                                       Lastly, the defense asserted that                                                                                                                                                



J.T.'s accounts of the sexual abuse were not credible, given how much bigger he was                                                                                                                                                                                                                                                                                                                                                                                                                     



than his mother and given how long he waited to report this alleged conduct.                                                                                                                                                                                                                                                                                                                                                                                               



                                                                                Trout testified in her own defense. In her testimony, Trout admitted to her                                                                                                                                                                                                                                                                                                                                                  



prior alcohol abuse and her history of sobriety followed by relapse.                                                                                                                                                                                                                                                                                                                                               She also admitted                                        



to drinking to the point of blacking out, even when her children were present.                                                                                                                                                                                                                                                                                                                                                                                                                     She  



testified that she was afraid of Dunovan and that he was a violent person who was not                                                                                                                                                                                                                                                                                                                                                                                            



truthful and who had threatened to take the children from her.                                                                                                                                                                                                                                                                                                                   



                                                                                Trout denied physically abusing her children.                                                                                                                                                                                                                                         She admitted to spanking                                                                           



them with her hand when they were small, but she testified that she never hit them with                                                                                                                                                                                                                                                                                                                                                                                                               



 any object.                                                       



                                                                                Trout also denied sexually abusing J.T.                                                                                                                                                                                                  She testified that the very idea of                                                                                                                                                        



her   having  sex   with   J.T.   was   "horrible."     When   questioned   about   her   ambiguous  



 statements on the                                                                                       Glass  recording and to the detective, Trout said she felt sheer terror                                                                                                                                                                                                                                                                                                              



that she was going to jail and that she might have "done this."                                                                                                                                                                                                                                                                                                                                         She explained that                                                                             



because of her drinking during 2009, she would not have been able to "refute anything."                                                                                                                                                                                                                                                                                                                                                                                                                                            



At one point, she was directly asked if she thought she might have sexually abused her                                                                                                                                                                                                                                                                                                                                                                                                                       



 son while in a black-out; Trout said "yes."                                                                                                                                                                          



                                                                                The jury found Trout guilty on all three counts of sexual abuse of a minor.                                                                                                                                                                                                                                                                                                                                                                        



Following a sentencing hearing, Trout received a composite sentence of 31 years to                                                                                                                                                                                                                                                                                                                                                                                                                                 



 serve.    



                                                                                Trout now appeals her convictions and her sentence.                                                                                                                                                                                                            



                                                                                                                                                                                                                                                   - 6 -                                                                                                                                                                                                                                     2504
  


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

                             Trout's claim that the court committed plain error by allowing her to testify                                                                                                                                                                                                             

                            at trial without first securing a knowing and voluntary waiver of her right                                                                                                                                                                                                                   

                            not to take the stand                                         



                                                        Alaska Criminal Rule 27.1 requires the trial court to advise defendants of                                                                                                                                                                                                                                



their right to choose whether to testify or remain silent.                                                                                                                                                                                   At the beginning of trial, the                                                                                  



court advised Trout that she had this right.                                                                                                                                         The court continued:                         



                                                        And I'm not asking you to make this decision now, ma'am.                                                                                                                                                                                                     

                                                        I want you to talk to both [your attorneys] before making this                                                                                                                                                                              

                                                        decision. I only want to advise you at this time it's your right                                                                                                                                                                       

                                                        to choose whether you're going to testify or remain silent.                                                                                                                                                                                                  

                                                        Do you understand that right?                                                                        



Trout's response was "yes."                                                                                            About ten days later, during trial, Trout's counsel told the                                                                                                                                                                           



court that Trout had been ill but seemed to be feeling better.                                                                                                                                                                                                           The next day, Trout's                                             



attorneys  called   her   to   testify.     The   court   made   no   further   advisement   or   inquiry  



regarding   Trout's   decision   to   testify.     Nor   did   Trout's   attorneys   request   any   such  



additional advisement or inquiry.                                                                         



                                                        Nowon appeal, Trout arguesthatthetrialcourt committed plain error when                                                                                                                                                                                                                       



it failed to conduct an on-the-record inquiry, outside the presence of the                                                                                                                                                                                                                          jury, into Trout's                       



                                                                                                                                                                                                                                                                          4  

decision to waive her right to silence and to testify at her trial.                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                                                                    Trout argues that we  



                                                                                                                                                                                                                                                                                                                 

should adopt a new procedural rule requiring trial judges to make such an on-the-record  



                                                                                                                                                                                                                                                                                                                                         

inquiry in every case where the defendant chooses to testify so as to ensure that the  



                                                                                                                                                                                                   

defendant's decision to testify is knowing and voluntary.  



                                                                                                                                                                                                                                                                                                                                      

                                                        More than twenty-five years ago, in LaVigne v. State, the Alaska Supreme  



                                                                                                                                                                                                                           

Court adopted a related procedural rule that applies to cases where the defendant does  



              4             See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).  



                                                                                                                                                                            - 7 -                                                                                                                                                                 2504
  


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

                         5  

 not  testify.   This procedural rule was later codified in Alaska Criminal Rule 27.1(b),                                                                                          



which provides:                        



                               If the defendant has not testified [when the defense attorney                                                         

                               announces that the defense intends to rest], the court shall ask                                                                 

                               the defendant to confirm that the decision not to testify is                                                        

                               voluntary.   This inquiry must be directed to the defendant                                                      

                               personally   and  must   be   made   on   the   record   outside   the  

                                                                             6  

                               presence of the jury.                             



 This mandated inquiry is often referred to as the LaVigne rule.  

                                                                                                                                     



                               Trout now proposes that we create a parallel rule that would require trial  

                                                                                                 



judges to conduct an inquiry in all cases where the defendant chooses to take the stand  

                                                                                                                                                                                          



 at trial, to ensure that the defendant's decision to testify is knowing and voluntary.  We  

                                                                                                                                                                                              



 conclude that such a rule is not necessary.  

                                                                                                   



                               Our supreme court adopted the LaVigne rule because defense attorneys  

                                                                                                                                                                                 



would frequently advise, or even directly instruct, their clients not to take the stand -  

                                                                                                                                                         



 and  would  neglect  to  inform  these  defendants  that,  as  a  matter  of  law,  criminal  

                                                                                                                                                                                 



 defendants have the right to take the stand at trial regardless of whether their attorneys  

                                                                                                                                                                                 

 think it is advisable.7  

                                                                                                                                                                                 

                                                 Thus, the LaVigne rule was intended to forestall defense attorneys  



                                                                                                                                                                                                 

 from intentionally or even inadvertently "usurping" control of their clients' right to  



                8  

 testify.                                                                                                                                                         

                    It was also intended to assist courts in any future appellate and post-conviction  



        5      LaVigne v. State , 812 P.2d 217 (Alaska 1991). 
 



        6       Alaska R. Crim. P. 27.1(b).
  



        7       Alaska R. Prof. Conduct 1.2(a). 
 



        8      LaVigne , 812 P.2d at 220-21.
  



                                                                                             - 8 -                                                                                      2504
  


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

litigation "by requiring the trial judge to make an on-record memorial of a decision that                                                                

is normally made in private discussions between attorney and client."                                                           9  



                                                                                                                                                        

                         A minority of other jurisdictions have adopted rules similar to the rule  



                                          10  

                                                                                                                                                          

                                               As the Colorado Supreme Court has explained, these rules are  

announced in LaVigne. 



                                                                                                                                                      

useful because of the unique risk in criminal cases that defense attorneys "acting in good  



                                                                                                                                                

faith and with a zeal to prevent the client's conviction, might overbear [their client's]  



                                11  

                                    

desire to testify." 



                                                                                                                                                   

                         But none of these courts have extended this rule to defendants who choose  



                                                                                                                                                           

to testify.   Courts that have addressed this issue have concluded that the danger of  



                                                                                                                                                          

unlawful usurpation is significantly less in circumstances where the defendant takes the  



           12  

stand.                                                                                                                                                  

                 Alaska post-conviction cases likewise do not reveal a particular danger that  



                                                                                                                                                 

criminal defendants are being forced to testify against their will because of defense  



                                                       13  

                                                             

attorney coercion or pressure. 



      9     Id. ; see also Hurn v. State, 872 P.2d 189, 198 (Alaska App. 1994) ("A failure to                                                  



comply with the               LaVigne  rule is harmful, not because that failure by itself proves that a                                

defendant's constitutional right was abridged, but because the failure makes it harder to   

determine the facts underlying the defendant's [post-conviction] claim of                                                              constitutional  

violation.").  



       10   See, e.g., People v. Curtis, 681 P.2d 504, 513-14 (Colo. 1984); Tachibana v. State,  

                                                                              

900  P.2d  1293,  1303  (Haw.  1995);  State  v.  Orr,  403  S.E.2d  623,  624-25  (S.C.  1991)  

                                                                                                    

overruled on other grounds by Franklin v. Catoe, 552 S.E.2d 718, 725 (S.C. 2001); State v.  

                                                       

Neuman, 371 S.E.2d 77, 82 (W. Va. 1988).   



       11   People v. Mozee, 723 P.2d 117, 124-25 (Colo. 1986).  



       12   Both  the  Hawaii  Supreme  Court  and  the  Colorado  Supreme  Court  have  rejected  

                                                                                        

proposals similar to the one presented here.  See, e.g., State v. Lewis, 12 P.3d 1233, 1237  

                                                                                                  

(Haw. 2000); Mozee, 723 P.2d at 124-25.  



       13   In contrast, claims that the defendant wanted to testify but was coerced into remaining  

                                                                                                          

silent continue to be brought in post-conviction cases.  See, e.g., Davis v. State, 2015 WL  

                                                                                                                                                        

                                                                                                                                       (continued...)  



                                                                           - 9 -                                                                     2504
  


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

                                     Nor does Trout assert that she was personally subjected to this kind of                                                                                                                                  



unlawful pressure or coercion by her attorney.                                                                                     Instead, Trout simply asserts - without                                                     



citation to any legal or factual authority - that defendants who do not wish to testify are                                                                                                                                                 



being pressured by their attorneys to take the stand.                                                                                              



                                     Neither historical experience nor the record in this case gives us any reason                                                                                                                



to adopt the broad procedural rule that Trout proposes.                                                                                                               And we note that                                         Trout's  



proposed judicial inquiry might well have a chilling effect on a defendant who has                                                                                                                                                        



chosen to take the stand, especially against their attorney's advice. Despite the intended                                                                                                                                  



                                                                                            14  

limited scope of such an inquiry,                                                                                                                                                                                              

                                                                                                 the defendant may nevertheless perceive the judge's  



                                                                                                                                                                                                                  

advisement and questioning, not as inquiry into the voluntariness of the defendant's  



                                                                                                                                                                                                                                          

decision  to  testify,  but  rather  as  an  implied  comment  on  the  advisability  of  the  



                                   

defendant's decision.  



                                                                                                                                                                                                                                  

                                      Accordingly, we find no plain error in the trial court's failure to sua sponte  



                                                                                                                                                                                                         

inquire into the voluntariness of Trout's decision to testify in this case.  



          13       (...continued)  



4503986 (Alaska App. July 22, 2015) (unpublished); Jordan v. State , 2014 WL 355921  

                                                                                                                                                                                                                               

(Alaska App. Jan. 29, 2014) (unpublished); Thornton v. State, 2012 WL 3139577 (Alaska  

                                                                                                                                                                                                                               

App. Aug. 1, 2012) (unpublished);  Welton v. State, 2011 WL 2151850 (Alaska App. May  

                                                                                                                                                                                                  

25, 2011) (unpublished).  



          14  

                                                                                                                                                                                          

                   Cf. Mute v. State, 954 P.2d 1384, 1386 (Alaska App. 2004) (emphasizing limited  

                          

nature of LaVigne voluntariness inquiry).  



                                                                                                                  - 10 -                                                                                                           2504
  


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

                              Trout's argument that the trial court should have instructed the jury to                                                                                                                                                                                                                                                  

                            presume that the detective's shredded notes would have been favorable to                                                                                                                                                                                                                                                     

                              Trout  



                                                           As already recounted, Detective Sarber met with J.T. to prepare J.T. for a                                                                                                                                                                                                                                                     



recorded phone conversation with his mother.                                                                                                                                                                   As part of this preparation, Sarber and                                                                                                                         



J.T.  brainstormed and prepared questions that could be raised during the phone call.                                                                                                                                                                                                                                                                                              In  



his testimony, Sarber described these notes as handwritten bullet points on a legal pad.                                                                                                                                                                                                                                                                                    



                                                           J.T.  and Sarber both testified that Sarber used the notes to direct J.T. to ask                                                                                                                                                                                                                                      



 specific questions and told J.T. what to say, but told him to say it "in his own words."   



 Sarber also testified that, during the phone call, he wrote notes to J.T. and directed J.T.                                                                                                                                                                                                                                                                                   



when to ask certain questions listed in the notes.                                                                                                                                                                         Sarber acknowledged that it was his                                                                                                                    



idea to have J.T. ask his mother whether she also sexually abused his brothers.                                                                                                                                                                                                                                                                                Sarber  



also acknowledged that, because of J.T.'s youth, J.T. read some of the notes aloud                                                                                                                                                                                                                                                                                   



verbatim  during the phone call.                                                                                                             



                                                            Sarber    also    testified    that,    in   keeping    with    the    Anchorage    Police  



Department's practice at the time, he shredded his notes after the phone call.                                                                                                                                                                                                                                                                             (Sarber  



futher testified that Department policy has changed and he now assiduously keeps such                                                                                                                                                                                                                                                                                      



investigative   notes.)     Because   Sarber   had  destroyed   his   handwritten   notes,   Trout  



requested that the jury be instructed, pursuant to                                                                                                                                                                    Thorne v. State, Department of Public                                                                                                        



Safety, that the jury should presume that the notes, had they been preserved, would have                                                                                                                                                                                                                                                                                  



                                                                                                                                      15  

been favorable to the defense.                                                                                                                 



                                                                                                                                                                                                                                                                                                                                                                                     

                                                           The superior court declined to give the full Thorne instruction requested by  



                                                                                                                                                                                                                                                                                                                                            

the defense.  Instead, the court instructed the jury with a "partial" Thorne instruction.  



                                                                                                                                                                                                                                                                                                                                                                     

That  is,  the  superior  court  instructed  the  jury  that  the  detective's  missing  notes  



                                                                                                                                                                                                                                                                                                                                                                  

constituted evidence that "should have been preserved and made available to Ms. Trout"  



                15            774 P.2d 1326, 1331-32 (Alaska 1989).  



                                                                                                                                                                                   - 11 -                                                                                                                                                                            2504
  


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

 and the jury therefore "may presume that the notes, had they been preserved, would have                                                                                                                                                                                                                                                                                                                                                                                                                           



been favorable to Ms. Trout."                                                                                                                                                           Trout argued that the term "may" should be changed to                                                                                                                                                                



 "must"   presume   because   the   presumption   under   Thorne   (although   rebuttable)   is  



mandatory.   The court refused this request.                                                                                                                                                                         



                                                                                  On appeal, Trout argues that the court erred in using "may" presume rather                                                                                                                                                                                                                                                                                                                                                 



than "must" presume. She claims that, without this stronger directive, the jury might not                                                                                                                                                                                                                                                                                                                                                                                                                                    



have understood that they were required to presume that the missing evidence would                                                                                                                                                                                                                                                                                                                                                                                                                      



have been favorable to her - that is, they would not have understood that they should                                                                                                                                                                                                                                                                                                                                                                                                                 



presume that the missing notes would have supported her claim that J.T. was easily                                                                                                                                                                                                                                                                                                                                                                                                                        



manipulated and her claim that the recorded conversation between herself and J.T. was                                                                                                                                                                                                                                                                                                                                                                                                                                  



being controlled and manipulated by the detective.                                                                                                                                                                                                                                                                       



                                                                                  But there was no real dispute on either of these claims.                                                                                                                                                                                                                                                                                                   At trial, Sarber                                         



readily admitted that he had created the questions J.T. asked his mother and that he                                                                                                                                                                                                                                                                                                                                                                                                                                            



 actively coached J.T. through the conversation. Similarly, both J.T. and Sarber testified                                                                                                                                                                                                                                                                                                                                                                                                     



that J.T. was essentially reading a script during the call, rather than relying on his own                                                                                                                                                                                                                                                                                                                                                                                                                          



thoughts   or   expressions.     Given   these   circumstances,   we   conclude   that   the   jury's  



 consideration of the missing notes would not have been impacted by the use of the word                                                                                                                                                                                                                                                                                                                                                                                                                         



 "may" rather than "must."                                                                                                                                       Thus, any error in using one term over another in the                                                                                                                                                                                                                                                                            Thorne  



 instruction is harmless.                                                                                                                       



                                          Trout's   argument   that   the   trial   court   erred   in   excluding  evidence   of  

                                         additional domestic violence by Dunovan                                                                                                                                                             



                                                                                  At trial,                                     Trout'sdefensefocusedlargely                                                                                                                                                                   onthetheory                                                                    thatDunovan                                                                         exerted  



power and control over "virtually every person" in his life. Trout's attorney argued that                                                                                                                                                                                                                                                                                                                                                                                                                                



this past history demonstrated how and why Dunovan would have pressured J.T. into                                                                                                                                                                                                                                                                                                                                                                                                                                      



making false sexual abuse allegations against Trout.  Trout's attorney also argued that                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                                                      - 12 -                                                                                                                                                                                                                                               2504
  


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

Dunovan pressured J.T. into making these false allegations to deflect police attention                                                                                                                                                                                                                                                                                                                                                                     



 from his 2009 abuse of his wife Michelle and to ensure that he would gain custody of his                                                                                                                                                                                                                                                                                                                                                                                                     



 sons and not have to pay child support.                                                                                                                                                                                           



                                                                             In support of this defense, Trout's attorney sought to introduce evidence of                                                                                                                                                                                                                                                                                                                                          



Dunovan's various acts of domestic violence against Trout and the children in 2000 and                                                                                                                                                                                                                                                                                                                                                                                                    



2001, as well as his more recent acts of domestic violence against Michelle.                                                                                                                                                                                                                                                                                                               



                                                                             The   superior   court   allowed   some,  but  not   all,   of   this   evidence   to   be  



introduced.     For example, the court allowed Trout to testify that she was afraid of                                                                                                                                                                                                                                                                                                                                                                                                          



Dunovan and that he had beaten her in the past.                                                                                                                                                                                                                                      She was also allowed to describe his                                                                                                                                                                    



violent behavior during the 2002 divorce, his threats to take the children, and the fact that                                                                                                                                                                                                                                                                                                                                                                                            



 she obtained restraining orders against Dunovan.                                                                                                                                                                                                                                        The court also allowed Trout to elicit                                                                                                                                                   



 detailed information about Dunovan's more recent acts of domestic violence against his                                                                                                                                                                                                                                                                                                                                                                                                       



wife Michelle.                                                                         



                                                                             But the court limited Trout's                                                                                                                                   ability to introduce detailed information about                                                                                                                                                                                   



Dunovan's past violence towards her and the children. For example, the court precluded                                                                                                                                                                                                                                                                                                                                                                



testimony about how Dunovan threatened his younger son Z.T. when Z.T. was eighteen                                                                                                                                                                                                                                                                                                                                                                                                                                



months old and that he spanked J.T. as a child "more than he needed to." The court also                                                                                                                                                                                                                                                                                                                                                                                                



precluded detailed testimony about an incident shortly after their divorce, in which                                                                                                                                                                                                                                                                                                                                                                                     



Dunovan defaced Trout's home by spreading mustard and ketchup everywhere, as well                                                                                                                                                                                                                                                                                                                                                                                                     



 as another incident that occurred a month later in which Dunovan kicked in a boarded-                                                                                                                                                                                                                                                                                                                                                              



up window in Trout's home, entered the home, and took Trout's phone.                                                                                                                                                                                                                                                                                                                



                                                                             On appeal, Trout argues that the trial court's limitation of her defense                                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                                                                                                                                                                                            16  

 evidence was error under this Court's decision in                                                                                                                                                                                                                                 Beltz v. State                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                                                                                         because the jury needed  



                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

to  know the intensity  of Dunovan's animosity  toward  her  in order to  fairly  weigh  



                    16                 895 P.2d 513 (Alaska App. 1995).  



                                                                                                                                                                                                                                       - 13 -                                                                                                                                                                                                                               2504
  


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

Dunovan's credibility andJ.T.'s vulnerability to his father's influence,                                                               and tounderstand     



the potential source of J.T.'s sexual abuse allegations.                           



                          In   Beltz,   the   defendant   was   convicted   of   sexually  abusing   his   minor  



daughter.    At trial, Beltz sought to cross-examine his wife regarding a prior incident                                                                 



                                                                                         17  

                                                                                                                                                        

where she had assaulted him with a weapon.                                                    The trial court excluded this evidence  



                                                                                                                                                              

under Alaska Evidence Rule 403, ruling that the jury had already heard evidence about  



                                                                                                                                                             

how rocky the Beltz marriage had been for sixteen years, and that evidence of the wife's  



                                                                                                                                                                   

assault against Beltz from six years before would not materially help the jury decide the  



                                                                                                                   18  

                                                                                                                        

case and would instead distract them with collateral issues. 



                                                                                                                                                     

                          Beltz argued  on  appeal that the trial court erred  in limiting  his  cross- 



                                                                                                                                                                  

examination in this manner.  He argued that evidence of this violent confrontation was  



                                                                                                                                                        

needed because it showed the intensity of Ms. Beltz's response when her husband  



                                                                                                                                                                  

threatened to take the children from her, and therefore supported his defense that she had  



                                                                                                                                                                   

influenced her daughter to concoct a false report of sexual abuse to obtain custody of the  

children.19  



                                                                                                                                                                  

                           We concluded that the trial court abused its discretion in excluding this  



                                                                                                                                                                   

evidence because the evidence of the violent assault was materially different from the  



                                                                                                                                                        

other  evidence  about  their  "rocky"  marriage,  and  the  excluded  evidence  revealed  



                                                                                                                                                              

important information about the child custody issue and the extent of Ms. Beltz's anger  



                                       20  

                                                                                                                                                    

toward her husband.                         We noted that the proffered evidence was not unfairly prejudicial  



                                                                                                                                                            

and there was little reason to believe that Beltz's trial would be side-tracked by a "mini- 



       17    Id . at 517-18.  



       18    Id.  



       19    Id. at 518.  



       20    Id.  



                                                                              - 14 -                                                                          2504
  


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

trial" on this issue.             21  We also noted that, although the violence had occurred six years                                              



before, the time frame supported the inference argued by the defense attorney that Ms.                                                                



Beltz   had   abandoned   her   prior   violence   toward   her   husband   in   favor   of   a   more  



sophisticated scheme to obtain custody of the children by manufacturing allegations of                                                                    



                        22  

sexual abuse.                



                                                                                                                                                

                        Trout argues that her case is similar to Beltz and that her theory of defense  



                                                                                                                                                       

was similarly weakened by the absence of the evidence showing the extent of her ex- 



                                                                               

husband's animosity and violence towards her.  



                                                                                                                                    

                        As  an  initial  matter,  we  agree  with  Trout  that  the  Beltz  decision  was  



                                                                                                                                               

intended to set a low threshold for this type of defense evidence and the Beltz holding  



                                                                                                                                       

was intended to ensure that trial judges give defendants a fair opportunity to introduce  



                                                                                                                                                     

background information of witness bias or motive that will help the jury understand their  



                                                                                                                                                        

theory of defense.  We also agree with Trout that the judge's rulings in this case did not  



                                                                                              

necessarily reflect a proper understanding of Beltz.  



                                                                                                                                               

                        However, we do not find reversible error here.  Trout's theory of defense  



                                                                                                                                                     

was that Dunovan had manipulated J.T. to falsely accuse Trout of sexual abuse. At trial,  



                                                                                                                                                               

Trout's jury heard a fair amount of evidence about Dunovan's controlling, manipulative,  



                                                                                                                                                  

and vengeful nature.  The jury also heard evidence about the lengths Dunovan  would  



                                                                                                                                                        

go to try to obtain custody of his children, and his tendency to deflect attention from his  



                                                                                                                                         

bad behavior by accusing others.  Although there was other evidence about Dunovan's  



                                                                                                                                                       

past relationship to Trout that perhaps should also have been admitted, we conclude that  



                                                                                                                                                       

the jury had an adequate context in which to evaluate her theory of defense, and the  



      21    Id. at 519.  



      22    Id.  



                                                                         - 15 -                                                                    2504
  


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

court's exclusion of this evidence did not materially impede Trout's ability to present her                                                



case.  



           Trout's argument that the trial judge erred by sentencing her to an active  

                                                                                                                            

           term  of  imprisonment  beyond  the  presumptive  term  for  first  felony  

                                                                                                                          

           offenders  



                      At the time of sentencing, Trout was thirty-nine years old.  Because Trout  

                                                                                                                                       



committed the sexual abuse in this case before her 2009 felony DUI, the superior court  

                                                                                                                                        

considered her a first felony offender for presumptive sentencing purposes.23  

                                                                                                                                      Trout  



                                                                                                                                      

therefore faced the following presumptive ranges:  20 to 30 years for Count I and Count  



                                                                                                                       

II (first-degree sexual abuse of a minor), and 5 to 15 years for Count III (second-degree  



                                          24  

                               

sexual abuse of a minor). 



                                                                                                                                              

                      The court ultimately imposed the following sentences:  28 years with 5  



                                                                                                                                        

years suspended for Count I, 28 years with 5 years suspended for Count II (with 7 years  



                                                                                                                                        

consecutive to the first sentence), and 8 years with 3 years suspended for Count III (with  



                                                                                                                                    

1 year consecutive to the other sentences).  Thus, Trout's composite sentence was 31  



                                                                                        

years to serve with an additional 5 years suspended.  



                                                                                                                                              

                      Trout argues that this sentence is clearly mistaken because it exceeds by 1  



                                                                                                             

year the high end of the 30-year presumptive range for her most serious offense, first- 



                                                                                                                                           

degree sexual abuse of a minor, without an explicit finding of good cause to do so.  



                                                                                                                                            

                      In Lacquement v. State, we held that when a court sentences a defendant for  



                                                                                                                            

multiple offenses, the defendant's composite sentence can only exceed the presumptive  



                                                                                                                                          

term for the defendant's most serious offense if the court finds that a sentence of that  



      23   AS 12.55.145.  



      24   AS 12.55.125(i)(1)(A)(ii), (3)(A).  



                                                                   - 16 -                                                              2504
  


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

 length is necessary to protect the public.                                     25  However, as Trout acknowledges, we later                                     



 concluded that although this benchmark is not to be exceeded without good reason, "the                                                                           



 appropriate focus is no longer on the narrow issue of public danger, but rather                                                                                     on  



whether a composite sentence exceeding the presumptive term is warranted under the                                                                                  

totality of the circumstances."                            26  



                                                                                               

                           Here, the record indicates that the judge's decision to impose 31 years to  



                                                                                                                                                                    

 serve was based on the judge's evaluation of the totality of the circumstances and the  



                                                                                                                                                                     

relevant Chaney criteria. In his sentencing remarks, the judge focused specifically on the  



                                                                                                                                                           

need  for  community  condemnation  and  isolation.                                                     The judge did  not view  Trout's  



                                                                                                                                                       

 drinking  as  mitigating  her  conduct,  finding  instead  that  Trout  had  "very  guarded"  



                                                                                                                                                            

prospects for rehabilitationgiven her significant substanceabusehistory and past failures  



                                                                                                                                                                    

 at treatment. The judge also focused on the long-term nature of the sexual abuse and the  



                                                                                                                                              

 "untold harm" it had caused, and would continue to cause, Trout's son.  



                                                                                                                                          27 

                                                                                                                                              Based on this  

                          We have independently reviewed the record in this case. 



                                                                                                                                                    

review, we conclude that the composite sentence imposed in this case, as well as the  



                                                                                                                                                                  

judge's decision to exceed the high-end of the most serious offense by one year, was  



                                                                                                                                                            

within the permissible range of reasonable sentences that other judges would impose  



                                                                                                                                       28  

                                                                                                                                           

under similar circumstances, and was therefore not clearly mistaken. 



       25     644 P.2d 856, 862 (Alaska App. 1982),  superseded by statute as stated in Jones v.                                                           



State, 744 P.2d 410, 411 (Alaska App. 1987).  



       26  

                                                                                                                                                      

             Farmer v. State, 746 P.2d 1300, 1301-02 (Alaska App. 1987); see also Jones, 744  

P.2d at 411-12.  



       27  

                                                                                                                       

             McClain v. State , 519 P.2d 811, 813-14 (Alaska 1974).  



       28  

                                                                         

             Id.; see also Farmer , 746 P.2d at 1302.  



                                                                               - 17 -                                                                          2504
  


----------------------- Page 18-----------------------

Conclusion   



                       The judgment of the superior court is AFFIRMED.                                                                                      



                                                                                                                    - 18 -                                                                                                                                      2504
  

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