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Willock v. State (5/26/2017) ap-2554

Willock v. State (5/26/2017) ap-2554

                                                                                         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                                                                 



JONDEAN  WILLOCK,  

                                                                                                                                                                   

                                                                                                                   Court of Appeals No. A-11379  

                                                                                                                                                                                 

                                                             Appellant,                                           Trial Court No. 4FA-11-366 CR  



                                             v.  

                                                                                                                                  O  P  I  N  I  O  N  

                                                                                                                                                                   

STATE  OF  ALASKA,  



                                                             Appellee.                                                  No. 2554 - May 26, 2017  

                                                                                                                                                                        



                              Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                                                                                                                                                   

                              Fairbanks, Michael A. MacDonald, Judge.  

                                                                                                          



                              Appearances:                       Sharon  Barr,  Assistant  Public  Defender,  and  

                                                                                                                                                              

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

                                                                                                                                                                        

                              Diane  L.  Wendlandt,  Assistant  Attorney  General,  Office  of  

                                                                                                                                                                 

                              Criminal   Appeals,   Anchorage,   and                                               Michael   C.   Geraghty,  

                                                                                                                                                

                              Attorney General, Juneau, for the Appellee.  

                                                                                                                             



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

                                                                                                                                                   

                               Superior Court Judge.*  

                                                                                  



                                             

                              Judge MANNHEIMER.  



                              JonDean Willock appeals his conviction for first-degree sexual assault. The                                                                                   



question presented on appeal is whether the trial judge should have allowed the State to                                                                                                        



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



Constitution and Administrative Rule 24(d).                                      


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

                                                                                                                        

introduce evidence of Willock's prior conviction for sexual assault.                                       For the reasons  



                                                                                                                               

explained in this opinion, we conclude that the trial judge should not have allowed the  



                                                                                                                     

State  to  introduce  this  evidence,  and  that  this  error  requires  reversal of  Willock's  



conviction.  



                             

          Underlying facts  



                                                                                                                            

                    The State's case was based on evidence that Willock lured a woman, R.F.,  



                                                                                                                                    

to  his  apartment  by  promising her  that  she  could  use  his  telephone  to  call a  cab.  



                                                                                                                        

According to the State's evidence, after Willock and R.F. entered the apartment, Willock  



                                                                                                                              

sat down next to her on a couch, put his arm around her, and tried to kiss her.  R.F. told  



                                                                                                                                    

Willock "no", and she began to struggle.  During this struggle, R.F. wriggled to the floor.  



                                                                                                                            

Willock then got on top of R.F. and held her down.  According to R.F., Willock stuck  



                                                                                                                       

his  hand  down  her  pants  and  digitally  penetrated  her.                           R.F.  continued  to  struggle  



                                                                                                                             

(punching,  scratching,  and biting Willock),  and she screamed for help.                                       After a  few  



                                                                                                                                     

minutes, Willock stopped attacking R.F., and she was able to run out of the apartment.  



                                                                                                                           

                    R.F. sought help at a neighbor's apartment, where she called 911.  When  



                                                                                                                               

the  troopers arrived to investigate, they saw Willock walking through the parking lot  



                                                                                                                                     

near his apartment complex.  He had scratches on his face and fresh blood on his nose.  



                                                                                                                             

                    When the troopers questioned Willock, he admitted that he had been with  



                                                                                                                             

R.F. that evening.  Willock said that R.F. had been in his apartment, and he recalled R.F.  



                                                                                                                     

leaving the apartment, but he told the police that he had no memory of what happened  



                                                    

while R.F. was in his apartment.  



                                                                                                                                

                    Based on the foregoing evidence, Willock was indicted on one count of  



                                          

first-degree sexual assault.  



                                                              - 2 -                                                          2554
  


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

                                                                                                                        

           The trial judge's decision to allow the State to  introduce evidence of  

                                                                                                                        

           Willock's prior conviction for sexual assault, and the prosecutor's use of  

                                                    

           this evidence at Willock's trial  



                                                                                                                       

                     Before trial, the State asked the superior court for permission to introduce  



                                                                                                   

evidence that Willock had a prior conviction for sexual assault.  



                                                                                                                           

                     In this prior incident, Willock broke into a woman's apartment and, despite  



                                                                                                                      

her vigorous resistance, he assaulted her over the next two hours.   Willock ultimately  



                                                                                                                              

pleaded no contest to first-degree burglary and first-degree sexual assault.  He spent most  



                                                                                                                                 

of the next 10 years in prison.  He was released about 3 months before the incident in the  



                       

present case.  



                                                                                                                                

                     The superior court granted the State's request to introduce evidence of this  



                                                                                                                                 

prior sexual assault.  Based on what the judge called the "great similarities" between the  



                                                                                                                                 

facts of the present case and the facts of Willock's prior burglary and sexual assault, the  



                                                                                                                           

judge  ruled  that  evidence  of  Willock's  prior  offense  was  admissible  under  Alaska  



                                                                                                                            

Evidence Rule 404(b)(1) for four purposes:  to show Willock's "plan" to commit sexual  



                                                                                                                               

assault,  his "intent" to commit sexual assault,  his "knowledge" that his conduct was  



                                                                                                                           

"sexual  in  nature",  and  Willock's   "lack  of  reasonable  mistake"  regarding  R.F.'s  



                                                                                                                

willingness (or lack of willingness) to engage in sexual activity with him.  



                                                                                                                                    

                     The evidence of Willock's prior conviction for sexual assault formed a  



                                                                                                                      

significant part of the State's case at trial.  During his opening statement, the prosecutor  



                                                                                                                              

told the jury that the present case "[was not] the first time that [Willock] has had these  



                                                                                                                                

kinds of difficulties."  The prosecutor described the facts of the prior sexual assault, and  



                                                                                                                                   

he told  the  jurors that this prior sexual assault showed that Willock "[knew] what is  



                                                                                                                            

illegal activity, and what is sexual activity, and what is reckless disregard of [the nature  



                                                    

of] a person's [own] behavior."  



                                                               - 3 -                                                          2554
  


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

                                                                   During   closing   argument,   the   prosecutor   returned   to   Willock's   prior  



conviction for sexual assault.                                                                                                                   The prosecutor argued that Willock's assault on R.F. was                                                                                                                                                                                                                   



 similar to the prior                                                                             sexual assault,                                                              and he asserted that Willock's commission of the                                                                                                                                                                                               



 earlier sexual assault showed that Willock recklessly disregarded R.F.'s lack of consent                                                                                                                                                                                                                                                                                                                



in the present case.                                                                               



                                 An overview of Alaska Evidence Rule 404(b), and a summary of a trial                                                                                                                                                                                                                                                                                 

                               judge's duties under this rule                                                                                                                           



                                                                   Evidence Rule 404(b)(1) is deceivingly simple in its wording.                                                                                                                                                                                                                                                        It contains   



two sentences, each of which states an apparently straightforward principle.                                                                                                                                                                                                                                                                                                               



                                                                   The first sentence of the rule declares that evidence of a person's past acts                                                                                                                                                                                                                                                                            



is   never   admissible   "if   the   sole   purpose   for   offering the                                                                                                                                                                                                                                     evidence   is   to   prove   the  



 [person's] character ... in order to show that the person acted in conformity [with that                                                                                                                                                                                                                                                                                                                                   



character]."    This is simply a reiteration of the principle                                                                                                                                                                                                                                        codified in Evidence Rule                                                                                         



404(a): "Evidence of a person's character or a trait of character is not admissible for the                                                                                                                                                                                                                                                                                                                                     



purpose   of   proving   that   the   person   acted   in   conformity   therewith   on   a   particular  



occasion[.]"  



                                                                   The second sentence of Rule 404(b)(1) declares that evidence of a person's                                                                                                                                                                                                                                                   



past acts can be admissible if the evidence is offered for                                                                                                                                                                                                                              other  purposes (   i.e., purposes   



other than proving the person's character).                                                                                                                                                                           This second sentence lists several examples                                                                                                                                 



of non-character purposes:                                                                                                                 "proof of motive,                                                                                   opportunity,   intent,   preparation,   plan,  



knowledge, identity, or absence of mistake or accident."                                                                                                                                                                                                                                    But as our case law clarifies,                                                                           

                                                                                                                            1          Evidence of a person's past acts is admissible for any non- 

this list is non-exclusive.                                                                                                                                                                                                                                                                                                                                                                                            



                  1               See Petersen v. State                                                                                 , 930 P.2d 414, 432 (Alaska App. 1996).                                                                                                                                                          



                                                                                                                                                                                                              - 4 -                                                                                                                                                                                                         2554
  


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

character purpose                             - subject to a trial judge's duty to balance the probative value of the                                                                                            



evidence against its potential for unfair prejudice under Evidence Rule 403.                                                                                                                 



                                  But despite the apparently straightforward wording of Rule 404(b)(1), this                                                                                                    



                                                                                                                                          2  

rule has proved difficult for judges to apply in practice.                                                                                     



                                 As we recently explained in Belcher v. State, 372 P.3d 279, 285 (Alaska  

                                                                                                                                                                                                      



App. 2016), one of the main difficulties is that the words used in the second sentence of  

                                                                                                                                                                                                                   



Rule 404(b)(1) - "intent", "motive", "plan", "knowledge", and "mistake" - must be  

                                                                                                                                                                                                                  



understood in a limited technicalsense, rather than in the broader sense in which they are  

                                                                                                                                                                                                                 

used in everyday speech. 3  

                                                                    



                                  In the present case, Willock was accused of engaging in sexual penetration  

                                                                                                                                                                                             



with a woman without her consent.   In everyday English,  we might say that Willock  

                                                                                                                                                                                                     



should be found guilty if he "intended" to engage in this act of sexual penetration, or if  

                                                                                                                                                                                                                     



he "planned"  to engage in this act of sexual penetration, or if he "knew" that he was  

                                                                                                                                                                                                              



engaging in  sexual  conduct  without  the  woman's  consent  -  i.e.,  that  he  was  not  

                                                                                                                                                                                                               



"mistaken" about the woman's willingness to engage in this sexual conduct.  

                                                                                                                                                                                               



                                  The  problem  in  this  case  stems  directly  from  the  fact  that,  when  the  

                                                                                                                                                                                                                



prosecutor sought permission to introduce evidence of Willock's prior offense, he used  

                                                                                                                                                                                                             



        2        Several   courts   and commentators                                                have   acknowledged that                                     Federal   Evidence   Rule  



404(b) - the counterpart to our Rule 404(b)(1) - is perhaps the most litigated evidence                                                                                                             

rule.   "The limitations of [Federal Evidence] Rule 404(b) on the admissibility of evidence                                                                                                        

of   extrinsic   offenses   have   produced   one   of   the   most   frequently   litigated   questions   of  

evidence."    United States v. Salomon                                                   , 609 F.2d 1172, 1176 (5th Cir. 1980), citing Charles                                                        

Alan   Wright   &   Kenneth   W.   Graham,   Jr.,   Federal   Practice   &   Procedure:   Evidence  

(1st edition 1978),  5239, Vol. 22,p.                                                  427. In           United States v. Davis                                , 726 F.3d 434, 441 (3rd                       

Cir.   2013),   the   court   declared that                                             Federal   Evidence   Rule   404(b)   was   "the   most   cited  

evidentiary rule on appeal."                                      



         3  

                                                                                                                                                                                                                

                 See,  in particular, our discussion of the technical meanings of "intent", "plan", and  

                                                                                 

"mistake" in Belcher , 372 P.3d at 283-84.  



                                                                                                       - 5 -                                                                                                  2554
  


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

these terms in their colloquial sense, rather than in their narrower legal sense - and the                                                                                                                                                                                    



trial judge adopted the prosecutor's position without demur.                                                                                                                                       



                                           But a trial judge must not allow a prosecutor (or a defense attorney, for that                                                                                                                                                   



matter) to simply recite the various permitted purposes listed in Rule 404(b)(1) and to                                                                                                                                                                                          



make generalized assertions about how a person's past acts show their "intent", "plan",                                                                                                                                                                          



"knowledge", or "absence of mistake or accident".                                                                                                                          When   a trial judge evaluates an                                                                    



attorney's request to introduce evidence under Rule 404(b)(1), the judge must                                                                                                                                                                                       apply  



these words in their technical sense, and the judge must decide whether the proposed                                                                                                                                                                     



evidence truly has a case-specific relevance                                                                                                 other than                          proving the defendant's general                                                



                                                                                                                                                                                                                                                                           4  

desire or willingness to engage in the kind of criminal behavior at issue in the case.                                                                                                                                                                                         



                                           To perform this duty, a judge must identify the issues that are really being  

                                                                                                                                                                                                                                                                       



disputed - evaluating the evidence in light of the way the parties are litigating the case.  

                                                                                                                                                                                                                                                                                           



Only then can the judge meaningfully assess whether the proposed evidence has a case- 

                                                                                                                                                                                                                                                                     



specific  relevance  aside  from  proving  the  defendant's  characteristic  willingness  to  

                                                                                                                                                                                                                                                                                



engage in the charged criminal conduct.  

                                                                                                                                  



                      Our analysis of the superior court's ruling in this case  

                                                                                                                                                                                           



                                           The State presented evidence that Willock sexually assaulted a woman after  

                                                                                                                                                                                                                                                                          



luring her to his apartment by promising her that she could use his telephone to call a  

                                                                                                                                                                                                                                                                                   



cab.  Willock's defense to this charge was that there had been no sexual contact between  

                                                                                                                                                                                                                                                             



him  and  R.F.  -  no  sexual  penetration,  nor  even  attempted  sexual  penetration.  

                                                                                                                                                                                                                                                                                           



According  to  the  defense  attorney's  opening  statement,  R.F.  went  voluntarily  to  

                                                                                                                                                                                                                                                                               



Willock's apartment, and she and Willock began "making out".  But then, when Willock  

                                                                                                                                                                                                                                                               



           4          See Linehan v. State                                            , 224 P.3d 126, 147 (Alaska App. 2010);                                                                                      Smithart v. State                                     , 946   



P.2d 1264, 1270-71 (Alaska App. 1997).                                                                                         



                                                                                                                                     - 6 -                                                                                                                                 2554
  


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

                                                                                                                                  

tried to "take it further" by putting his hands around R.F.'s back, she "freak[ed] out" -  



                                                                                                            

scratching Willock in the face, and then running from the apartment.  



                                                                                                                                 

                     Given the conflicting evidence,  and given the litigation strategies of the  



                                                                                                                               

parties, it was obvious that if Willock engaged in the behavior alleged by the State, then  



                                                                                                                                  

one could say that he "knew" that his actions were sexual, and that he "intended" to  



                                                                                          

assault R.F., and that he did not assault her by "mistake".  



                                                                                                                               

                     But none of these were real issues in Willock's case.  Because of the way  



                                                                                                                               

Willock's  case  was  litigated,  the  real  question  that  Willock's  jury  confronted  was  



                                                                                                                            

whether any sexual contact occurred between Willock and R. F. - i.e., whether events  



                                                                                                                       

transpired the way the State alleged or, instead, the way the defense alleged.  



                                                                                                                               

                     Given this context, Willock's prior conviction for sexual assault had only  



                                                                                                                            

one true ground of relevance: it showed that Willock was the kind of person who would  



                                                                                                                                   

sexually  assault  a  woman.                 And  Evidence  Rule  404(b)(1)  prohibits  evidence  of  a  



                                                                                   

person's past acts when it is offered for this purpose.  



                                                                                                                                  

                    Nevertheless,  when  the  superior  court  ruled  on  the  State's  request  to  



                                                                                                                        

introduce evidence of Willock's prior sexual assault, the court concluded that evidence  



                                                                                                                 

of the prior sexual assault was relevant for four non-character purposes:  



                                                                                              

           *	   to prove Willock's "plan" to sexually assault R.F.,  



                                                                                       

           *	   to prove Willock's "intent" to sexually assault R.F.,  



                                                                                                                                  

           *	   to prove Willock's "knowledge" that his conduct was sexual in nature, and his  



                                                                                                     

                "knowledge" that R.F. did not consent to this conduct, and  



                                                                                                                                

           *	   to prove that Willock was not "mistaken" regarding R.F.'s willingness (or lack  



                                                                                         

                of willingness) to engage in sexual activity with him.  



                                                                                                

None of these rationales holds up when subjected to analysis.  



                                                                                                                            

                     As to the proposed rationales of "plan" and "intent", the superior  court  



                                                                                                                                 

reasoned that Willock's prior act of sexual assault "[made] it ... more probable that his  



                                                               - 7 -	                                                         2554
  


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

                                                                                                                           

actions were intentional and [were] taken pursuant to a premeditated plan."  But though  



                                                                                                                               

the superior court phrased its ruling in terms of non-character purposes, Willock's case  



                                                                                                                              

did not present any issue of "plan" or "intent" as those terms are used in Evidence Rule  



                   

404(b)(1).  



                                                                                                                                 

                     When Rule 404(b)(1) speaks of evidence proving a person's "intent", the  



                                                                                                                             

rule is addressing situations where the government must prove a mental state - either  



                                                                                                                                    

a culpable mental state that is an element of the crime or, in a  more general sense, a  



                                                                                                                        

mental state that is put in issue when the defendant raises a defense of mistake, accident,  



                                                                                                                                 

inadvertence, duress, or the like.  See Charles Alan Wright & Kenneth W. Graham, Jr.,  



                                                                                                                                   

Federal Practice and Procedure: Evidence (2014),  5242 Vol. 22 B, pp. 151-52.  



                                                                                                                                

                     Willock's  case  did  not  present  this  kind  of  situation.                         Willock  did  not  



                                                                                                                                

defend by asserting that he engaged in consensual sexual penetration with R.F., or that  



                                                                                                                 

he  made  a  reasonable  mistake  regarding  R.F.'s  consent,  or  that  he  inadvertently  



                                                                                                                           

penetrated  her.             Rather,  Willock's  defense  was  that  he  did  not  engage  in  sexual  



                                      

penetration with R.F. at all.  



                                                                                                                                   

                     With regard to Rule 404(b)(1)'s use of the word "plan", we explained in  



                                                                                                                                   

Bolden v. State, 720 P.2d 957 (Alaska App. 1986), that the rule uses the term "plan" in  



                                                                                                                                   

a specific, narrow sense.  It does not refer to the concept that the defendant wanted to  



                                                                                                                       

commit a crime and "planned" to do so if given the opportunity.  Rather, Rule 404(b)(1)  



                                                                                                                                 

uses the word "plan" in the sense of an over-arching scheme - a scheme in which the  



                                                                                                 

crime currently charged against the defendant plays some role:  



                       

                                                                                                        

                     To  say  that  the  defendant  had  a  "plan"  to  seduce  every  

                                                                                                             

                     runaway he could may not do  violence to the language [of  

                                                                                                       

                     Rule 404(b),] but it does undermine the policy of Rule 404(b)  

                                                                                                            

                     by permitting the use of propensity to  prove conduct.   [In  

                                                                                                  

                     order for evidence of prior crimes to] be properly admissible  

                                                                                                         

                     under Rule 404(b)[,] it is not enough to show that each crime  



                                                               - 8 -                                                          2554
  


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

                                               was "planned" in the same way; rather, there must be some                                                                                                                                      

                                               overall scheme of which each of the crimes is but a part.                                                                                                                                               



Bolden, 720 P.2d at 961 n. 2 (quoting Charles Alan Wright & Kenneth W. Graham,                                                                                                                                                                                                 



Federal Practice and Procedure:                                                                                         Evidence,  5244 (1985), Vol. 22 C, p. 359).                                                                                                   



                                               The trial court's ruling in this case suffers from the same flaw as the ruling                                                                                                                                                               



that we reversed in                                                Bolden.   Although the trial court used the words "intent" and "plan",                                                                                                                                             



the trial court's reasoning rested on viewing Willock's prior crime as an indication of his                                                                                                                                                                                                          



general desire or willingness to sexually assault women, and then viewing this trait of                                                                                                                                                                                                                



 character as predictive of Willock's actions in the present case.                                                                                                                                                                     This is the rationale                     



prohibited by Evidence Rule 404(b)(1).                                                                                                       



                                                See our discussion of this point in                                                                                       Velez v. State                                      ,   762 P.2d 1297, 1304                                        



 (Alaska App. 1988).                                                      The defendant in                                                 Velez  was accused of "date rape" (                                                                                     i.e., inviting   



 a woman out, then using threatening words and/or behavior to coerce her into having sex                                                                                                                                                                                                            



with him).                             At trial, the State offered testimony from two other women that Velez had                                                                                                                                                                                  

                                                                                                                                                                                                                                      5         We  held  that  this  

 engaged   in   similarly   coercive   behavior   when   they   dated   him.                                                                                                                                                                                                                      



 evidence  should  have  been  rejected  because  the  probative  value  of  the  evidence  

                                                                                                                                                                                                                                                                               



implicitly rested on the inference that Velez had a propensity to sexually assault his  

                                                                                                                                                                                                                                                                                                     



                                                        6  

 dating partners.  

                                                            



                                                Similarly, the evidence of Willock's prior sexual assault was not admissible  

                                                                                                                                                                                                                                                                            



to prove that Willock "planned" or "intended" to sexually assault R.F. - i.e., to prove  

                                                                                                                                                                                                                                                                                           



that Willock acted with general criminal intent.  

                                                                                                                                                                    



            5          Id.  at 1298-99.                                    



            6          Id. at  1303-04.  Also see our related discussions of this issue in Carpentino v. State,  

                                                                                                                                                                                                                                                                                            

 38 P.3d 547, 549-551 (Alaska App. 2002), and Bolden v. State , 720 P.2d 957, 960-61 & n.  

                                                                                                                                                                                                                                                                                                          

2  (Alaska App. 1986).  

                                                                             



                                                                                                                                                 - 9 -                                                                                                                                           2554
  


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

                                                                                                                       

                    Turning to the trial judge's remaining rationales for admittingthis evidence,  



                                                                                                                           

the judge ruled that evidence of Willock's prior sexual assault was relevant  to  prove  



                                                                                                                               

Willock's "knowledge" and "lack of mistake" - i.e., to prove that Willock knew that  



                                                                                                                      

R.F. was unwilling to have sex with him, and that Willock made no mistake regarding  



                                                                                                                                 

R.F.'s lack  of  willingness to engage in sex with him.                                But these issues were not in  



               

dispute.  



                                                                                                                              

                    Willock did not defend this case by asserting that he engaged in sex with  



                                                                                                                                

R.F. under the reasonable belief that she consented to this sexual activity.  Rather, as we  



                                                                                                                             

have explained, Willock's defense was that no sex occurred - and this was clear as early  



                                                                      

as the defense attorney's opening statement.  



                                                                                                                                 

                    In sum, even though the superior court's ruling was phrased in terms of  



                                                                                                                             

"intent", "plan", "knowledge", and "lack of mistake", the evidence of Willock's prior  



                                                                                                                                 

sexual assault was in fact being used to establish (1) that Willock had a proclivity  to  



                                                                                                                               

sexually assault women,  and (2) that this proclivity was circumstantial evidence that  



                                                                                                                                

R.F.'s allegation of sexual assault was true, because Willock could be expected to act  



                                                                                                                                 

true to character.  This chain of inference is prohibited by Evidence Rule 404(b)(1).  



                                                                                                                                 

                    In its brief to this Court, the State suggests that even if the  evidence of  



                                                                                                                                  

Willock's prior sexual assault may have turned out to lack any proper relevance (i.e., to  



                                                                                                                       

lack any relevance apart from the inference based on character that is barred by Evidence  



                                                                                                                                

Rule 404(b)(1)), we should nevertheless affirm the superior court's decision because the  



                                                                                                                           

court was asked to make its ruling before Willock's trial began - at  a  time  when  



                                                                                                                      

Willock had not yet firmly committed himself to a particular line of defense.  



                                                                                                                                

                    It was not until Willock's attorney delivered her opening statement, on the  



                                                                                                                                  

first day of trial, that Willock unambiguously adopted a "no sexual contact occurred at  



                                                                                                                               

all" defense.  The State argues that, under these circumstances, Willock's attorney was  



                                                              -  10 -                                                         2554
  


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

required to affirmatively ask                                  the superior court to revisit its pre-trial ruling after the                                                   



 attorney announced Willock's theory of defense.                                                       



                            We acknowledge that trial judges are often asked to make pre-trial rulings                                                                 



regarding the admissibility of evidence under Evidence Rule 404(b)(1).                                                                                Indeed, under   

                                                                                   7  a party who wishes to introduce evidence of  

this   Court's decision in                         Moor v. State                 ,                                                                                              



 other bad acts under Evidence Rule 404(b)(1) must give advance notice. This means that  

                                                                                                                                                                             



judges will often be asked to issue their rulings before they are fully acquainted with all  

                                                                                                                                                                                



the evidence in  the  case,  and before they know the details of the parties' litigation  

                                                                                                                                                                   



 strategies.  

                       



                            In such circumstances, a judge may ask the attorneys to disclose enough  

                                                                                                                                                                     



 about their anticipated evidence  and their theories of the case to allow the judge to  

                                                                                                                                                                                



meaningfully evaluate the Rule 404(b)(1) request.  Alternatively, a judge may defer their  

                                                                                                                                                                           



ruling until the judge knows enough about the case to make an informed ruling.   Or a  

                                                                                                                                                                                  



judge may issue a conditional ruling - a ruling that the proposed  evidence will be  

                                                                                                                                                                               



 admissible unless the defense attorney affirmatively disavows certain defenses (e.g.,  

                                                                                                                                                                         



 consent), or a ruling that the evidence will become admissible if the defense attorney  

                                                                                                                                                                   



raises  particular  issues  or  presents  particular  theories  of  defense  in  their  opening  

                                                                                                                                                                   



 statement, or through cross examination of government witnesses, or through the direct  

                                                                                                                                                                         



testimony of defense witnesses.  

                                                                     



                            But here, the superior  court issued a pre-trial order that unconditionally  

                                                                                                                                                     



 authorized the State to introduce Rule 404(b)(1) evidence based merely on the possibility  

                                                                                                                                                               



that Willock's mental state might be actively disputed at trial.  This was error.  

                                                                                                                                                                    



                            The error became prejudicial because, at the beginning of Willock's trial,  

                                                                                                                                                                           



his attorney clearly disavowed a consent defense, but the State proceeded to introduce  

                                                                                                                                                                 



       7      709 P.2d 498, 506 (Alaska App. 1985).                                          



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

evidence   of   the   prior   sexual assault                                                                                                                       anyway   -   even   though   this   evidence   had   no  



relevance except the inference based on character that is prohibited by Evidence Rule                                                                                                                                                                                                                                                                               



404(b)(1).   



                              Conclusion  



                                                           Evidence of a person's past acts is not admissible if its sole relevance is to                                                                                                                                                                                                                                       



prove the person's general desire or willingness to engage in criminal behavior of the  

                                                                                                                                                                                                                                                                                                                                                                          



kind that is at issue in the case.                                                                                                         Before a trial judge authorizes the admission of Rule                                                                                                                                                                   



404(b)(1) evidence, the judge must assess whether, under the particular facts of the case,  

                                                                                                                                                                                                                                                                                                                                                                   



and in light of the way the parties are litigating the case, (1) the proposed evidence is                                                                                                                                                                                                                                                                                       



relevant for some purpose                                                                                         other  than to prove the person's general desire or willingness                                                                                                                                                        



to engage in the criminal behavior at issue, and (2) the issue to which the evidence is                                                                                                                                                                                                                                                                                          



relevant is an issue that is actually disputed.                                                                                                                                                 



                                                           Here, the superior court allowed the State to introduce evidence that failed                                                                                                                                                                                                                          



to meet this test, and there is a substantial chance that the introduction of this evidence                                                                                                                                                                                                                                                       

                                                                                         8        Accordingly, the judgement of the superior court is REVERSED.  

affected the verdict.                                                                                                                                                                                                                                                                                                                                                                        



               8             Rantala v. State                                                   , 216 P.3d 550, 563 (Alaska App. 2009);                                                                                                                               Cornwall v. State                                                          , 915 P.2d            



640, 649 (Alaska App. 1996);                                                                                               Love v. State                                            , 457 P.2d 622, 629-631 (Alaska 1969).                                                                                                                                 



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