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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smithart v. State of Alaska (9/24/99) sp-5183

Smithart v. State of Alaska (9/24/99) sp-5183

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

CHARLES SMITHART,             )
                              )    Supreme Court No. S-8358
             Petitioner,      )    Court of Appeals No. A-5138
                              )
     v.                       )    Superior Court No.
                              )    3GL-S-91-164 CR
STATE OF ALASKA,              )
                              )    O P I N I O N
             Respondent.      )
______________________________)    [No. 5183 - September 24, 1999]




          Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the Superior Court, Third
Judicial District, Glennallen,
                     Glen C. Anderson, Judge.


          Appearances: Andrew J. Lambert, Kalamarides &
Associates, Anchorage, for Petitioner.  John A. Scukanec, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Respondent.


          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, and Carpeneti, Justices. [Bryner, Justice, not
participating.]


          FABE, Justice.


I.   INTRODUCTION
          Charles Smithart appeals his convictions for kidnapping,
first-degree sexual assault, and first-degree murder.  He argues
that the trial court erred by refusing to allow his attorney to
present evidence and argument that the crimes were committed by
another man.  Because the right to present one's defense is a
fundamental right in our criminal justice system, the trial court's
failure to allow Smithart to introduce relevant evidence and to
argue freely that another man committed the crimes was not harmless
beyond a reasonable doubt.  We thus reverse and remand for a new
trial. 
II.  FACTS AND PROCEEDINGS
          Eleven-year-old M.L. disappeared near Tazlina Terrace
Drive near Glennallen on August 22, 1991.  On September 1 a search
party found her body in a heavily wooded area nearby.  Charles
Smithart, an Alaska Native and longtime local resident, was
indicted for the kidnapping, sexual assault, and murder of M.L. 
Superior Court Judge Glen C. Anderson presided over a trial by jury
in May through July of 1993.
          At trial, the State based its case against Smithart upon
circumstantial evidence.  Smithart's defense entailed two key
components.  First, Smithart sought to establish that he was in his
home when the crimes occurred.  Second, Smithart attempted to show
that David DeForest -- a key prosecution witness who testified that
he saw Smithart on Tazlina Terrace Drive at the time of M.L.'s
disappearance -- was the actual perpetrator of the crimes.
          Before trial, Smithart moved to introduce evidence that
other suspects actually committed the charged crimes.  The State
moved for a protective order to prevent alternative-perpetrator
evidence from being admitted without a prior evidentiary hearing. 
The trial court ruled that while the defense was free to suggest
generally that people other than Smithart committed the crimes, it
could not discuss specific suspects unless it first obtained court
approval.  The defense made an offer of proof with respect to
DeForest.  Relying on Marrone v. State, [Fn. 1] the trial court
ruled that the defense had not established a strong enough
evidentiary foundation to single out DeForest as a suspect in the
crimes, although the defense was free to impeach DeForest's
testimony and to introduce any evidence that was independently
relevant outside of its tendency to implicate DeForest.
          The jury found Smithart guilty on all counts.  A divided
court of appeals affirmed the convictions, holding that the trial
court's Marrone ruling was too narrow but that the error was
harmless beyond a reasonable doubt. [Fn. 2]  Smithart appeals.
III. STANDARD OF REVIEW
          This court reviews a trial court's evidentiary rulings
for abuse of discretion. [Fn. 3]  We review de novo questions of
law presented by the court's evidentiary rulings. [Fn. 4]  On
questions of law, our duty is "to adopt the rule of law that is
most persuasive in light of precedent, reason, and policy."[Fn. 5] 
If the trial court erred in its evidentiary rulings and in so doing
affected the defendant's constitutional rights, we must reverse the
conviction unless all errors were harmless beyond a reasonable
doubt. [Fn. 6]  
IV.  DISCUSSION
     A.   The Superior Court Erred by Refusing to Allow Smithart to
Present Evidence and Argument that DeForest Killed M.L.

          Smithart argues that the trial court abused its
discretion and violated his due process rights when it excluded the 
evidence and argument that Smithart offered to support his defense
that David DeForest, not Smithart, kidnapped, raped, and murdered
M.L.  We agree.
          Although it is not absolute, [Fn. 7] a defendant's right
to present a defense is a fundamental element of due process.  When
a trial court's evidentiary rulings substantially infringe upon the
right to present a defense, the court necessarily violates the
defendant's due process rights. [Fn. 8]   
          Under Alaska law, a defendant may always generally
suggest that someone other than the defendant is guilty of the
charged crime.  But when a defendant wishes to implicate a specific
individual, evidence of the third party's guilt is admissible only
if the defense can produce evidence that "tend[s] to directly
connect such other person with the actual commission of the crime
charged."[Fn. 9]  This rule derives from considerations of
relevance and materiality; as we explained in Marrone v. State,
[Fn. 10] such an initial evidentiary showing is necessary because
"if evidence of motive alone upon the part of other persons were
admissible . . . in a case involving the killing of a man who had
led an active and aggressive life it might easily be possible for
the defendant to produce evidence tending to show that hundreds of
other persons"were possible suspects in the murder. [Fn. 11]  In
such a system, the resulting trial would be a confusing waste of
judicial resources. [Fn. 12]  The concerns voiced in Marrone have
led virtually every state to require some kind of preliminary
evidentiary showing before allowing introduction of alternative-
perpetrator evidence. [Fn. 13]  
          But the trial court here viewed the direct-link
requirement too narrowly.  Smithart presented numerous direct
connections between DeForest and the crimes against M.L.  In
Smithart's pretrial Marrone offer of proof, he stated that the
defense could prove: that DeForest was at the scene of M.L.'s
disappearance; that the shop in which DeForest worked was a
plausible source of the various paint chips and metal fragments
found on or near M.L.'s body; that DeForest delayed in coming
forward with his identification of Smithart on Tazlina Terrace
Drive; that DeForest presented false evidence and lied to the
police about his own whereabouts on the afternoon of M.L.'s
disappearance; that DeForest was a convicted felon who illegally
possessed firearms in violation of his probation, including
firearms similar to that used to shoot M.L.; and that DeForest had
previously been accused of sexual abuse of a minor for a consensual
affair with a fifteen-year-old girl.
          Nevertheless, the trial court decided that Smithart's
offer of proof did not satisfy the dictates of Marrone.  The court
explained that although DeForest was "a person who worked in an
area where there was grease and paint of multiple colors,"the
defense made "[n]o apparent showing that would connect him directly
with the victim . . . other than the kinds of things that could
apply potentially to a number of people in the Glennallen area."
          Based upon his ruling that Smithart's offer of proof did
not satisfy Marrone, the trial judge completely excluded two types
of evidence and argument regarding DeForest.  First, Judge Anderson
ruled that Smithart could not suggest to the jury in opening
statement or closing argument that DeForest was guilty of the
crime.  Second, the defense wanted to show pictures of the shop
where DeForest worked and discuss its machinery and the colors of
paint found there in order to establish that the metal fragments
and paint chips found on or near M.L.'s body could be traced to
DeForest.  But the court excluded this evidence regarding the
contents of the shop.
          The State argues that because the evidence contained in
the offer of proof linking DeForest to the crime was speculative
and in part relied on character evidence, it did not satisfy
Marrone.  But the State's view of Marrone is too narrow.  Post-
Marrone Alaska cases imply that other-suspect evidence is
admissible if it links the crime to the third party in a way that
tends to create doubt about the defendant's guilt. [Fn. 14]
          In Garner v. State, [Fn. 15] Garner was on trial for the
murder of his stepson Justin by child abuse; he wanted to present
evidence that a neighbor, J.H., killed the child.  The trial court
refused to allow the defendant to introduce evidence of J.H.'s
prior abuse of her own children. [Fn. 16]  The court of appeals
reversed Garner's manslaughter conviction, holding that the trial
court should have admitted alternative-perpetrator evidence under
Marrone, notwithstanding that the evidence against J.H. was quite
weak -- she had no motive to kill Justin and the evidence against
her was prior-bad-acts evidence, which is generally disfavored.
[Fn. 17]  Because J.H. had the opportunity to commit the crime and
had abused children in the past, the court of appeals reasoned that
a jury could reasonably infer that she had abused Justin as well,
an inference that could easily lead a jury to conclude that there
existed a reasonable doubt about Garner's guilt. [Fn. 18]  And
because identity was the central issue in the case, the trial
court's refusal to admit the evidence implicated Garner's right to
fully present his defense. [Fn. 19]  Thus, such evidence is
admissible as long as it tends to create a reasonable doubt as to
the defendant's guilt. [Fn. 20]
          Courts applying Marrone and analogous rules have
similarly focused upon whether the evidence offered tends to create
a reasonable doubt as to the defendant's guilt, not whether it
establishes the guilt of the third party beyond a reasonable doubt.
[Fn. 21]  One court construing Marrone explained that the crucial
issue is whether other-suspect evidence calls the defendant's guilt
into question:
          There is no requirement that the proffered
evidence must prove or even raise a strong probability that [the
third party] committed the offense.  Rather, the evidence need only
tend to create a reasonable doubt that the defendant committed the
offense. . . . [O]ur focus is on the effect the evidence has upon
the defendant's culpability and not the third party's culpability.[[Fn. 22]]

          Indeed, the State's brief cites several cases as examples
of "the proper application of the Marrone rule"that make clear
that the purpose of the evidence is not to prove the other person's
guilt but to generate a reasonable doubt as to the guilt of the
defendant. [Fn. 23]  Yet here the trial court's Marrone ruling
focused not on whether the proffered evidence created a reasonable
doubt as to Smithart's guilt but rather upon whether it
sufficiently implicated DeForest.  This ruling was therefore
erroneous.
          Courts generally agree that opportunity alone is an
insufficient basis on which to admit alternative-perpetrator
evidence [Fn. 24] and may exclude such evidence as too speculative. 
Cases in which other-suspect evidence has been properly excluded
have typically involved very attenuated evidence; for example,
evidence that the third party coached at the victim's school and
drove a small car when a small car was heard at the crime scene
[Fn. 25] or evidence that the third party knew the victim and drank
a particular brand of beer when a can of that beer was found at the
crime scene. [Fn. 26]  In contrast, Smithart's offer of proof
combined opportunity, consciousness of guilt, and forensic evidence
against DeForest.
          Moreover, DeForest was a key prosecution witness. 
Several courts have noted that defendants should be given broader
latitude to admit other-suspect evidence against witnesses who
testify against them at trial, noting that "where the third person
is a state's witness with a possible motive to convict the
defendant to save himself, the rule admitting otherwise competent
evidence of a third person's guilt is especially applicable."[Fn.
27]  Accordingly, Smithart should have been able to present direct
evidence against DeForest.
          Finally, we agree with the court of appeals's conclusion
that the trial court misconstrued Marrone when it prevented
Smithart's attorney from arguing that DeForest was guilty. [Fn. 28] 
Nothing in Marrone limits an attorney from using an opening
statement or closing summation to draw reasonable inferences about
a third party's involvement from trial evidence.  The court of
appeals correctly explained that, under Marrone, Smithart should
have been able to argue to the jury that DeForest was guilty of the
charged crimes: 
          [T]he Marrone rule limits the introduction of
evidence, but it does not limit a party's ability to argue all
reasonable inferences from the evidence that is admitted.  If,
despite Marrone's restriction on the introduction of independent
evidence that DeForest committed the crime, it was clear that
sufficient evidence would be introduced at Smithart's trial to
warrant a reasonable inference that DeForest might be the
perpetrator, then Smithart would be entitled to announce this
inference in his opening statement.[ [Fn. 29]]

Thus, the trial court's restriction on argument was an abuse of
discretion.
     B.   The Trial Court's Errors Were Not Harmless Beyond a
Reasonable Doubt. 

          The question remains whether the trial court's errors in
limiting Smithart's evidence and argument were harmless beyond a
reasonable doubt. [Fn. 30]  In determining whether errors are
harmless beyond a reasonable doubt, the question is whether there
is a reasonable possibility that the error affected the result.
[Fn. 31]  The State here argues and the court of appeals concluded
that any errors were harmless beyond a reasonable doubt. [Fn. 32] 
We disagree.
          The court of appeals concluded that the trial court's
Marrone errors were harmless, noting in its analysis its belief
that the trial court altered its Marrone ruling prior to closing
arguments in the case. [Fn. 33]  Before summations, Judge Anderson
noted that Smithart's attorney could "make arguments about
[witnesses] from a bias standpoint . . . which may well get into
the same thing"as an argument that the witness was guilty.  The
court of appeals interpreted this statement to mean that the trial
court may have revised its Marrone ruling to allow Smithart to name
DeForest as a suspect in Smithart's closing. [Fn. 34]  But the
record suggests otherwise.  Prior to making his summation, defense
counsel summarized the court's ruling as mandating that Smithart's
closing argument "can't refer to a particular person who may have
done it, but that there was a world of other suspects out there."
Had the court intended to alter the scope of allowable argument
under Marrone, it would have corrected Smithart's counsel at this
point.  And regardless of the trial court's intent, it did not
clearly communicate to the parties any change in the scope of its
Marrone ruling, as both the prosecutor and the defense believed
that the court's ruling precluded mention of specific other
suspects.  In compliance with this understanding of the trial
court's ruling, Smithart did not directly accuse DeForest during
closing arguments.  Accordingly, we review for harmlessness the
trial court's original Marrone ruling, which prohibited evidence
and argument to the jury that DeForest killed M.L.
           The State argues that because Smithart was ultimately
able to present much of the evidence detailed in his offer of
proof, the court's erroneous Marrone ruling was harmless beyond a
reasonable doubt.  The State claims that the two items of evidence
that were never presented to the jury -- the fact that DeForest's
shop was a possible source of the metal fragments and paint chips
found on or near M.L.'s body and the fact that he had previously
been investigated for sexual abuse of a minor -- were inadmissible
regardless of Marrone.  We agree that evidence of DeForest's
involvement with a fifteen-year-old girl was inadmissible [Fn. 35]
but hold that the trial court should have admitted evidence of the
contents of DeForest's shop.
          The State's case against Smithart relied heavily upon
circumstantial evidence, forensics in particular.  The prosecution 
focused upon the various fibers, paint chips, and metal fragments
found on or near the victim.  The source of this trace evidence was
highly contested at trial, with the State offering evidence that it
could be traced to Smithart and the defense disputing that
conclusion.  Smithart wanted to show the jury pictures of
DeForest's shop and to discuss the metals and colors of paint found
there to establish that DeForest was a possible source of the metal
fragments and paint chips found at the crime scene.  In particular,
Smithart sought to connect DeForest with a set of orange paint
chips found on M.L. by showing that the floor of DeForest's shop
was painted orange and that the paint was peeling.  Yet the
superior court did not allow Smithart to present testimony about
DeForest's orange floor or to show the jury photographs of the
floor.
          The State argues that evidence of the paint in the shop
was not relevant because it was too speculative.  In excluding the
paint evidence, the trial court relied on the fact that Smithart
did not conduct any independent forensic testing to determine if
the orange paint from DeForest's workshop actually matched the
chips found at the crime scene and characterized the evidence as
irrelevant because it was merely "similar but not necessarily
matching types of forensics."
          But as Smithart's attorney noted, the defense has no
responsibility to produce affirmative evidence of an alternative
perpetrator's guilt through independent forensic testing or any
other means.  Rather, the defense need only create a reasonable
doubt as to the defendant's guilt.  Indeed, one court has cautioned
that requiring alternative-perpetrator evidence to link clearly the
third party to the crime may place "too high a burden on a criminal
defendant who is without the vast investigatory resources of the
State."[Fn. 36]  We conclude that the orange paint evidence is
relevant because it tends to create a reasonable doubt as to
Smithart's guilt; we also conclude that the defense should not be
required to conduct expensive tests on the paint evidence in order
to present it to the jury.  Thus, the trial court's refusal to
admit evidence of the contents of DeForest's workshop was error.
          The State maintains that, even if the trial court's
Marrone ruling was in error, Smithart's presentation of his case
did not suffer.  We disagree.  The State correctly notes that the
defense conducted a lengthy cross-examination of DeForest, which
elicited some of the information it had sought to introduce in its
Marrone offer of proof.  But the defense was unable to cross-
examine DeForest about the paint and metal fragments present in his
workshop or to ask DeForest directly whether he committed the
crimes for which Smithart was being tried.  We believe that these
limitations hampered Smithart's ability to defend himself.
          Moreover, Alaska courts have in the past refused to
equate evidence elicited on cross-examination with directly
presented evidence.  In Garner v. State, [Fn. 37] the trial court
refused to allow direct evidence of J.H.'s prior abuse of her own
children, although Garner was allowed to cross-examine the police
officers who investigated child abuse complaints against J.H. [Fn.
38]  The court of appeals held that the trial court should have
admitted the evidence of prior abuse by J.H. and rejected the
State's claim that, because the defense was able to cross-examine
witnesses, the trial court's refusal to admit other-suspect
evidence was harmless beyond a reasonable doubt. [Fn. 39]  The
court of appeals believed that the inability of the defense to
present direct evidence diluted the effectiveness of the
defendant's case. [Fn. 40]  Similarly, in this case the trial
court's allowance of cross-examination did not remedy the court's
fundamental error -- its significant interference with Smithart's
right to present and direct his own defense.  
          Finally, the trial court's limitation on Smithart's
ability to argue to the jury that DeForest committed the crimes
could have contributed to Smithart's conviction.  The State argues
that Smithart devoted a substantial portion of his summation to the
inconsistencies in DeForest's various statements to the police.
Indeed, Smithart ultimately asked the jury to disregard DeForest's
testimony because DeForest was "a gratuitous liar." But given that
DeForest was the only witness at trial who testified to seeing
Smithart in the area of M.L.'s disappearance at the time she was
kidnapped, the jury may well have perceived these actions as
attempts to discredit DeForest's testimony as a witness rather than
to implicate him as the perpetrator of the crime.
          Moreover, we agree with Judge Coats's dissent that the
ruling, which prevented the defense from directly presenting its
theory of DeForest's guilt to the jury in its opening statement and
summation, robbed Smithart's case of its cohesion and narrative
force and impaired his right to present his own defense. [Fn. 41] 
Defendants are "entitled to present [their] version of the events
and the evidence supporting it in as full a manner as possible."
[Fn. 42]  Due to the limitations on his ability to present direct
arguments to the jury and present evidence, Smithart was "unable to
assemble the circumstantial evidence which suggested that DeForest
could have committed the crime into an argument which might have
made sense to the jury."[Fn. 43]  At least one case has explicitly
relied upon the defendant's ability to use closing argument to
"clearly and repeatedly propose[] that [the third party], not
defendant"was guilty as a pivotal factor in determining whether a
Marrone exclusion error was harmless. [Fn. 44]  Because Smithart
could not present a structured and coherent defense aimed at
establishing that DeForest committed the crimes, and because a
reasonable possibility exists that this exclusion of evidence and
argument contributed to Smithart's conviction, the trial court's
error was not harmless beyond a reasonable doubt.
V.   CONCLUSION
          Because the right to argue in one's own defense is a
fundamental component of the right to a fair criminal trial and
because the trial court's erroneous Marrone ruling was not harmless
beyond a reasonable doubt, we REVERSE and REMAND for a new trial.


                            FOOTNOTES


Footnote 1:

     359 P.2d 969 (Alaska 1961).


Footnote 2:

     See Smithart v. State, 946 P.2d 1264, 1279-89 (Alaska App.
1997).


Footnote 3:

     See M.R.S. v. State, 897 P.2d 63, 66 (Alaska 1995).


Footnote 4:

     See id.


Footnote 5:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 6:

     See Chapman v. California, 386 U.S. 18, 22-24 (1967),
partially overruled by Brecht v. Abrahamson, 507 U.S. 619, 630-38
(1993) (holding that the "harmless beyond a reasonable doubt"
analysis is inapplicable in habeas cases); Evans v. State, 550 P.2d
830, 840 (Alaska 1976).


Footnote 7:

     Cf. Larson v. State, 656 P.2d 571, 574-75 (Alaska App. 1982)
(noting that a defendant's right to present evidence in his or her
defense is properly limited by considerations of relevance and the
balancing test in Alaska Rule of Evidence 403).


Footnote 8:

     See Keith v. State, 612 P.2d 977, 982-83 (Alaska 1980) (citing
Davis v. Alaska, 415 U.S. 308 (1974); Chambers v. Mississippi, 410
U.S. 284 (1973)).


Footnote 9:

     Marrone v. State, 359 P.2d 969, 984-85 n.19 (Alaska 1961)
(quoting People v. Perkins, 59 P.2d 1069, 1074 (Cal. App. 1936)).


Footnote 10:

     359 P.2d 969 (Alaska 1961).


Footnote 11:

     Id. at 984-85 n.19 (quoting Perkins, 59 P.2d at 1074-75).


Footnote 12:

     See id. (citing Perkins, 59 P.2d at 1075).


Footnote 13:

     See 40A Am. Jur. 2d Homicide sec. 286 (1999). 


Footnote 14:

     See Garner v. State, 711 P.2d 1191, 1193-94 (Alaska App.
1986); James v. State, 671 P.2d 885, 892-94 (Alaska App. 1983).


Footnote 15:

     711 P.2d 1191 (Alaska App. 1986).  


Footnote 16:

     See id. at 1193-94.


Footnote 17:

     See id. at 1193-95.


Footnote 18:

     See id. at 1194-95.


Footnote 19:

     See id. at 1193-95.


Footnote 20:

     We agree with the State that Garner does not compel reversal
here, both because Garner and J.H. were the only two people who
could have killed Jason, whereas there is no showing here that
either Smithart or DeForest must be the perpetrator, and because
much of the evidence Smithart wished to introduce was ultimately
heard at trial.  But Garner illustrates the reasons that the trial
court's Marrone ruling was too narrow.


Footnote 21:

     See Nelson v. U.S., 649 A.2d 301, 305 (D.C. App. 1994); State
v. Harris, 560 N.W.2d 672, 679 (Minn. 1997) (citing Marrone); State
v. Hawkins, 260 N.W.2d 150, 158-59 (Minn. 1977) (citing Marrone);
State v. Koedatich, 548 A.2d 939, 976-79 (N.J. 1988).  See also
generally 40A Am. Jur. 2d Homicide sec. 286 (1999).


Footnote 22:

     Johnson v. U.S., 552 A.2d 513, 517 (D.C. App. 1989) (emphases
omitted).  


Footnote 23:

     The State, for example, cites Harris, 560 N.W.2d at 679-80,
Hawkins, 260 N.W.2d at 158, and Koedatich, 548 A.2d at 976-79 in
support of its argument that the trial court properly applied
Marrone to the facts of this case.  These cases, however, focus on
whether other-suspect evidence creates a reasonable doubt as to the
defendant's guilt.


Footnote 24:

     See, e.g., Nelson v. U.S., 649 A.2d 301, 305 (D.C. App. 1994)
(holding "suspicion engendered by mere opportunity . . .
insufficient to create the requisite link to the offense").


Footnote 25:

     See State v. Koedatich, 548 A.2d 939, 980-81 (N.J. 1988).


Footnote 26:

     See People v. Whalen, 634 N.E.2d 725, 733 (Ill. 1994).


Footnote 27:

     Hawkins, 260 N.W.2d at 158.


Footnote 28:

     See Smithart v. State, 946 P.2d 1264, 1279, 1281, 1289 (Alaska
App. 1997).


Footnote 29:

     Id. at 1281.  


Footnote 30:

     See Kitchens v. State, 898 P.2d 443, 451 (Alaska App. 1995),
in which the court of appeals "assume[d],"without deciding, that
the constitutional standard of review applied "given the
significance and constitutional dimension of the accused's right to
present favorable evidence." The State agrees that we must
determine whether, "if the trial court abused its discretion in
ruling that Smithart failed to satisfy Marrone's foundational
requirement, the error was harmless beyond a reasonable doubt."
Thus, we accept this as the proper harmless error analysis for this
case.


Footnote 31:

     Hazelwood v. State, 962 P.2d 196, 198 (Alaska App. 1998)
(citations omitted).


Footnote 32:

     See Smithart, 946 P.2d at 1289.


Footnote 33:

     See id. at 1287-89.


Footnote 34:

     See id. at 1287.  


Footnote 35:

     Smithart offered to show that DeForest was accused of sexual
abuse of a minor for a consensual affair with a fifteen-year-old
girl in 1990.  Although the girl's mother filed a complaint with
the police, no charges were brought against DeForest.  The girl
denied the affair, but Smithart was prepared to introduce her diary
to show that a sexual relationship existed between the two.  The
State argues that this evidence is irrelevant and also constitutes
impermissible propensity evidence under Alaska Evidence Rule 404.
[Fn. 45]  We agree.  ARE 404(b)(1) provides that evidence of past
bad acts is not admissible to prove that "the person acted in
conformity"with a trait of character.  A consensual affair with a
fifteen-year-old, even if proven, is not probative of any disputed
issues in the case.


Footnote 36:

     State v. Robinson, 628 A.2d 664, 666-67 (Me. 1993).  


Footnote 37:

     711 P.2d 1191 (Alaska App. 1986).  


Footnote 38:

     See id. at 1193-94.


Footnote 39:

     See id. at 1195.  


Footnote 40:

     See id.


Footnote 41:

     See Smithart, 946 P.2d at 1290 (Coats, J., dissenting).


Footnote 42:

     Garner, 711 P.2d at 1194 (quoting Keith v. State, 612 P.2d
977, 984 (Alaska 1980)).


Footnote 43:

     Smithart, 946 P.2d at 1290 (Coats, J., dissenting).


Footnote 44:

     People v. Hall, 718 P.2d 99, 105 (Cal. 1986).


Footnote 45:

     ARE 404(b)(1) provides that evidence of past bad acts are not
admissible to prove that "the person acted in conformity"with a
trait of character.