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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hess v State of Alaska (04/13/2001) sp-5386

Hess v State of Alaska (04/13/2001) sp-5386

     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
                                 


RALPH G. HESS,                )    Supreme Court No. S-8876
                              )
             Petitioner,      )    Court of Appeals Nos.
                              )    A-5895/5896    
     v.                       )    Superior Court Nos.
                              )    2KB-S94-207/424 CR
STATE OF ALASKA,              )
                              )    O P I N I O N
             Respondent.      )
______________________________)    [No. 5386 - April 13, 2001]



          Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the Superior Court, Second
Judicial District, Kotzebue,       Richard H. Erlich, Judge.


          Appearances:  Darrel J. Gardner, Assistant
Public Advocate, and Brant McGee, Public Advocate, Anchorage, for
Petitioner.  Kenneth M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Respondent.  


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


          EASTAUGH, Justice.


I.   INTRODUCTION
          Ralph Hess was charged with sexually assaulting H.W. 
When he raised the defense of consent, Alaska Rule of Evidence
404(b)(3) permitted the state to call A.R. to testify that Hess had
previously had nonconsensual sex with her.  The superior court
denied Hess's request that the jury be told that another jury had
acquitted him of sexually assaulting A.R.  Because we conclude that
the evidence of that acquittal was relevant and not hearsay, that
its potential for confusion did not outweigh its potential
probative value, and that its exclusion prejudiced Hess, we reverse
and remand for a new trial.
II.  FACTS AND PROCEEDINGS
          Hess had sex with H.W. near Kotzebue on October 9, 1994.
After H.W. reported that she had not consented, Hess was charged
with first-degree sexual assault and kidnaping. 
          Before trial, in anticipation of Hess's consent defense,
the state filed notice that it intended to offer evidence, per
Alaska Rule of Evidence 404(b)(1), (2), and (3), that Hess
previously had sexually assaulted A.R.  Hess responded by
requesting a limiting instruction on the use of this evidence; the
instruction would have told the jury that a jury had acquitted Hess
of first-degree sexual assault in the A.R. case.  The state did not
object to informing the jury of the prior acquittal, but asked for
permission to introduce evidence that the jury in the A.R. case had
convicted Hess on a lesser alternative charge, sexual abuse of a
minor.  The superior court denied both requests and ordered that
"neither evidence of the acquittal nor evidence of the conviction
on the lesser charge [will] come in before the jury."  
          Hess testified that H.W. had consented to have sex with
him.  The state then called A.R. to rebut Hess's defense that H.W.
had consented.  A.R. testified that Hess had sexually assaulted her
while she was staying at his home in Kotzebue.
          The jury convicted Hess of kidnaping and one count of
first-degree sexual assault, but acquitted him of a second count of
first-degree sexual assault.
          Hess appealed.  The court of appeals affirmed the
superior court's refusal to tell the jury of the verdicts in the
prior case. [Fn. 1]  It stated that "Hess wished to introduce the
previous jury's verdict as evidence that he was factually innocent
of having sex with A.R. against her will." [Fn. 2]  The court of
appeals reasoned that "the prior acquittal did not establish that
Hess was factually innocent, but only that the jury was not
convinced beyond a reasonable doubt." [Fn. 3]  It concluded that
Hess's prior acquittal had little relevance. [Fn. 4]  It also noted
that, "offered for the purpose of establishing Hess's factual
innocence, the prior jury's verdict was hearsay." [Fn. 5]
          Hess filed a petition for hearing. We granted his
petition to consider whether he should have been allowed to show
that he had been acquitted of the prior sexual assault charge. 
III. DISCUSSION
     A.   Standard of Review
          We review questions of law presented by the superior
court's evidentiary rulings de novo. [Fn. 6]  When interpreting a
statute or rule, we adopt "the rule of law that is most persuasive
in light of precedent, reason, and policy." [Fn. 7]  But we will
not overturn a trial court's evidentiary rulings that do not
present questions of law, except for abuse of discretion. [Fn. 8]
          Hess asks for de novo review.  The state urges us to
review for abuse of discretion; it claims that other courts review
for abuse of discretion and that Hess conceded that the trial court
has discretion to admit such evidence.
          Whether a trial court may take judicial notice of a
defendant's acquittal of properly introduced other-act evidence and
instruct a jury about that acquittal is a question of law which we
review de novo.  If the law permits such an instruction, we must
consider whether the superior court abused its discretion by
declining to inform the jury of Hess's acquittal.
     B.   When the State Offers Evidence of a Prior Sexual Assault
to Rebut a Consent Defense, Is Evidence of the Defendant's
Acquittal of the Prior Assault Admissible?

          First-degree sexual assault requires evidence that the
defendant (1) knowingly engaged in sexual intercourse, and (2)
recklessly disregarded the victim's lack of consent. [Fn. 9] 
Before 1994 the state could not prove a defendant's requisite
mental state in sexual assault cases by introducing evidence of
other acts tending to show that the defendant exhibited a
propensity for reckless disregard of his victim's wishes. [Fn. 10] 
But in 1994 the Alaska legislature expanded the admissibility of
other-acts evidence in sexual assault prosecutions by amending
Alaska Evidence Rule 404. [Fn. 11]  Alaska Evidence Rule 404(b)(3)
now permits the prosecution to offer evidence of other sexual
assaults or attempted sexual assaults if the defendant raises the
defense of consent:
          In a prosecution for a crime of sexual assault
in any degree, evidence of other sexual assaults or attempted
sexual assaults by the defendant against the same or another person
is admissible if the defendant relies on a defense of consent.  In
a prosecution for a crime of attempt to commit sexual assault in
any degree, evidence of other sexual assaults or attempted sexual
assaults by the defendant against the same or another person is
admissible.
          Congress in 1994 also amended the federal rule regarding
admissibility of prior sexual assaults; the federal rule now allows
evidence of similar offenses "for its bearing on any matter to
which it is relevant." [Fn. 12]  As a general rule, evidence that
a defendant committed a prior act is inadmissible for the purpose
of proving the defendant's propensity to commit the act currently
charged.  The amended federal rule has been interpreted to be an
exception to that general rule. [Fn. 13]  We adopt that
interpretation for Alaska's corresponding evidence rule as amended
in 1994.  Accordingly, when evidence of a prior sexual assault is
introduced under Alaska Evidence Rule 404(b)(3), we view the
defendant's attempt to introduce evidence that he was acquitted of
the prior assault as an attempt to show reasonable doubt about his
propensity to disregard the new complainant's lack of consent. [Fn.
14] 
          1.   Is evidence of an acquittal logically relevant?
          When the superior court declined to inform the jury of
Hess's acquittal, it explained that Evidence Rule 404(b)(3) "does
not presuppose a prior charge; it presupposes a prior incident" and
that "the issue of conviction or acquittal is irrelevant under
what's required of this rule."
          Hess disputes the court of appeals's statement that he
offered the acquittal for the purpose of proving that he was
factually innocent of having non-consensual sex with A.R.  He
argues that the acquittal is relevant to the weight the H.W. jury
gave A.R.'s testimony.  The state argues that the relevance of an
acquittal is limited to issues -- double jeopardy and collateral
estoppel -- that are not material here.  It asserts that an
acquittal does not prove that the defendant was innocent, but
merely establishes that the jury had reasonable doubt about the
defendant's guilt.  
          Evidence must be relevant to be admissible. [Fn. 15] 
Relevant evidence is "evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence." [Fn. 16]
          We agree that a defendant's acquittal of one charge is
generally not relevant to prove factual innocence of the facts
underlying that charge. [Fn. 17]  Such evidence is not relevant for
that purpose because it proves only that the state did not prove
every element of the crime beyond a reasonable doubt. [Fn. 18]
          But evidence of an acquittal may have an alternative
purpose -- to help the jury weigh the evidence of the prior act.
[Fn. 19]  Even though the defendant's acquittal does not prove that
he was innocent of the prior act, a jury may reasonably infer a
greater probability of innocence from the fact of acquittal. [Fn.
20]  Alaska's relevance definition allows evidence to be admitted
if it has "any" tendency to make the existence of a material fact
more or less probable. [Fn. 21]  One commentator explains the
"minimal relevance" approach with an example of a fleeing suspect:
          Fleeing the scene of a crime, for instance,
could mean that the defendant, being conscious of the crime
charged, actually is guilty; or it could mean that the defendant is
innocent but fled to avoid being apprehended for some other reason
entirely.  However, the premise that, in general, people who flee
are more likely to be guilty than those who do not is at least
plausible, and as long as there is some plausible chain of
reasoning that leads to the desired conclusion, the evidence is
probative of that conclusion.[ [Fn. 22]] 
Thus, although the acquittal does not prove that Hess was innocent
of the prior charge, the H.W. jury might plausibly have reasoned
that the fact of the acquittal made it less likely that Hess
recklessly disregarded A.R.'s wishes.  It might also plausibly have
reasoned that the fact of the acquittal made it less likely that
Hess had a propensity to recklessly disregard a companion's lack of
consent.  The jury therefore might also plausibly have reasoned 
that the fact of the acquittal made it less likely that Hess
recklessly disregarded H.W.'s wishes.  Hess's acquittal was
therefore relevant.
          2.   Is evidence of the acquittal inadmissible hearsay?
          The superior court did not exclude evidence of Hess's
acquittal on hearsay grounds.  But the court of appeals discussed
hearsay as an alternative ground for exclusion. [Fn. 23] 
          Hess asserts that hearsay does not preclude admission and
challenges the legal authority cited by the court of appeals.  The
state argues that evidence of the acquittal is hearsay and does not
fall within any hearsay exception.
          Alaska Rule of Evidence 802 provides that hearsay is not
admissible.  Alaska Rule of Evidence 801 defines hearsay as "a
statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the
matter asserted." [Fn. 24]  If offered for the purpose of
challenging the weight of A.R.'s testimony, the only purpose for
which it is relevant, notice or evidence of his acquittal is not
hearsay. 
          An acquittal is an act that has legal effect, much like
the classic example of a contract that is formed out of court, but
which is not hearsay. [Fn. 25]  Such "statements" are not
testimonial, but are acts to which the law attaches legal
significance. [Fn. 26]  Evidence of an acquittal has legal
significance.  It shows that a jury harbored reasonable doubt about
at least one element of a crime. [Fn. 27]  The prior acquittal does
not prove the "truth" of the historical facts of the first case; it
proves only that the previous jury did not find that the state
proved all elements of the crime beyond a reasonable doubt. 
          The court of appeals relied on our decision in Spenard
Action Committee v. Lot 3, Block 1, Evergreen Subdivision. [Fn. 28] 
There we adopted the policy articulated in the Alaska Evidence
Rules commentary against admitting criminal judgments. [Fn. 29] 
The commentary explains:
          If a judgment of guilty in a criminal case,
which follows proof beyond a reasonable doubt, is to have impact in
subsequent cases, the impact should be by way of collateral
estoppel, not by admitting the previous judgment.  The judgment
tells the second trier of fact nothing; that trier will either
disregard it or defer to it, neither of which tactic is intended by
the Federal Rule. . . . But the fact remains that the trier of fact
in the second case cannot know how to use the first finding.  There
is no reason to adopt a rule that can only confuse the trial
process.[ [Fn. 30]]

          The court of appeals also discussed F.T. v. State. [Fn.
31]  There we held that the trial court erred when it took judicial
notice of previous domestic violence restraining orders to find
that a child's father had a history of violence. [Fn. 32]  We did
not discuss hearsay, but concluded that the trial court erred by
taking notice of facts alleged in court records. [Fn. 33] 
          At first glance, Spenard Action Committee, F.T., and the
commentary suggest that acquittals, like convictions, usually
should not be excepted from the general rule that they are
inadmissible hearsay. 
          But this case differs from those cases and does not
conflict with the policy the commentary expresses.  In Spenard
Action Committee, the proponent attempted to establish the
historical facts of the case at bar -- namely that the business was
a house of prostitution -- by introducing evidence that a non-party
employee of that business had been convicted of assignation in an
earlier case. [Fn. 34]  And, like the proponent in Spenard Action
Committee, the trial court in F.T. impermissibly attempted to
establish the historical facts of a party's conduct by adopting
facts from an unrelated court proceeding.  Similarly, the Alaska
Evidence Rules commentary addresses evidentiary uses of a criminal
judgment to establish the historical facts of underlying conduct,
or to bar an issue through the use of collateral estoppel.
          The state here introduced evidence that Hess had 
sexually assaulted A.R. in order to show his "subjective awareness
of [H.W.'s] response to the sexual activity which [was] taking
place."  The state explained that "[e]vidence of Hess' prior sexual
assaults is directly relevant . . . .  Proof that Hess has [in the]
past . . . disregarded the lack of consent expressed by his sexual
partners is highly probative evidence that in this case, Hess was
willing to ignore the risk that H.W. had not given her consent
. . . ."  Thus, as Hess asserted, the state intended to use
evidence of his conduct with A.R. to prove his propensity to
disregard H.W.'s alleged lack of consent.  The acquittal was
therefore more important for its bearing on the inference of
propensity to be drawn in assessing his conduct with H.W. than for
its bearing on the historical facts of his conduct with A.R.
          True, the acquittal also implies that Hess did not
sexually assault A.R.  But rebutting evidence of a defendant's
propensity to commit the present act differs from attempting to
establish or challenge the defendant's actual prior conduct.
Therefore, Spenard Action Committee, F.T., and the Alaska Evidence
Rules commentary did not make evidence of Hess's acquittal
inadmissible.
          The state also cites several federal opinions to support
its argument that the prior acquittal is inadmissible hearsay.  But
those cases address hearsay in terms of collateral estoppel, and do
not present independent reasons for exclusion. [Fn. 35]  
          As evidence of historical facts, evidence of what other
jurors believed in a prior criminal case is unreliable. [Fn. 36]
But the reliability problem does not exist when a defendant is not
trying to establish historical facts, but merely the fact of the
acquittal itself.  The evidence reliably reflects the fact of
acquittal.  A court thus may take judicial notice of the fact of an
acquittal under Alaska Rule of Evidence 201(b)(2), as implicitly
requested here.  Or it may allow evidence of the acquittal to be
introduced as a hearsay exception under Alaska Rule of Evidence
803(8) because the acquittal is a matter of public record. [Fn. 37]
          3.   Was the evidence more prejudicial than probative?
          The superior court declined to inform the jury of Hess's
prior acquittal partly because it reasoned that the jury would be
confused.  It was concerned about instructing the jury on the
different proof standards.  The A.R. jury applied the "beyond a
reasonable doubt" standard in reaching its verdict, but the H.W.
jury only had to apply the "preponderance" standard in deciding
whether to accept A.R.'s prior-act testimony at the H.W. trial. 
The court noted that it "expressed [its own] confusion there."  The
court also noted that if the acquittal were admitted into evidence,
Hess's conviction of the lesser charge of sexual abuse of a minor
would be admitted, creating more confusion.
          Hess argues that informing the jury of the acquittal
would have been neither confusing nor misleading.  He asserts that
an acquittal is easily understood and has a clear meaning as a
verdict of "not guilty."  Hess also argues that informing the jury
of his acquittal would alleviate the extreme prejudice of the
propensity evidence, and that therefore its probative value
outweighs any potential confusion.  The state responds that the
acquittal has limited, if any, probative value, and that the
superior court minimized any risk of unfair prejudice caused by
A.R.'s testimony by instructing the jury that A.R.'s testimony was
relevant only to the issue whether the defendant recklessly
disregarded H.W.'s lack of consent. [Fn. 38]
          Alaska Evidence Rule 403 permits a trial court to exclude
relevant evidence if the danger of confusing the issues or
misleading the jury outweighs its probative value.  The
admissibility of a prior acquittal has been held to be a matter
within the trial court's discretion, and therefore a case-specific
analysis is needed to compare the potential prejudice and probative
value of the evidence. [Fn. 39]  
          Most jurisdictions, including Alaska before the
legislature enacted Rule 404(b)(3), have considered propensity
evidence to be so prejudicial that they exclude it by rule. [Fn.
40]  And prior acts of sexual assault were considered so
prejudicial as evidence of propensity that they were previously
"absolutely precluded" as evidence of a defendant's reckless
disregard, despite their undoubted relevance. [Fn. 41]  The
legislature's 1994 policy determination that this evidence can be
offered to rebut a defense of consent [Fn. 42] does not mean that
its admission is no longer prejudicial.
          But the question is not whether A.R.'s testimony should
have been excluded because it potentially prejudiced Hess.  The
question is whether any prejudice created by informing the jury of
Hess's acquittal outweighs its probative value to Hess.
          The different verdicts in the A.R. trial make Hess's
acquittal particularly probative.  The A.R. jury acquitted Hess on
the charge of first-degree sexual assault, [Fn. 43] but convicted
him on the lesser alternative charge of first-degree sexual abuse
of a minor. [Fn. 44]  The guilty verdict meant that the jury found
that Hess had sexually penetrated A.R. and that A.R. was less than
sixteen years old. [Fn. 45]  A sexual assault conviction would have
required the jury to find that Hess had knowingly sexually
penetrated A.R. with reckless disregard for her lack of consent.
[Fn. 46]  Although Hess denied penetrating A.R., the A.R. jury must
have disbelieved his denial because it convicted him on the lesser
alternative charge. Therefore, in acquitting him of first-degree
sexual assault, the A.R. jury must have decided that the state
failed to prove beyond a reasonable doubt either that Hess
recklessly disregarded A.R.'s lack of consent or that A.R. did not
consent to have sex with Hess.  And it may have found that the
state failed to prove both of those things.  Thus, the peculiar
circumstances here make the acquittal on the sexual assault charge
potentially useful in deciding whether Hess had a propensity to
recklessly disregard a companion's wishes.  The acquittal was
therefore potentially useful in deciding whether he recklessly
disregarded H.W.'s lack of consent.
          Evidence of a prior acquittal may cause confusion if the
jury takes it as proof that the defendant is "innocent" of the
prior charge, rather than as evidence that reasonable doubt existed
as to at least one element of the acquitted charge. [Fn. 47]  But
a high risk of unfair prejudice may outweigh the risk of confusion,
[Fn. 48] and  a jury instruction explaining the requisite levels of
proof may minimize the risk of confusion. [Fn. 49]
          Because we think that the acquittal had substantial
probative value to Hess, that its exclusion hampered his ability to
respond to A.R.'s propensity evidence testimony, and that any undue
prejudice its admission would cause the state could be avoided or
minimized by appropriate instructions, we conclude that it was
error not to inform the jury of Hess's acquittal.
                    4.   Did the error prejudice Hess?
          We will not reverse a conviction for an evidentiary error
if the error is harmless. [Fn. 50]  In Worthy v. State [Fn. 51] the
superior court erred in excluding evidence under Alaska Evidence
Rule 403.  The excluded evidence challenged the truth of the
complaining witness's allegation that another man had raped her on
an earlier occasion. [Fn. 52]  We reversed Worthy's conviction
because the state made the complainant's testimony about the prior
rape an "integral part of its case" against Worthy and because the
excluded testimony "might have substantially affected the jury's
verdict." [Fn. 53]
          Likewise, the state made A.R.'s testimony an "integral
part" of its case against Hess in the H.W. case.  In its opening
argument the state asserted:
          [I]n rebuttal testimony a witness will be
testifying, a young girl by the name of [A.R.].  She will be
testifying about a non-consensual sexual encounter that she had
with Mr. Hess in June of 1994 and how she too was in a situation
where she was begging and crying for Ralph Hess not to have sex
with her and that those cries, as [H.W.'s] cries, were ignored. 

               . . . . 

               The only issue before you can be summed
up in one word, consent.  

The state referred to A.R.'s testimony three times in its closing
argument:
               And last but certainly not least, ladies
and gentlemen, don't forget the testimony of [A.R.] when you're
thinking about this man's ability to disregard completely what a
woman is trying to communicate to him.  [A.R.] testified clearly
about what she went through at the hands of Ralph Hess.  

               Trying to pull her shorts up, trying to
cry, trying to tell him to stop, begging him to stop, going to a
bedroom to get away from him.  Trying to hold her legs together
while he's trying to pry them apart.  With him trying to stick his
penis into her vagina while she's squirming and trying to get away
from him.  None of this, ladies and gentlemen, mean[s] a thing to
this man.  This man regards the consent of the women he has sex
with as . . . completely irrelevant.  When you're thinking about
this, think about [A.R.].

               . . . .

               Mr. Holmes asked you to ignore [A.R.] 
Well he would like to have you ignore [A.R.], Ralph Hess would like
to have you ignore [A.R.].  But you can't ignore [A.R.] because
[A.R.] corroborates what [H.W.] told you about what happened in
that Bronco and how Ralph Hess recklessly disregarded her lack of
consent. 

               [The defendant's attorney] says we don't
have other evidence . . . of what happened.  Wrong, we have direct
evidence because [A.R.] provides that direct evidence of how Mr.
Hess handles himself in situations similar to that in which [H.W.]
found herself on the morning of October 9th, 1994.  Recklessly
disregards lack of consent.  That's what A.R. told you, that's
direct evidence that you are entitled to rely upon and I urge you
to rely on it in this case.

               . . . .

               [Hess is] [s]omeone we know [who] will
come in and recklessly disregard a woman's lack of consent.  Use of
force to remove clothes, spread legs, to insert his penis into the
vagina of unfortunate victims who he's raped. 

          The state relied on A.R.'s testimony and made it an
important part of its case at the second trial.  The state argued
that the only issue was H.W.'s lack of consent; to establish Hess's
reckless disregard for H.W.'s lack of consent, the state relied on
A.R.'s testimony that A.R. did not consent.  And it urged the jury
to do the same.  But if the second jury had known that the first
jury had reasonable doubt about whether Hess recklessly disregarded
A.R.'s lack of consent or whether A.R. did not consent, the second
jury might also have had reasonable doubt about whether Hess
recklessly disregarded H.W.'s wishes.
          The error may have substantially affected the verdict. 
Because we cannot say that the error was harmless, exclusion
requires reversal of Hess's conviction and remand for retrial. [Fn.
54]
IV.  CONCLUSION
          For these reasons, we REVERSE Hess's conviction and
REMAND for a new trial.


                            FOOTNOTES


Footnote 1:

     See Hess v. State, Mem. Op. & J. No. 3906 at 21 (Alaska App.,
November 4, 1998).


Footnote 2:

     Id. at 15.


Footnote 3:

     Id. at 15-16.  


Footnote 4:

     See id.


Footnote 5:

     Id. at 16.


Footnote 6:

     See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999).


Footnote 7:

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


Footnote 8:

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


Footnote 9:

     See AS 11.41.410(a)(1); Velez v. State, 762 P.2d 1297, 1303
(Alaska App. 1988).


Footnote 10:

     See Velez, 762 P.2d at 1303-05.  


Footnote 11:

     See ch. 116, sec. 2, SLA 1994, amended by ch. 63, sec. 22, SLA
1997;
ch. 86, sec. 18, SLA 1998.


Footnote 12:

     Fed. R. Evid. 413(a).


Footnote 13:

     See 1 John W. Strong, ed., McCormick on Evidence sec. 190, at
669-70 (5th ed. 1999) [hereinafter McCormick on Evidence] ("Unlike
the other purposes for other-crimes evidence, the sex-crime
exception [in Rule 413] flaunts the general prohibition of evidence
whose only purpose is to invite the inference that a defendant who
committed a previous crime is disposed toward committing crimes,
and therefore is more likely to have committed the one at bar.");
see also Roger C. Park, The Crime Bill of 1994 and the Law of
Character Evidence: Congress Was Right About Consent Defense Cases,
22 Fordham Urb. L.J. 271, 272 (1995) ("Common sense tells us that
evidence of propensity to rape has probative value."). 


Footnote 14:

     The issue here therefore differs from that in Dowling v.
United States, 493 U.S. 342 (1990), which Hess's brief discusses at
length.  There the question was whether it was error to admit, over
Dowling's objection, a witness's testimony that Dowling had, while
armed with a handgun and wearing a mask, entered the witness's home
some weeks before an armed, masked man committed the bank robbery
for which Dowling was being tried.  See id. at 343-45.  The Supreme
Court considered whether the woman's testimony was admissible,
given that Dowling had been acquitted of the charges that resulted
from his entry into her home and concluded that the testimony was
admissible.  See id. at 347-54.  Here, however, the issue is not
whether A.R.'s testimony about an earlier assault was admissible,
but whether, after A.R. testified, Hess should have been allowed to
offer evidence that he had been acquitted of sexually assaulting
A.R.


Footnote 15:

     See Alaska R. Evid. 402.


Footnote 16:

     Alaska R. Evid. 401.


Footnote 17:

     See, e.g., United States v. De La Rosa, 171 F.3d 215, 219 (5th
Cir. 1999); United States v. Marrero-Ortiz, 160 F.3d 768, 775 (1st
Cir. 1998); State v. Tolman, 828 P.2d 1304, 1311 (Idaho 1992);
Eatherton v. State, 810 P.2d 93, 100-01 (Wyo. 1991).


Footnote 18:

     See De La Rosa, 171 F.3d at 219.


Footnote 19:

     See People v. Griffin, 426 P.2d 507, 510 (Cal. 1967) (stating
that "the better rule allows proof of an acquittal to weaken and
rebut the prosecution's evidence of the other crime"); Nolan v.
State, 131 A.2d 851, 857 (Md. App. 1957) (holding that prior
acquittal was admissible for sole purpose of affecting weight of
evidence against accused).


Footnote 20:

     See Griffin, 426 P.2d at 511 n.3 (stating that evidence of
acquittal is not as convincing of innocence as judgment of
conviction is convincing of guilt, but that fact goes to weight not
admissibility of evidence).


Footnote 21:

     See Alaska R. Evid. 401.


Footnote 22:

     1 McCormick on Evidence, supra note 13, sec. 185, at 642-43.


Footnote 23:

     See Hess v. State, Mem. Op. & J. No. 3906 at 16-20 (Alaska
App., November 4, 1998).


Footnote 24:

          Alaska R. Evid. 801(c).


Footnote 25:

     See 2 McCormick on Evidence, supra note 13, sec. 249, at 100.


Footnote 26:

     See id.


Footnote 27:

     See De La Rosa, 171 F.3d at 219.


Footnote 28:

     902 P.2d 766 (Alaska 1995), cited in Hess v. State, Mem. Op.
& J. No. 3906 at 16.


Footnote 29:

     See Spenard Action Comm., 902 P.2d at 780.  Unlike the Federal
Rules of Evidence, the Alaska Rules of Evidence do not contain a
hearsay exception for criminal convictions.  Compare Alaska R.
Evid. 803 with Fed. R. Evid. 803(22).


Footnote 30:

     Alaska R. Evid. 803 commentary at 571 (2000).


Footnote 31:

     862 P.2d 857 (Alaska 1993).


Footnote 32:

     See id. at 863-64.


Footnote 33:

     See id. at 864.


Footnote 34:

     See Spenard Action Comm., 902 P.2d at 778.  Although couched
in hearsay terms, we note that this issue is virtually the same as
the relevance issue discussed in Part III.B.


Footnote 35:

     See De La Rosa, 171 F.3d at 219; United States v. Thomas, 114
F.3d 228, 249-50 (D.C. Cir. 1997); Prince v. Lockhart, 971 F.2d
118, 122 (8th Cir. 1992); United States v. Jones, 808 F.2d 561,
566-67 (7th Cir. 1986); United States v. Viserto, 596 F.2d 531,
536-37 (2d Cir. 1979).


Footnote 36:

     See De La Rosa, 171 F.3d at 219; cf. Spenard Action Comm., 902
P.2d at 780 (holding that criminal conviction of non-party as
evidence of fact inadmissible).


Footnote 37:

     See Griffin, 426 P.2d at 510-11.


Footnote 38:

     The superior court gave the following instruction to the jury
after A.R. testified:

          You the jury may not consider this evidence of
prior sexual assault unless you reasonably conclude (1) that the
act occurred and (2) the defendant was the actor.  If you so
conclude then you are to determine what weight, if any, to give to
this evidence.  You are specifically instructed that this evidence
shall only be considered for the purposes for which it is admitted. 
It is relevant only as to whether the defendant recklessly
disregarded H.W.'s lack of consent.


Footnote 39:

     See, e.g., Eatherton, 810 P.2d at 100-01 (holding that
introduction of acquittal is within sound discretion of trial
judge, based on finding of relevance and following probative/
prejudicial balancing test); Griffin, 426 P.2d at 510-11 (holding
that acquittal was relevant, not hearsay, and more probative than
prejudicial "by assisting the jury in its assessment of the
significance of the evidence of another crime with the knowledge
that at another time and place a duly constituted tribunal . . .
concluded that [the defendant] was not guilty").


Footnote 40:

     See, e.g., former Alaska R. Evid. 404(a) & (b) (1993).


Footnote 41:

     See Velez, 762 P.2d at 1303-04.


Footnote 42:

     See ch. 116, sec. 2, SLA 1994, amended by ch. 63, sec. 22, SLA
1997;
ch. 86, 18, SLA 1998. 


Footnote 43:

     See AS 11.41.410(a)(1).


Footnote 44:

     See AS 11.41.434(a)(3).


Footnote 45:

     See id.


Footnote 46:

     See AS 11.41.410(a)(1); Velez, 762 P.2d at 1303.


Footnote 47:

     See Eatherton, 810 P.2d 100-01 (holding that refusal to allow
evidence of prior acquittal of sexual assault not abuse of
discretion because it could have misled jury and confused issues;
defendant failed to argue how trial court abused its discretion).


Footnote 48:

     See State v. Smith, 532 P.2d 9, 11-12 (Or. 1975).


Footnote 49:

     See, e.g., Huddleston v. United States, 485 U.S. 681, 691-92
(1988).


Footnote 50:

     See Alaska R. Civ. P. 61 ("No error in either the admission or
the exclusion of evidence . . . is ground for granting a new trial
or for setting aside a verdict . . . unless refusal to take such
action appears to the court inconsistent with substantial
justice."); see also Worthy v. State, 999 P.2d 771, 775 (Alaska
2000) (holding refusal to allow testimony on alleged falsity of
victim's prior accusation of rape reversible error when state
relied on prior accusation as central part of its case).


Footnote 51:

     999 P.2d 771 (Alaska 2000).


Footnote 52:

     See id. at 773.


Footnote 53:

     Id. at 775.  


Footnote 54:

     Having ruled that it was error to refuse to inform the jury of
the prior acquittal, we need not consider Hess's alternative
argument that the acquittal should have been introduced "to avoid
unconstitutional fundamental unfairness."