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Active v. State (3/9/2007) ap-2086

Active v. State (3/9/2007) ap-2086

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-8984
Appellant, ) Trial Court No. 3DI-03-436 Cr
v. )
) O P I N I O N
Appellee. ) No. 2086 March 9, 2007
          Appeal  from the Superior Court,  Third  Judi
          cial   District,  Dillingham,  Fred  Torrisi,

          Appearances:   Dan S. Bair, Assistant  Public
          Advocate,   and  Chad  W.  Holt,  Supervising
          Assistant Public Advocate, Anchorage, for the
          Appellant.    Nancy   R.   Simel,   Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Edward  H.  Active appeals his convictions  for  first-
degree  burglary,  attempted  first-degree  sexual  assault,  and
fourth-degree  assault.   Active  argues  that  the  trial  judge
improperly allowed the State to play (and the jury to hear) audio
tapes  of  the victims prior statements to a police investigator.
Active  also  argues that the trial judge improperly allowed  the
State to introduce evidence of Actives 1993 conviction for second-
degree  sexual  assault  (involving  another  victim).   Finally,
Active  argues that he was sentenced in violation  of  his  Sixth
Amendment  right  to  jury  trial as interpreted  in  Blakely  v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
          For  the  reasons explained here, we conclude that  the
challenged  evidence was properly admitted, and we also  conclude
that  Actives  sentencing  conformed to  Blakely.   We  therefore
affirm Actives convictions.

     Background facts:  the States case against Active
               The  charges  in this case arose from  events
     that  occurred in August 2003 in Twin Hills and Togiak.
     Active   was   involved   in   a   long-term   romantic
     relationship  with C.M..  C.M. had a house  in  Togiak,
     and   Active  often  stayed  with  her.   During  their
     relationship,   Active   was  occasionally   physically
     violent toward C.M., to the point of bruising her,  but
     C.M.  repeatedly  refused  to  bring  charges  (or   to
     cooperate in the investigation of potential charges).
               On  August  3,  2003, Active  and  C.M.  were
     visiting friends in the village of Twin Hills.   Active
     thought  that  C.M.  was paying too much  attention  to
     another  man,  and  he began roughing  up  C.M..   C.M.
     telephoned  her  mother in Togiak  and  asked  her  for
     assistance.  In response, C.M.s mother called a  family
     friend,  Gladys  Small, who lived in  Twin  Hills,  and
     asked her to check on C.M.s welfare.
          Small  went looking for C.M..  When she found
her,  she  observed  that C.M.s   face  and  eyes  were
swollen   and   bruised.   Small  and   her   boyfriend
transported C.M. back to her mothers house  in  Togiak.
When C.M.s mother saw her daughters bruises, she called
the  police.  However, C.M. refused to allow the police
to  take photographs of her bruises, and she would  not
bring charges against Active.
          Even  though  C.M. declined to press  charges
for the August 3rd assault, she did ask Active to leave
her  house  and stay somewhere else for a while.   C.M.
also  contacted her brother and had him install  a  new
metal  plate  on her door, so that it could  be  locked
          In  the  early morning of August 7th,  Active
came  to  C.M.s house and started to break  in.   While
this  was  happening, C.M. telephoned  her  stepsister,
June  Logusak.   C.M.s nephew, Craig Logusak,  answered
the  telephone.   C.M. sounded scared,  and  (over  the
telephone)  Craig  could hear a sound  similar  to  the
sound    of   metal   striking   metal.    (The   metal
reinforcement  of  C.M.s door sustained  damage  during
that night.)
          C.M.  asked  Craig to have his mother  (i.e.,
C.M.s  stepsister) come to her aid immediately  because
someone was trying to break in through the door.  Craig
woke  up  his  parents and told them that  C.M.  needed
          June  Logusak and her husband threw  on  some
clothes and ran to C.M.s house.  Logusak knocked on the
door  for  several minutes, but no one  answered.   She
then  tried  to open the door, but it would  not  open.
Logusak and her husband then went around to the side of
the house where C.M.s bedroom was located.  A light was
on in the bedroom, the bedroom window was broken, and a
blanket was hanging over the broken window.
          Logusak called out to C.M., but C.M. did  not
immediately  answer.   When  C.M.  finally   responded,
Logusak announced that she and her husband were outside
the  window,  and they wanted to know if C.M.  was  all
right.  When Logusak asked C.M. if she was alone,  C.M.
mumbled  a  response, but Logusak heard  C.M.  say  Aki
C.M.s pet name for Active.
          Logusak  and  her husband stood  outside  the
window  for twenty minutes, waiting to see if  anything
else  happened,  and trying to assure  themselves  that
C.M. was all right.  They then returned to their home.
          Both  C.M.s  mother and C.M.s brother  called
her  house around 8:00 in the morning, but C.M. did not
answer their calls.  However, a short time later,  C.M.
came out of her house.  C.M.s mother (who lived just  a
few  feet  away) saw that C.M. was crying and that  her
face was bruised.  C.M. said that she had been sexually
assaulted, and that she was tired of being beaten up.
          C.M. then went to the local clinic, where  it
was  discovered  that  she had  suffered  a  perforated
eardrum.   This time, C.M. allowed the clinic staff  to
take photographs of her bruises.
          Togiak Police Officer John Kirby went to  the
clinic and interviewed C.M..  C.M. told Kirby about the
earlier  assault in Twin Hills, and how  she  had  told
Active  to  leave  her  house,  as  an  alternative  to
pressing  charges  against him.  With  respect  to  the
assault  that had just occurred, C.M. told  Kirby  that
Active  assaulted her because he thought he  had  heard
C.M. with someone else in her bedroom.
          C.M. described how Active had broken into her
bedroom:   he  threw an object against the window  pane
and broke it, then reached in and slid the window open.
Active then physically and sexually assaulted C.M.  for
hours.   C.M. cried and told Active to leave,  but  she
did not fight back because she feared that Active would
hurt her worse if she did.  Active finally left (again,
by climbing through the window) after it became day and
C.M.s  mother  started calling her  house,  and  Active
realized that more people would be coming to the  house
to check on C.M..
          The next day (August 8th), Kirby conducted  a
follow-up  interview  with C.M..  C.M.  confirmed  that
Active had broken into her house by breaking the window
and that Active had sexually attacked her  although she
said  that he did not succeed in penetrating her.  C.M.
also   told  Kirby  that,  during  the  attack,  Active
threatened  her  with  a pair  of  scissors.   And  she
reiterated  that Active left her house only  after  her
mother  and  brother both called, and  Active  realized
that people would be coming to check on C.M..
          Based  on  these events, Active  was  charged
with   first-degree  burglary,  attempted  first-degree
sexual assault, and two counts of fourth-degree assault
one  for  the  physical  assault that  accompanied  the
attempted sexual assault in C.M.s house, and the  other
for the previous assault in Twin Hills.
          Two  months  after Active was indicted,  C.M.
executed  an affidavit in which she declared  that  she
had   maliciously,  intentionally[,]  and  untruthfully
accused  Edward Active of wrong doing.  C.M. stated  in
this  affidavit  that Edward never  sexually  assaulted
[her]  and that any sexual activity between [them]  has
always  been  consensual.   C.M.  further  stated  that
Active  had  not  burglarized her house.   Rather,  she
declared, Edward has always had access to our home, and
he  never  came  into the house through any  other  way
[than] through the front door.  C.M. declared that  she
had  lied  about  Active because [she] was  angry  with
[him] after hearing many rumors of [his] infidelity.

C.M.s  testimony  at  Actives  trial,  and  the  States
request  to  play the audio tapes of her two interviews
with Officer Kirby

          One  of  the major issues presented  in  this
appeal  is  whether  the prosecutor laid  a  sufficient
foundation  for the introduction of C.M.s  out-of-court
statements  to  Officer Kirby.  These  statements  were
offered as prior inconsistent statements, so the  State
was   obliged   to   comply   with   the   foundational
requirements  of Alaska Evidence Rule 801(d)(1)(A)  and
Alaska   Evidence  Rule  613(b)  before  offering   the
          Rule  801(d)(1)(A) states that, [u]nless  the
interests  of  justice otherwise  require,  a  witnesss
inconsistent  statements shall be excluded  unless  ...
the witness was so examined while testifying as to give
the  witness an opportunity to explain or to  deny  the
statement[,]  or ... the witness has not  been  excused
from giving further testimony in the action.
          Rule  613(b)  states that [b]efore  extrinsic
evidence  of  a  prior contradictory  statement  [of  a
witness]  may  be admitted, the examiner  shall  lay  a
foundation for impeachment by affording the witness the
opportunity, while testifying, to explain or deny  [the
contradictory]  statement, ... except  as  provided  in
subdivision  (b)(1)  of this rule.   Subsection  (b)(1)
states  that the court has the discretion to allow  the
inconsistent  statement  to be  introduced  before  the
required  foundation is laid, and to have  the  witness
later  recalled for the purpose of laying a  foundation
for  impeachment, if the court is satisfied  that  [the
examiners] failure to lay a foundation earlier was  not
intentional, or if intentional was for good cause.   In
addition,  subsection (b)(1) authorizes  the  court  to
allow  the  introduction of the inconsistent  statement
even  if  no foundation is ever laid, if the  court  is
convinced that introduction of this evidence is in  the
interests of justice.
          Because Active challenges the adequacy of the
governments  foundation for C.M.s prior  statements  to
the   investigating  officer,  we  will  describe   the
prosecutors examination of C.M. in some detail.
          C.M.  was  called as a government witness  at
Actives trial.  However, as explained more fully below,
C.M. claimed to remember little of what had happened to
her,  and  little of what she had said to other  people
about these events.
          C.M.  was  insistent  on only  three  points.
First, Active had not burglarized her house by breaking
in through the window; rather, he used his key to enter
her  house.  Second, Active had not sexually  assaulted
her;  rather,  they  had  engaged  in  consensual  sex.
Third,  although  C.M. claimed not to remember  exactly
what she told Officer Kirby, she declared that, to  the
extent that she had accused Active of burglarizing  her
house  and  sexually assaulting her, her statements  to
Kirby  were lies  accusations that she invented because
she  was  upset with Active and wanted to  get  him  in
          With this preface, we now turn to the details
of the prosecutors direct examination of C.M..
          When   the  prosecutor asked C.M.  about  the
assault  that occurred at Twin Hills, C.M. acknowledged
that  she  and  Active went to visit  friends  in  that
village, and that Active became angry at her because he
thought that C.M. was coming on to somebody else.  C.M.
recalled   struggling  with  Active,   but   when   the
prosecutor  asked  C.M.  if  Active  struck  her,  C.M.
declared, I dont remember.
          C.M.  admitted that the police wanted to take
photographs  of her, so that they could  file  charges,
but C.M. did not allow this.
          C.M. admitted that she described these events
to  Officer  Kirby when he interviewed  her,  but  C.M.
could not remember what she told him.
          The   prosecutor  then  asked  C.M.  if   she
remembered something happening to her on the day of the
incident  in  this  case.   C.M.  answered,  No.    The
prosecutor  then  prompted,  Do  you  remember   [that]
somebody  broke your window?  C.M. answered, Yes.   The
following colloquy ensued:
          Prosecutor:   Okay.  Tell us  the  first
     thing you remember from that date.
          C.M.:   Just  that there  was  a  window
     being  broken, and I picked up the  telephone
     and called my stepsister.
          Prosecutor:  Now, who was in your  house
     [at that time]?
          C.M.:  Just myself.
     Prosecutor:   Okay.  ...   Who  did  you
talk  to  on  the  phone at your  stepsisters

     C.M.:   My  nephew [Craig] answered  the

     Prosecutor:   ...  And do  you  remember
what you told Craig?

     C.M.:  No, I dont.

     Prosecutor:  Isnt it true that you  told
him that someone was banging on your door and
trying to get into your house?

     C.M.:   I  dont remember.  ...   I  dont
remember exactly what I said to him.

     Prosecutor:  ...  What did you ask  your
nephew to do?

     C.M.:   I dont think I asked him  to  do
anything.   I  dont remember the conversation
with him.  ...  I dont recall.

     Prosecutor:  Why did you call over there
if   you  werent  going  to  ask  him  to  do

     C.M.:    I  dont  know.   I  just   dont
remember what I said to him.

The   prosecutor  then  asked  C.M.  to  describe  what
happened that night after her window was broken.   C.M.
responded,  I dont remember a lot of that  evening.   I
know  [that  Active] was there; he was there  with  me.
The  prosecutor then told C.M. that he wanted  to  take
her narrative step by step:

     Prosecutor:  You were asleep  when  your
window  was broken, is that correct?  (Pause)
Youve got to answer out loud ...

     C.M.:  Yes.

     Prosecutor:   ...  And,  so,  whats  the
next  thing  you remember after  your  window
being broken?

     C.M.:   Being on the telephone,  calling
Craigs [house].

     Prosecutor:  Okay.  And then  whats  the
next thing you remember after that?

     C.M.:   I dont remember a whole  lot  of
that evening.  I dont know.

     Prosecutor:   Well, Im just  asking  you
what the next thing was.

     C.M.:   Talking  to him [i.e.,  Active].
Laying in bed with him.

     Prosecutor:   Okay.  You  dont  remember
how he got into the house?

     C.M.:  He came to the door.

     Prosecutor:  Okay.  So were you  in  bed
with  [Active]  at the time  your  stepsister
came over  Ms. Logusak?

     C.M.:  Yes.

     Prosecutor:  Okay.  And how long do  you
think  it took [your stepsister] to get  over
[to your house]?

     C.M.:  I dont know.  I dont know.
     Prosecutor:  [But] sometime between  the
time the window got broke[n] and the time Ms.
Logusak   came  over,  Mr.  Active  came   in
[through] your front door?

     C.M.:  Yes.

     Prosecutor:   Okay.  And he  immediately
lay down in bed with you?

     C.M.:  I dont remember.  I know we  were
talking,  and I was asking [him] about  where
he was, and ...

     Prosecutor:  Okay.  Had you invited  him
into the house?

     C.M.:   [No, ] he came in with his  key.

     Prosecutor:   Okay.  And did  you  [two]
talk about someone breaking your window?

     C.M.:  No, I dont remember talking about

C.M.  testified  that she lay in bed  with  Active  all
night  after that.  When the prosecutor asked  C.M.  if
anything happened during that time, C.M. admitted  that
she  and  Active [got] into some struggles,  ...  where
[she]  was yelling and ... was upset, [and Active]  had
his  hand over [her] mouth.  The prosecutor asked  C.M.
if Active had hurt her when he placed his hand over her
mouth.  She responded, I dont remember it hurting[;] it
did leave some bruises, though.
          C.M.  claimed that she and Active parted in the morning
on  bad  terms:  C.M. was upset because Active was seeing another
woman.   After  Active left, C.M. went to her mothers  house  and
told  [her] mother some things, and she [i.e., her mother] called
the  cops.   But when the prosecutor asked C.M. if  she  recalled
what  she had told her mother, C.M. answered, I dont remember  at
          C.M. then testified that, after the police arrived, she
was  taken to the local clinic.  C.M. described her condition as,
I couldnt hardly hear out of my right ear [it turned out that her
eardrum  was  perforated] and I had bruises  on  my  face.   C.M.
attributed  all  of these injuries to the Twin Hills  trip.   But
when  the prosecutor asked C.M. if she remembered how all of this
had happened to her, C.M. answered, No.
          C.M. remembered talking to Officer Kirby.  But when the
prosecutor  asked C.M. if she told Kirby what was going  on,  and
why  [she was] injured, C.M. answered, I dont remember what I ...
told him.
          C.M. stated that, although she truthfully described the
Twin  Hills  situation  to Kirby, she lied  to  Kirby  about  the
situation  that happened the night before because she  was  still
really angry with Edward.  In particular, C.M. testified that she
lied  to Kirby when she said that Active had crawled through  her
window and assaulted her.
          When  the prosecutor asked C.M. if she remembered  what
else  she had told Kirby, C.M. answered, No.  I was  I was upset.
I  was  upset.  When the prosecutor asked C.M. if she  remembered
telling Kirby that she had removed her window covering during the
night, hoping to attract the attention of a neighbor or passerby,
C.M.  answered, I dont remember.  When the prosecutor asked  C.M.
if, on the day before this incident, she had asked her brother to
reinforce her door, C.M. answered, I dont remember if I did.  ...
I  dont  remember ever asking him to help me with the door.   But
its been so long.  ...  He could have [reinforced the door].
          When  the prosecutor asked C.M. how her front door  had
later  sustained  damage, she answered,  I  dont  remember.   The
prosecutor asked C.M. if she remembered telling her brother  that
Active  had  broken her door.  C.M. responded, I  dont  remember.
...   I  dont  remember telling him anything about my door  being
          C.M.  declared  that she had suffered no injuries  that
night.   When  the prosecutor reminded her that she  had  already
testified  that Active bruised her mouth when he  held  his  hand
over  it,  C.M.  replied  that she did  not  remember  any  other
          The  prosecutor showed C.M. a photograph of  C.M.  that
was  taken at the clinic on the morning after the assault.   C.M.
declared  that  she  did not remember when  that  photograph  was
taken.  When the prosecutor asked if this photograph depicted the
bruises that were on C.M.s face after her night with Active, C.M.
declared that the bruises depicted in the photograph had all been
sustained four days earlier, during the Twin Hills incident.
          The  prosecutor  then showed C.M. a photograph  of  her
hand,  this  one  again depicting injuries.  When the  prosecutor
asked  C.M.,  Was  your  hand  injured?,  C.M.  replied,  I  dont
remember.   I dont remember.  The prosecutor pursued the  matter:
Do you have any idea how your hand could have gotten injured that
way?  C.M. replied, No.
          The  prosecutor  then  showed C.M. another  photograph,
this  one  depicting bruises to her shoulder.  He asked C.M.,  Do
you know how those bruises happened?  C.M. answered, No.  ...   I
dont remember.  The prosecutor showed C.M. a photograph depicting
bruises  to her forearm.  C.M. stated that she did not  know  how
she sustained those bruises.
          Toward the end of the examination, the prosecutor asked
C.M.  if she remembered calling the district attorneys office  on
August  13th (i.e., about one week after the assault) and  asking
the  authorities  to  drop  the  charges  against  Active.   C.M.
responded, I dont remember that phone call.
          All told, during the prosecutors direct examination  of
C.M.,  there were more than fifty times when C.M. answered either
I  dont know or I dont remember  to questions regarding what  had
happened to C.M., and what she had said to her relatives  and  to
the   authorities   about  these  occurrences.    However,   C.M.
demonstrated  no  such  uncertainty  on  the  three  main  points
favorable  to Actives defense:  that Active had not  broken  into
her  house, that Active had not sexually assaulted her, and  that
everything  she  might  have said to  the  contrary  in  her  two
interviews with Officer Kirby was a lie.
          After  C.M.  was excused from the stand, the prosecutor
asked  Superior Court Judge Fred Torrisi for permission  to  play
the audio tapes of C.M.s interviews with Kirby.  These tapes were
offered  under Alaska Evidence Rule 801(d)(1)(A), as C.M.s  prior
inconsistent statements.  Actives attorney objected, arguing that
the  prosecutor  had  failed  to lay the  proper  foundation  for
introducing this evidence.
          The  defense  attorney  asserted  that  the  prosecutor
should  have  played the two tapes while C.M. was  still  on  the
stand     directly   confronting   C.M.   with   each   purported
inconsistency, then asking her whether she conceded  making  that
particular  assertion and, if so, whether she had an  explanation
for it:
               The  Court:  So, your objection  ...  is
               Defense Attorney:  [The party seeking to
          introduce  evidence  of a prior  inconsistent
          statement  must]  confront the  witness  with
          [the] prior inconsistent statement.  ...  The
          prior  statement should be played [while  the
          witness is on the stand], to give the witness
          an  opportunity to respond to  it.   [If  the
          tapes are played now], the jury wont be  able
          to  see  how  [C.M.]  reacts  to  [the  prior
          statements,  and] there wont be  any  further
          [opportunity] for cross-examination of [C.M.]
          regarding the prior inconsistent statements.
     The Court:  Well, I note that [C.M.]  is
still  here [and] could be recalled  [to  the
stand].   But  youre saying that  [no  proper
foundation  has  been laid]?   I  mean,  [the
prosecutor]  did  confront [C.M.]  with  [the
prior statements] in the sense that he [asked
her],  You talked to Kirby and you  told  him
something else, right?  So youre saying [that
the  prosecutor] has to actually go  line  by
line, or sentence by sentence, play[ing]  the
tape while [C.M.]s up there [on the stand]?

     Defense Attorney:  I  [yes,] thats  what
I request.

In  addition to arguing that C.M.s statements to  Kirby
were  inconsistent  with her testimony  in  court,  the
prosecutor advanced a separate theory for admitting the
two  tapes.  As explained above, C.M. conceded that she
had  told  Kirby that Active had broken into her  house
and  sexually assaulted her; however, she asserted that
she  had  been  lying when she made  these  accusations
(because  she  was angry that Active  had  been  seeing
another woman).  The prosecutor argued that, given this
situation, the audio tapes were relevant not  only  for
the  factual  statements recorded  on  them,  but  also
because they demonstrated C.M.s demeanor when she  made
these statements  thus potentially helping the jury  to
decide  whether to believe or disbelieve C.M.s  current
assertion  that  all  of  her  prior  accusations  were
falsehoods motivated by jealousy.
During  the  middle of this discussion,  Judge  Torrisi
noted  that C.M. (the declarant who made the challenged
out-of-court  statements)  had  been  excused  and  was
headed  toward the courtroom door.  The judge told  the
parties, If anybody wants me to ... order ... her  [to]
stay  until were done with this discussion,  I  can  do
that.  Actives attorney responded, I would [ask you  to
do that], Judge.  Judge Torrisi immediately directed an
officer to tell C.M. that she was still under subpoena,
although she was free to leave the courtroom.
          Judge  Torrisi  ultimately ruled  that  the  prosecutor
could  play  both  tapes  for the jury.  Active  challenges  this
ruling on appeal.
          Judge Torrisis ruling actually involves three different
aspects of evidence law.  First, when a party wishes to introduce
a  witnesss  prior inconsistent statements, and those  statements
are  recorded either in writing or on tape, must the  party  show
the witness the writing, or play the tape for the witness, before
questioning the witness about the prior statements?   Second,  in
instances  where the witness admits having made the  inconsistent
statements,  may  the  proponent  of  the  evidence  nevertheless
proceed to introduce extrinsic evidence of those statements?  And
third,  when a party examines a witness about the witnesss  prior
statements, must the party ask the witness about each  and  every
prior factual assertion that the party intends to introduce?   Or
is  it sufficient that the party ask the witness to admit or deny
the  primary  contentions  made  by  the  witness  on  the  prior
          The first issue is whether, if the prior statements are
preserved in written or taped form, the proponent of the evidence
must reveal the precise content of the writing or the tape to the
witness  before  questioning the witness about those  statements.
The  answer  to  this question is found in Alaska  Evidence  Rule
               In  examining  a  witness  concerning  a
          prior  statement made by the witness, whether
          written  or  not, the statement need  not  be
          shown  nor  its  contents  disclosed  to  the
          witness at that time, but on request the same
          shall  be  shown  or  disclosed  to  opposing
As  explained  in  paragraphs 5 through 7 of  the  Commentary  to
Evidence  Rule 613(b), this provision of our evidence  rules  was
intended to supersede the contrary rule at common law, which  was
known as the rule in Queen Carolines Case.1
          The next question is whether the State should have been
allowed   to   introduce  extrinsic  evidence  of   C.M.s   prior
statements,  given the fact that C.M. did not deny  making  those
statements.   (As explained above, C.M. claimed not  to  remember
many  details  of  what she had said to Officer  Kirby;  but  she
declared  that, to the extent that she accused Active of criminal
conduct, her statements to Kirby were lies.)
          Several jurisdictions follow the rule that if a witness
admits  making  the  prior statements, no extrinsic  evidence  of
those prior statements may be introduced.2  However, Alaska  does
not follow this rule.
          In  Bentley  v. State, 397 P.2d 976 (Alaska 1965),  our
supreme court held that it was error for a trial judge to exclude
extrinsic  evidence  of  a witnesss prior inconsistent  statement
when  (1) the crucial issue at trial was whether the jury  should
          credit the witnesss present testimony or should instead credit
her  prior inconsistent statement, and (2) the extrinsic evidence
offered by the defendant  an audiotape  demonstrated the complete
context of the witnesss prior statement.3  For these reasons, the
court concluded that there was a reasonable possibility that  the
jury  would view the facts differently if they heard, not  simply
the witnesss unelaborated concession that she had previously made
inconsistent  statements, but the tape  of  the  conversation  in
which she had made those statements.4
          In  Clifton v. State, 758 P.2d 1279, 1283 (Alaska  App.
1988),  this court construed Bentley to mean that, when a witness
admits  making  the  prior statement, the  trial  judge  has  the
discretion to admit extrinsic evidence of the prior statement  if
the  extrinsic evidence will aid the jurys resolution of the case
and  will  not be unduly prejudicial.  And in Nunn v. State,  845
P.2d  435  (Alaska App. 1993), we applied the Bentley rule  to  a
situation similar to the one presented in Actives case.
          In  Nunn, the victim conceded that she had accused  the
defendant of criminal activity during a police interview, but she
insisted that those accusations had been false.  We held that the
trial  judge had properly allowed the State to play the  tape  of
the victims interview with the police:
          [O]ne of the critical issues facing the  jury
          was  whether  to  credit [the victims]  trial
          testimony    or    her   conflicting    prior
          statements.  Had [the victim] been lying when
          she accused Nunn of sexually abusing her,  or
          was  [the  victim] lying when  she  testified
          that  no sexual abuse had occurred?  Here,  a
          videotape preserved [the victims] demeanor as
          she  told [the police investigator] about the
          sexual  abuse in an interview that  was  held
          only  a  few  days after [the  victim]  first
          reported  the  abuse to her  camp  counselor.
          The  trial  judge  could reasonably  conclude
          that,  because  the videotape displayed  [the
          victims]  demeanor, the tape had  substantial
          probative   value  beyond  the   mere   words
          recorded  on  it.  The trial court  therefore
          did  not abuse its discretion when it decided
          to allow the playing of the videotape.
          Nunn, 845 P.2d at 440-41.
          For these same reasons, we conclude
that   Judge  Torrisi  did  not   abuse   his
discretion  when  he  decided  to  allow  the
prosecutor to play the audio tapes  of  C.M.s
two interviews with Kirby.
          This   bring   us  to   the   final
question:  whether, if the prosecutor  wished
to  play  the two taped interviews  in  their
entirety, the prosecutor was first obliged to
expressly question C.M. about each and  every
assertion  of  fact that she  made  in  those
          interviews.  This question is also resolved
by our decision in Nunn.
          The  defendant in Nunn was  charged
with  sexually abusing his stepdaughter.   As
in   the   present  case,  the   victim   was
interviewed  by the police and,  during  this
interview,   she  described  the   defendants
criminal   conduct;  but  the  victim   later
recanted,  asserting that all  of  her  prior
accusations  were lies, and that  these  lies
were   motivated   by  her   anger   at   the
defendant.5   After the victim  repeated  her
recantation  at trial, the State was  allowed
to   play   the  videotape  of   the   police
          One  of Nunns claims on appeal  was
that,    even   though   the   victim    made
inconsistent  statements  during  the  police
interview, the prosecutor nevertheless failed
to  lay  a proper foundation for playing  the
interview in its entirety.  Nunn noted  that,
under  Evidence  Rule 613(b),  a  witness  is
normally  entitled  to an opportunity,  while
testifying,  to  explain or  deny  any  prior
statement.   Nunn therefore argued  that  the
videotape could not be introduced as a  whole
unless  the  prosecutor expressly  asked  the
victim   about  each  and  every  potentially
inconsistent  statement  contained   in   the
          We    rejected    Nunns    argument
concluding that this suggested interpretation
of  Evidence  Rule  613(b)  was  unreasonably

     In  answer to the prosecutors questions,
[the  victim] testified that she had lied  to
[the  police  investigator]; she stated  that
Nunn  had done absolutely nothing wrong.   At
this point, the prosecutor asked [the victim]
about  specific statements she  had  made  to
[the investigator] during the interview:  her
statement that Nunn had touched her genitals,
both  with  his hand and with his penis,  her
statement  that Nunn had touched her  breasts
and  her  genitals with his  mouth,  and  her
statement   that  Nunn  had  penetrated   her
genitals with both his finger and his  penis.
In  each  case,  [the victim] recanted  these
statements, testifying that she had lied when
she said these things to [the investigator].

     Under  these  circumstances,  the  trial
judge  could  reasonably conclude  that  [the
victim] would continue to categorically  deny
     all allegations of sexual abuse and would
continue to disown any and all statements she
had  previously  made to the  contrary.   The
trial  judge  could therefore  conclude  that
[the   victim]  had  been  given   sufficient
opportunity to explain or deny the statements
she  made  during  her  interview  with  [the
police   investigator],  and  that   it   was
pointless   to  require  the  prosecutor   to
continue  asking  [the  victim]  about  every
other  statement  she had  made  during  that
interview.   ...  We [therefore]  uphold  the
trial    courts   ruling   that   the   State
established  a proper foundation  under  Rule
613(b) for introducing the videotape.

Nunn, 845 P.2d at 441.
          The   same   analysis  applies   to
Actives  case.   C.M. had  described  Actives
criminal  conduct during her  two  interviews
with  Officer  Kirby, but she later  recanted
her   accusations,  and  she  repeated   this
recantation when she was called to the  stand
at Actives trial.  As we explained earlier in
this  opinion, when the prosecutor questioned
C.M.  at trial, she claimed to remember  very
little of what she had said to Kirby, but she
repeatedly  asserted that any accusation  she
had  made against Active was false  that  she
had  fabricated these accusations because she
was angry at Active.
          Given  these  circumstances,  Judge
Torrisi could reasonably conclude that it was
pointless   to  require  the  prosecutor   to
continue    asking   [C.M.]    about    every
[remaining]  statement she  had  made  during
[the]  interview[s].  Nunn, 845 P.2d at  441.
Accordingly,  the  State  laid  a  sufficient
foundation under Evidence Rule 613(b) to play
the taped interviews in their entirety.

Evidence of Actives prior conviction for second-degree
sexual assault

     Just   before   Actives  trial   began,   the
prosecutor gave notice that the State intended  to
introduce evidence of Actives 1993 conviction  for
second-degree sexual assault.
     Active was convicted in 1993 of second-degree
sexual  assault  after  he entered  a  15-year-old
girls  bedroom, held his hand over her mouth until
she   passed  out,  and  then  engaged  in  sexual
activity   with  her.   For  this  crime,   Active
received  a  sentence  of 6  years  with  2  years
     Active  was  released from prison in  January
1996,  but  he was put back in prison in  November
1996 for violating his probation / parole.  He was
released again in November 1997, but in June  1999
he  was sent back to prison to serve the remaining
2  years  of his sentence.  Thus, even though  the
second-degree sexual assault conviction was eleven
years  old  at  the time of Actives trial  in  the
present case, Active had been in prison during the
majority of the intervening eleven years.
          The  prosecutor  conceded that  the  specific
facts of the prior offense might be overly prejudicial,
so  he  suggested that the State be allowed  simply  to
introduce  a  certified copy of the judgement,  telling
the jury that Active had been convicted of engaging  in
sexual activity with a woman without her consent.
          Actives attorney conceded that Actives  prior
conviction  was  potentially  admissible  under  Alaska
Evidence Rule 404(b)(3).  (This rule states that when a
defendant is on trial for attempted sexual assault, the
government  may  introduce evidence of  the  defendants
prior  convictions for sexual assault.)   However,  the
defense attorney argued that the conviction was too old
to  be  very probative of Actives propensity to  commit
sexual   assault,  and  that  therefore  the   proposed
evidence would be more prejudicial than probative.
          Judge Torrisi agreed that this evidence had a
high  potential  for  prejudice.   However,  the  judge
agreed  with the prosecutor that, given the  fact  that
Active  had  been in prison for most of the intervening
eleven  years,  the age of the conviction  was  not  so
important.  The judge also concluded that, if C.M.  was
going  to  recant her accusations against  Active,  the
State might have a significant need for the evidence.
          Ultimately,  Judge Torrisi told  the  parties
that  his  ruling on the admissibility of this evidence
would turn on what C.M. said when she was called to the
          The  Court:   If [C.M.] says  [that  the
     sexual  assault] did not happen, that  [they]
     didnt  even  have  sex, then [the]  probative
     value [of this evidence] is outweighed by the
     possibility  that  the  jury  would  try  the
     [defendant] for the [prior crime].  [But]  if
     she  says,  It  did happen, and I  consented,
     [then]  I  will reverse myself on this.   The
     State  has convinced me that the time period,
     while  [ostensibly] eleven years,  is  really
     closer to something like five [years].   [And
     this  evidence], certainly I  think,  is  ...
     highly  relevant under [Rule] 403.   ...   If
     the  victim gets [on the stand] and says,  It
     happened,  and  it  was consensual,  then  it
     seems to me [that] the State has a high  need
     for this evidence, and I will allow it.

As  explained  earlier in this opinion, C.M.  testified
that  she and Active engaged in consensual sex  on  the
night in question  i.e., that their sexual activity was
not an assault.  Thus, at the end of the States case-in-
chief,   Judge   Torrisi  allowed  the  prosecutor   to
introduce  certified  copies  of  (1)  the  information
charging  Active with second-degree sexual assault  for
engaging  in  sexual contact with a woman  without  her
consent,  and  (2) the judgement of conviction  entered
against Active for that offense.
          Judge  Torrisi offered the  defense
attorney  an  opportunity to  submit  a  jury
instruction regarding the proper and improper
uses   of  this  evidence,  but  the  defense
attorney apparently never responded  to  this
invitation.    Judge   Torrisi   sua   sponte
instructed   the  jury  that,   even   though
evidence  of  Actives other  crime  had  been

this  evidence is ... insufficient by  itself
to warrant [a] conviction.  The State has the
burden  to  prove each element  of  its  case
beyond  a reasonable doubt.  How much  weight
you give to the prior conviction, as with all
evidence, is up to you.

          On  appeal,  Active challenges  the
judges ruling regarding the admissibility  of
his  1993  conviction.   This  challenge   is
meritless.   The  record  shows  that   Judge
Torrisi conscientiously applied the balancing
test  we  described in Bingaman v. State,  76
P.3d  398,  414-16 (Alaska App.  2003).   The
judge  did not abuse his discretion  when  he
allowed  the  State to introduce evidence  of
the 1993 conviction.

Actives argument that he was sentenced in violation of
the  Sixth  Amendment  right  to  jury  trial   as
interpreted in Blakely v. Washington

          Active    was   convicted   of   first-degree
burglary,  attempted first-degree sexual  assault,  and
two  counts  of fourth-degree assault.   Two  of  these
crimes   first-degree  burglary  and  attempted  first-
degree   sexual  assault   were  governed  by   Alaskas
presumptive  sentencing  law  (in  its  pre-March  2005
version).  As a third felony offender, Active  faced  a
presumptive  term  of  6  years  imprisonment  for  the
burglary  and  15 years imprisonment for the  attempted
sexual assault.7
          In  order to authorize sentences above  these
          presumptive terms, the State proposed four aggravating
factors under AS 12.55.155(c).  Judge Torrisi concluded
that  the  State had proved three of these aggravators:
(c)(8)    that   Actives  criminal   history   included
aggravated   or   repeated  instances   of   assaultive
behavior;   (c)(18)(A)   that   Actives   crimes   were
committed  against someone living in the same  dwelling
unit;  and  (c)(18)(B)   that Active  had  committed  a
previous sexual assault.
          These aggravators became moot with respect to
Actives  sentence  for first-degree  burglary,  because
Judge Torrisi imposed the unadjusted 6-year presumptive
term  for this crime.  However, Judge Torrisi  added  2
years   of   suspended  imprisonment  to  the   15-year
presumptive  term  for  attempted  first-degree  sexual
assault.   (That is, he sentenced Active  to  17  years
with  2  years suspended.)  This sentence would not  be
lawful in the absence of aggravating factors.
          On   appeal,   Active  contends  that   Judge
Torrisi,  by  finding  the  three  aggravators  without
submitting  them  to  a  jury, violated  Actives  Sixth
Amendment right to jury trial as interpreted in Blakely
v.  Washington,  542  U.S. 296,  124  S.Ct.  2531,  159
L.Ed.2d 403 (2004).  Actives first hurdle is that  this
claim was not preserved for appeal.
          Actives sentencing took place in mid-November
2004.   This  was approximately five months  after  the
United  States  Supreme Court issued  its  decision  in
Blakely.    At  the  beginning  of  Actives  sentencing
hearing, the defense attorney took note of the  Blakely
decision.  However, the defense attorney then  declared
that,  looking  at ... the facts of Mr.  Actives  case,
[he] would concede the [States proposed] aggravators[.]
          The  defense  attorney added  that  he  would
simply  give  notice of his position that  whatever  is
[ultimately] decided [by the appellate courts] in terms
of  Alaskas presumptive sentencing statute should apply
to [Actives] case.  This statement did not constitute a
legally  adequate objection to Judge Torrisis  decision
to  resolve the proposed aggravators without submitting
them to a jury.
          Alaska  Criminal  Rule  46  sets  forth   the
minimum  requirements  for an  objection.   Under  this
rule,  at the time the ruling ... of the court is  made
or  sought, the attorney must make[] known to the court
the  action which the [attorney] desires the  court  to
take[,]  or the [attorneys] objection to the action  of
the court[,] and the grounds therefor[.]
          Even though Actives attorney was aware of the
decision in Blakely, the defense attorney did  not  ask
Judge Torrisi to submit the States proposed aggravators
to  a  jury.  Nor did the defense attorney suggest that
Judge  Torrisi  needed  to alter any  other  sentencing
procedure  on account of Blakely.  Rather, the  defense
attorney announced an open-ended, unspecified objection
to  all  aspects of the sentencing proceeding if  later
appellate  decisions showed or indicated  that  one  or
more aspects of the proceeding were flawed.
          Such  a statement does not satisfy either  of
Criminal  Rule 46s commands.  The defense attorney  did
not  expressly inform Judge Torrisi of the action  that
the  attorney wished the judge to take (or refrain from
taking), and the defense attorney did not inform  Judge
Torrisi   of  the  legal  grounds  for  the   attorneys
position.   This means that Active must now show  plain
error if he is to prevail on his Blakely claim.
          We have previously held that, consistent with
Blakely,  a  sentencing  judge  can  decide  aggravator
(c)(8)  without submitting the issue to a jury  if  the
States  proof  rests solely on the defendants  criminal
convictions  for  assaultive behavior.   Milligrock  v.
State, 118 P.3d 11, 15-16 (Alaska App. 2005).  That was
the  case  here; Judge Torrisi found aggravator  (c)(8)
based  on  the  fact  that  Active  had  several  prior
convictions  for assault, sexual assault, and  robbery.
Thus,  Judge  Torrisi committed no error under  Blakely
when  he  decided aggravator (c)(8) without  submitting
this issue to a jury.
          For  the  same  reason, Judge  Torrisi  could
decide  aggravator  (c)(18)(B) without  submitting  the
issue  to  a jury.  The States proof of this aggravator
was based solely on Actives 1993 conviction for second-
degree sexual assault.
          Active  notes that our decision in Milligrock
rests  on the fact that the Blakely right to jury trial
does  not extend to aggravating factors that are  based
on  a defendants prior convictions.  Active asks us  to
declare that this exception for prior convictions  does
not  exist under Alaska law  and that, therefore, Judge
Torrisi violated the right to jury trial guaranteed  by
the  Alaska  Constitution when he  decided  aggravators
(c)(8) and (c)(18)(B).
          Actives  argument  ultimately  rests  on   an
expansive  interpretation of the Alaska Supreme  Courts
decision  in  Donlun  v. State, 527  P.2d  472  (Alaska
1974).   According  to Active, Donlun  stands  for  the
proposition  that,  when  a  defendant  is  subject  to
presumptive  sentencing, aggravating  factors  must  be
pleaded in the grand jury indictment and must be proved
to  the  trial  jury  beyond a  reasonable  doubt.   We
recently  rejected this interpretation of Donlun.   See
State  v.  Dague,  143  P.3d 988, 994-98  (Alaska  App.
          In  fact,  in  State v. Malloy, 46  P.3d  949
(Alaska 2002), the Alaska Supreme Court itself rejected
the  notion  that Donlun required the State  to  allege
aggravating  factors in the indictment  and  ultimately
prove  these  factors  to a jury.   The  supreme  court
stated:  Donlun  ...  recognize[s]  that  an  increased
sentence   resulting  from  a  finding   of   statutory
aggravating  circumstances is  not  a  harsher  maximum
sentence  [ and thus does not trigger a right  to  jury
trial under Donlun].  Malloy, 46 P.3d at 955.
          Accordingly, we reject Actives argument  that
the  Alaska Constitution guarantees him a broader right
to  jury trial with respect to sentencing factors  than
the right to jury trial recognized in Blakely.
          This  leaves aggravator (c)(18)(A).  We  have
held  that  even  though  this  aggravator  should   be
submitted  to  a jury under Blakely, any error  in  not
submitting  this issue to a jury is harmless  beyond  a
reasonable  doubt  (and thus does not constitute  plain
error) if the evidence on this point is not subject  to
reasonable  dispute  that is, if there is no reasonable
possibility  that  a  jury  would  have  found  in  the
defendants favor if the issue had been submitted  to  a
jury.  Milligrock, 118 P.3d at 17.
          Active  has  never  claimed  (either  at  his
sentencing  hearing, or in his briefs  to  this  Court)
that  there was any reasonable possibility that a  jury
would  have decided aggravator (c)(18)(A) in his favor.
Thus,  he has failed to allege the ingredient necessary
for a claim of plain error regarding this aggravator.


          The  judgement  of  the  superior  court   is

     12  Brod. & Bing. [Broderip & Binghams Court of Common Pleas
Reports] 284, 286-290; 129 Eng. Rep. 976 (1820).

     2See,  e.g.,  Dilley v. Chesapeake & Ohio Railway  Co.,  327
F.2d  249, 251 (6th Cir. 1964); United States v. Greer, 806  F.2d
556,  559  (5th  Cir. 1986); Brown v. State, 682 So.2d  340,  345
(Miss. 1996).

3Bentley, 397 P.2d at 978.

     4Id. at 978-79.

5Nunn, 845 P.2d at 439.

6Id. at 441.

7See  AS  11.46.300(b) (first-degree burglary is a  class  B
felony); AS 11.41.410(b) (first-degree sexual assault is  an
unclassified  felony);  AS 11.31.100(d)(2)  (an  attempt  to
commit  any  unclassified  felony  other  than  first-degree
murder   is   a  class  A  felony).   And  see   former   AS
12.55.125(d)(2)  (pre-March 2005 version)  (the  presumptive
term  for  a third felony offender convicted of  a  class  B
felony  was 6 years imprisonment); former AS 12.55.125(c)(4)
(pre-March 2005 version) (the presumptive term for  a  third
felony  offender convicted of a class A felony was 15  years

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