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Charliaga v. State (5/18/2007) ap-2101

Charliaga v. State (5/18/2007) ap-2101

     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

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) Court of Appeals No. A-9282
Appellant, ) Trial Court No. 3KO-04-670 Cr
v. )
) O P I N I O N
Appellee. ) No. 2101 May 18, 2007
          Appeal  from the Superior Court,  Third  Judi
          cial District, Kodiak, Joel H. Bolger, Judge.

          Appearances:   David  D.  Reineke,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Douglas   H.   Kossler,  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.

          The  sole issue presented in this appeal is whether the
superior court should have struck all information relating to  an
alleged  incident of sexual abuse of a minor from the  defendants
pre-sentence report.
          Nick  N.  Charliaga Jr. pleaded no contest  to  second-
degree  sexual  abuse of a minor.  In preparation for  Charliagas
sentencing,  the  Department  of  Corrections  submitted  a  pre-
sentence  report.   Pursuant to Alaska Criminal Rule  32.1(d)(5),
Charliaga filed various objections to the information in this pre-
sentence  report.  All but one of these objections were  resolved
to   Charliagas  satisfaction.   Charliagas  remaining  objection
pertained  to  the allegation that, in 1997 (i.e.,  approximately
seven  years  before  Charliagas present  offense),  he  sexually
abused a thirteen-year-old girl named J.L..
          The pre-sentence report contained J.L.s description  of
this  offense.  The report also related that J.L.s mother brought
this  incident  to the attention of the State Troopers,  that  an
investigator  questioned Charliaga about this  matter,  and  that
Charliaga admitted ... touching J.L. in her groin area above  her
clothes.   According to the pre-sentence report,  Charliaga  also
told  the  investigator that he believed that  J.L.  was  between
twelve  and  fourteen  years old, and that he  stopped  [touching
J.L.] because he knew what he was doing was wrong.
          At  the sentencing hearing, Charliaga took the stand to
testify  about this incident.  He admitted that he had  confessed
to  the  trooper investigator.  In particular, Charliaga conceded
that he told the trooper that he placed his hands on J.L.s groin,
inside   her  shorts  but  outside  her  panties.   Nevertheless,
Charliaga claimed that his confession was false.  He now asserted
that  he was innocent of this sexual misconduct, and that he  had
confessed  only  because  the  trooper  was  apparently   already
convinced of his guilt.
          After  hearing  Charliagas  testimony,  Superior  Court
Judge Joel H. Bolger concluded that Charliaga was not telling the
truth  about  his earlier confession.  The judge found  that  the
earlier   confession  was  true,  and  that  Charliagas  proposed
explanation for making that earlier confession was false.  Having
made this finding, Judge Bolger declined to remove the challenged
information from the pre-sentence report.
          Under  Alaska law, in sentencing proceedings, the State
can  normally  rely on hearsay allegations of a defendants  other
misconduct  but not if the defendant takes the stand, denies  the
allegation,  and  submits  to  cross-examination  regarding   the
matter.   In  that  case,  the  State  must  either  support  its
allegation with live testimony or, alternatively, prove that  the
hearsay  declarant  is  not  available  to  testify  and  furnish
information to support the hearsay declarants credibility.1
          Here,  Charliaga  took  the  stand  and  denied  having
sexually  abused  J.L..   At  the same time,  however,  Charliaga
admitted  that he had, in fact, confessed to this crime  when  he
was questioned by the trooper investigator.
          When   Charliaga   acknowledged  making   the   earlier
confession,  he  in  essence  conceded  that  certain  assertions
contained in the disputed portion of the pre-sentence report were
true:   in  particular, the fact that a trooper investigator  was
sent  to  interview Charliaga regarding an allegation  of  sexual
abuse  involving J.L., and that, during this interview, Charliaga
confessed  that  he  had  engaged in sexual  contact  with  J.L.,
believing  that she was underage, and that he knew  at  the  time
that  his conduct was improper.  Thus, the State did not have  to
produce any additional testimony to support these assertions.
          The  main question remaining to be resolved, then,  was
          whether Judge Bolger believed Charliagas current testimony  i.e.,
Charliagas assertion that his earlier confession was false.
          This  Court confronted a similar situation in Evans  v.
State,  23 P.3d 650 (Alaska App. 2001).  The pre-sentence  report
in  Evans contained assertions that the defendant had engaged  in
various  uncharged acts of sexual abuse of a minor.   Evans  took
the  stand  at  his  sentencing hearing and denied  that  he  had
committed  these  acts  of sexual abuse.2   However,  during  his
testimony, Evans admitted that he had made arguably incriminatory
statements  during  an earlier taped telephone conversation  with
the victims mother.3
          In  this  telephone conversation, Evans stated that  he
had touched the victim, and that the victim had touched him.4  We
concluded  that,  because the sentencing judge  heard  admissible
testimony that Evans had made these statements,
          the  Hamilton  rule  no  longer  barred  [the
          sentencing  judge]  from  considering   these
          out-of-court  statements  when  [the   judge]
          resolved Evanss challenges to the allegations
          of   sexual  misconduct  contained   in   the
          pre-sentence report.
               .  .  .
               Of  course, it was up to [the sentencing
          judge]  to  determine what Evanss  statements
          meant,  and  what events Evans was  referring
          to.    When   Evans  testified  about   these
          out-of-court statements, he insisted that  he
          had been referring to innocent touchings that
          occurred  during bathing.  This was an  issue
          of  fact  to  be resolved by [the  sentencing
          Evans, 23 P.3d at 652-53.
                    Judge  Bolger  was  faced  with   a
          similar  task  in Charliagas  case.   In  his
          testimony   at   the   sentencing    hearing,
          Charliaga  admitted that  he  had  previously
          confessed  to sexually abusing J.L.,  but  he
          now  contended that his confession was false.
          It  was  up  to Judge Bolger to resolve  this
          question of fact.
          After  hearing  Charliagas  offered
explanation   for   this   confession    (and
observing  Charliaga  on  the  stand),  Judge
Bolger  concluded  that  Charliaga  was   not
telling  the  truth in his testimony  at  the
sentencing  hearing.  In other  words,  Judge
Bolger   concluded  that  Charliagas  earlier
confession  was, in fact, a truthful  account
of   events,   and   that  Charliagas   later
explanation    for   this   confession    was
          This  being  so,  the  pre-sentence
          report could properly contain assertions
concerning Charliagas sexual abuse of J.L. to
the   extent   that  these  assertions   were
supported  either by Charliagas testimony  at
the   sentencing  hearing  or  by  Charliagas
earlier confession.
          With  regard to Charliagas  earlier
confession,  the  pre-sentence  report  could
properly   contain  a  description   of   the
statements that Charliaga made to the trooper
investigator, as well as any background facts
that were necessary to understand the meaning
or  significance of Charliagas statements  to
the  investigator.   These  background  facts
would  not  be  barred by the  hearsay  rule,
because their purpose would not be to provide
direct  proof  of the matters  asserted,  but
rather    to   provide   the   context    for
understanding Charliagas statements.5
          However,  some of the details  that
currently  appear in Charliagas  pre-sentence
report  fall  outside  the  statements   that
Charliaga made at the sentencing hearing, the
statements  he made to the trooper,  and  the
background facts necessary to understand  his
statements  to the trooper.  These additional
details of the offense, which were apparently
supplied  by  J.L. (either to her  mother  or
directly  to  the state troopers)  should  be
struck  from the pre-sentence report  because
J.L.s  description of the offense is hearsay,
because   Charliaga  offered  a   testimonial
denial, and because the State made no  effort
to  prove  that  J.L. was  unavailable  as  a
          For  these  reasons, we affirm  the
superior  courts main ruling  that  the  pre-
sentence  report  can  properly  contain  the
allegation  that  Charliaga  sexually  abused
J.L..  However, Charliaga is entitled to have
some   of  the  details  of  this  allegation
redacted from the pre-sentence report.
          The details contained in Charliagas
testimony  at  the  sentencing  hearing   can
remain in the pre-sentence report, as well as
the    details   contained   in    Charliagas
statements  to the investigator, supplemented
with  any  other  background facts  that  are
necessary to understand Charliagas statements
to   the  investigator.   But  Charliaga   is
entitled to the excision of any details  that
fall outside these three categories.
          (In   his  reply  brief,  Charliaga
raises  an additional argument as to why  the
allegation of sexual abuse should  have  been
          struck from the pre-sentence report.  We do
not  address  this argument  further  because
arguments presented for the first time  in  a
reply brief are waived.)6
          We  remand Charliagas case  to  the
superior court with directions to redact some
of the details of the discussion at pages 5-6
of  the  pre-sentence report,  employing  the
rules explained here.
          We  do  not retain jurisdiction  of
this appeal.

     1Evan  v.  State,  899  P.2d 926, 929  (Alaska  App.  1995);
Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App. 1989).

2Evans, 23 P.3d at 651.

     3Id. at 652.


5See Evans v. State, 23 P.3d 650, 652-53 (Alaska App. 2001);
Linne  v. State, 674 P.2d 1345, 1356 n. 8 (Alaska  App.

6Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406,
411  (Alaska  1990);  Hitt v. J.B. Coghill,  Inc.,  641
P.2d 211, 213 n. 4 (Alaska 1982).

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