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Thompson v. State (6/26/2009) ap-2221

Thompson v. State (6/26/2009) ap-2221

     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


JASON M. THOMPSON,                 
                    Appellant,          Court  of Appeals No.  A-
               v.                            Trial Court No. 3PA-
                                   06-2765 Cr
STATE OF ALASKA,                   
                    Appellee.                      O  P  I  N   I
End of Caption                     O  N
                                          No.  2221     June  26,
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Palmer, Beverly  W.  Cutler,

          Appearances:   Beth G. L. Trimmer,  Assistant
          Public   Advocate,  Appeals   and   Statewide
          Defense,  and Rachel Levitt, Public Advocate,
          Anchorage,  for  the  Appellant.    Eric   A.
          Ringsmuth, Assistant Attorney General, Office
          of    Special   Prosecutions   and   Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          Jason  M.  Thompson appeals his conviction for  second-
degree sexual abuse of a minor (consensual sexual penetration  of
a  child  who  is  13, 14 or 15 years of age  by  a  
person who is at least 17 years old and at least four years older than the child).1 Thompsons sole claim on appeal is that the superior court should not have allowed the State to introduce the tape recordings (and derived transcripts) of two telephone conversations that the mother of the victim had with Thompson in October 2006. Thompson asserts that the State failed to establish the authenticity of these tape recordings, and that the trial judge therefore should have excluded the recordings under Alaska Evidence Rule 901.
For the reasons explained here, we conclude that the trial judge did not abuse her discretion when she concluded that the authenticity of the tape recordings was sufficiently established to warrant their admission into evidence. We therefore uphold Thompsons conviction.
Underlying facts
               In  the summer of 2006, Thompson met A.D.,  a
     girl who had turned thirteen at the end of May and  who
               would be entering the eighth grade in the fall.
     Thompson  was eighteen years old at the time,  and  had
     already graduated from high school.  Thompson and  A.D.
     started  dating,  and  they soon  began  having  sexual
               A.D.s mother was aware that her daughter  was
     dating  Thompson, and she suspected that  Thompson  and
     A.D. were having sex.  She therefore spoke to both A.D.
     and  Thompson  about the nature of their  relationship;
     she  told  Thompson that A.D. was only  thirteen  years
     old, and she expressed her view that their relationship
     was  inappropriate, given the difference in their ages.
     However,  despite  the  mothers  misgivings,  A.D.  and
     Thompson continued their sexual relationship.
          Concerned  for  her  daughter,  A.D.s  mother
contacted  the Alaska State Troopers.  On  October  13,
2006,   a   trooper   investigator,  Nathan   Bucknall,
contacted  A.D.s  mother  about  this  matter.    After
speaking   with  A.D.s  mother,  Investigator  Bucknall
obtained  a Glass warrant that authorized the recording
of  conversations between A.D.s mother  and  Thompson.2
Under  the  authority  of this warrant,  Bucknall  gave
recording equipment to A.D.s mother, showed her how  to
use  this  equipment to record telephone conversations,
and directed her to try to engage Thompson in telephone
conversations about his relationship with A.D..
          Two  weeks later, A.D.s mother gave  Bucknall
an audio tape that contained two recorded conversations
between   herself  and  Thompson.    In   these   taped
conversations, Thompson admitted that he knew that A.D.
was only thirteen, and he also admitted that he had had
sexual intercourse with A.D..
          Based on the content of these tapes, Bucknall
obtained  a  search warrant to search Thompsons  house.
The  trooper  executed the search warrant  on  November
2nd, and he arrested Thompson at that time.
          Just  before Thompsons trial began, Thompsons
attorney  filed  a  motion  in  limine  attacking   the
admissibility  of the two tape recorded  conversations.
The defense attorneys motion was based on the fact that
the taping had been done by A.D.s mother without direct
supervision by the troopers.  Thompsons attorney  noted
that,  unlike  members  of the  state  troopers,  A.D.s
mother  had  never been required to  take  an  oath  to
uphold  the  federal  and  state  constitutions.    The
defense  attorney  suggested  that,  because   no   law
enforcement  officer participated in  the  taping,  the
State  could  not guarantee that A.D.s mother  had  not
tampered with the tapes or deleted exculpatory portions
of  the  conversations before turning them over to  the
          After  reading  the defense motion,  Superior
Court  Judge Beverly W. Cutler concluded that Thompsons
concerns were pertinent to the weight or credibility of
the  evidence, but that these concerns did not  justify
          exclusion of the tapes.
          Later   in   the  trial,  Thompsons  attorney
renewed  his  contention  that  the  tapes  should   be
excluded.   This  time, the defense  attorney  declared
that  the  State had failed to establish the  necessary
chain of custody for the tapes, and he further asserted
that  the tapes did not represent the best evidence  of
the conversations between Thompson and A.D.s mother.
          The  doctrine of chain of custody  refers  to
the  need  to account for the possession or whereabouts
of certain types of physical evidence from the time the
evidence was seized until the evidence is offered in  a
judicial proceeding.3  The best evidence rule refers to
the  requirement that when a litigant wishes  to  prove
the content of a writing, a recording, or a photograph,
the  litigant  must normally produce an original  or  a
duplicate  of  the  writing, recording,  or  photograph
(unless  the  litigant satisfactorily explains  why  no
original or duplicate is available).4
          Thompsons attorney did not explain  to  Judge
Cutler  why  he believed that there was an insufficient
chain  of  custody  of  the tape recordings.   Nor  did
Thompsons  attorney explain why he  believed  that  the
recordings themselves were not the best evidence of the
content of the recordings.
          Instead,  the defense attorney asserted  that
the  tapes  were inadmissible because no state  trooper
was  present  when A.D.s mother performed  the  taping.
The  defense  attorney told Judge Cutler:   [W]hen  you
[execute] Glass warrants, the trooper should be present
so  [that] the names of the parties who were there  can
be  presented, [and] who theyre calling, [and] the time
and date that theyre calling.
          Judge Cutler again concluded that the defense
attorneys argument went to the weight or credibility of
the  evidence,  rather  than the admissibility  of  the
tapes.   She  therefore  again  overruled  the  defense
attorneys objection.
          To complete our description of the underlying
facts pertinent to this issue, we now set forth,  in  a
more  detailed fashion, the relevant testimony  of  two
witnesses at Thompsons trial:  A.D.s mother, and Alaska
State Trooper Investigator Nathan Bucknall.
          A.D.s mother testified that she tape recorded
two conversations with Thompson.  When A.D.s mother was
shown   transcripts  of  these  two   recordings,   she
identified  the  transcripts as memorializing  her  two
recorded conversations with Thompson.
          A.D.s  mother further testified that she  was
initially  reluctant  to turn the  recordings  over  to
Trooper  Bucknall  because [she] knew the  consequences
[of]  hand[ing] them over to the authorities.  However,
she finally decided to give the recordings to the state
troopers  to  protect [her] daughter  because  she  was
aware   of  her  daughters  sexual  relationship   with
          Thompson, and [she] couldnt see it ending unless she
          A.D.s mother was unsure of the exact dates of
her  two recorded conversations with Thompson.  She was
only able to say that these conversations took place in
October  ...  or  maybe even November  2006.   However,
Trooper Bucknall was able to provide more precise dates
for these conversations.
          Bucknall  testified that he  met  with  A.D.s
mother  on  October 13, 2006.  After interviewing  her,
Bucknall  applied for a Glass warrant.   That  evening,
after obtaining the Glass warrant, Bucknall returned to
A.D.s  mothers  house.  At that time, he  supplied  her
with  the  equipment  she  would  need  to  record  her
conversations with Thompson, and he instructed  her  in
the use of this equipment.
          Four  days  later,  on  October  17th,  A.D.s
mother  contacted  Bucknall to tell him  that  she  had
recorded  two  conversations  with  Thompson,  and  she
summarized the contents of these two conversations  for
          Bucknall  told  A.D.s mother that  the  Glass
warrant  still  had several more days to  run,  so  she
should  keep trying to engage Thompson in conversation.
He  also  told her that he would get in touch with  her
the  following  week,  after the  warrant  expired,  to
retrieve the taped conversations.
          Bucknall  next  spoke  to  A.D.s  mother   on
October  25th.  At that time, she expressed  reluctance
to  relinquish the taped conversations to him; she told
him  that  she was not sure she wanted to continue  the
investigation.  Bucknall gave A.D.s mother a couple  of
days  to  think  the matter over.  Two days  later,  on
October 27th, A.D.s mother called Bucknall to tell  him
that   she   had   decided  to  surrender   the   taped
conversations  to  the troopers.  Bucknall  immediately
went  to  A.D.s  mothers house, where he retrieved  the
physical  tape  that contained recordings  of  the  two
          Based on these events, and based on Bucknalls
own  review  of  the  recorded conversations,  Bucknall
concluded  that the two taped conversations  introduced
into   evidence  at  Thompsons  trial  were   the   two
conversations  that A.D.s mother had described  to  him
during  their conversation on October 17th.   In  other
words,  they  were  the  two conversations  that  A.D.s
mother  recorded  sometime between October  13th  (when
A.D.s  mother  received  the recording  equipment)  and
October  17th (when A.D.s mother reported  to  Bucknall
that  she had recorded two conversations with Thompson,
and  when she summarized the contents of those conversa
tions for Bucknall).

Thompsons arguments that the tape recordings  (and  the
transcripts  derived from them) should  not  have  been
admitted at his trial

          On  appeal,  Thompson argues that  the  State
failed to adequately establish the authenticity of  the
two  tape recordings, and that (as a result) there  was
an   unacceptable   risk  that  the   recordings   were
unreliable   i.e.,  an  unacceptable  risk   that   the
recordings  were  not accurate audio  reproductions  of
conversations  that  really took  place  between  A.D.s
mother  and  Thompson.  In support of this  contention,
Thompson makes two discrete arguments.
          Thompsons  first argument is essentially  the
same  contention  that he made to  Judge  Cutler:   the
contention  that  when the police  use  a  civilian  to
perform electronic recording under a Glass warrant, one
or more officers must directly supervise or monitor the
civilians actions.
          In  Bohanan  v. State, 992 P.2d  596  (Alaska
App.  1999),  this Court held that an  informant  or  a
cooperative citizen may lawfully conduct the electronic
monitoring or recording authorized by a Glass  warrant,
even when the informant or civilian acts without direct
police supervision.  Bohanan, 992 P.2d at 601.
          The  pertinent  facts of  Bohanan  are  quite
similar  to  the  facts  of Thompsons  case.   A  woman
contacted  the troopers and reported that  Bohanan  had
sexually  assaulted her.  Based on the  womans  report,
the  troopers obtained a Glass warrant, hoping that the
victim  could  telephone  Bohanan  and  engage  him  in
conversation about the assault.5  The troopers gave the
woman  the  equipment  she needed to  record  telephone
conversations with Bohanan, they instructed her on  how
to use the equipment, and they gave her pointers on how
to  speak  with Bohanan so as to elicit  the  kinds  of
statements  the  authorities would need  to  support  a
prosecution for sexual assault.6
          On  appeal, Bohanan contended that the  tapes
of  these  conversations should  have  been  suppressed
because  the  taping was done by civilians rather  than
police  officers.7   We  held  that,  even  though  the
troopers  instructed [the victim] to take the recording
equipment   home  with  her  and  engage   Bohanan   in
conversation without direct participation of any  state
trooper, ... the required level of [police] supervision
was met and the tapes were admissible.  Id. at 601.
          In  Thompsons brief to this Court,  he  gives
lip  service  to Bohanan.  He acknowledges that,  under
Bohanan, it was lawful for Trooper Bucknall to obtain a
Glass  warrant and then have A.D.s mother initiate  the
conversations  with Thompson and perform the  recording
herself.  But Thompson then proceeds to argue that  any
and all recordings resulting from such an investigative
procedure  are inadmissible because no law  enforcement
officer directly supervised the recording:
          The  [crux] of the authenticity  problem
     in  this case [is] that the Glass warrant was
     executed by an unsupervised civilian  without
     any  law  enforcement monitoring.  ...   [N]o
     law  enforcement officer could  testify  that
     they  were responsible for recording ...  the
     calls   between  [A.D.s  mother]  and   Jason
     Thompson.     Neither   could    [any]    law
     enforcement officer testify that  the  entire
     conversations were recorded.
          .  .  .
     No law enforcement officer could testify
that  all  of the conversations that occurred
during  [the  10-day  period]  of  the  Glass
warrant were recorded.  ...  [And it  is  of]
significant  consequence to the accuracy  and
authenticity of the [tape recordings] that no
law  enforcement officer could testify as  to
exactly  when  ... the [taped]  conversations

       This  argument is irreconcilable  with
our decision in Bohanan.  The level of police
supervision   in   Bohanan  was   essentially
identical  to the level of police supervision
in Thomsons case  and we held in Bohanan that
this level of supervision was sufficient.
       An  implicit  premise of our  decision
in  Bohanan  is that, when the police  employ
this  investigative procedure, the  resulting
recordings will be admissible even though  no
law  enforcement officer is able  to  testify
that  they were [personally] responsible  for
recording  [the  conversations],   and   even
though no law enforcement officer is able  to
give their personal assurance that the entire
conversations were recorded, or that  [every]
conversation[]  that  occurred  during   [the
period]  of the Glass warrant [was] recorded,
and  even  though no law enforcement  officer
has  personal knowledge of exactly  when  ...
the [taped] conversations occurred.
       Apparently,  this  premise  now  needs
explicit affirmation.  Accordingly,  we  hold
that  when  a civilian performs the recording
authorized  by  a  Glass  warrant  under  the
procedures described in Bohanan and  employed
in  Thompsons case, the resulting  recordings
are admissible even though no law enforcement
officer  has directly supervised or monitored
the  civilians  acts of recording,  and  even
though no law enforcement officer is able  to
give  the  types of testimony  that  Thompson
       Of  course, a defendant is entitled to
assert  that  the conversations portrayed  in
Glass-warrant    recordings     have     been
selectively chosen, or selectively edited, or
even  altered,  so as to make  the  defendant
appear guilty.  And when the date or time  of
a  conversation is important, a defendant  is
entitled to assert that the date or  time  of
the  conversation has been misreported or can
not be identified with certainty.
       But  the  fact that no law enforcement
officer  can  assert  personal  knowledge  of
these   matters  does  not,  standing  alone,
constitute  a  legal bar to the admission  of
the  recordings.  The State  is  entitled  to
rely  on  the  testimony of the civilian  who
performed   the  recording,   or   on   other
evidence,  to  establish the authenticity  of
the  recordings  and to rebut  the  kinds  of
assertions listed in the preceding paragraph.
       Thompsons  second  argument  is  that,
even  if  police testimony was not essential,
the    State    nevertheless    failed     to
satisfactorily establish the authenticity  of
the  recordings.  Thompson asks us  to  adopt
the nine-pronged test for authenticity of  an
audio   recording  set  forth  by  Professors
Edward  J. Imwinkelried and Daniel D.  Blinka
in    their    text,   Criminal   Evidentiary
Foundations (2nd ed. 2007).
       According  to  Professors Imwinkelried
and    Blinka,    the   strict,   traditional
foundation  for  audio  tapes  requires   the
government to prove:
     $    the identity of the recording equipment;
$    the fact that the recording equipment
was in working order;
$    the fact that the operator of the
recording equipment was qualified to operate
it; and
$    the fact that the operator used proper
procedures for making the recording.
In  addition, the government is  required  to
     $     the specific time and place of the
$    the fact that, at the time it was made,
the recording was an accurate reproduction of
the conversation or other audio event;
$    a satisfactory chain of custody for the
physical audio tape;
$    proof that the audio tape offered in
court is the same physical object that was
produced during the original act of
recording; and
$    verification that the tape still
contains an accurate reproduction of the
conversation or other audio event.
$    Id.,  4.06 (Tape Recordings), p. 135.
          There is good reason to doubt  that
courts  ever insisted on strict proof of  all
nine    of   these   suggested   foundational
requirements.   For  example,  an   attentive
reader  will observe that, according  to  the
seventh   and   eighth   of   these    listed
requirements, the government must establish a
chain  of  custody for the original  physical
audio  tape.  This appears to be inconsistent
with  the  best  evidence  rule  codified  in
Alaska  Evidence  Rules  1001  through  1004.
Under Evidence Rule 1003, any duplicate of an
audio tape  that is, any counterpart produced
by  ...  electronic rerecording, see Evidence
Rule  1001(4)   is  admissible  to  the  same
extent  as  an  original  (absent  a  genuine
question concerning the authenticity  of  the
original  from  which it was made,  or  other
circumstances making it unfair to  admit  the
duplicate in lieu of the original).
          The   suggested  nine  foundational
factors become even more problematic when one
considers  that  a  large  number  of   audio
recordings  are  now  originally  created  on
computers or portable digital recorders.   In
these   instances,  the  original   recording
exists  only as a digital sound file  on  the
recording devices memory chip or card.
          If  the  recording is later  to  be
offered as evidence in a judicial proceeding,
the digital sound file must be downloaded  or
copied  to  some portable medium  such  as  a
compact  disk  or  flash  drive  (unless  the
proponent of the evidence is willing to  part
with   their   computer  or   their   digital
recorder), or the digital sound file must  be
converted to analog so that it can be  copied
onto a magnetic cassette tape.
          In these circumstances, it makes no
sense   to  require  the  proponent  of   the
evidence  to  prove chain of custody  in  the
sense  of  proving that the recording  medium
presented  in court (for example,  a  compact
disk)  is  the same physical object that  was
produced  when  the  original  recording  was
performed    because  the  digital  recording
process (unlike older magnetic tape recording
technologies) does not normally result in the
production  of  a  physical object  to  begin
          In  fact,  Professors  Imwinkelried
and Blinka acknowledge that courts have begun
to  liberalize the standards for admission of
tape  recordings and that many modern  courts
are  no  longer insisting on the traditional,
strict  foundation.8  This is because  courts
have  gone  back to fundamentals  and  [have]
begun  to  treat  the  question  of  a   tape
recordings authenticity as a simple  question
of  authentication  under Federal  [Evidence]
Rule  104(b).9   Thus, the  modern  test  for
authentication is ... [whether] the proponent
[of  the  evidence has] presented  sufficient
evidence to support a rational finding [that]
the tape recording is authentic.10
          Imwinkelried  and  Blinka   explain
that,  under this modern approach,  the  last
element   of   the  traditional   foundation,
standing   alone,  has  sufficient  probative
value  to authenticate the tape.11  In  other
words, under present-day law, when a litigant
offers an audio recording into evidence,  the
ultimate question is whether the proponent of
the  recording  can satisfactorily  establish
that    the    recording   is   an   accurate
reproduction  of  the conversation  or  other
audio event portrayed in the recording.12
          (We  note  that this is essentially
the   same   test  employed  in  Alaska   for
assessing  the admissibility of a photograph.
See Johnson v. State, 636 P.2d 47, 67 (Alaska
1981), and Kaps Transport, Inc. v. Henry, 572
P.2d  72,  75-76 (Alaska 1977), both  holding
that   the   admissibility  of   photographic
evidence  hinges on whether the proponent  of
the   evidence   can   establish   that   the
photograph accurately depicts its subject.)
          With   regard  to  the  two   tape-
recorded  conversations at issue in Thompsons
case,   the  State  presented  testimony   to
support the conclusions (1) that A.D.s mother
engaged  Thompson in conversation  about  his
relationship with A.D., (2) that A.D.s mother
recorded two of these conversations, and  (3)
that  she  recorded  these two  conversations
sometime   between   the  time   Investigator
Bucknall delivered the recording equipment to
her  on  October 13th and the time on October
17th  when she telephoned Bucknall to  report
that  she had recorded two conversations with
Thompson (and when she summarized the content
of   these   conversations   for   Bucknall).
Moreover, A.D.s mother testified that she had
reviewed   the   transcripts   of   the   two
recordings,   and   that  these   transcripts
reflected the two conversations she recorded.
          In  sum, the State presented  ample
evidence  to support the conclusion that  the
two  recordings accurately depicted  the  two
conversations   that   they   purported    to
reproduce.    Moreover,   Thompson    offered
nothing  to  affirmatively rebut  the  States
evidence  on  this  issue.   Thompson   never
challenged the fact that it was his voice  on
the  recordings,  nor did Thompson  challenge
the fact that he had engaged in conversations
with A.D.s mother concerning his relationship
with  A.D.,  nor  did  Thompson  present  any
evidence  tending to show that the recordings
offered  by the State inaccurately  portrayed
the  content of his conversations with  A.D.s
          Under  these  circumstances,  Judge
Cutler did not abuse her discretion when  she
concluded  that  the  recordings   (and   the
transcripts   derived   from    them)    were
admissible,  and  that  Thompsons  objections
went  merely to the weight or credibility  of
the evidence.
          On  appeal,  Thompson  also  argues
that   the   State  failed  to   sufficiently
establish  the  chain  of  custody   of   the
physical   tape,  that  the   tape   recorded
conversations  were  irrelevant,   that   (if
relevant) they were unfairly prejudicial  and
misleading,   and  that  admission   of   the
recordings violated his right to due process.
For  the  most part, Thompsons various  legal
theories   are  simply  rewordings   of   his
underlying  contention that the State  failed
to  prove  the authenticity of the recordings
i.e.,  failed to present sufficient  evidence
that  the recordings accurately depicted  the
two  conversations  that  they  purported  to
reproduce.   We  have already  rejected  that
          Thompson  has  a slightly  stronger
argument  on one narrow issue:   it  is  true
that  the  State  failed  to  establish   the
precise  dates and times of the two  recorded
conversations.    However,   as    we    have
explained, the States evidence was sufficient
to   support  the  conclusion  that  the  two
recorded conversations took place during  the
four-day    period    between    Investigator
Bucknalls delivery of the recording equipment
to  A.D.s  mother on the evening  of  October
13th  and  A.D.s  mothers  verbal  report  to
Bucknall on October 17th.
          Moreover, even if the conversations
conceivably  occurred later  (i.e.,  sometime
between  October 17th and October  27th,  the
day  that A.D.s mother returned the recording
equipment to Investigator Bucknall  and  gave
him   the   tape  that  contained   the   two
recordings), the conversations would still be
relevant.   In  these recorded conversations,
Thompson  admitted that he engaged in  sexual
intercourse  with A.D., and he admitted  that
he  knew  that  she was thirteen  years  old.
Even  if Thompson wanted to argue that  these
admissions  did  not conclusively  prove  his
guilt   either because he ceased  his  sexual
relationship  with  A.D.  as   soon   as   he
discovered  her  true  age,  or  because   he
discovered  A.D.s true age only  after  their
sexual  relationship was over  the State  was
entitled  to  ask the jury to view  Thompsons
statements in a more inculpatory light.


          For  the reasons explained here, Judge Cutler
did   not  abuse  her  discretion  when  she  overruled
Thompsons objections and allowed the State to introduce
the  two  recordings and the transcripts  derived  from
them.  The judgement of the superior court is AFFIRMED.

  1 AS 11.41.436(a)(1).

2  See  State v. Glass, 583 P.2d 872 (Alaska 1978)  (holding
that,  under the Alaska Constitution, the police must obtain
a  warrant  before electronically monitoring or recording  a
private conversation, even when one or more participants  to
the conversation consent to the police surveillance).

3  State  v.  Morris, 668 P.2d 857, 866 (Alaska  App.  1983)
(Bryner, C.J., dissenting); Stephen A. Saltzburg, Michael M.
Martin,  and  Daniel  J. Capra, Federal  Rules  of  Evidence
Manual (9th ed. 2006), Vol. 5, pp. 901-15 to 901-17.

4 Alaska Evidence Rules 1001 through 1004; State v. Andrews,
84 P.3d 441, 444 (Alaska App. 2004).

5 Bohanan, 992 P.2d at 598.

6 Id. at 598, 601.

7 Id. at 598.

8Id. at p. 134.


10  Id.

11  Id.

12  Id.

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