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Flood v. State (6/28/2013) ap-2392

Flood v. State (6/28/2013) ap-2392


        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 Courts: 

                                303 K Street, Anchorage, Alaska 99501

                                         Fax:   (907) 264-0878

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                                                              Court of Appeals No. A-11103 

                                 Appellant,                  Trial Court No. 2KB-07-396 CR 


                                                                      O   P  I  N  I  O  N 


                                 Appellee.                      No. 2392    -   June 28, 2013 

                Appeal     from   the   Superior   Court,   Second    Judicial   District, 

                Kotzebue, Michael I. Jeffery, Judge. 

                Appearances:      Renee   McFarland,   Assistant   Public   Defender, 

                and    Quinlan    Steiner,   Public   Defender,    Anchorage,     for  the 

                Appellant.     Diane L. Wendlandt, Assistant Attorney General, 

                Office   of   Special   Prosecutions   and   Appeals,   Anchorage,   and 

                Michael C. Geraghty, Attorney General, Juneau, for the Appel- 


                Before:    Mannheimer, Chief Judge, Allard, Judge, and Coats, 

                Senior Judge.* 

                Senior Judge COATS. 

    *   Sitting    by  assignment    made    pursuant    to  Article  IV,  Section    11  of  the  Alaska 

Constitution and Administrative Rule 23(a). 

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                Bert J. Flood Sr. was convicted of sexual abuse of a minor in the first 

degree, sexual abuse of a minor in the second degree, and incest, for engaging in sexual 

penetration with S.A., his 15-year-old daughter.           He raises two arguments on appeal. 

                Flood, who was in custody, asked to be absent from his trial.                The State 

opposed the request.       The trial judge denied the request and ordered Flood transported 

to Kotzebue for trial.     Flood argues that this was error.  But we uphold the trial judge's 


                During     Flood's    trial,  the  doctor    who    performed     the   sexual   assault 

examination on S.A. testified that S.A. stated during the examination that Flood had 

improperly touched her when she was five or six years old.  Flood did not object to this 

statement   at   trial. But   on   appeal   Flood   argues   that   the   statement   should   have   been 

excluded under Evidence Rules 404 and 403 as unduly prejudicial evidence of prior acts, 

and that the failure to exclude the statement was plain error.  We do not find plain error. 

        Factual and procedural background 

                S.A. testified that she was in Kotzebue for a wedding for a few days around 

December 11, 2006, although at the time she lived with her mother in Noatak.  She 

remembered drinking some alcohol.             She went to the library with some friends.  She 

returned to her father's place a couple hours later. 

                S.A. testified that she did not remember much more from that night, since 

she was intoxicated. Between blackouts, she remembered her father being on top of her. 

Her pants and underwear were off, and she felt him inside her.                    The next thing she 

remembered was waking up in the hospital. 

                Some   of   S.A.'s   friends   found   her   a   little   bit   after   midnight,   drunk   and 

lying in the snow.       She was fully clothed, but her jacket was unzipped.               The police 

arrived and S.A. was taken to the hospital. 

                                                 - 2 -                                             2392

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                Tanya Hallgren was a counselor working in the emergency room.  She 

testified   that   S.A.   told   her   that   Flood   had   sexually   abused   her. Dr.   John   Melville 

performed a Sexual Assault Response Team exam on S.A. and at trial was qualified as 

an expert in the area of forensic examinations for sexual assault victims.  The prosecutor 

asked Dr. Melville, "[O]n December 12th of 2006 when you saw [S.A.], what were the 

statements that she made to you that were necessary for your medical treatment with 

regard to what happened to her?"          Dr. Melville responded: 

                So     she   reported     to  me    that   (indiscernible)     -    from 

                approximately 4:00 to 6:00 ... the previous day her father had 

                given her about half a jug of R&R, which is a common form 

                of alcohol up here, and that she had consumed (indiscernible) 

                mixing it with Pepsi.       At some time that evening she reports 

                that   her   father,   Mr.   Bert   Flood,   quote,   tried   to   touch   my 

                bottom.    She really was not clear on a lot of other details. 

                She could not recall if she was or was not wearing pants at 

                that time.    She reported no other recollection of the entire 

                evening. She did report that her father had also "touched me 

                when   I   was   five   or   six". And   in   the   context   of   a   sexual 

                assault     exam    [or]   interview,   "touched     me"    universally 

                means "touched me inappropriately". 1 

                Dr. Melville testified that he found bruising on S.A.'s legs, evidence of 

bodily fluids on her lips, cheek, and thighs, and that her hymen was torn.  Samples were 

sent to the forensic lab, and spermatozoa were detected on the vaginal swab.   The police 

obtained a warrant to take two swabs from Flood, one from his mouth and one from his 

penis.   DNA from S.A.'s vaginal swab was consistent with Flood's DNA. 

    1   Emphasis supplied. 

                                                  - 3 -                                              2392 

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                 Flood was indicted on three counts: first-degree sexual abuse of a minor for 

engaging in sexual penetration with S.A. as her parent  2 ; second-degree sexual abuse of 

a minor for being 17 years of age or older and engaging in sexual penetration with S.A., 

a person who was 13, 14, or 15 years old and at least four years younger than himself 3 ; 

and incest for being 18 years of age or older and engaging in sexual penetration with 

S.A., a person who was related as a descendant of the whole or half blood. 4 

                 Flood was in custody pending trial. Prior to trial, Flood's attorney informed 

the   court    that  Flood    did   not  want    to  be   present    for  trial  and   wanted    to  appear 

telephonically.  The State objected.  The trial judge concluded that under Criminal Rules 

38   and   38.1   he   had   discretion   to   allow   Flood   to   waive   his   right   to   appear,   but   he 

nevertheless declined to grant Flood's request.              The judge concluded (for reasons that 

we will explain) that Flood should be physically present at his trial. 

                 Flood   renewed   his   request   before   trial.    He   stated   he   did   not   want   to 

participate in the trial at all, even telephonically.   The judge denied this request as well. 

                 At the conclusion of the trial, the jury found Flood guilty of all three counts. 

Flood now appeals. 

         The trial judge did not err when he refused Flood's request to be absent from his 


                 When Flood made his request to be absent from his trial, the prosecutor 

raised three major concerns.  First, the prosecutor expected that S.A. would make an in- 

court identification of Flood, for which Flood needed to be present.  The prosecutor also 

    2   AS 11.41.434(a)(2). 

    3    AS 11.41.436(a)(1). 

    4    AS 11.41.450(a)(1). 

                                                   - 4 -                                                 2392 

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contended that, during jury voir dire, there might be jurors who were acquainted with 

Flood and would recognize his features even if they did not know his name.  Finally, the 

prosecutor      contended     that,  if  Flood   were    absent,   Flood    would     have   difficulty 

communicating with his attorney. 

                The trial judge concluded that he had discretion under Criminal Rules 38 

and 38.1 to grant or deny Flood's request.          He concluded that it was important for the 

complaining   witness   to   be   able   make   an   in-court   identification   of   Flood.  He   also 

concluded that it was important for potential jurors to have the opportunity to see Flood 

because some potential jurors might "recognize Mr. Flood by face but not ... know him 

by   name."    Finally,   the   judge   was   concerned     about   Flood   making   later   claims   of 

ineffective assistance of counsel because Flood would not have the ability to consult with 

his attorney during jury selection and trial. He found that Flood's request was an attempt 

to manipulate the system. 

                We conclude that the trial judge did not abuse his discretion in denying 

Flood's request to be absent from his trial.        Criminal Rule 38(a) provides: 

                        (a)  Presence:     Required.      The    defendant     shall  be 

                present at the arraignment, at the preliminary hearing, at the 

                time of plea, at the omnibus hearing, and at every stage of the 

                trial, including the impaneling of the jury and return of the 

                verdict, and at the imposition of sentence, except as otherwise 

                provided in this rule. 

Criminal   Rule   38(b)   and   (c)   set   out   circumstances   where   the   defendant's   continued 

presence is not required. Under Criminal Rule 38(b), the defendant's presence is not 

required if he is "absent voluntarily after the trial has commenced" or if he "[e]ngages 

in   conduct   which    is  such   as  to  justify  exclusion   from    the   courtroom."   But   these 

exceptions are designed to prevent a defendant from sabotaging the trial by voluntarily 

                                                 - 5 -                                            2392

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refusing to attend the trial or by engaging in disruptive behavior after the trial has begun 

in his presence. 

                 Criminal Rule 38(c) gives the court the authority to allow a defendant not 

to   be   present   in  cases   where    the   potential   punishment      is  less  than   one   year   of 


                 Criminal Rule 38 states that the defendant's presence is required for trial 

and provides limited exceptions which do not apply to Flood's case.                      The rule could 

plausibly   be   read   to   require   the   defendant's   presence   unless   one   of   the   exceptions 

applied.    For purposes of this case, however, we assume that the superior court had 

discretion to authorize Flood to be absent from his trial.             But even if the superior court 

had this discretion, the court gave substantial reasons for denying Flood's request.  We 

accordingly conclude that the superior court did not err in its ruling. 

                 On appeal, Flood presents a new argument that he did not raise in the trial 

court.   Flood points out that a defendant has a constitutional right to be present at his 

trial. 5 He argues that a defendant may waive a constitutional right. 6            He therefore argues 

that the trial court "has no discretion to reject a defendant's knowing, intelligent, and 

voluntary waiver"of his constitutional right to be present at his trial. 

                 But in Singer v. United States, 380 U.S. 24, 34-35; 85 S. Ct. 783, 790; 13 

L. Ed. 2d 630 (1965), the United States Supreme Court stated that "[t]he ability to waive 

a constitutional right does not ordinarily carry with it the right to insist upon the opposite 

of that right."    The Singer Court held that although defendants have the right to a jury 

    5   U.S. Const., amend. VI, XIV; Alaska Const., art. I, งง 7, 11; State v. Hannagan , 559 

P.2d 1059, 1063 (Alaska 1977). 

    6   See Campbell v. Wood , 18 F.3d 662, 671 (9th Cir. 1994) (en banc) ("A defendant's 

rights under the Constitution may be waived, provided such waiver is voluntary, knowing, 

and intelligent."). 

                                                   - 6 -                                               2392 

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trial, they have no right to a non-jury trial, and a jury trial waiver can be conditioned 

upon the consent of the prosecutor and the trial judge. 7             If either the prosecutor or judge 

does not consent to the waiver, then "the result is simply that the defendant is subject to 

an impartial trial by jury - the very thing that the Constitution guarantees him." 8 

                 In advancing his claim, Flood primarily relies on two cases:                  Campbell v. 

Wood,9     a   Ninth   Circuit   case,   and  Peede   v.   State ,10  a   Florida   case.   In   both   cases   the 

defendant requested to be absent for a portion of his trial, and the trial judge granted the 

request. But on appeal each defendant argued that the trial judge should not have granted 

the request.    The appellate court upheld the trial judge's decision.               Both of these cases 

appear to only support the proposition that, if the defendant is responsible for the fact 

that he is not present for a portion of his trial, he cannot prevail by reversing his position 

and claiming that the trial court erred in granting his request to be absent.                  These cases 

do not stand for the proposition that a court is required to grant a defendant's request to 

be absent from his trial.       Rather, these cases seem to support the trial court's concern 

that, if the court granted Flood's request to be absent from his trial, Flood would claim 

on appeal that his right to be present at his trial was violated or that his defense was 

prejudiced because he was not present.   We conclude that Flood's argument that he had 

a constitutional right to waive his presence at the trial has no merit. 

    7   Singer, 380 U.S. at 36; 85 S. Ct. at 790. 

    8   Id. 

    9    18 F.3d 662 (9th Cir. 1994) (en banc). 

    10   474 So. 2d 808 (Fla. 1985). 

                                                    - 7 -                                                 2392 

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         Why   we   conclude   that   the   trial   judge   did   not   commit   plain   error   by 

         allowing   Dr.   Melville   to   testify   about   S.A.'s   statement   that   Flood   had 

         abused her when she was a young child 

                 We     have    previously     set  out   Dr.   Melville's     testimony     that,  when     he 

conducted the sexual assault examination on 15-year-old S.A., S.A. stated that Flood had 

abused her when she was five or six years old.   Flood did not object to this statement at 

trial but now argues on appeal that admission of this statement constituted plain error. 

                 Flood argues that Dr. Melville's testimony that S.A. told him Flood had 

touched   her   was   character   evidence   that   was   not   admissible   under   Evidence   Rule 

404(b)(1) or (b)(2). 

                 Under Evidence Rule 404(b)(2), in a prosecution   for sexual abuse of a 

minor,   evidence   of   another   act   toward   the   same   child   is   admissible   if   the   prior   act 

occurred within the 10 years preceding the offense charged, and the prior act was similar 

to the offense charged.  Flood argues that his prior offense was not similar to the charged 

offense.  Specifically, he argues that the prior offense was not similar because there was 

no indication that alcohol was involved in the prior incident, and because S.A. was so 

young at the time of the prior incident. 

                 The legislature enacted Evidence Rule 404(b)(2) in order "to make it easier 

for the prosecution to introduce evidence of a defendant's other acts of sexual or physical 

abuse." 11    But even before the legislature enacted this rule, case law established that 

prior sexual abuse against the same victim would generally be admissible under what is 

now   Evidence   Rule   404(b)(1)   because   it   tended   to   establish   the   defendant's   sexual 

attraction toward the victim. 12  Therefore Dr. Melville's testimony that S.A. told him that 

    11  Peratrovich v. State , 903 P.2d 1071, 1074 (Alaska App. 1995). 

    12  Id. 

                                                    - 8 -                                                  2392 

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Flood had abused her previously when she was five or six years old does not constitute 

plain error and was not overly prejudicial. 


              The judgment of the superior court is AFFIRMED. 

                                          - 9 -                                     2392

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