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Reid Duard Hayes v State of Alaska (9/18/2020) ap-2678

Reid Duard Hayes v State of Alaska (9/18/2020) ap-2678


         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

                                     E-mail:  corrections @



                                                                   Court of Appeals No. A-12801  

                                   Appellant,                   Trial Court No. 3AN-12-03709 CR  


                                                                              O P I N I O N  


                                   Appellee.                     No. 2678 - September 18, 2020  

                  Appeal  f                             

                              rom  the  Superior   Court,  Third  Judicial  District,  

                  Anchorage, Paul E. Olson, Judge.  

                  Appearances:        Michael  Horowitz,  Law  Office  of  Michael  


                  Horowitz, Kingsley, Michigan, under contract with the Office  


                  of Public Advocacy, Anchorage, for the Appellant.  Patricia L.  


                  Haines, Assistant AttorneyGeneral, Office of Criminal Appeals,  


                  Anchorage, and Kevin G. Clarkson, Attorney General, Juneau,  


                  for the Appellee.  

                  Before:   Allard, Chief Judge, and Wollenberg and Harbison,  



                  Judge ALLARD.  

----------------------- Page 2-----------------------

                    Reid Duard Hayes was convicted, following a jury trial, of three counts of  


first-degree sexual abuse of a minor, three counts of second-degree sexual abuse of a  


minor, and one count of attempted second-degree sexual abuse of a minor for sexually  


abusing three of his girlfriend's underage daughters over the course of several years.  


                    Hayes raises six claims on appeal.                        The first two claims require us to  


construe Alaska Evidence Rule 801(d)(3) -the evidence rule authorizing the admission  


of recorded statements by child victims of crime, provided that certain foundational  


requirements are met.  Specifically, we must decide whether the requirement that the  


child victim be "less than 16 years of age" applies at the time when the statement is taken  


or at the time of trial when the victim is called to testify. For the reasons explained here,  


we conclude that the applicable time period is when the recorded statement was taken.  


                    We are also required to decide whether the use of an investigating officer  


as  the  interviewer  in  a  child  advocacy  center  interview constitutes  a per  se  bar  to  


admitting those interviews under Evidence Rule 801(d)(3).  For the reasons explained  

here, we conclude that the fact that the interviewer is an investigating officer is an  


important factor for thecourtto consider when evaluating thereliabilityandadmissibility  


of the child advocacy center interview, but we do not agree with Hayes that it is a per se  


bar to admissibility.  


                    Hayes raises four other claims of error, relating to (1) the State's use of a  


child sexual abuse expert; (2) N.E.'s trial testimony; (3) a discovery matter; and (4) a  


special condition of probation.  For the reasons explained here, we reject each of these  


claims of error.  


                                                               - 2 -                                                          2678

----------------------- Page 3-----------------------

          Background facts  


                    In 2007, Hayes began dating and living together with a woman who had  


five daughters:  S.D. (thirteen years old), N.E. (nine years old), K.E. (seven years old),  


A.E. (four years old), and L.E. (under one year old).  


                    According to later trial testimony, Hayes began sexually abusing S.D.  


around the summer of 2008, when she was fourteen years old.  S.D. testified regarding  


an incident in which Hayes started kissing and touching her while they were watching  


a movie and then penetrated her vagina with his penis.  S.D. recalled at least one other  


specific incident of sexual penetration, although she testified that it happened many more  




                    N.E. testified that Hayes first sexually abused her when she was around  


twelve years old. As was the case with S.D., the sexual abuse took place while N.E. and  


Hayes were watching a movie.   The first time Hayes touched her vagina, they were  


laying on the bed facing the television, and he moved his hand down her stomach under  


her clothes until he reached her vagina; he placed his fingers on top of her vagina for  


about five to ten minutes. Although she testified there were three to five "really similar"  


incidents, N.E. specifically remembered thelast occurrence, when he penetrated her with  


two fingers.  


                    K.E. testified to an incident in late 2011 or early 2012, when Hayes moved  


his hand towards K.E.'s vagina while hugging hergoodnight. BecauseK.E. was wearing  


tight-fitting "skinny jeans," Hayes was unable to get his hand inside her pants.  K.E.  


grabbed Hayes's hand and moved it away, telling him that she "wasn't his girlfriend;  


[she] was his daughter."  


                    Shortlythereafter -in January 2012 -the girlsdisclosed thesexual abuse  


to their aunt, who then brought them to Alaska CARES, a child advocacy center (CAC).  


                                                              -  3 -                                                         2678

----------------------- Page 4-----------------------

There, two detectives conducted forensic interviews with S.D., N.E., and K.E., as well                                                                                                                  

as with their younger sister A.E., then eight years old.                                                                  

                                Hayes was later indicted on three counts of first-degree sexual abuse of a                                                                                                      

minor,   three   counts   of   second-degree   sexual   abuse   of   a   minor,   and   one   count   of  

attempted second-degree sexual abuse of a minor.                                                                          1  


                                Hayes's trial was held in June 2016.  All three victims - S.D., N.E., and  


K.E. - testified at trial, as did A.E.  The Alaska CARES videos of N.E. and K.E. were  


also played for the jury as part of the State's case-in-chief.                                                                                              Hayes  maintained his  


innocence, and his defense centered on discrediting the girls. The victims' mother, who  



was engaged to Hayes at the time of trial, testified in support of Hayes's account. 


                                Ultimately, a jury found Hayes guilty of all counts.  He was sentenced to  


39 years to serve.  The court also imposed a 10-year term of probation with general and  


special conditions.  


                                This appeal followed.  


                Hayes's  argument  that  Alaska  Evidence  Rule  801(d)(3)  should  be  


                construed to only apply to victims who are under the age of sixteen at the  


                time of trial  


                                Alaska Evidence Rule 801(d)(3) allows the State to admit the videotaped  


statement of a child victim as part of its case-in-chief.   Traditionally, such evidence  


would be barredby theprohibition against hearsay because it is an out-of-court statement  

        1       AS 11.41.434(a)(1), (a)(3)(A), (a)(3)(B); AS 11.41.436(a)(1), (a)(5)(A), (a)(5)(A); and                                                                                                    

AS 11.41.436(a)(5)(A) & AS 11.31.100, respectively.  

        2       In the intervening years, the victims' mother had lost custody of her children.  

                                                                                                   - 4 -                                                                                                2678

----------------------- Page 5-----------------------


introduced   for   the   truth   of   the   matter   asserted.     But   Rule   801(d)(3)   exempts  this  

 evidence from the hearsay rule if it is "a recorded statement by the victim of a crime who                                                                                                                                                                                                                                                                                                                                                              

is less than 16 years of age" and satisfies eight additional criteria.                                                                                                                                                                                                                                                                                                               In full, the rule                                                   


                                                                        The   statement is a recorded                                                                                                                                  statement by                                                               the victim of a                                                               

                                                                        crime who is less than 16 years of age and                                                                                                                                                                     

                                                                        (A)  the recording was made before the proceeding;                                                                                                                                                                

                                                                        (B)  the victim is available for cross-examination;                                                                                                             

                                                                        (C)    the    prosecutor    and    any    attorney   representing    the  

                                                                        defendant were not present when the statement was taken;                                                                                                                                                                                                                               

                                                                        (D)  the recording is on videotape or other format that records                                                                                                                                                                                                                          

                                                                        both the visual and aural components of the statement;                                                                                                                                                                                       

                                                                        (E)  each   person   who   participated   in   the   taking   of   the  

                                                                        statement is identified on the recording;                                                                                                                    

                                                                        (F) the taking of the statement as a whole was conducted in                                                                                                                                                                                                                                                          

                                                                        a manner that would avoid undue influence of the victim;                                                                                                                                                                                                                      

                                                                        (G)  the defense has been provided a reasonable opportunity                                                                                                                                  

                                                                        to view the recording before the proceeding; and                                                                                                                                                                                                  

                                                                        (H)  the court has had an opportunity to view the recording                                                                                                                                                                                                                 

                                                                        and determine that it is sufficiently reliable and trustworthy                                                                                                                                                                                                    

                                                                        and that the interests of justice are best served by admitting                                                                                                                                                                                             

                                                                        the recording into evidence.                                                                      

                                                                        At the time of the interviews in this case, N.E. was thirteen years old.                                                                                                                                                                                                                                                                                                          But  

by the time of trial, over four years later, N.E. was eighteen years old.                                                                                                                                                                                                                                                                                                                  

                                                                        The   State   asked   the   court   to   admit   K.E.'s   and   N.E.'s   video-recorded  

 statements under Rule 801(d)(3).                                                                                                                                                   Hayes objected to N.E.'s video-recorded statements,                                                                                                                                                                             

 arguing that the rule's requirement that the child victim be "less than 16 years of age"                                                                                                                                                                                                                                      

                  3                 See Alaska Evid. R. 801(a)-(c) & 802.  

                                                                                                                                                                                                                            -  5 -                                                                                                                                                                                                                        2678

----------------------- Page 6-----------------------

should be interpreted to mean that the victim is less than sixteen years of age                                            at the time     


of trial    .                                                                                                                           

                The State argued that this language should be interpreted to mean that the  


victim was less than sixteen years of age at the time the statement was made.  The trial  


court agreed with the State and admitted the statements. Hayes now appeals that ruling.  


                      In interpreting a statute, we examine de novo "the meaning of the statute's  


language, its legislative history, and its purpose" in light of "reason, practicality, and  


common sense."                                                                                                        

                              Under Alaska's "sliding scale" approach to statutory interpretation,  


"the plainer the statutory language is, the more convincing the evidence of a contrary  



legislative intent must be." 


                      We acknowledge that the relevant language of Rule 801(d)(3) is subject to  


two interpretations.  Because the rule describes the age of the victim in the present tense  


("by the victim . . . who is less than 16 years of age"), it is theoretically possible to read  


the rule, as Hayes does, as referring to the victim's age at the time of trial.  But the  


present  tense  is  also  commonly  used  to  describe  the  content  of  a  recording  or  


photograph, even thoughtherecording or photographwasnecessarily made at some time  


in the past.  It is therefore also possible to read the rule, as the State does, as referring to  


the victim's age at the time the recording was made.  


                      In our view, the State's reading is the more natural one.  Typically, when  


a person describes a recording, the expectation is that the description applies to the  


recording at the time it was made, not to some future time when the recording might be  

     4     Hayes did not object to K.E.'s video-recorded statements on this basis, even though  

she had turned sixteen years old by the time of trial.  

      5    Brown v. State, 404 P.3d 191, 193 (Alaska App. 2017) (quoting ARCTEC Servs. v.  

Cummings, 295 P.3d 916, 920 (Alaska 2013)).  

      6    State v. Thompson, 425 P.3d 166, 169 (Alaska App. 2018) (citing State v. Fyfe, 370   

P.3d 1092, 1094 (Alaska 2016)).  

                                                                  -  6 -                                                             2678

----------------------- Page 7-----------------------

used.  For example, if a video is described as "the recorded statement by a victim who                                                                                                                                                    

is intoxicated," the expectation would be that the victim was intoxicated at the time the                                                                                                                                                                                                                                                                                                                                                   

 statement was made. Likewise, "a recorded statement by a victim who is wearing a blue                                                                                                                                                                                                                                                                                                                                          

 shirt" would be assumed to be describing the victim in the recording, rather than what   

the victim is wearing in the courtroom.                                                                                                                                                                    

                                                                     In other words, the language of Rule 801(d)(3), although not perfectly                                                                                                                                                                                                                                                                 

plain, supports the more natural interpretation offered by the State:                                                                                                                                                                                                                                                                                            The victim must                                                  

have been "less than 16 years of age" at the time the recording was made.                                                                                                                                                                                                                                                                                                                     

                                                                     This interpretation of the rule is consistent with how other states have                                                                                                                                                                                                                                                                                    

interpreted similar rules in their own jurisdictions. Although some of the analogous rules                                                                                                                                                                                                                                                                                                                                         

in   other   jurisdictions   are   unambiguous   and   clearly   state   whether   the   victim's   age  

referenced in the rule is the age at the time the recording was made or at the time of trial,                                                                                                                                                                                                                                                                                                                                                           7  

                 7                See, e.g., Del. Code Ann.   tit.   11,    3513(a) (2020) (admitting "[a]n out-of-court  

 statement made by a child victim or witness who is under 11 years of age at the time of the                                                                                                                                                                                                                                                                                                                                                 

proceeding"); Ind. Code  35-37-4-6(d)(l) (2020) (admitting "[a] statement or videotape that  

is made by a person who at the time of trial is a protected person [                                                                                                                                                                                                                                                                   e.g., 'a child who is less  

than fourteen (14) years of age']"); Ohio R. Evid. 807(A) (admitting "[a]n out-of-court   

 statement made by a child who is under twelve years of age at the time of trial or hearing");                                                                                                                                                                                                                                                                         

42 Pa. Cons. Stat.  5985.1(a)(1) (2020) (admitting "[a]n out-of-court statement made by a   

child victim or witness, who at the time the statement was made was 12 years of age or                                                                                                                                                                                                                                                                                                                                     

younger"); S.C. Code Ann.  17-23-175(C)(1) (2020) (admitting out-of-court statements  

made by "a person who is under the age of twelve years at the time of the making of the                                                                                                                                                                                                                                                                                                                                                     

 statement"); Vt. R. Evid. 804a(a) (admitting "[s]tatements by a person who is a child 12 years                                                                                                                                                                                                                                                   

of age or under . . . at the time the statements were made"); Wis. Stat.  908.08(3)(a) (2020)   

 ("The court or hearing examiner shall admit the recording upon finding . . . [t]hat the trial or   

hearing  in   which   the  recording  is  offered  will  commence:    1.  Before  the  child's  12th  

birthday;  or  2.  Before  the  child's  16th  birthday   and  the  interests  of   justice  warrant  its  

admission . . . .").  

                                                                                                                                                                                                                  -  7 -                                                                                                                                                                                                              2678

----------------------- Page 8-----------------------


there are some rules that contain an ambiguity similar to the one presented here.                                                                             In the   

face of such ambiguity, courts in other jurisdictions have generally concluded that the                                                                             


law is referring to the victim's age at the time the recording was made.                                                                      


                          Thelegislativehistory ofEvidenceRule801(d)(3)provides further support  


for the State's interpretation that it is the victim's age at the time of the recording that  


matters, rather than the victim's age at the time of trial.  


                          Rule 801(d)(3) originated in 2005 as Senate Bill 117, and its legislative  


history reveals a dual purpose:  (1) to protect children from the traumatic experience of  


testifying; and (2) to provide the best evidence of the abuse to the jury.  


                          In introducing the bill to the Senate Judiciary Standing Committee, its  


sponsor, Senator Hollis French, expressed his belief that "young victims of crime don't  

       8     See, e.g., Ga. Code Ann.  25-8-820 (2020) (admitting statements "made by a child  

younger than 16 years of age"); La. Stat. Ann.  15:440.2(C)(1) (2020) (admitting statements  


of "a victim of a crime or a witness in a criminal proceeding and who is . . . [u]nder the age  


of seventeen years"); Mass. Gen. Laws ch. 233,  82 (2020) (admitting "statements of a child  


under the age of ten"); Tenn. Code Ann.  24-7-123(a) (2020) (admitting "a video recording  


of an interview of a child by a forensic interviewer containing a statement made by the child  


under thirteen (13) years of age").  

       9     See, e.g., Darden v. State, 425 S.E.2d 409, 410 (Ga. App. 1992) (holding that "the age  


of the child at the time the statements were made is determinative of their admissibility");  


State v. In re A.M., 994 So.2d 1277, 1278 (La. 2008) (assessing the victim's age "[a]t the  


time the interviews at issue were videotaped"); In re Adoption of Daisy , 934 N.E.2d 252,  


259-60 (Mass. App. 2010) (holding that the statutory language dictated that "it is the age of  


the child when the statements were made that is the determinative consideration"); State v.  

Herron,  461  S.W.3d  890,  904  n.11  (Tenn.  2015)  (noting  that  the  statutory  language  


authorizes the admission of recorded forensic interviews "only if the child is under the age  


of thirteen when the statement is given"); see also State v. Roman, 590 A.2d 686, 688, 690  


(N.J. App. 1991) (holding that the age requirement of former Evidence Rule 63(33) -  


admitting statements "by a child under the age of 12" - is "satisfied if the declarant was  


under 12 years of age when the statement was made" and that the child's age at the time of  


trial "is irrelevant").  

                                                                                -  8 -                                                                           2678

----------------------- Page 9-----------------------

get a fair shake in courtrooms in Alaska."                                    10  He described the longstanding, beneficial   

practice of forensically interviewing child victims at CACs - "safe, nurturing, child-                                                                

friendly   environments   [where]   the   interviewers   are   specially   trained   to   work   with  


children and work with a multidisciplinary team focused on the child's welfare."                                                                           

                         Senator French explained that the victim's narrative, as told to the forensic  


interviewer, is "often much more informative about the child's experiencewith an abuser  


than the testimony the child will give in a formal court setting."12  


                                                                                                                            Even if an attorney  

could elicit the basics of the victim's account on the witness stand, that account rarely  


possessed the "vitality and the breadth and the depth of the statement given back at the  



                         Senator French expressed his dismay that a child victim's "full" statement  


at the CAC was largely inadmissible in court, and that the jury was therefore forced to  



rely on the victim's narrative often years after the fact.                                                 He explained that a victim's  


"difficulty in articulating the details of a very painful and very private experience often  



results in a reduction of the charges"                                and that the bill would therefore "enhance the law  



enforcement process to bring child predators to justice."                                                                                             

                                                                                                                  Thus, by "let[ing] those  

      10    Audio of Senate Judiciary Comm., Senate Bill 117, testimony of Senator French,  

9:27:09-9:27:16 a.m. (Mar. 31, 2005).  

      11    Id. at 9:27:41-9:27:51 a.m.  

      12    Id. at 9:28:22-9:28:30 a.m.  

      13    Id. at 9:30:05-9:30:41 a.m.  

      14    Id.  

      15    Id. at 9:28:43-9:28:51 a.m.  

      16    Id. at 9:28:12-9:28:17 a.m.  

                                                                            -  9 -                                                                      2678

----------------------- Page 10-----------------------


statements come in, let[ing] the jury see the entire story,"                                                        the proposed rule would "help                     


protect Alaska's children and bring swifter justice for them."                                                                    


                           The legislature's goal of "amplify[ing] the voices of children who have  


been abused and children who have been sexually assaulted and let[ing] their voices  



                                                                                                does not depend on the victim's age at  

shine in a courtroom as strongly as possible" 


trial.        In  fact,  adopting  Hayes's  interpretation  of  only  allowing  admission  of  these  


statements when the victim is under sixteen years old at the time of the trial would  


frustrate the legislature's purpose of providing narratives that are closer in time to the  



incident, when memories are most fresh.                                                     Furthermore, as other jurisdictions have  


recognized, it would be unfair to penalize the victims for delays in the trial process  



outside their - or even the State's - control. 


                           Hayes argues that the primary concern of the legislature - preventing  


inaccurate or unreliable testimony caused by a child victim's impaired communication  


on the stand in the presence of a defendant - no longer applies to adult witnesses.  We  

       17    Id. at 9:31:04-9:31:08 a.m.  

       18     Press Advisory, "French, Kookesh File Bills to Protect Children," Alaska State  

Legislature, Senator Hollis French, Senator Albert Kookesh (Feb. 28, 2005).  

       19     Senate Floor Session, 24th Alaska Legislature, Debate on House Bill 53, testimony  

of Senator French, Gavel Audio at 47:21-47:45 (May 9, 2005).  

       20     Cf. State v. Gaines, 342 S.W.3d 390, 397 (Mo. App. 2011) (explaining that, as a   

practical matter, "[a]s the period of time between the sexual attack and trial grows longer,                           

it only makes sense that the need to use these out-of-court statements becomes more critical   

to ensure the victim's testimony does not 'become contaminated by contacts and influences                                          

prior to trial'") (quoting State v. Benwire, 98 S.W.3d 618, 624 (Mo. App. 2003)).  



              See,  e.g.,  State  v.  Roman,  590  A.2d  686,  690  (N.J.  App.  1991)  (explaining  that  


interpreting the age requirement to be the age at the time of trial "might encourage the  

defense to delay trial and hold the prosecutor captive to dilatory tactics").  

                                                                                  -  10 -                                                                              2678

----------------------- Page 11-----------------------

acknowledge that adults are likely better equipped to confront painful experiences, but                                                              


the legislature's reliability concerns still remain.                                                                                                  

                                                                                           By the time N.E. testified at trial -  


when she was over eighteen years old -her direct testimony was often halted. At times,  


she struggled to remember details of the abuse that had happened over four years earlier.  


Without thevideotaped statement, about whichN.E. was cross-examined over thecourse  


of two days, the jury would not have heard the "fuller and more in-depth" narrative the  



legislature intended it to consider. 


                        In sum, we conclude that the language of the rule, the relevant legislative  


history,  and  the  underlying  policy  rationales  support  the  State's  interpretation  of  


Evidence Rule 801(d)(3). Accordingly, we construe the language "a recorded statement  


by a victim of a crime who is less than 16 years of age" to apply to the age of the victim  


at the time the recording was made, not the age of the victim at the time the recording is  


admitted into evidence.  We therefore reject this claim on appeal.  


            Hayes's argument that the videos were foundationally deficient under Rule  


            801(d)(3) because they were conducted by the investigating officers  


                        Hayes also argues that both K.E.'s and N.E.'s videos were foundationally  


deficient under Rule 801(d)(3) - specifically, under subsections (C) and (F) - because  


the interviews were conducted by the police detectives involved in the investigation of  


Hayes's offenses.  Subsection (C) precludes the prosecutor and defense attorney from  


being present when a victim's statement is taken, and subsection (F) requires the court  

      22    See Gaines, 342 S.W.3d at 397 ("[I]t is common sense that our memories of childhood   

fade  and  distort  over  time  as  we  grow  older,  so  the  idea  that   we   are   somehow  able  to  

articulate traumatic events that occurred in our childhood better when we are adults seems  

divorced from reality.") (emphasis in original).   



            Audio of Senate Judiciary Comm., Senate Bill 117, testimony of Senator French,  

9:30:57-9:31:01 a.m. (Mar. 31, 2005).  

                                                                        -  11 -                                                                   2678

----------------------- Page 12-----------------------

to determine that "the taking of the statement as a whole was conducted in a manner that                                                                                                                            

would avoid undue influence of the victim."                                                  

                                  Hayes concedes that the trial court "did generally evaluate the interviews                                                                                       

under   Rule   801(d)(3)(F)."     He   also   concedes   that   "outwardly,   there   was   nothing  

suggestive about the procedure."                                                     According to Hayes, however, the trial court failed to                                                                             

consider that allowing police interviewers would raise the same concerns addressed in                                                                                                                                   

subsection   (C)   and  that   their   presence   would   unduly   influence   the   victims   under  

subsection (F).   

                                  In essence, then, Hayes's argumentisthatinterviewsbypoliceinvestigators                                                                                    

assigned to the case should be                                                    per se             inadmissible under Rule 801(d)(3).                                                             We have   


previously addressed (but declined to decide) this question in                                                                                               Augustine v. State                             .      We  


acknowledged in Augustine that "iftheattorneysrepresenting theStateandthedefendant  


are barred from participating, so as to preserve the neutrality and non-suggestiveness of  


the interview, the participation of agents of those attorneys - their paralegals and their  



investigators - would seemingly raise the same concerns."                                                                                                      We also pointed out that  


"recent psychological research has shown that a witness's identification of a suspect can  


be influenced by the police interviewer's inadvertent, even unconscious, verbal and  


physical cues - cues that arise from the interviewer's pre-existing knowledge and  



theories of the case."                                      Ultimately, however, we declined to decide whether to adopt a  

         24      Augustine v. State , 355 P.3d 573, 586 (Alaska App. 2015).  

         25      Id.  

         26      Id.  (citing  Tegoseak  v.  State,  221  P.3d  345,   351-62  (Alaska  App.  2009));  see  

Tegoseak,  221  P.3d  at  350-52  (canvassing  the   increasing  psychological  research  on  

unconscious signaling and citing research proposing that police departments adopt double- 

blind procedures - in which neither the questioner nor the subject being tested knows the  


nature  of  the  information  required  -  in  order  to  minimize  the  risk  that  officers  


                                                                                                       -  12 -                                                                                                    2678

----------------------- Page 13-----------------------

per se          rule   in   Augustine .     Instead, because we were already                                                            remanding   for   further  

 findings under Rule 801(d)(3) for a different reason, we directed the superior court to                                                                                            

 consider the concerns noted above in assessing whether the interviews in that case met                                                                                         

 the foundational requirements of Rule 801(d)(3).                                                       27  


                             Now,  with  the  issue  squarely  presented,  we  conclude  that  interviews  


 conducted by police investigators involved with the case are not per se  inadmissible  


 under Rule 801(d)(3).  


                             Beginningwith thestatutorylanguage,wenotethat nothing in theruleitself  


 forbids police investigators involved in the case from conducting the interviews.  This  


 stands in contrast to subsection (C), which expressly forbids the prosecutor and defense  


 counsel from being present when the statement is taken.  


                             Furthermore, the legislative history of Senate Bill 117 suggests that the  


 legislature contemplated that police officers would be conducting forensic interviews.  


 The bill's proponents before the Senate Judiciary Committee included law enforcement  


 personnel who were specially trained to conduct these interviews. Senator French, when  


 introducing the bill, specifically noted that the "multidisciplinary team [at the CAC]  


 focused on the child's welfare . . . may include police officers, social workers, child  



 therapists, medical professionals, and child advocates."                                                                      Moreover, the bill did not  


 require an interview to be conducted at a CAC, as the senators noted the limited access  

        26     (...continued)  

 unintentionally influence witnesses, even if their conduct is not overtly suggestive).  

        27    Augustine , 355 P.3d at 586.  

        28     Audio of Senate Judiciary Comm., Senate Bill 117, testimony of Senator French,                                                          

 9:27:48-9:27:58 a.m. (Mar. 31, 2005).  

                                                                                      -  13 -                                                                                 2678

----------------------- Page 14-----------------------


to CACs around the state.                                                                       In other words, the legislature assumed that police officers                                                                                                                     

would conduct at least some of the interviews the legislature intended to be admissible                                                                                                                                                                                

under Rule 801(d)(3).                   

                                              Given the legislature's awareness that police officers would be conducting                                                                                                                                              

some of these interviews, and given the legislature's explicit prohibition of prosecutor                                                   

or defense counsel involvement in the interviews, it is reasonable to conclude that if the                                                                                                                                                                                                       

legislature   had   intended   to   exclude   police   investigators   involved   in   the   case   from  

conducting these interviews, it would have said so expressly.                                                                                                                                                                  In the absence of an                                               

express directive, we decline to adopt a                                                                                                  per se  rule excluding all interviews conducted                                                                               

by police investigators involved in the case.                                                                                          

                                              As weacknowledged in                                                              Augustine , however, an officer intimately                                                                                                   involved  

with the case heightens the possibility of unduly influencing the victims.                                                                                                                                                                                      Trial courts   

evaluating interviews conducted by police investigators should be particularly wary of                                                                                                                                                                                                              

this   possibility   and,   in   assessing   whether   the   interviews   meet   the   foundational  

requirements of Rule 801(d)(3)(F) and (H), should consider the risk that the child's                                                                                                                                                                                              

responses could have been influenced by the officer's knowledge and expectations.                                                                                                                                                                                                                 30  


                                              Here, the trial court independently reviewed both interviews and, as Hayes  


acknowledges, made the requisite analysis under Rule 801(d)(3)(F).  The court found  


that  the  detective's  interview  of  K.E.  was  a  "very  good  interview  and  a  very  fair  


interview,"  with  "nothing  to  suggest  any  inappropriate  answers  nor  any  undue  

            29         Id. at 9:33:55-9:34:10 a.m. (testimony of Senator French and Senator Therriault).   



                       See  Tegoseak,  221  P.3d  at  351-52  (explaining  the  "Clever  Hans  effect,"  where  


medical researchers, "because of their knowledge of the experiment and their expectations  


concerning the outcome, can unintentionally influence the responses of the test subjects -  


by unconscious signaling, or by small differences in how they interact with test subjects" and  

that "photographic lineups could be affected by these same difficulties").  

                                                                                                                                            -  14 -                                                                                                                                          2678

----------------------- Page 15-----------------------

influence."  Although the court noted that another detective's questioning of N.E. was  


"a little bit different," again, the court found that "there wasn't any inducement or any  


attempt to unduly influence the person being interviewed at that time."  The court noted  


that N.E. actuallycorrected theofficer and tried clarifying the questions at various points,  


which further indicated that there was no undue influence on her.  


                    The court also distinguished these videos from others it had seen - those  


that were "so leading and so suggestive" that it would not allow them to be admitted.  In  


contrast, the court found K.E.'s and N.E.'s videos "sufficiently reliable and trustworthy  


that justice [would be] best served by allowing them into evidence," pursuant to Rule  



                    Given these findings, it is clear that the superior court considered and  


rejected  the  possibility  that  the  police  investigators  involved  in  the  case  unduly  


influenced the responses provided by the children.  Under these circumstances, the trial  


court did not abuse its discretion in admitting the Alaska CARES videos of K.E. and  


N.E. under Rule 801(d)(3).  


          Hayes's challenge to the child sexual abuse expert testimony  


                    On  appeal,  Hayes  argues  that  the  trial  court  abused  its  discretion  by  


allowing the State to offer testimony of expert witness Pamela Karalunas in its case-in- 


chief.   Karalunas, the statewide coordinator of the Alaska Children's Alliance, was  


qualified as an expert witness in the "dynamics of child sexual abuse and the process of  


disclosure of child sexual abuse."  As the State's final witness, she testified regarding  


children's reporting patterns, drawn from her decades of experience working with child  


sexual abuse victims and their families.  Hayes argues that this testimony amounted to  


"sexual abuse profile evidence" and that Karalunas was acting as a "human polygraph."  


                                                             -  15 -                                                         2678

----------------------- Page 16-----------------------

                                        As the Alaska Supreme Court has recognized, "[i]n child sexual abuse                                                                                                                                      

cases, there is usually little corroborating physical evidence of the alleged abuse; the                                                                                                                                                                   

child may not report the abuse until several years have passed and the matter often comes                                                                                                                                                         

down to the alleged victim's word against the word of the alleged abuser."                                                                                                                                                        31  And this  


 Court has held that an expert witness can testify "concerning the usual behavior of  


victims  of  child  sexual  abuse"  in  order  to  help  the  jury  better  assess  the  victims'  




                                        We note that there are limits to such opinion testimony.  For instance, it  


must  be  offered  in  response  to  a  defense  claim  that  the  "conduct  in  question  is  



inconsistent with claims of sexual abuse,"                                                                                            and the experts must "generally ma[ke] it  



clear that [they are] not speaking for the truthfulness of these particular witnesses." 


There is a "significant distinction between presenting a witness, such as a polygraph  


operator, to testify that a person is telling the truth, and presenting a witness who can  



                                                                                                                                                                                                                           Based on our  

 state that the behavior of a witness falls within a common pattern." 

          31        L.C.H. v. T.S. , 28 P.3d 915, 923 (Alaska 2001).  

          32        Rodriquez  v.  State,  741  P.2d  1200,  1204  (Alaska  App.  1987)  (citing  State  v.  

Middleton , 657 P.2d 1215, 1219-20 (Or. 1983)).  

          33        L.C.H. , 28 P.3d at 924;  see also Vickers v. State, 2008 WL 4367527, at *3 (Alaska   

App. Sept. 24, 2008) (unpublished) ("Both this court and the Alaska Supreme Court have                                                                                  

previouslyheld that the State cannot introduce expert testimonyabout the behavior of victims                                                                                        

of abuse or domestic violence for the purpose of suggesting that a particular person's claim                                                

of assault or abuse should be believed because that person fits the 'profile' of a particular                                                                                                                                       

kind of victim.                                Rather, the State can rely on such expert testimony only to rebut defense                                                                                              

claims that the behavior of the purported victim was seemingly inconsistent with a claim of                                                                                                                                                                    

assault or abuse." (footnotes omitted)).  

          34        Rodriquez, 741 P.2d at 1205.  

          35        Id. at 1204.  

                                                                                                                          -  16 -                                                                                                                      2678

----------------------- Page 17-----------------------

review of the record, we conclude that Karalunas's testimony was consistent with these                                                                                                   

limitations and that the court therefore did not abuse its discretion in admitting it.                                                                                                   36  


               Hayes's challenge to N.E.'s testimony that Hayes admitted to having been  


               sexually abused himself  


                              At trial, N.E. testified on direct examination that when Hayes's abuse was  


finally revealed to her mother, her mother insisted that N.E. confront Hayes directly.  


N.E.'s mother brought N.E. and Hayes into the same room and, in Hayes's presence,  


asked N.E. if Hayes had ever touched her. N.E. said yes. According to N.E., her mother  


then turned to Hayes, "and she . . . asked him if he had ever touched [N.E.] and he said  


yes."  The prosecutor continued:  

                                             Prosecutor :  Did he say anything more about I guess  


                              why he had touched you?  


                                             N.E. : In that same room he said it was because he was  


                              molested as a kid.  


                                             Prosecutor :  Did he say I guess that affected me?  


                                             N.E. :  Yes.  


Additionally,  the  jury  heard  N.E.'s  Alaska  CARES  interview,  in  which  N.E.  also  


mentioned Hayes's statement that he had been molested as a child.  


                              On appeal, Hayes claims the trial court should not have admitted this  


evidence because it was irrelevant and prejudicial under Alaska Evidence Rules 401 and  

        36     See, e.g.,   Cartee v. Cartee, 239 P.3d 707, 721 (Alaska 2010) ("We review a trial  

court's decision to admit or exclude evidence, including expert witness testimony, for abuse  

of discretion and will only reverse an erroneous decision if it affected the substantial rights                                  

of a party." (footnotes omitted));                                      Handley v. State, 615 P.2d 627, 630 (Alaska 1980) ("The  

decision whether to permit a witness to testify as an expert is one committed to the sound             

discretion of the trial court. Such decisions are reviewable only for abuse [of discretion]."                                                                             

(citing Pederson v. State, 420 P.2d 327, 335 (Alaska 1966))).  

                                                                                            -  17 -                                                                                       2678

----------------------- Page 18-----------------------

403.   He argues that this testimony amounted to propensity evidence which allowed the                                                                                    

jury to believe that because he had been molested when he was younger, he was more                     

 likely to commit this particular crime.                         

                           We agree that, as a general matter, evidence of a defendant's own abuse as                                                                       



 a child can carry "a strong and unmistakable potential for prejudice."                                                                               In Nelson v.  


State, for instance, we reversed a conviction for second-degree sexual abuse of a minor  


when the trial court allowed a State witness to testify that the defendant "had once  



 admitted  being  sexually  abused  as  a  boy  by  his  father."                                                                   We  recognized  "the  


widespread  belief  that  sexual  abusers  of  children  are  frequently  people  who  have  



themselves been victims of abuse as children."                                                      This was particularly true in Nelson's  


 case - where the conduct the defendant had been subjected to as a child closely tracked  


the conduct to which he allegedly subjected his young victim.  


                           But Hayes's case is meaningfully different from Nelson, and we conclude  


that, to the extent that N.E.'s testimony should not have been admitted, any error was  


harmless.               The  prosecution  did  not  dwell  on  N.E.'s  testimony  or  make  needless  


references to Hayes's past. Instead, the prosecution only once referenced this admission  


- in closing argument to bolster N.E.'s credibility.  The prosecutor argued that, given  


N.E.'s report of Hayes's detailed reaction, it was unlikely that she was the one lying in  


the  confrontation  (rather  than  the  defendant  or  her  mother,  who  testified  that  no  


 admission  of  guilt  had  occurred).                                       The  jury  was  also  instructed  to  view  Hayes's  


unrecorded,  out-of-court  statement  with  caution.                                                        Under  these  circumstances,  any  


prejudice to Hayes was minimized, and we find no reversible error.  

       37     Nelson v. State, 782 P.2d 290, 297 (Alaska App. 1989).  

       38     Id. at 296.  

       39     Id. at 297.  

                                                                                  -  18 -                                                                              2678

----------------------- Page 19-----------------------

             Hayes's argument that he was prejudiced by the trial court's refusal to                                                                        

             compel the production of Tiburon reports                              


                           Prior to trial, Hayes moved to compel Tiburon reports                                                                                       

                                                                                                                                                relating to the  


victims and their aunt (who had brought them to Alaska CARES).   He asserted, in  


general terms, that these records of police contacts "may lead to further discoverable  


information bearing on the credibility of S.D., N.E., K.E. and [their aunt]."  He also  


asserted that "[u]pon information and belief, both S.D. and K.E. have had contact with  


[the Anchorage Police Department], as runaways."  The trial court denied this request,  


although the trial court appears to have granted a second, narrower request for certain  


Tiburon records related to a police contact with K.E. at her elementary school.  


                           On appeal, Hayes argues that the superior court erred when it denied his  


initial motion to compel Tiburon reports. He argues that he was prejudiced by this error  


because discovery of these reports could have provided "evidence that the girls ran away  


prior to reporting the offenses" and that this evidence "would have supported Hayes's  


claim that the girls fabricated the claims to get out of their horrible environment."  


                           But, as the State points out, Hayes had similar evidence in his possession  


at the time of trial and did not use it.  Our review of the record indicates that Hayes  


received  a  significant  amount  of  discovery  from the  Office  of  Children's  Services  


documenting the family's poor living conditions, as well as the mother's drug abuse and  


neglect.   The confidential reports also included numerous references to incidents in  


which S.D. and K.E. ran away from home. The State also provided police reports related  

       40    Tiburon is the electronic records management database maintained by the Anchorage   

Police Department. Police officers upload their investigative reports into the Tiburon system,     

including reports of any prior contacts that witnesses and victims may have had with law                                                  


                                                                                 -  19 -                                                                            2678

----------------------- Page 20-----------------------

to these runaway                           attempts - information specifically requested as part of Hayes's                                                                        

motion to compel Tiburon reports.                             

                               Hayes does not dispute that his attorney had this evidence regarding S.D.'s                                                                               

and K.E.'s runaway attempts and failed to use the information at trial.                                                                                         The attorney did               

not question the girls about their runaway attempts, nor did he call anyone identified in                                                                                                         

the reports to testify as a defense witness.                                                   41  


                               The State argues that, given these circumstances, any error in failing to  


discover the Tiburon reports was harmless. We agree, and we therefore reject this claim.  


               Hayes's challenge to Special Probation Condition 12  


                               Finally, Hayes argues the trial court committed plain error by imposing an  


unconstitutionally vague probation condition at sentencing.  He specifically challenges  


Special Condition Number 12, which read as follows:  


                               The defendant shall submit to a search of their residence, any  


                               vehicle under their control, personal computer and/or any  


                               item which has internet connectivity (i.e., X-Box, cell phone,  


                               palm  pilots,  Blackberries)  at  the  direction  of  a  probation  


                               officer  for  the  presence  of  sexually  explicit  material  as  


                               defined in AS 11.41.455(a). The defendant shall provide the  


                               probation  officer  any  and  all  passwords  used  for  such  




                               Hayes argues that the requirement that he submit to certain searches for  


"sexually explicit material" was overbroad.  


                               Hayes's argument is unpersuasive. The imposed probation condition does  


not require him to submit to searches for sexually explicit material as a general matter;  

        41     We also note that K.E. testified on direct examination that                                                                             she   was   in treatment  

because she ran away.  Hayes's attorney, however, did not cross-examine her regarding this  


                                                                                             - 20 -                                                                                         2678

----------------------- Page 21-----------------------

 it   requires   him   to   submit   to   searches   for   "sexually   explicit   material  as   defined   in  

AS 11.41.455(a)                                    ."    Alaska Statute 11.41.455(a) defines the crime of unlawful sexual                                                                                                                          

 exploitation of a minor and contains a specific list of proscribed sexual conduct.                                                                                                                                                                       We  

have previously endorsed referring to this statute as a means of resolving the ambiguity                                                                                                                                                 

 in the phrase "sexually explicit material," thereby preventing the probation condition                                                                                                                                                   


 from   being   unconstitutionally   vague.                                                                                                                                                                                                                    

                                                                                                                                      Given  the  trial  court's  incorporation  of  


AS 11.41.455(a), we find no plain error.  



                                         For the reasons described above, we AFFIRM the judgment of the superior  



           42       Diorec v. State , 295 P.3d 409, 417-18 (Alaska App. 2013).  

                                                                                                                           - 21 -                                                                                                                         2678

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