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Con Lysle Compton v State of Alaska (3/26/2021) ap-2695

Con Lysle Compton v State of Alaska (3/26/2021) ap-2695

                                                                     NOTICE
  

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                      IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



CON LYSLE COMPTON,  

                                                                                         Court of Appeals No. A-12918  

                                               Appellant,                             Trial Court No. 4FA-16-01906 CR  



                                   v.  

                                                                                                       O P I N I O N  

STATE OF ALASKA,  



                                               Appellee.                                   No. 2695 - March 26, 2021  



                       Appeal   from  the  District  Court,  Fourth  Judicial  District,  

                                                 

                       Fairbanks, Matthew C. Christian, Judge.  



                       Appearances: David T. McGee, Attorneyat Law, under contract  

                                                                                              

                       with the Public Defender Agency, and Beth Goldstein, acting  

                                                                     

                       Public Defender, Anchorage, for the Appellant. David Buettner,  

                                                                                                                   

                       Assistant District Attorney, Fairbanks, and Kevin G. Clarkson,  

                       Attorney General, Juneau, for the Appellee.  



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

                                                                

                       Judges.  



                       Judge HARBISON.  


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

                      ConLysleComptonwasconvicted                            offourth-degreeassault followingajury                     



        1  

trial.                                                                                                                            

           This conviction was based on an incident in which Compton yelled at the victim,  



                                                                                                                                         

Emily Markkanen, and advanced toward her with a raised fist, placing her in fear of  



                                

imminent physical injury.  



                                                                                                                           

                      Compton appeals, arguing that, on several occasions, the court improperly  



                                                                                                                                        

precluded him from introducing recordings of Markkanen's statements to one of the  



                                                                                                                                    

troopers on the day of the incident.  As we explain in this opinion, although we agree  



                                                                                                                                       

with  Compton  that  the  trial  court  misunderstood  the  procedural  prerequisites  for  



                                                                                                                                 

introducing a prior inconsistent statement, we conclude that this error does not require  



                                                         

reversal of Compton's conviction.  



                             

           Facts and proceedings  



                                                                                                                                      

                      In 2016, Emily Markkanen was in a consensual sexual relationship with  



                                                                                                                                      

Con and Jessica Compton. She lived in the Comptons' home and became pregnant with  



                                                                                                                                         

Con Compton's child.  In August of that year, Markkanen and the Comptons had an  



                                                                                                                                   

argument.  After the argument ended, Markkanen called her mother, who in turn called  



                                                                                                                                

the Alaska State Troopers.  When the troopers responded to the home, Trooper Michael  



                                                                                                                            

Kay  interviewed  Markkanen  and  recorded  the  interview.                                            During  the  interview,  



                                                                                                                        

Markkanen told Kay that, during the argument, Con Compton hit her on the head and  



                                                                                                                                       

face.   Kay later interviewed Compton.   Compton admitted that he argued with and  



                                                                                           

threatened Markkanen but denied physically assaulting her.  



                      The State subsequently filed a complaint charging Compton with fourth- 



                                                                                                                                              

degree assault, alleging that Compton recklessly caused physical injury to Markkanen.  



                                                                                                                                    

Shortly before the scheduled trial date, the State charged Compton with a second count  



      1    AS 11.41.230(a)(3).  



                                                                  - 2 -                                                              2695
  


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

of fourth-degree assault, alleging that Compton recklessly placed Markkanen in fear of  

                                                                                                                                 



imminent physical injury.  

                                         



                    The matter proceeded to a jury trial.  During the trial, Markkanen testified  

                                                                                                                        



that the assault occurred after she and Jessica Compton went into the bedroom to talk.  

                                                                                                                                     



She told the jury that Con Compton then came into the bedroom and began yelling at  

                                                                                                                                 



them. Markkanen testified that Compton "came at [her] angrily with a fist," and that she  

                                                                                                                               



stepped backwards, tripped on a bed frame, and hit her head.  According to Markkanen,  

                                                                                                                  



Compton then struck her on her face and on the back of her head.  

                                                                                            



                    During        the     defense        attorney's        cross-examination               of    Markkanen,  

                                                                                                                                     



Markkanen testified that she could not remember all of the statements she made when  

                                                                                            



she was interviewed by Trooper Kay.   When Compton's attorney sought to play a  

                                                                                                                                  



portion of the recording of the interview, the trial court ruled that the attorney could not  

                                                                                                                               



play the recording unless he first asked Markkanen whether she made that specific  

                                                                                                                        



statement.  Specifically, the court ruled that if Markkanen denied making the statement,  

                                                                                                                     



Compton's  attorney  would  be  permitted  to  play  the  recording.                                   But  if  Markkanen  

                                                                                                                  



responded that she did not remember whether she made the statement, then Compton's  

                                                                                                                   



attorney would be limited to attempting to refresh Markkanen's memory by playing the  

                                                                                                                                



recording for her outside the presence of the jury.  

                                                                              



                    Compton's  attorney  acknowledged  the  court's  ruling  and  refreshed  

                                                                                                                     



Markkanen's memory outside the presence of the jury rather than playing the recording  

                                                                                                                      



of her prior statement in front of the jury.  On three additional occasions, Compton's  

                                                                                                                   



attorney refreshed Markkanen's memory about portions of her conversation with Kay  

                                                                                                                              



by playing recordings of the conversation outside of the presence of the jury. Each time,  

                                                                                                                             



after her memory was refreshed, Markkanen agreed that the conversation had occurred.  

                                                                                                                      



                                                              -  3 -                                                         2695
  


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

                    The jury acquitted Compton of the charge that he caused physical injury to  

                                                                                                                                 



Markkanen, but it convicted him of the fear assault charge.  Compton now appeals his  

                                                                                                                                



conviction.  



                    On appeal, Compton claims that the trial court improperly precluded him  

                                                                                                                              



fromintroducing recordings of Markkanen's statements to Kay. Although we agree with  

                                                                                                                              



Compton  that  the  trial  court  may  have  misunderstood  the  procedure  for  admitting  

                                                                                                                     



extrinsic evidence of a prior inconsistent statement, we nevertheless conclude that the  

                                                                                                                               



trial court's error does not require reversal of Compton's conviction.  

                                                                                                          



          Extrinsic evidence of a prior inconsistent statement may be admitted when  

                                                                                                                  

          the witness does not remember making the statement, and the proponent of  

                                                                                                                       

          the evidence is not required to present the statement to the witness outside  

                                                                                                               

          the presence of the jury  

                                         



                    Compton argues that the trial court was mistaken about the procedure for  

                                                                                                                                



impeaching a witness with extrinsic evidence of a prior inconsistent statement under  

                                                                                                                           



Alaska Evidence Rules 613(b) and 801(d)(1)(A).  We agree and conclude that the trial  

                                                                                                                              



court  was  incorrect  when  it  ruled  that  before  Compton's  attorney  could  impeach  

                                                                                                                      



Markkanen  with  a  recording  of  an  inconsistent  statement  that  she  could  not  recall  

                                                                                                                           



making, he was required to play the recording for Markkanen outside of the presence of  

                                                                                                                                 



the jury to refresh her memory regarding her prior statement.  

                                                                                                



                    Under the Alaska Rules of Evidence, a prior statement of a witness that is  

                                                                                                                                  



inconsistent with the testimony of the witness at trial is admissible for the purpose of  

                                                                                                                                 



impeaching the witness's credibility under Rule 613(a) or for the purpose of proving the  

                                                                                                                                



truth of the matter asserted under Rule 801(d)(1)(A).  And when a prior inconsistent  

                                                                                                                  



statement is offered for its truth under Rule 801(d)(1)(A), it is error for a court to require  

                                                                                                                          



                                                              - 4 -                                                          2695
  


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

the proponent of this evidence to lay a foundation greater than the one required under                                                       



                      2  

Rule 613(b).              



                                                                                                                                                 

                       Evidence Rule 613(b)(2) is clear that the proponent of the evidence is not  



                                                                                                                                                 

required to reveal the content of the recording to the witness before questioning the  



                                                                                  

witness about the statement.  Instead, this rule provides:  



                                                                          

                       Before extrinsic evidence of a prior contradictory statement  

                                                                                                                           

                       or of bias or interest may be admitted, the examiner shall lay  

                                                                                                                          

                       a foundation for impeachment by affording the witness the  

                                                                                                               

                       opportunity, while testifying, to explain or deny any prior  

                       statement, or to admit, deny, or explain any bias or interest.  

                                                                                                                       

                       . . . In examining a witness concerning a prior statement made  

                                                                                                                          

                       by the witness, whether written or not, the statement need not  

                                                                                                                         

                       be shown nor its contents disclosed to the witness at that  

                                                                                                                            

                       time, but on request the same shall be shown or disclosed to  



                                                       [3]  

                                         

                       opposing counsel. 



                                                                                                                                        

This provision of Rule 613 abrogated the contrary rule at common law, which required  



                                                                                                                                          

the proponent of the evidence to confront the witness with the recorded statement outside  



                                               4  

                                                   

of the presence of the jury. 



                       The trial court apparently believed that a witness must be given a chance  



                                                                                                                                        

to review the prior inconsistent statement outside the jury's presence before extrinsic  



                                                                                                                                                       

evidence of the statement could be admitted.  But, as noted above, this was incorrect.  



                                                                                                                                                   

                       The trial court also erred in concluding that Markkanen was required to  



                                                                                                                                             

explicitly deny making a prior statement before extrinsic evidence of the statement could  



      2     See Alaska R. Evid. 801(d)(1)(A) cmt. para. 4 ("[C]ounsel should lay the foundation                                



for an inconsistent statement while the witness . . . is testifying, as under Rule 613.").  



      3     Alaska R. Evid. 613(b)(2).  



      4    Active v. State , 153 P.3d 355, 362 (Alaska App. 2007) (citing Alaska R. Evid. 613(b)  



cmt. para. 5-7).  



                                                                       -  5 -                                                                 2695
  


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

be introduced. The commentary to Rule 613 explains that, in order to impeach a witness                                                                                              



with extrinsic evidence of a prior inconsistent statement, the proponent of the evidence                                                                                          



must remind the witness of the substance of the statement and then ask the witness                                                                                                   



                                                                                                                                                                                                    5  

"either to admit having made the statement and explain the circumstances, or to deny it."                                                                                                                



The rule then explains that this foundation "afford[s] the witness the opportunity, while  

                                                                                                                                                                                          

testifying, to explain or deny any prior statement."6  

                                                                                                                        



                                                                                                                                                                                                

                               Thus, a witness need not explicitly deny making the statement in order for  



                                                                                                                                                                                                

the statement to be admitted, as long as the witness is given an opportunity to explain the  



                                                                                                                                                                                          

prior statement.  When, as in this case, a witness does not remember making a prior  



                                                                                                                                                                                  

statement that is inconsistent with matters within the witness's testimony, extrinsic  



                                                                                           7  

                                                                                                

evidence of the statement is admissible. 



                                                                                                                                                                                             

                               For these reasons, the trial court's ruling regarding the procedure that  



                                                                                                                                                                                                  

governs impeachment by extrinsic evidence of a prior inconsistent statement was in  



                

error.  



        5      Alaska R. Evid. 613(b) cmt. para. 2;  see also  Alaska R. Evid. 801(d)(1)(A) cmt.  



para. 4.  



        6      Alaska R. Evid. 613(b) (emphasis added).  



        7      See  Vaska  v.  State,  135  P.3d  1011,  1015-16  (Alaska  2006)  (explaining   that  



"inconsistency" does not "necessarilyrequire textual conflict; other circumstances, including                                                                                      

lack of memory at trial, may suffice" (citations omitted));                                                                  Wassilie v. State, 57 P.3d 719, 722  

(Alaska App. 2002) (concluding that prior inconsistent statements were admissible under  

Evidence Rule 801(d)(1)(A) where an elderlywitness could not recall at trial prior statements   

he made to police investigating an assault); Brandon v. State, 839 P.2d 400, 411-12 (Alaska  

App. 1992) (concluding that prior inconsistent statements were admissible where the witness  

had no memory at trial of the prior statements);                                                       Van Hatten v. State, 666 P.2d 1047, 1049-51  

                                                                                                                                                     

(Alaska App. 1983) (concluding that even feigned memory loss may render prior statements  

                                          

inconsistent with a witness's trial testimony), abrogated on other grounds by Adams v. State,  

261 P.3d 758 (Alaska 2011) .  



                                                                                              -  6 -                                                                                        2695
  


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

          Two of the recorded statements did not implicate Evidence Rule 613(b)  

                                                                                                              



                    On  appeal,  Compton  characterizes  four  of  Markkanen's  statements  to  

                                                                                                                                 



Trooper Kay as "prior inconsistent statements," and he asserts that the trial court erred  

                                                                                                                             



when it refused to allow him to play recordings of the statements for the jury as permitted  

                                                                                                                       



by Evidence Rule 613(b).  But we conclude that two of the statements did not implicate  

                                                                                                                       



this evidence rule.  

                              



                    The first of these two statements pertained to the timing of Markkanen's  

                                                                                                                 



disclosure  that  Compton  hit  her.                     During  cross-examination,  Compton's  attorney  

                                                                                                                        



questioned Markkanen about when she told Kay that she had been struck.  Specifically,  

                                                                                                                  



the attorney asked Markkanen whether she told Kay in her "initial telling" (or "first  

                                                                                                                             



statement") to Kay that Compton hit her.  Markkanen responded in the affirmative -  

                                                                                                                                 



i.e., that she did tell Kay that Compton hit her.  But she expressed confusion about what  

                                                                                                                              



the defense attorney meant by "first statement" or "initial telling," and stated, "I guess  

                                                                          



I don't know your question." She then agreed with Compton's attorney that listening to  

                                                                                                                                  



the recording of the interview could refresh her memory. The trial court excused the jury  

                                                                                                                               



to allow this to occur.  

                                   



                    Outside of the presence of the jury, the attorney played a lengthy excerpt  

                                                                            



of the recording of Markkanen's conversation with Kay, which began when Kay arrived  

                                                                                                                           



at the home.   During this portion of the recording, Markkanen did not tell Kay that  

                                                                                                                               



Compton had been physically violent.  

                                                



                    In response to questioning by the court, the defense attorney clarified that  

                                                                                                                                



when he used the phrase "initial telling," he was describing the portion of the interview  

                                                                                                                       



that he had just played, which occurred before Markkanen's parents interrupted the  

                                                                                                                                



conversation.  After hearing this explanation, the trial court characterized the defense  

                                                                                                                         



attorney's question to Markkanen about her "initial telling" of events as "problematic"  

                                                                                                                



                                                               -  7 -                                                         2695
  


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

and "confusing."  The court then instructed the defense attorney to clarify his question  

                                                                                                                        



when the jury returned.  

                       



                    After the jury was recalled, the following exchange occurred:  

                                                                                                     



                              Defense attorney : So, Ms. Markkanen, isn't it true that  

                                                                                                           

                    you didn't actually mention being hit until after your parents  

                                                                                                      

                    had interrupted your conversation with Trooper Kay?  

                                                                                               



                              Markkanen :  That is true.  

                                                               



                    On appeal, Compton argues that the trial court erred by requiring him to  

                                                                                                                                  



refresh Markkanen's memory with the recording of her statement and contends that Rule  

                                                                                                                              



613 authorized him to play the recording for the jury.   But, as we have explained,  

                                                                                                                     



extrinsic evidence of a prior inconsistent statement  is admissible under either Rule  

                                                                                                                             



613(a), for the purpose of proving bias or impeaching the witness's credibility, or under  

                                                                                                                             



Rule 801(d)(1), for the purpose of proving the truth of the matter asserted. Compton did  

                                                                                                                                



not  offer  the  recording  of  Markkanen's  prior  statement  for  any  of  these  purposes.  

                                                                                                                                      



Instead, Compton relied on the recording to establish the timing of Markkanen's report  

                                                                                                                            



that Compton hit her - i.e., that she did not report this until after her parents interrupted  

                                                                                                                    



her conversation with Kay.  

                                            



                    Rule 613(b) is not implicated under these circumstances. Once Compton's  

                                                                                                                    



attorney clarified his question so that it was no longer confusing, Markkanen agreed with  

                                                                                                                               



the defense attorney's suggestion that, although she eventually told the troopers that  

                                                                                                                               



Compton hit her, she did not do so until after her parents interrupted the conversation.  

                                                                                                                 



Accordingly, the trial court did not err by excluding the recording of Markkanen's  

                                                                                                                



statements to Kay.  

                      



                    The  second  recorded  statement  Compton  identifies  on  appeal  was  a  

                                                                                                                                  



conversation  between  Markkanen  and  Kay  about  child  custody.                                            During  cross- 

                                                                                                                           



examination, Compton's attorney asked Markkanen whether she was aware that she and  

                                                                                                                                



                                                               -  8 -                                                         2695
  


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

Compton might disagree about custody of their unborn child. Markkanen responded that  

                                                                                                                               



she was aware of this issue. The attorney then asked Markkanen whether she had spoken  

                                                                                                                          



to Kay about the custody situation.   When Markkanen responded that she could not  

                                                                                                                               



remember talkingtoKayabout thecustody situation,theattorney refreshed Markkanen's  

                                                                                                                



memory by playing the recording of the conversation outside the presence of the jury.  

                                                                                                                            



                    The portion of the recorded conversation that the defense attorney played  

                                                                                                                          



outside the jury's presence included Kay's lengthy remarks to Markkanen explaining  

                                                                                                                    



child custody proceedings:  

                      



                              Kay :  . . . a child custody agreement to kind of, you  

                                                                                                          

                    know, to have it grow and . . .  

                                                                    



                              Markkanen :  That's my question.  

                                                                    



                              Kay : That's something that's going to be between you  

                                                                                                           

                    and Con and the courts to come to a child custody agreement.  

                                                                                                                 

                    Obviously, you know, the baby's in you.  It's part of you,  

                                                                                                         

                    you know, and . . . it belongs to you right now, so, you know,  

                                                                                                       

                    you can do your best, you know, to, you know, have it grow  

                                                                                                        

                    in, you know, the normal way and then as soon as its born,  

                                                                                                   

                    then you can go to court and get that child custody agreement  

                                                                                                 

                    to kind of get better answers of, you know, who can do what,  

                                                                                                        

                    when, and all that stuff with the kids.   You know, if he's  

                                                                                                         

                    saying these things to you and against, you know, the unborn  

                                                                                                     

                    child, definitely have all this ready to go in front of a judge.  

                                                                                                                 

                    That way the judge can make his decision and ultimately if he  

                                                                                                             

                    chooses  to  do  so,  then  he  can,  you  know,  give  you  full  

                                                                                                          

                    custody and keep him away from him or whatever the judge  

                                                                                                        

                    decides to do.  

                                     



                              Markkanen :  Yeah.  

                                                    



When  the  jury  returned,  Compton's  attorney  again  asked  Markkanen  about  the  

                                                                                                                              



conversation she and Kay had about child custody:  

                                                                  



                                                              -  9 -                                                         2695
  


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

                                                            Defense attorney                                   : So, Ms. Markkanen, you remember                                              

                                        having a conversation with Trooper Kay about custody over                                                                                                              

                                        your newborn child, right?                                     



                                                            Markkanen :   Yes.  



                                                            Defense attorney                                    :  And do you remember him telling                                                       

                                        you   that in                        this kind                     of situation,                           the effect of .                              .  .  these  

                                        circumstances and your accusations could play into that child                                                                                                         

                                        custody agreement?   



                                                            Markkanen :   Right.  



                                        Compton argues that the trial court erred when it did not permit him to                                                                                                                                               



introduce the recording of Markkanen's conversation with Kay about child custody. But                                                                                                                                                                     



the recorded conversation was a statement primarily made by                                                                                                                               Kay, not by Markkanen.                                                       



A prior statement qualifies as "prior inconsistent statement" if "[t]he declarant testifies                                                                                                                                                  



                                                                                                                                                                                                                                              8  

at the trial . . . and the statement is inconsistent with                                                                                                  the declarant's                                testimony."   Here,  



                                                                                                                                                                                                                                                       

the defense attorney was not seeking to establish that the statement was inconsistent with  



                                                                                                                                                                                                                                                         

Kay's trial testimony. Instead, the defense attorney's goal was to establish that Kay told  



                                                                                                                                                                                                                                       

Markkanen that her accusation could impact child custody.  As a result, the statement  



                                                                                                                                                                                                                                                  

was not a "prior inconsistent statement," and the exclusion of the recording of Kay's  



                                                                                                                                                                                                                                

remarks to Markkanen did not implicate either Rule 801(d)(1)(A) or Rule 613(b).  



                                                                                                                                                                                                                                                             

                                        For these reasons, the procedures for introducing extrinsic evidence of an  



                                                                                                                                                                                                                                          

inconsistent statement under Rule 613(b) did not apply to either of these two recorded  



                                     

statements.  



          8         Alaska R. Evid. 801(d)(1)(A) (emphasis added).  



                                                                                                                          -  10 -                                                                                                                      2695
  


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

          Two of the recorded statements did implicate Evidence Rule 613(b)  

                                                                                                       



                    In contrast to the two recordings we have just discussed, the two other  

                                                                                                                            



recordings at issue in this appeal do contain statements by Markkanen that could be  

                                                                                                                      



considered "inconsistent statements" and thus implicate Evidence Rule 613(b).  

                                                                                                              



                    The first of these was a statement Markkanen made to Trooper Kay about  

                                                                                                                            



why she went into a separate bedroomjust before Compton started yelling at her. During  

                                                                                                                          



the trial, Markkanen testified that she went into the bedroom in order to talk with Jessica  

                                                                                                                          



Compton. But during her interview with Kay, she stated that she went into the bedroom  

                                                                                                                       



because "I get really mad and say things."  As a result, Markkanen's prior statement  

                                                                                                                     



about why she went into the bedroom was inconsistent with her trial testimony, and it  

                                                                                                                           



was offered to impeach her credibility under Rule 613(b).  

                                                                              



                    The  second  statement  that  implicated  Rule  613(b)  was  Markkanen's  

                                                                                                       



statement to Kay describing the course of events that caused her to hit her head on the  

                                                                                                                                



bed. During her trial testimony, Markkanen testified that she tripped and hit her head on  

                                                                                                                                 



the bedframe when she was backing away from Compton.   By contrast, during her  

                                                                                                                               



interview with Kay, Markkanen stated that Compton pushed her, causing her to hit her  

                                                                                                                               



head on the mattress.  Thus, Markkanen's prior statement to Kay was inconsistent with  

                                                                                                                              



her trial testimony, and it was also offered to impeach her credibility under Rule 613(b).  

                                                                                                                         



                    Because Compton established at trial that these two statements were both  

                                                                                                                             



prior inconsistent statements that were admissible to impeach Markkanen's credibility,  

                                                                                                                    



Rule  613(b)  authorized  the  admission  of  extrinsic  evidence  of  these  statements.  

                                                                                                                                     



Accordingly,  when  Markkanen  testified  that  she  did  not  remember  making  these  

                                                                                                                           



statements, the trial court erred by requiring Compton to attempt to refresh her memory  

                                                                                                                        



by playing the recordings for her outside of the presence of the jury.  

                                                                                                           



                                                             -  11 -                                                         2695
  


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

                    The remaining question raised by this appeal is whether the trial court's  

                                                                                                                         



erroneous evidentiary ruling requires reversal of Compton's convictions.  

                                                                                             



          The trial court's erroneous ruling was harmless  

                                                                      



                    Compton  argues  that  the  trial  court's  ruling  prohibiting  him  from  

                                                                                                                            



introducing the recordings of Markkanen's statements was a constitutional error because  

                                                                                                                        



it denied himhis constitutional right to cross-examine witnesses and to present a defense.  

                                                                                                                                     



We disagree.  

       



                    Compton's attorney engaged in a robust cross-examination of Markkanen  

                                                                                                                   



about these inconsistent statements.                       For  example, during  his cross-examination of  

                                                                                                                                



Markkanen,  Compton's  attorney  was  able  to  establish  that  Markkanen  admitted  to  

                                                                                                                                 



Trooper Kay that she "had a temper."  Based on this admission, he also established that  

                                                                                                                              



Markkanen's explanation at trial that she went into the bedroomin order to talk to Jessica  

                                                                                                                          



Compton was different from the explanation she gave Kay.  

                                                                                             



                    Similarly, Compton's attorney was able to highlight the inconsistencies in  

                                                                                                                                 



Markkanen's  description  of  the  assault.                        For  example,  during  cross-examination,  

                                                                                                      



Markkanen confirmed that she told Kay that Compton had pushed her down, even  

                                                                                                                 



though she first testified that she had tripped. And Compton's attorney was able to show  

                                                                                                                            



that Markkanen was not consistent in describing how many times and where Compton  

                                                                                                                      



hit her.  

      



                    Moreover,   Compton's   attorney   relied   on   these   inconsistencies   in  

                                                                                                                               



Markkanen's description of the events during his closing  argument.                                           According  to  

                                                                                                               



Compton's attorney, Markkanen provided "multiple versions" of the events and, as a  

                                                                                                                                  



result, the jury should doubt the accuracy of her testimony.  Contrary to Compton's  

                                                                                                                   



                                                             -  12 -                                                         2695
  


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

assertion, the trial court's ruling did not undermine his constitutional right to cross-                                                                           



examine Markkanen or his right to present a defense.                                       



                           In the absence of a constitutional error, the trial court's evidentiary errors                                                                         



                                                                                                                                                   9  

require reversal only if the errors appreciably affected the jury's verdict.                                                                            



                                                                                                                                                         

                           Compton contends that the recordings of Markkanen's prior statements,  



                                                                                                                                                          

rather  than  her  testimony  regarding  these  statements,  would  have  more  effectively  



                                                                                                                                                                 

undermined  Markkanen's  credibility.                                              He  argues  that,  for  this  reason,  the  court's  



                                                                                                                                                                     

misunderstanding  of  the  procedures  for  admitting  extrinsic  evidence  of  a  prior  



                                                                                                                                                                          

inconsistent statement appreciably affected the jury's verdict and requires reversal of his  



conviction.  



                                                                                                                                                                        

                           We reject this contention for two reasons. First, as we have explained, only  



                                                                                                                                                         

two  of  the  challenged  statements  were  erroneously  excluded.                                                                    Second,  Compton's  



                                                                                                                                                                       

defense did not rely on the jury believing one version of Markkanen's statements over  



                                                                                                                                                             

the other.   Rather, the defense relied on the fact that Markkanen provided "multiple  



                                                                                                                                                                         

versions" of the events, a fact established by Markkanen's acknowledgment of her  



                                                                                                                                                                    

previous inconsistent statements.   If the attorney had asked the jury either to credit  



                                                                                                                                                                          

Markkanen's trial testimony or instead to credit her prior inconsistent statements, the  



                                                                                                                                                                         

exclusion of the recording of Markkanen's statements would be more problematic.  But  



                                                                                                                                                                          

in this case, the jury did not need to evaluate Markkanen's demeanor as she told the  



                                                                                                                                                                        

troopers  about  the  incident  because  evidence  of  her  inconsistent  stories  was  not  



                                                                                                                                                                         

introduced for its truth, but toimpeach Markkanen'stestimony generally by showing that  



                                                                       

her recollections were unreliable.  



                                                                                                                                                                           

                           We  conclude  that  presenting  the  jury  with  the  recordings  instead  of  



                                                                                                                                                      

Markkanen's  unelaborated  concession  that  she  had  previously  made  inconsistent  



       9     Love v. State , 457 P.2d 622, 631-32 (Alaska 1969).  



                                                                                  -  13 -                                                                              2695
  


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

statements would not have appreciably affected the verdict.                                                                                                                     Accordingly, we conclude                              



that the trial court's ruling excluding extrinsic evidence of these two statements was                                                                                                                                                              



harmless.  



                    Conclusion  



                                        The judgment of the district court is AFFIRMED.  

                                                                                                                                                    



                                                                                                                       -  14 -                                                                                                                     2695
  

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