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Aaron K. Williams v State of Alaska (4/23/2021) ap-2700

Aaron K. Williams v State of Alaska (4/23/2021) ap-2700


               The text of this opinion can be corrected before the opinion is published in the   

               Pacific  Reporter.    Readers  are  encouraged  to  bring  typographical  or  other  

              formal errors to the attention of the Clerk of the Appellate Courts:  

                                             303 K Street, Anchorage, Alaska  99501

                                                           Fax:  (907) 264-0878

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                                                                                         Court of Appeals No. A-12970  

                                               Appellant,                             Trial Court No. 1JU-15-01212 CR  


                                                                                                       O P I N I O N  


                                               Appellee.                                   No. 2700 - April 23, 2021  

                       Appeal f                

                                      rom the Superior Court, First Judicial District, Juneau,  

                        Trevor Stephens, Judge.  

                       Appearances:  Marilyn J. Kamm, Attorney at Law, Anchorage,  


                       under  contract  with  the  Office  of  Public  Advocacy,  for  the  


                       Appellant.            Eric  A.  Ringsmuth,  Assistant  Attorney  General,  


                        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-----------------------

                        Aaron K. Williams was convicted, following a jury trial, of second-degree                                   


sexual assault for vaginally penetrating his cousin while she was unconscious.   Williams  


raises  four  issues  on  appeal.                         For  the  reasons  explained  in  this  opinion,  we  reject  


Williams's arguments and affirm his conviction.  


             Williams's argument that the trial court improperlyadmittedtextmessages  


            sent from his phone to the victim  


                        Williams sent a series of text messages to the victim, D.M., the day after the  


sexual assault. These text messages were admitted at trial in the form of photographs of  


the text messages as  they appeared on D.M.'s and Williams's phones.   On appeal,  


Williams argues that these text messages were improperly admitted for two reasons.  


                        First, Williams argues that the State was required to produce an expert  


witness who could testify that the texts were sent from Williams's cell phone.   But  


Williams's  defense  attorney  did  not  dispute  at  trial  that  the  texts  were  sent  from  


Williams's cell phone, and she never argued that an expert was required to testify to this  



                                                                           This argument is therefore not preserved, and  

fact before the texts could be admitted. 



Williams must show plain error.                              Given the defense attorney's acknowledgment that the  


texts were sent from Williams's cell phone, we find no plain error.  


                         Second, Williams argues that even if the messages were sent from his  


phone, there was insufficient evidence to show that he authored the text messages.  


Williams frames this as an 'authenticity" issue under Alaska Evidence Rule 901.  Rule  

      1     AS 11.41.420(a)(3).  

      2     See Pierce v. State               , 261 P.3d 428, 430-31 (Alaska App. 2011) ('[A] litigant is not   

entitled to pursue a claim on appeal unless that claim was presented to the lower court . . .     

[and] the lower court issued a ruling on the merits of that claim.").  

      3     See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).  

                                                                           - 2 -                                                                    2700

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901 states that '[t]he requirement                                    of authentication                   or   identification as a condition          

precedent to admissibility is satisfied by evidence sufficient to support a finding that the                                                                       

matter in question is what its proponent claims."                                                The commentary to the rule explains                     

that   the   'requirement   of   showing   authenticity   or   identity   falls   in   the   category   of  

relevancy dependent upon fulfillment of a condition of fact and is governed by the                                                                                 


procedure set forth in Rule 104(b)."                                                                                                                              

                                                                       Alaska Evidence Rule 104(b), in turn, provides that  


'[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact,  


the court shall admit it upon, or subject to, the introduction of evidence sufficient to  


support a finding of the fulfillment of the condition."  


                          Under  these  rules,  the  key  question  is  whether  the  State  presented  


'sufficient  evidence"  to  'support  a  finding  that  the  matter  in  question  is  what  its  


proponent claims" - i.e., to support a finding that the text messages in question were  


authored by Williams.  



                                                                                                                                   First, D.M. testified  

                          The record is clear that the State met that burden here. 


that she had previously texted and called Williams at that number on other occasions,  


including in the hours before the sexual assault. Next, one of the text messages sent from  


Williams's phone to D.M. after the sexual assault asked D.M. to delay telling the police  


about the assault until Williams could visit his ailing mother and grandmother. Williams  


made an identical request to D.M. over a recorded phone call that same day, suggesting  


that Williams was also the person who sent the text messages.   Finally, the police  

       4     Alaska R. Evid. 901 cmt. para. 1 (quoting advisory committee's notes to Federal   

Evidence Rule 901).  



             See State v. Savage, 920 N.W.2d 692, 703 (Neb. 2018) ('The proponent of the text  


messages  is  not  required  to  conclusively  prove  who  authored  the  text  messages.                                                                        The  


possibility of an alteration or misuse by another generally goes to weight, not admissibility."  


(footnotes omitted)).  See generally  George L. Blum, Annotation, Authentication of Text  


Messages , 38 A.L.R. 7th Art. 2,  35 (2018).  

                                                                                -  3 -                                                                         2700

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

interviewed Williams within twenty-four hours of the sexual assault, and during that  


interview, Williams was in possession of his cell phone, admitted that he had used his  


cell phone throughout the day, and never claimed during the interview that anyone else  


had used his cell phone to make calls or send text messages, even though the police  


specifically asked him about communications made on his cell phone.  


                    Williams points out that some of the facts noted above were not testified to  


until after the text messages were admitted into evidence, and he argues that therefore  


the trial court erred in concluding that the evidence was sufficient at the time it admitted  


the text messages into evidence.  But Williams has failed to explain how an error in the  


timing of the admission of the text messages caused himprejudice. Accordingly, we find  


no error.  


                    For all these reasons, we reject Williams's argument that the admission of  


the text messages requires reversal of his conviction.  


           Williams's argument that the trial court erred in denying his motion for a  


          mistrial based on the victim's demeanor on the witness stand  


                    Next, Williams argues that D.M.'s demeanor on the witness stand was  


prejudicial and that the trial court erred when it denied his motion for a mistrial on that  


basis.  We disagree.  


                    Prior to D.M.'s testimony, the prosecutor notified the trial court that D.M.  


had expressed a great deal of concern about having to walk so closely to Williams to get  


to the witness stand.  Both parties and the trial court agreed that D.M. could enter and  


exit the courtroom outside the presence of the jury, and that Williams and defense  


counsel would move away from the counsel table when D.M. entered.  Even with these  


accommodations, D.M. became sick and vomited shortly after entering the courtroom  


(before the jury had entered).  The court took a recess for approximately half an hour,  


                                                              - 4 -                                                         2700

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

during which time the prosecutor attempted to console D.M. and get her to a point where                                                                                                                                                                                                                                                                                                   

 she was comfortable testifying.                                                                                                                        After the recess, the jury was brought back into the                                                                                                                                                                                           

room, and D.M. was called to testify.                                                                                                         

                                                               At the beginning of D.M.'s testimony, a juror complained that he could not                                                                                                                                                                                                                                                              

hear her.                                  The parties and the trial court agreed to move D.M. closer to the jury.                                                                                                                                                                                                                                                                       D.M.  

then testified without incident for a few minutes, until the prosecutor asked her if she had                                                                                                                                                                                                                                                                                                         

ever had a sexual relationship with Williams.                                                                                                                                                                        D.M. apparently had some sort of visible                                                                                                                          

reaction to this question, as it prompted the prosecutor to immediately follow up with                                                                                                                                                                                                                                                                                                          

'Maybe we need to take a - let me know if you need to take a break, okay?"                                                                                                                                                                                                                                                                                                      

                                                               The trial court then had the jury step out for a few minutes. The court later                                                                                                                                                                                                                                                     

explained on the record that after the prosecutor asked D.M. about needing a break, D.M.                                                                                                                                                                                                                                                                                                      

turned to her left and had a tissue over her mouth.                                                                                                                                                                                     Then, as the jury was stepping out of                                                                                                                               

the courtroom, D.M. vomited 'a little bit," and after the jury left, she vomited more.                                                                                                                                                                                                                                                                                         

                                                               Defense counsel moved for a mistrial.                                                                                                                                              The trial court denied this request,                                                                                           

noting that a person's demeanor on the witness stand is valid evidence that the jury can                                                                                                                                                                                                                                                                                                              

consider.   Williams now appeals that ruling.                                                                                                                                                                     

                                                               This Court has previously recognized that a victim's testimony in a sexual                                                                                                                                                                                                                                          

assault case is 'an obviously emotional and embarrassing situation"thatcan cause strong                                                                                                                                                                                                                                                                                                  

                                              6                                                                                                                                                                                                                                                                                                                                                                    7  


                                                      But a witness's demeanor is generally a relevant consideration for the jury. 

                6             Xavier v. State , 2011 WL 746630, at *2 (Alaska App. Mar. 2, 2011) (unpublished).  

                7              See Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130,  

 1136 (Alaska 2001) ('The significance of live testimony and demeanor evidence has been  


long recognized."); Alaska Criminal Pattern JuryInstruction 1.10 (2012) (instructing the jury  


to consider, inter alia, 'the witness's attitude, behavior and appearance on the stand[,] and  

the way the witness testifies" in evaluating the credibility of the witness).  

                                                                                                                                                                                                -  5 -                                                                                                                                                                                        2700

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                        On the other hand, it is also true that a strong emotional or physical reaction                                     


by a witness creates a potential for prejudice.                                                                                           

                                                                                  The risk is not that the jury will consider  


the witness's demeanor in reaching its verdict, which is permitted. Rather, the risk is that  


the witness's demeanor will so overwhelm the other aspects of the witness's testimony  


and the State's evidence that it will lead the jury to decide the case based solely or  


primarily on sympathy or emotion for the witness, instead of on a dispassionate analysis  



of all the evidence presented. 


                        Although this risk is real, it is the trial court, and not this Court, that is in  


the best position to gauge the effect of the witness's demeanor on the jury, to take steps  


to mitigate the prejudicial effect of that demeanor, and to determine if (despite those  



 steps) a mistrial is necessary.                        For this reason, assuming the trial court has otherwise  


properly applied the law, we will only overturn a trial court's denial of a mistrial if the  


trial court abused its discretion - i.e., if 'under the circumstances, the [court's] decision  



                                                                                                                    Having reviewed the  

falls outside the range of reasonable responses to the problem." 


record, we find no abuse of discretion here.  

      8     See,  e.g.,  State  v.  Swenson,  382  P.2d  614,   624-27  (Wash.  1963)  (reversing  a  

defendant's conviction and ordering a new trial based primarily on a key witness's demeanor                              

during  cross-examination),  overruled  on  other  grounds  by  State  v.  Land,   851  P.2d   678  

(Wash. 1993) (en banc).  

      9     See  Jones  v.  State,  1994  WL  16197104,  at  *5  (Alaska  App.  Dec.  28,  1994)  


(unpublished) (concluding that the trial court did not err in conducting jury voir dire after the  


jury possibly saw legal staff comforting a distraught witness, and deciding that jurors were  


not overcome with emotions for the witness and mistrial was not warranted).  

      10    See Walker v. State, 652 P.2d 88, 92 (Alaska 1982), overruled on other grounds by  


 Young v. State, 374 P.3d 395 (Alaska 2016); Xavier, 2011 WL 746630, at *2.  

      11    Hewitt v. State, 188 P.3d 697, 699-70 (Alaska App. 2008).  

                                                                        -  6 -                                                                  2700

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

             Williams's   argument   that   the   evidence   was   insufficient   to   support  his  


                          Next, Williams argues that the evidence was insufficient to establish that                                           

D.M.  was incapacitated at the time of the sexual assault.                                                     Williams also argues that the                      

evidence was insufficient to establish that he knew that D.M. was incapacitated, because                                                                 

he himself was so intoxicated.                             12  


                          When we review a claim of insufficient evidence, we are required to view  


the evidence (and all reasonable inferences to be drawn from that evidence) in the light  



most favorable to upholding the jury's verdict.                                                Viewed in this light, the evidence was  


sufficient to establish both that D.M. wasincapacitated and that Williams knewthat D.M.  


was incapacitated. With respect to D.M.'s incapacitation,D.M. testified that she had four  


to six shots of whiskey, did not remember lying down in the bed in which she woke up,  


did not remember the sexual assault, and never would have consciously consented to  


have sex with Williams.  With respect to Williams's knowledge, a witness testified that  


Williams was coherent and offered the witness a drink just minutes before the sexual  


assault occurred.   Interpreting this evidence in the light most favorable to the jury's  


verdict,  a  fair-minded  juror  could  conclude  that  D.M.  was  incapacitated  and  that  


Williams  knew  that  she  was  incapacitated  (or  would  have  known  that  she  was  



incapacitated but for his own voluntary intoxication). 

       12    See former AS 11.41.420(a)(3) (2014).  

       13    Inga v. State , 440 P.3d 345, 350 (Alaska App. 2019) (citing                                               Iyapana v. State , 284 P.3d   

841, 848-49 (Alaska App. 2012)).  

       14    See Dorsey v. State, __ P.3d __, Op. No. 2689, 2021 WL 220648, at *11 (Alaska App.  


Jan. 22, 2021) (explaining that voluntary intoxication does not negate the 'knowingly" mens  

rea element in Alaska (citing AS 11.81.630)).  

                                                                               -  7 -                                                                         2700

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

              Williams's argument that his sentence was excessive                                     

                           Finally, Williams challenges his sentence as excessive.                                                                 Williams  was  

convicted of second-degree sexual assault, a class B felony.  Williams was previously   

convicted of two other felonies - attempted second-degree sexual assault and third-                                                                                 

degree assault.                 Thus, Williams was subject to a presumptive sentencing range of 20 to                                                                       

35 years' imprisonment.                           15  


                           At sentencing, the court found that the State had proved two statutory  


aggravators - that Williams had engaged in repeated instances of assaultive behavior  



and that Williams had committed five or more class A misdemeanors.                                                                                The court then  


discussed the  Chaney criteria at length, emphasizing the need for isolation and the  



seriousness of Williams's conduct.                                            After considering the Chaney criteria, the court  


imposed a sentence of 35 years with 12 years suspended, or 23 years to serve.  


                           Williams's primary contention regarding his sentence is that the trial court  


failed to conduct an on-the-record review of sentences imposed in similar second-degree  


sexual assault cases.  But as we recently explained in Williams v. State, 'the absence of  


an explicit, on-the-record comparison of sentences imposed in similar cases is most  


problematic when we are unable to discern the basis for the trial court's sentencing  


decision - that is, when the record is so lacking in detail as to preclude meaningful  


appellate review, or when the sentence itself appears arbitrary or disproportionate when  



examined against other cases." 

       15     AS 12.55.125(i)(3)(D).  

       16     AS 12.55.155(c)(8) and AS 12.55.155(c)(31), respectively.  

       17     See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970); AS 12.55.005.  

       18     Williams v. State, 480 P.3d 95, 103 (Alaska App. 2021).  

                                                                                   -  8 -                                                                            2700

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                                       That is not the case here.  The court engaged in a thorough review of the                                                                                                                                  

 Chaney  criteria and explained in detail the reasons it imposed the sentence it did.  The                                                                                                                                 

 record is therefore not 'so lacking in detail as to preclude meaningful appellate review."                                                                                                                                                                   

 Having independently reviewed the sentencing record, we conclude that Williams has   

 failed to show that his sentence is clearly mistaken.                                                                                               19  




                                       The judgment of the superior court is AFFIRMED. 

           19       See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).  

          20        The  State  notes  that  the  judgment  includes  a  scrivener's  error  -  it  reflects  that  

 Williams was convicted of   second-degree sexual assault but cites the third-degree assault  

 statute,  AS  11.41.220(a)(3).    We  direct  the  superior  court  to  correct  this  error  in  the  


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