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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

                                                                     NOTICE
  

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                      IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



AARON K. WILLIAMS,  

                                                                                         Court of Appeals No. A-12970  

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



                                   v.  

                                                                                                       O P I N I O N  

STATE OF ALASKA,  



                                               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,  

                                                                

                       Judges.  



                       Judge ALLARD.  


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

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



                                                                                                                                          1  

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  



                                                                       2  

                                                                                                                                                        

                                                                           This argument is therefore not preserved, and  

fact before the texts could be admitted. 



                                                          3  

                                                                                                                                                         

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
  


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

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                                                                                 



                                                                    4  

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.  



                                                                                                                                5  

                                                                                                                                                          

                                                                                                                                   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).  



       5  

                                                                                                                                                           

             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  

reactions.                                                                                                                                                                                                                                                                                                                                                                                                               

                                                      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
  


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

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



                                                                               8  

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  



                                                    9  

                                                        

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  



                                                    10 

                                  

 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  



                                                                                                               11  

                                                                                                                                                    

                                                                                                                    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  

             conviction  



                          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  



                                                                                          13  

                                                                                                                                                                 

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  



                                                                                                        14  

                                                                              

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  



                                                                                                                                             16  

                                                                                                                                                                       

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  



                                                                        17  

                                                                                                                                                                     

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  



                                                               18  

                                                                     

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
  


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

                                       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  



                    Conclusion  



                                                                                                                                                                                           20  

                                                                                                                                                     

                                       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  

judgment.  



                                                                                                                       - 9 -                                                                                                                2700  

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