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Jurisdiction: Alaska Supreme/Appellate Courts
Decision Date: 8/8/2018



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Colbert v. State Colbert v. State (Alaska App., 2018)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MARVIN COLBERT, Appellant,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        STATE OF ALASKA, Appellee.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Court of Appeals No. A-12366No. 6669

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        COURT OF APPEALS OF THE STATE OF ALASKA

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        August 8, 2018


                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly this memorandum decision may not be cited as binding authority for any proposition of law.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Trial Court No. 3AN-14-6657 CR

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MEMORANDUM OPINION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Appearances: Megan R. Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Jason Gist, Assistant District Attorney, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Judge MANNHEIMER.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Marvin Colbert appeals his conviction for second-degree sexual abuse of a minor. He argues that the trial judge committed evidentiary errors which improperly

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        affected the jury's decision. For the reasons explained in this opinion, we reject Colbert's claims and uphold his conviction.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The trial judge's decision to allow the victim's mother to testify regarding her daughter's report of sexual abuse

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        At Colbert's trial, over defense objection, the trial judge allowed the victim's mother to testify that she had received a text message from her daughter on the night of the sexual abuse — a text message in which the victim told her mother that she did not want Colbert to continue serving as her personal trainer, because Colbert had touched her inappropriately. The trial judge also allowed the mother to testify that, when she asked her daughter about this text message several hours later, her daughter told her that Colbert had digitally penetrated her during what was supposed to be a stretching massage.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        In the trial court, and now on appeal, Colbert argues that the mother's testimony was inadmissible hearsay, and that the trial judge committed error when he admitted this testimony as a "first complaint" of sexual abuse. Colbert points out that, chronologically, this was the victim's second complaint of sexual abuse — because, earlier that evening, the victim had told a school friend that Colbert "fingered" her.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (The school friend advised the victim to tell her mother, and this is what prompted the victim to send the text to her mother. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The trial judge took the view that the daughter's disclosure to her friend, followed closely by the text to her mother, was essentially a continuing first complaint.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        There is some support for this view in our case law. But in any event, we conclude that the admission of the victim's mother's testimony was harmless.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The victim took the stand at Colbert's trial and testified at length about the incident of sexual abuse. In addition, the State introduced the audio recording of a conversation between the victim and Colbert (a conversation that was recorded pursuant to a Glass warrant). During this recorded conversation, Colbert declared that he was "so sorry about . . . where his hand was at, " and that he "didn't really understand why he did it. " Colbert then admitted that he became aroused when he put his finger inside the victim, and he said that he might be willing to do it again if the victim wanted him to.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Given this record, even if it was error to admit the victim's mother's testimony under the rubric of "first complaint", there is no likelihood that this testimony appreciably affected the jury's verdict. Thus, the error was harmless.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The trial judge's denial of a defense motion to preclude the prosecutor from referring to two expert witnesses as "experts"

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Colbert's other claim on appeal is based on the fact that the prosecutor failed to give formal pre-trial notice under Alaska Criminal Rule 16(b)(1)(B) concerning two expert witnesses — Tracey Wiese, the forensic nurse who examined the victim after the sexual abuse was reported, and Kristin Vaona, the forensic scientist at the State Crime Lab who examined the victim's clothing for biological fluids or other evidence of male DNA. (Neither of these examinations yielded any affirmative evidence of sexual abuse. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Criminal Rule 16(b)(1)(B) requires a prosecutor to give the defense pre-trial notice of any expert witnesses who are likely to testify for the government. This notice must include the name and address of each expert witness, their curriculum vitae (i. e their professional ré sumé ), any written statement or report generated by the expert, and "a written description of the substance of the proposed testimony of the expert". (We presume that this last requirement applies to the extent that the substance of the expert's anticipated testimony is not otherwise described in their written report. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        In Colbert's case, the prosecutor disclosed Wiese's and Vaona's roles in the case, and the substance of their anticipated testimony, to the defense attorney during the discovery process, but the prosecutor did not file a formal notice complying with Criminal Rule 16(b)(1)(B) for either witness.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        When Colbert's attorney objected to the lack of formal notices under Criminal Rule 16(b)(1)(B), the prosecutor argued that formal notices were not required for either witness.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        With respect to Vaona (the forensic scientist from the State Crime Lab), the prosecutor tried to excuse his non-compliance with Rule 16(b)(1)(B) by arguing that

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 5

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Vaona's testimony would not be "expert testimony". This argument was frivolous on its face and was properly rejected by the trial judge. Vaona had no connection with this case other than the testing of the victim's clothing that she performed as a crime lab forensic scientist. Vaona's description of this testing, and her testimony regarding the conclusions that one might draw from the results of this testing, would clearly be expert testimony. Formal notice of Vaona's expert testimony under Criminal Rule 16(b)(1)(B) was therefore required.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        With respect to Nurse Wiese, the prosecutor argued that Wiese was a "hybrid" witness — that is, a witness who would testify from personal knowledge (i. e her own personal interaction with the victim during the examination, and her observations of the victim's physical condition), but who would also testify about the expert conclusions that she drew from her personal observations, based on her specialized training and experience.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The prosecutor's argument was supported by Getchell v. Lodge 65 P.3d 50 55-56 (Alaska 2003), a civil case where our supreme court ruled that such "hybrid" witnesses could give expert testimony even though, in pre-trial discovery, the witness had been listed as a "fact" witness rather than an "expert" witness. See also this Court's discussion of this issue in Andrews v. State 286 P.3d 780 782 (Alaska App. 2012), where we recognized that some witnesses' testimony "cannot be clearly categorized as lay testimony or expert testimony, because it is a mix of both" — i. e "a mix of the witness's personal observations and their training and expertise".

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The trial judge accepted the prosecutor's argument that Nurse Wiese was a "hybrid" witness, and Colbert's attorney conceded that the prosecutor had provided sufficient notice of the content of her anticipated testimony through regular discovery. The judge therefore ruled that formal notice of Wiese's testimony under Criminal Rule 16(b)(1)(B) was not required.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 6

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The judge then turned to the question of what to do about the prosecutor's failure to give formal notice of Vaona's expert testimony under Rule 16(b)(1)(B). The judge noted that Colbert's attorney was not claiming that he still lacked knowledge of what Vaona would testify to, nor was the defense attorney seeking a continuance. Given this, the judge concluded that the violation of Rule 16(b)(1)(B) had been remedied.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The defense attorney nevertheless argued that it was important to impose some penalty for the prosecutor's failure to comply with Rule 16(b)(1)(B). For that reason, even though the defense attorney told the judge that he was not seeking any of the normal sanctions under Criminal Rule 16(b), the attorney asked the judge to issue an order barring the prosecutor from using the word "expert" in the jury's presence when the prosecutor referred to Vaona or her testimony. The judge rejected this proposal.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Now on appeal, Colbert argues that the judge should have precluded the prosecutor from using the word "expert" to describe both Wiese's and Vaona's testimony.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        But Colbert concedes that Alaska case law supports the judge's ruling with regard to Nurse Wiese — i. e the judge's ruling that no formal notice is required under Criminal Rule 16(b)(1)(B) with respect to a "hybrid" witness like Wiese, so long as the prosecutor furnishes the defense with discovery describing the witness's role in the case and the substance of the witness's anticipated testimony.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        If the prosecutor did not violate Rule 16(b)(1)(B) with respect to Nurse Wiese, then there was therefore no legal basis for the judge to impose a sanction for a discovery violation that did not occur.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        With respect to the prosecutor's failure to provide formal notice of Vaona's expert testimony under Criminal Rule 16(b)(1)(B), the judge found that the prosecutor had violated the rule, and the judge was therefore authorized to impose a sanction if appropriate. But the question of whether to impose sanctions for a party's failure to

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 7

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        comply with the provisions of Criminal Rule 16, or of what sanction to impose, are matters entrusted to the discretion of the trial court.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Given the defense attorney's explicit statement that he was not seeking a continuance of the trial or any of the other normal sanctions for a violation of Criminal Rule 16(b)(1)(B), the trial judge could properly reject the defense attorney's proposed sanction of barring the prosecutor from using the word "expert" when referring Vaona or her testimony.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Indeed, we are unable to discern how the defense attorney's proposal would have materially altered the jury's consideration of the case. After the jurors heard Vaona describe her training, her work as a forensic scientist at the State Crime Lab, and the types of testing she performed on the victim's clothing, the jurors would inevitably have concluded that Vaona was an "expert" in the normal sense of that word, regardless of whether the prosecutor expressly uttered the word "expert".


                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The judgement of the superior court is AFFIRMED.



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        See Greenway v. State 626 P.2d 1060 1061-62 (Alaska 1980).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        See Strumsky v. State 69 P.3d 499 505 (Alaska App. 2003) (Judge Mannheimer, concurring). See also Greenway 626 P.2d at 1061, where the supreme court upheld the admission of testimony concerning a complaint that the victim made to her mother approximately three days after the incident, as well as testimony concerning a complaint that the victim made to a school counselor over a month later.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        See State v. Glass 583 P.2d 872 (Alaska 1978) (holding that, under the Alaska Constitution, the police must obtain a warrant before electronically monitoring or recording a private conversation, even when one participant to the conversation consents to the police surveillance).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        See Love v. State 457 P.2d 622 631-32 (Alaska 1969) (holding that, for instances of non-constitutional error, the test for harmlessness is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        See Noffke v. Perez 178 P.3d 1141 1144 (Alaska 2008); Marron v. Stromstad 123 P.3d 992 1000-01 (Alaska 2005).


                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Andrews v. State, 286 P.3d 780 (Alaska App., 2012)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 2012-10-12 Citations: 7
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Strumsky v. State, 69 P.3d 499 (Alaska App., 2003)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 2003-05-09 Citations: 23
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Marron v. Stromstad, 123 P.3d 992 (Alaska, 2005)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 2005-11-10 Citations: 164
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