Appeal from the Superior Court, First Judicial District, Petersburg, Michael A. Thompson, Judge. Trial Court No. 1PE-04-77 CR.
Margi Mock, Assistant Public Defender, Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.MEMORANDUM OPINION
COATS, Chief Judge.
Benjamin Byrer was convicted of sexual abuse of a minor in the second degree, a class B felony. Byrer raises three issues on appeal. Byrer claims that the State presented insufficient evidence to support his conviction because the State failed to prove that the crime in question occurred during the time frame set out in the indictment.
Second, Byrer claims that Superior Court Judge Michael A. Thompson erred in limiting his ability to cross-examine the victim about specific instances which Byrer claims illustrated her lack of credibility. Third, Byrer claims that the jury verdict was the result of a compromise and that this court should find plain error and reverse the jury's verdict. We affirm Byrer's conviction.
Factual and procedural background
At the time of the incidents leading to Byrer's conviction, Byrer lived in Petersburg with Karrie Byrer, his wife of five years, and with S. L. and Alex Byrer. Five-year-old Alex Byrer is the biological child of Karrie and Benjamin Byrer; twelve-year-old S. L. is the biological daughter of Karrie Byrer and another man. Byrer began dating Karrie Byrer when S. L. was fourteen or sixteen months old. S. L. has never known her biological father and refers to Byrer as her father. S. L. suffers from an undiagnosed developmental disability which impacts her emotional maturity and her ability to learn. According to testimony at Byrer's trial, S. L. 's emotional and social maturity resembles that of a four-year-old child and her academic ability resembles that of an eight- or nine-year-old.
On April 14, 2004, S. L. watched a video at school designed to help children avoid sexual abuse. Immediately after watching the video, S. L. reported to Vicki McIntosh, the teacher's aide for her special education class, that her stepfather had been touching her inappropriately. S. L. was interviewed by a social worker and police officer within hours. She repeated her allegations and provided additional details. According to S. L Byrer would touch her genitals and masturbate in front of her. The abuse had gone on for the last few years and occurred in her bedroom, in her parents' bedroom, and in the living room. S. L. said Byrer never penetrated either her vagina or anus with his penis; he tried multiple times but she would cry and he would stop.
After interviewing S. L the police and social worker contacted S. L. 's mother, Karrie Byrer. She denied that any abuse had occurred. Benjamin Byrer voluntarily went to the police station that evening and gave a statement to the police. The State subsequently removed S. L. from the Byrers' home and placed her in foster care.
In June 2004, a grand jury indicted Byrer on three charges of sexual abuse of a minor in the second degree. All three charges alleged that Byrer engaged in sexual contact with S. L. on or between September 1, 2003 and April 14, 2004. The lone distinction between the charges was the location of the abuse: count I alleged the conduct occurred in S. L. 's bedroom, count II alleged the conduct occurred in her parents' bedroom, and count III alleged the conduct occurred in the family's living room.
Superior Court Judge Michael A. Thompson conducted a three-day jury trial in November 2004 in Petersburg. The trial centered around the statements made by S. L. and her testimony at trial. S. L. detailed how Byrer watched pornographic videos on the computer in the living room and would masturbate while touching her vagina. S. L. also testified that Byrer would touch her "boob, butt, and private part" with his hands or penis. These actions occurred in her bedroom at night and in her parents' bedroom while her mother worked during the day. She also testified that Byrer tried to insert his penis into her but was never successful.
To bolster S. L. 's allegations, the State presented several witnesses to whom S. L. had reported Byrer's conduct. Dr. Sharon Junge testified that S. L. told her the abuse had occurred within the last month. She had examined S. L. and found no evidence of any trauma to S. L. 's genitals, but she testified that this was consistent with the type of abuse S. L. reported. Vicki McIntosh recounted that S. L. told her that Byrer would take her into the bedroom and touch her "where her panties were" both with her clothes on and off.
Bridget Wittstock, a former teacher of S. L. 's, testified that although S. L. is a few years behind academically and emotional, she is able to communicate clearly and effectively. The police officers and social worker who investigated the case also testified but did not add any new information.
At the close of the State's case, Byrer moved for a judgment of acquittal. He argued the State failed to accurately prove that the abuse occurred within the dates alleged in the indictment and that the State failed to prove which room the abuse occurred in. Judge Thompson considered the motion and denied it.
Byrer's defense was designed to discredit S. L. 's testimony and to demonstrate that her developmental disability prevented her from accurately recalling events. In particular, Byrer presented testimony, through S. L. 's mother, that when S. L. was four or five years old, she accused an uncle of sexual abuse but immediately recanted her story. Byrer also sought to introduce evidence that S. L. had lied to a person administering an intelligence test; allegedly S. L. told the examiner that she had several siblings who died in a plane crash although this was not true. But Byrer did not secure the examiner's presence in court. Byrer was also unable to introduce evidence that S. L. had accused her foster mother of abusing her. (S. L. admitted this accusation was false. ) Judge Thompson barred this evidence as an improper use of a specific instance of untruthful behavior.
The jury returned a guilty verdict on count II (conduct in parents' bedroom) and an acquittal on counts I and III (conduct in S. L. 's bedroom and living room, respectively). Bryer appeals this conviction.
Why we conclude that the State presented sufficient evidence for the jury to conclude that the sexual abuse occurred during the dates set out in the indictment
The jury convicted Byrer of count II of the indictment. The charge of sexual abuse of a minor in the second degree under AS 11. 41. 436(a)(3) alleged: That on or between September 1, 2003 and April 14, 2004, . . . Benjamin W. Byrer, . . . did knowingly and unlawfully engage in sexual contact with S. L . . . while S. L. was in her parents' bedroom.
At the close of the State's case, Byrer moved for a judgment of acquittal, arguing the State failed to present sufficient evidence to show the conduct occurred between September 1, 2003 and April 14, 2004. Judge Thompson denied the motion; stating that, when viewing the evidence in the light most favorable to the State, the evidence connected the allegation to the dates in question. On appeal, Byrer argues this denial was error.
S. L. was born on October 3, 1992. For the abuse to have occurred between September 1, 2003 and April 14, 2004, the State was required to prove it occurred while S. L. was either ten or eleven years old.
S. L. made several statements relevant to the dates of the abuse. S. L. had been enrolled in special education classes since she started school because she suffers from an unspecified developmental disability, which her family believed might be linked to fetal alcohol syndrome. Testimony presented at trial showed that her developmental disability made her emotional and social maturity resemble that of a four-year-old child and her academic ability resemble that of an eight- or nine-year-old. S. L. was particularly academically deficient in arithmetic. According to her teacher, at the time she reported the abuse, S. L. was functioning at about two or three years behind her grade level — at the level of a second- or third-grade student.
S. L. 's initial disclosure of the abuse indicated that the abuse had occurred up until the day she reported it. S. L. made her first disclosure of the abuse on April 14,
2004, immediately after watching the video "Yes You Can Say No" at school. At trial, S. L. was asked if she was mad at Byrer when she reported the abuse. S. L. responded, "Yeah, because before being shown the video at school, he was doing it to me, and yes, I was mad at him. "
S. L. 's testimony also implied that the abuse was ongoing. S. L. testified that she did not know how many times the abuse occurred because "it happens every day in her parents' room and . . . at night every day in her room. " The State argued at the trial that this evidence demonstrated the abuse occurred frequently.
The State also presented the testimony of Dr. Sharon Junge, a Petersburg family practice physician who examined S. L. on the day after she reported the abuse. Dr. Junge testified that S. L. 's exact words during the examination was that the abuse last occurred "about a month ago. "
Byrer argues that, based on the evidence presented, reasonable jurors could not have established that the conduct occurred in the date range alleged. Byrer points out that, during his cross-examination of S. L S. L. exhibited confusion about when the sexual abuse occurred. But the jury heard considerable testimony about S. L. 's developmental disability. The jury could have concluded that during this cross-examination, S. L. was confused by the attorney's questions and was trying to testify about when the abuse first started. In context, S. L. testified to a pattern of abuse which took place over a substantial period of time. In determining whether the State presented sufficient evidence to support the jury's verdict, we are to look at the evidence and the possible inferences from the evidence in the light most favorable to the State. The question before us is whether a reasonable jury could conclude from the evidence presented that the defendant was guilty
of the offense beyond a reasonable doubt. A reasonable jury could have found that the offense took place during the time set out in the indictment based upon S. L. 's testimony that the abuse occurred immediately before her April 14 disclosure, her testimony indicating an ongoing pattern of abuse, and her statement to Dr. Junge that the abuse last occurred sometime in mid-March of 2004. We accordingly conclude that the State presented sufficient evidence for the jury to find that the offense took place during the dates set out in the indictment.
Why we conclude that Judge Thompson did not err in limiting Byrer's cross-examination of S. L.
Byrer argues that Judge Thompson erred in restricting his cross-examination of S. L. In particular, Byrer argues that he was unable to demonstrate S. L. 's problems with "perception and memory and her fragile emotional stability. " Byrer presents three specific instances of S. L. 's prior conduct which he claims were admissible to demonstrate S. L. 's problems with perception and memory: (1) S. L. 's report of sexual abuse against her uncle; (2) S. L. 's false statement, made during an intelligence test administered at school, that her siblings had been killed in a plane crash; and (3) S. L. 's false report of physical abuse by her foster mother. Byrer concedes that, in general, the evidence rules do not permit the use of specific incidents to attack a witness's credibility. But Byrer argues that the evidence was admissible, not to show S. L. was a liar, but to show "the limitations of her capacity to correctly recall events and relate them accurately to the jury. " He argues that the evidence was admissible under A. R. E. 404(b)(1) to assist the jury in evaluating S. L. 's ability to testify accurately.
The State points out that Byrer was able to introduce evidence that when S. L. was four years old, she falsely accused her uncle of abusing her. Byrer concedes this point in his reply brief. The record shows that Byrer was not prohibited from pursuing this issue. The issue first arose during the cross-examination of Deborah Downs, a social work supervisor with the Alaska Office of Children's Services. Downs testified that S. L. told her of someone touching her when she was four or five. The jury learned that Downs only briefly pursued this information. Byrer questioned Downs on her lack of follow through, making the argument that the state ignored this evidence because it was inconsistent with a presumption of Byrer's guilt.
Byrer did not approach this subject while cross-examining S. L. The issue later resurfaced when Byrer's attorney questioned Karrie Byrer. Byrer was not limited in asking Karrie Byrer about the previous allegation which S. L. made against her uncle. Byrer emphasized this evidence in his closing argument. The record therefore shows that Byrer was not precluded from discussing the prior allegation which S. L. made against her uncle. We accordingly find no error.
Byrer contends that Judge Thompson erred in excluding evidence about a statement which S. L. allegedly made to Lori Crupi in October 2001, when Crupi came to S. L. 's school to conduct an intelligence test. During the test, nine-year-old S. L. allegedly fabricated a story that two of her siblings had been killed in a plane crash.
Although the record shows that Byrer sought to admit Crupi's testimony, Judge Thompson never made a definitive ruling excluding Crupi's testimony. The record shows that Byrer was having trouble securing Crupi's presence. He requested that she be allowed to appear telephonically. The State objected to Byrer presenting Crupi's testimony telephonically and Judge Thompson sustained the objection, relying on Alaska Criminal Rule 38. 1, which prohibits telephonic trial testimony if either party objects. It is true that Judge Thompson indicated that he strongly suspected that he would sustain an objection by the State to exclude the evidence on the ground that it would be improper
to impeach S. L. based upon a specific incident. But Judge Thompson stated that he saw no point in arguing about the admissibility of the evidence until Byrer actually produced Crupi. Byrer never produced Crupi and never raised the issue again. The record therefore shows that Judge Thompson never made a definitive ruling on this issue. Because Byrer never obtained a definitive ruling from Judge Thompson, he has not preserved this issue for appeal.
We recognize that Byrer might have had some difficult decisions to make concerning Crupi's testimony. The record does not disclose whether Byrer ever located her and it is reasonable to assume that it might have taken Byrer considerable time and expense to produce Crupi as a witness. Because Judge Thompson indicated that he would probably sustain an objection by the State to Crupi's testimony, Byrer might have abandoned the effort. But it was up to Byrer to obtain a definitive ruling from Judge Thompson. Although Judge Thompson ruled that he would not allow Byrer to present Crupi's testimony telephonically, we do not read Judge Thompson's ruling as precluding Byrer from attempting to secure an offer of proof by Crupi telephonically. Therefore,
if Byrer had actually located the witness he could have attempted to present an offer of proof of the proposed testimony telephonically, and obtained a definitive ruling from Judge Thompson. Because Byrer never obtained a definitive ruling from Judge Thompson, he has not preserved his argument that Judge Thompson would have erred if he had precluded Crupi's testimony.
Byrer contends that Judge Thompson erred in refusing to allow him to introduce evidence that S. L. had falsely accused her foster mother of physically abusing her. During the direct examination of Karrie Byrer, Byrer sought to introduce evidence that S. L. had accused her foster mother of pulling her hair and dragging her through a door. S. L. recanted that story the next day. Byrer argued that the evidence was admissible to show that S. L. 's developmental disability impacted her ability to accurately perceive and recall.
Judge Thompson ruled that the evidence about this incident was inadmissible under the evidence rules. Judge Thompson's ruling was not an abuse of discretion. In general, the credibility of a witness or the witness's trait of character may only be established by calling a character witness. The character witness can be used to give an opinion of the person's reputation in the community for truthfulness or untruthfulness or about a relevant character trait. The witness can be asked about specific instances of conduct only on cross-examination. The commentary to the evidence rules explains the policy behind the rule. The commentary states that while "evidence of specific instances of conduct is convincing . . . at the same time it poses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. "
Judge Thompson could properly conclude that the evidence of this single incident did not tend to show that S. L. lacked the capacity to "correctly recall events and relate them accurately to the jury. " The record in this case illustrates that Byrer was able to fully explore S. L. 's weaknesses in her mental capacity by presenting testimony that was consistent with the evidence rules. S. L. testified repeatedly that she had trouble remembering lots of things. S. L. also testified that she would sometimes get confused and say things she did not really mean.
S. L. 's mother, other family members, and several of her teachers testified about S. L. 's difficulties in school and testified that her behavior resembled that of a four-year-old. The jury also heard from S. L. 's cousin — another twelve-year-old — and was able to contrast the memory of the two girls. S. L. 's cousin also testified that other children treat S. L. differently because she has trouble understanding things.
This extensive testimony allowed Byrer to assert that S. L. 's developmental disabilities impacted her ability to accurately testify. We conclude that Judge Thompson did not abuse his discretion in restricting Byrer's ability to cross-examine S. L. Judge Thompson properly applied the evidence rules and Byrer was able to fully cross-examine S. L. and present other evidence to attack her credibility as a witness.
Why we conclude that the jury's guilty verdict was not inconsistent
Following the close of evidence, Judge Thompson provided the jury with a series of instructions and allowed them to begin deliberations. The jury was read the charges for all three counts, which alleged Byrer knowingly engaged in sexual contact with S. L. The distinction between the three counts was that each alleged contact in a different room in the Byrer house: count I in the bedroom of S. L count II in S. L. 's parents' bedroom, and count III in the family living room. When asking the foreperson to read the verdict, Judge Thompson reiterated that each count reflected conduct in a separate room of the house. The jury returned with a verdict acquitting Byrer on counts I and III, but convicting Byrer on count II. Byrer requested the jury be polled; this process confirmed a unanimous verdict. The jury was then released without any objection from either party.
In order to preserve a claim that verdicts are inconsistent, the defendant must object before the jury is discharged. Where the defendant does not object, we only review a claim that the verdicts are inconsistent for plain error.
A compromise verdict is defined as "a verdict that is reached when jurors concede some issues so they can settle other issues in their favor. " Similarly, inconsistent verdicts exist when two verdicts in one trial are irreconcilably in conflict.
When "it clearly appears that the jury must have returned a compromise verdict, the jury's decision to compromise the case rather than lawfully decide the separate counts would be a flaw that infects both verdicts to acquit and convict and would justify
a judge in granting a new trial. " But the nature of the compromise "must clearly manifest the jury's failure to engage in a valid fact-finding process. " A verdict should be upheld against an allegation of an inconsistency if the verdict is "capable of logical reconciliation upon analysis of the fact and crimes charged. "
Byrer argues that the verdicts are irreconcilable because the evidence presented at trial did not present any basis to distinguish between his conduct in different rooms of the house. But the jury's decision to convict Byrer on count II can be logically reconciled. During their deliberations, the jury asked to re-hear the testimony of three witnesses. One of these witnesses was Vicki McIntosh, the first person to whom S. L. reported the abuse. The jury could have considered this the most accurate recitation of S. L. 's specific allegation because it occurred before any potential effect of the official investigation.
McIntosh recounted how S. L. told her that Byrer would touch her while her mother was at work and her brother was outside playing. The jury later learned that Karrie Byrer worked during the day and that the Byrer's neighbors regularly accessed the living room of the house unannounced. McIntosh twice recounted S. L. 's specific disclosure to her that Byrer would touch her "where her panties were. " S. L. told McIntosh that the sexual contact took place in "the bedroom. " And, finally, S. L. testified that the abuse during the day occurred in her parents' bedroom.
Based on this evidence, the jury could have reached a guilty verdict on count II while at the same time having a reasonable doubt about counts I and III. We accordingly
do not find plain error in the jury's decision to convict Byrer on count II while acquitting him on the other counts.
We accordingly conclude that Byrer's allegations of error have no merit. We therefore affirm his conviction.
The judgment of the superior court is AFFIRMED.
---------------Notes: AS 11. 41. 436(a)(3). Simpson v. State, 877 P.2d 1319 1320 (Alaska App. 1994). Pavlik v. State, 869 P.2d 496 497 (Alaska App. 1994) (citing Des Jardins v. State, 551 P.2d 181 184 (Alaska 1976); Snyder v. State, 661 P.2d 638 641 (Alaska App. 1983)). See generally Commentary to Alaska Evidence Rule 405(b); Commentary to Alaska Evidence Rule 608(b). Stavenjord v. State, 66 P.3d 762 767 (Alaska App. 2003) (citing Taylor v. Johnston, 985 P.2d 460 467 (Alaska 1999); Russell v. State, 934 P.2d 1335 1340-41 (Alaska App. 1997); Marino v. State, 934 P.2d 1321 1327 (Alaska App. 1997); Erickson v. State, 824 P.2d 725 733 (Alaska App. 1991)). See Miller v. State, Alaska App. Memorandum Opinion and Judgment No. 3313 at 5-6 n. 1 (Jan. 3, 1996), 1996 WL 33686478 at *2 n. 1 ("as a general rule, if a trial court postpones or reserves ruling on a motion, the moving party must 'later actively bring the reserved or postponed question concerning such evidence to the trial court's attention and ask for a ruling thereon'") (quoting Torres v. State, 519 P.2d 788 794 n. 17 (Alaska 1974) (quoting C. T. Foster, Annotation, Necessity and Sufficiency of Renewal of Objection to, or offer of, Evidence Admitted or Excluded Conditionally, 88 A. L. R. 2d 12, 109 (1963))). Cf. Kailukiak v. State, 959 P.2d 771 774-75 (Alaska App. 1998), abrogated on other grounds by Harmon v. State, 11 P.3d 393 395 (Alaska App. 2000) (explaining that Rule 38. 1 precludes the trial judge from allowing telephonic testimony of a witness if either party objects at bail hearings, omnibus hearings, probation revocation hearings, and at trial, and that otherwise, the judge has discretion to admit telephonic testimony). Stavenjord, 66 P.3d at 767. A. R. E. 405 and 608. A. R. E. 405, 608. Commentary to Alaska Evidence Rules 405(b). Roberts v. State, 680 P.2d 503 507 (Alaska App. 1984). Id. Black's Law Dictionary 1555 (7th ed. 1999). DeSacia v. State, 469 P.2d 369 373-74, 78 (Alaska 1970). State v. Walker, 887 P.2d 971 977 n. 3 (Alaska App. 1994). Id. at 977. Davenport v. State, 543 P.2d 1204 1207-08 (Alaska 1975) (citing Commonwealth v. White, 296 N.E.2d 822 823 (Mass. 1973); W. E. Shipley, Annotation, Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information, 18 A. L. R. 3d 259, 287 (1968)). Notes: AS 11. 41. 436(a)(3). Simpson v. State, 877 P.2d 1319 1320 (Alaska App. 1994). Pavlik v. State, 869 P.2d 496 497 (Alaska App. 1994) (citing Des Jardins v. State, 551 P.2d 181 184 (Alaska 1976); Snyder v. State, 661 P.2d 638 641 (Alaska App. 1983)). See generally Commentary to Alaska Evidence Rule 405(b); Commentary to Alaska Evidence Rule 608(b). Stavenjord v. State, 66 P.3d 762 767 (Alaska App. 2003) (citing Taylor v. Johnston, 985 P.2d 460 467 (Alaska 1999); Russell v. State, 934 P.2d 1335 1340-41 (Alaska App. 1997); Marino v. State, 934 P.2d 1321 1327 (Alaska App. 1997); Erickson v. State, 824 P.2d 725 733 (Alaska App. 1991)). See Miller v. State, Alaska App. Memorandum Opinion and Judgment No. 3313 at 5-6 n. 1 (Jan. 3, 1996), 1996 WL 33686478 at *2 n. 1 ("as a general rule, if a trial court postpones or reserves ruling on a motion, the moving party must 'later actively bring the reserved or postponed question concerning such evidence to the trial court's attention and ask for a ruling thereon'") (quoting Torres v. State, 519 P.2d 788 794 n. 17 (Alaska 1974) (quoting C. T. Foster, Annotation, Necessity and Sufficiency of Renewal of Objection to, or offer of, Evidence Admitted or Excluded Conditionally, 88 A. L. R. 2d 12, 109 (1963))). Cf. Kailukiak v. State, 959 P.2d 771 774-75 (Alaska App. 1998), abrogated on other grounds by Harmon v. State, 11 P.3d 393 395 (Alaska App. 2000) (explaining that Rule 38. 1 precludes the trial judge from allowing telephonic testimony of a witness if either party objects at bail hearings, omnibus hearings, probation revocation hearings, and at trial, and that otherwise, the judge has discretion to admit telephonic testimony). Stavenjord, 66 P.3d at 767. A. R. E. 405 and 608. A. R. E. 405, 608. Commentary to Alaska Evidence Rules 405(b). Roberts v. State, 680 P.2d 503 507 (Alaska App. 1984). Id. Black's Law Dictionary 1555 (7th ed. 1999). DeSacia v. State, 469 P.2d 369 373-74, 78 (Alaska 1970). State v. Walker, 887 P.2d 971 977 n. 3 (Alaska App. 1994). Id. at 977. Davenport v. State, 543 P.2d 1204 1207-08 (Alaska 1975) (citing Commonwealth v. White, 296 N.E.2d 822 823 (Mass. 1973); W. E. Shipley, Annotation, Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information, 18 A. L. R. 3d 259, 287 (1968)).
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