ARNOLD KITTICK JR v. STATE OF ALASKA (2010)

NOTICE 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 precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

A jury convicted Arnold Kittick of several counts of sexual assault and attempted sexual assault.   We conclude that Superior Court Judge Eric A. Aarseth properly admitted certain hearsay statements that the victim made shortly after the assault either as excited utterances or prior inconsistent statements.   We conclude that evidence of Kittick's two prior convictions for sexual assault was also admissible even though the parties agreed that the details of these crimes would not be submitted to the jury.   We also conclude the State presented sufficient evidence to support the counts that required proof that L.G. was incapacitated.

Background

On the evening of December 16, 2005, Morris Lex Patten was walking to his car after leaving a holiday party, when he heard a woman's voice calling for help.   Patten found L.G. lying on her back with Kittick standing over her.   Patten asked, “Hey, what's going on here?” and L.G. screamed, “Help me, he raped me.”   As Patten approached, Kittick began walking away.

Patrick McKay heard Patten say that a rape had just taken place.   Patten pointed McKay toward Kittick, who was now running away.   McKay followed Kittick and detained him near the Nesbett Courthouse.

Anchorage Police Officer Kristi Buster arrived at the scene shortly thereafter, and L.G. told Buster that she had been sexually assaulted.

At trial, Kittick sought to exclude testimony from Patten and Buster about L.G.'s out-of-court statements, as well as the evidence of his two prior sexual assault convictions, but the trial judge admitted this evidence.   Without waiving his objection, Kittick agreed that these convictions could be presented to the jury in the form of a stipulation that omitted the factual bases of the convictions.

The trial jury convicted Kittick on all counts, and Kittick now appeals.

L.G.'s Prior Statements Were Admissible

The statement to Patten

Ordinarily, hearsay testimony is inadmissible when the opposing party makes an appropriate objection.¹  But hearsay may be admitted when the declarant's “statement relat[es] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” ²  The rationale behind the excited utterance exception is “that circumstances may produce a condition of excitement which temporarily stills ․ the capacity of reflection and produces utterances free of conscious fabrication.” ³

Kittick concedes that L.G.'s statement to Patten that “he raped me” probably qualified as an excited utterance.   The record suggests that L.G. made this statement immediately after a startling and stressful event.   But Kittick argues that the admission of this evidence is inconsistent with the State's theory of the case that L.G. was incapacitated.   Kittick argues that if L.G. was incapacitated, she could not have perceived and recalled what was happening to her and make a spontaneous declaration.

Judge Aarseth made the decision to admit this evidence during the State's case, before the jury returned its verdicts.   We review this issue based on the state of the record at the time the judge made this decision.

There was testimony that supported the conclusion that L.G. was incapacitated when Kittick initiated this assault.   L.G. testified that she spent the evening drinking before deciding to take a bus home.   After L.G. left the bar, she recalled being pushed really hard, and then she could not remember exactly what happened.

But L.G.'s testimony also supported the conclusion that L.G. regained her awareness and expressed her resistance to Kittick's assault:  she testified that she remembered trying to push someone off her, and she believed that she screamed at Kittick to “stop.”   These circumstances supported Judge Aarseth's determination that L.G.'s statement was a conscious utterance based on her perception of a startling event.⁴

Kittick also argues that the admission of L.G.'s statement to Patten violated the Confrontation Clause as interpreted in Crawford v. Washington.⁵  But the Confrontation Clause does not apply to previous statements from a witness who testifies at the trial.⁶  In this case, L.G. testified at the trial, so the admission of her prior statement to Patten did not violate Kittick's right to confrontation.

The statement to Officer Buster

Shortly after her statement to Patten, L.G. told Officer Buster that she had been sexually assaulted.   Kittick argues that this statement was inadmissible as a prior inconsistent statement because it was not truly inconsistent with L.G.'s trial testimony.

A statement is not hearsay if the declarant testifies at trial and the statement is inconsistent with the declarant's testimony.⁷  To take advantage of this exclusion, the offering party must show that the prior statement is inconsistent with the declarant's testimony and give the declarant an opportunity to explain or deny the statement.⁸  Kittick contends that L.G.'s statement to Officer Buster was not inconsistent with her trial testimony because L.G. testified that she had intermittent recollections that she told Buster that she had been sexually assaulted.

But Kittick's contention fails to address the foundational question that Judge Aarseth was required to consider.   In cases like this one, a prior statement is “inconsistent” with a witness's trial testimony when the witness testifies that he or she cannot remember the event that the statement describes.⁹

L.G.'s testimony satisfied this test.   She testified that after she left a downtown bar she remembered being pushed really hard on her chest.   She remembered that her legs were cold because her pants were off.   And she remembered trying to push someone off of her and screaming “Stop.” But she had no recollection of the details of the assault, no recollection of who pushed her, nor even a recollection of lying in the snow.

The State established that L.G.'s statement-that she had been sexually assaulted-was materially inconsistent with L.G.'s trial testimony that she could not remember what happened during the assault.   Thus, Judge Aarseth's decision to admit L.G.'s statement to Buster as a prior inconsistent statement was not an abuse of discretion.

Kittick's Prior Convictions for Sexual Assault Were Admissible

Evidence of other sexual assaults by the defendant is admissible when the defendant is charged with attempted sexual assault.¹⁰  After Judge Aarseth ruled that Kittick's prior sexual assault convictions were admissible under this rule, Kittick agreed that the convictions could be presented to the jury in the form of a stipulation.

Kittick argues that the evidence proved nothing of probative value.   But evidence of prior sexual assaults is relevant to prove a defendant's propensity to commit sexual assault.¹¹  This propensity was relevant to show Kittick's intent to commit a sexual assault, a required element of the attempt counts.   We conclude that the admission of Kittick's prior convictions for this purpose was not an abuse of discretion.

Kittick also argues that the way in which the convictions were admitted made this evidence more prejudicial than probative.   Kittick concedes that Judge Aarseth engaged in the appropriate analysis before admitting the abbreviated evidence of his convictions and gave an appropriate limiting instruction.¹²  But Kittick contends that the trial judge erred by not presenting the jury with all of the factual circumstances surrounding his prior convictions so that the jury could better assess their probative value.

We will not review an issue for error that was invited by the appellant.¹³  It was Kittick who asked the superior court to present his prior convictions in a form that omitted mention of the factual circumstances.   Kittick cannot now claim that it was an abuse of the court's discretion to rely on this stipulation.

The State Presented Sufficient Evidence that L.G. Was Incapacitated

Three counts of the indictment charged that Kittick committed second- and third-degree sexual assault and attempted second-degree sexual assault based on the allegation that L.G. was incapacitated.   A person is “incapacitated” when he or she is “temporarily incapable of appraising the nature of [his or her] own conduct or physically unable to express unwillingness to act.” ¹⁴  Kittick argues that the State failed to present evidence establishing that L.G. was incapacitated during the assault because L.G. testified that she fought back against her attacker and cried for help.

To address this argument, we view the evidence presented, and the reasonable inferences from that evidence, in the light most favorable to upholding the jury's verdict, considering whether a fair-minded juror exercising reasonable judgment could conclude that the State met its burden of proving guilt beyond a reasonable doubt.¹⁵

The evidence suggested that L.G. had consumed a large quantity of alcohol, and that there was a significant gap in her memory when she was pushed to the ground after she left a downtown bar.   We conclude that this evidence, viewed in the light most favorable to the State, could convince a reasonable juror that L.G. was incapacitated when Kittick initiated this sexual assault.

Conclusion

We therefore AFFIRM the superior court's judgment.

FOOTNOTES

FN1. A.R.E. 802..  FN1. A.R.E. 802.

FN2. A.R.E. 803(2)..  FN2. A.R.E. 803(2).

FN3. Blair v. State, 42 P.3d 1152, 1154 (Alaska App.2002) (quoting Commentary to Alaska Evidence Rule 803(1)-(2) third paragraph)..  FN3. Blair v. State, 42 P.3d 1152, 1154 (Alaska App.2002) (quoting Commentary to Alaska Evidence Rule 803(1)-(2) third paragraph).

FN4. Cf. Jimmy v. State, 206 P.3d 750, 751 (Alaska App.2009) (sustaining a conviction for sexual assault “without consent” even though victim was sleeping when the assault began)..  FN4. Cf. Jimmy v. State, 206 P.3d 750, 751 (Alaska App.2009) (sustaining a conviction for sexual assault “without consent” even though victim was sleeping when the assault began).

FN5. 541 U.S. 36, 124 S.Ct. 1354, 155 L.Ed.2d 177 (2004)..  FN5. 541 U.S. 36, 124 S.Ct. 1354, 155 L.Ed.2d 177 (2004).

FN6. Crawford, 541 U.S. at 59 n.9, 124 S.Ct. at 1369 n. 9 ( “[w]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”)..  FN6. Crawford, 541 U.S. at 59 n.9, 124 S.Ct. at 1369 n. 9 ( “[w]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”).

FN7. A.R.E. 801(d)(1)(A)..  FN7. A.R.E. 801(d)(1)(A).

FN8. Vaska v. State, 135 P.3d 1011, 1015-16 (Alaska 2006)..  FN8. Vaska v. State, 135 P.3d 1011, 1015-16 (Alaska 2006).

FN9. See Richards v. State, 616 P.2d 870, 871 (Alaska 1980);  Wassilie v. State, 57 P.3d 719, 722-23 (Alaska App.2002);  Brandon v. State, 839 P.2d 400, 411-12 (Alaska App.1992);  Van Hatten v. State, 666 P.2d 1047, 1051 (Alaska App.1983)..  FN9. See Richards v. State, 616 P.2d 870, 871 (Alaska 1980);  Wassilie v. State, 57 P.3d 719, 722-23 (Alaska App.2002);  Brandon v. State, 839 P.2d 400, 411-12 (Alaska App.1992);  Van Hatten v. State, 666 P.2d 1047, 1051 (Alaska App.1983).

FN10. A.R.E. 404(b)(3)..  FN10. A.R.E. 404(b)(3).

FN11. Bingaman v. State, 76 P.3d at 398 405 (Alaska App.2003)..  FN11. Bingaman v. State, 76 P.3d at 398 405 (Alaska App.2003).

FN12. See Bingaman, 76 P.3d at 415-16 (listing six factors that a trial judge must consider when deciding whether to admit evidence under the similar provisions of Rule 404(b)(4))..  FN12. See Bingaman, 76 P.3d at 415-16 (listing six factors that a trial judge must consider when deciding whether to admit evidence under the similar provisions of Rule 404(b)(4)).

FN13. See Beltz v. State, 895 P.2d 513, 517 (Alaska App.1995) (applying invited error doctrine to claim of inadmissible evidence);  Barrett v. State, 772 P.2d 559, 568 n.10 (Alaska App.1989) (explaining that invited error not subject to appellate review)..  FN13. See Beltz v. State, 895 P.2d 513, 517 (Alaska App.1995) (applying invited error doctrine to claim of inadmissible evidence);  Barrett v. State, 772 P.2d 559, 568 n.10 (Alaska App.1989) (explaining that invited error not subject to appellate review).

FN14. AS 11.41.470(2)..  FN14. AS 11.41.470(2).

FN15. See Shorty v. State, 214 P.3d 374, 383-84 (Alaska App.2009)..  FN15. See Shorty v. State, 214 P.3d 374, 383-84 (Alaska App.2009).

BOLGER, Judge.