Hess v. State

• Decision Date: 13 April 2001
• Docket Number: No. S-8876.,S-8876.
• Citation: 20 P.3d 1121
• Parties: Ralph G. HESS, Petitioner, v. STATE of Alaska, Respondent.
• Court: Alaska Supreme Court

20 P.3d 1121

Ralph G. HESS, Petitioner, v. STATE of Alaska, Respondent.

No. S-8876.

Supreme Court of Alaska.

April 13, 2001.

Darrel J. Gardner, Assistant Public Advocate, and Brant McGee, Public Advocate, Anchorage, for Petitioner.

Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Respondent.

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, and CARPENETI, Justices. [BRYNER, Justice, not participating.].

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Ralph Hess was charged with sexually assaulting H.W. When he raised the defense of consent, Alaska Rule of Evidence 404(b)(3) permitted the state to call A.R. to testify that Hess had previously had nonconsensual sex with her. The superior court denied Hess's request that the jury be told that another jury had acquitted him of sexually assaulting A.R. Because we conclude that the evidence of that acquittal was relevant and not hearsay, that its potential for confusion did not outweigh its potential probative value, and that its exclusion prejudiced Hess, we reverse and remand for a new trial.

II. FACTS AND PROCEEDINGS

Hess had sex with H.W. near Kotzebue on October 9, 1994. After H.W. reported that she had not consented, Hess was charged with first-degree sexual assault and kidnaping.

Before trial, in anticipation of Hess's consent defense, the state filed notice that it intended to offer evidence, per Alaska Rule of Evidence 404(b)(1), (2), and (3), that Hess previously had sexually assaulted A.R. Hess responded by requesting a limiting instruction on the use of this evidence; the instruction would have told the jury that a jury had acquitted Hess of first-degree sexual assault in the A.R. case. The state did not object to informing the jury of the prior acquittal, but asked for permission to introduce evidence that the jury in the A.R. case had convicted Hess on a lesser alternative charge, sexual abuse of a minor. The superior court denied both requests and ordered that "neither evidence of the acquittal nor evidence of the conviction on the lesser charge [will] come in before the jury."

Hess testified that H.W. had consented to have sex with him. The state then called A.R. to rebut Hess's defense that H.W. had consented. A.R. testified that Hess had sexually assaulted her while she was staying at his home in Kotzebue.

The jury convicted Hess of kidnaping and one count of first-degree sexual assault, but acquitted him of a second count of first-degree sexual assault.

Hess appealed. The court of appeals affirmed the superior court's refusal to tell the jury of the verdicts in the prior case.¹ It stated that "Hess wished to introduce the previous jury's verdict as evidence that he was factually innocent of having sex with A.R. against her will."² The court of appeals reasoned that "the prior acquittal did not establish that Hess was factually innocent, but only that the jury was not convinced beyond a reasonable doubt."³ It concluded that Hess's prior acquittal had little relevance.⁴ It also noted that, "offered for the purpose of establishing Hess's factual innocence, the prior jury's verdict was hearsay."⁵

Hess filed a petition for hearing. We granted his petition to consider whether he should have been allowed to show that he had been acquitted of the prior sexual assault charge.

III. DISCUSSION

A. Standard of Review

We review questions of law presented by the superior court's evidentiary rulings de novo.⁶ When interpreting a statute or rule, we adopt "the rule of law that is most persuasive in light of precedent, reason, and policy."⁷ But we will not overturn a trial court's evidentiary rulings that do not present questions of law, except for abuse of discretion.⁸

Hess asks for de novo review. The state urges us to review for abuse of discretion; it claims that other courts review for abuse of discretion and that Hess conceded that the trial court has discretion to admit such evidence.

Whether a trial court may take judicial notice of a defendant's acquittal of properly introduced other-act evidence and instruct a jury about that acquittal is a question of law which we review de novo. If the law permits such an instruction, we must consider whether the superior court abused its discretion by declining to inform the jury of Hess's acquittal.

B. When the State Offers Evidence of a Prior Sexual Assault to Rebut a Consent Defense, Is Evidence of the Defendant's Acquittal of the Prior Assault Admissible?

First-degree sexual assault requires evidence that the defendant (1) knowingly engaged in sexual intercourse, and (2) recklessly disregarded the victim's lack of consent.⁹ Before 1994 the state could not prove a defendant's requisite mental state in sexual assault cases by introducing evidence of other acts tending to show that the defendant exhibited a propensity for reckless disregard of his victim's wishes.¹⁰ But in 1994 the Alaska legislature expanded the admissibility of other-acts evidence in sexual assault prosecutions by amending Alaska Evidence Rule 404.¹¹ Alaska Evidence Rule 404(b)(3) now permits the prosecution to offer evidence of other sexual assaults or attempted sexual assaults if the defendant raises the defense of consent:

In a prosecution for a crime of sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible if the defendant relies on a defense of consent. In a prosecution for a crime of attempt to commit sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible.

Congress in 1994 also amended the federal rule regarding admissibility of prior sexual assaults; the federal rule now allows evidence of similar offenses "for its bearing on any matter to which it is relevant."¹² As a general rule, evidence that a defendant committed a prior act is inadmissible for the purpose of proving the defendant's propensity to commit the act currently charged. The amended federal rule has been interpreted to be an exception to that general rule.¹³ We adopt that interpretation for Alaska's corresponding evidence rule as amended in 1994. Accordingly, when evidence of a prior sexual assault is introduced under Alaska Evidence Rule 404(b)(3), we view the defendant's attempt to introduce evidence that he was acquitted of the prior assault as an attempt to show reasonable doubt about his propensity to disregard the new complainant's lack of consent.¹⁴

1. Is evidence of an acquittal logically relevant?

When the superior court declined to inform the jury of Hess's acquittal, it explained that Evidence Rule 404(b)(3) "does not presuppose a prior charge; it presupposes a prior incident" and that "the issue of conviction or acquittal is irrelevant under what's required of this rule."

Hess disputes the court of appeals's statement that he offered the acquittal for the purpose of proving that he was factually innocent of having non-consensual sex with A.R. He argues that the acquittal is relevant to the weight the H.W. jury gave A.R.'s testimony. The state argues that the relevance of an acquittal is limited to issues—double jeopardy and collateral estoppel—that are not material here. It asserts that an acquittal does not prove that the defendant was innocent, but merely establishes that the jury had reasonable doubt about the defendant's guilt.

Evidence must be relevant to be admissible.¹⁵ Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."¹⁶

We agree that a defendant's acquittal of one charge is generally not relevant to prove factual innocence of the facts underlying that charge.¹⁷ Such evidence is not relevant for that purpose because it proves only that the state did not prove every element of the crime beyond a reasonable doubt.¹⁸

But evidence of an acquittal may have an alternative purpose—to help the jury weigh the evidence of the prior act.¹⁹ Even though the defendant's acquittal does not prove that he was innocent of the prior act, a jury may reasonably infer a greater probability of innocence from the fact of acquittal.²⁰ Alaska's relevance definition allows evidence to be admitted if it has "any" tendency to make the existence of a material fact more or less probable.²¹ One commentator explains the "minimal relevance" approach with an example of a fleeing suspect:

Fleeing the scene of a crime, for instance, could mean that the defendant, being conscious of the crime charged, actually is guilty; or it could mean that the defendant is innocent but fled to avoid being apprehended for some other reason entirely. However, the premise that, in general, people who flee are more likely to be guilty than those who do not is at least plausible, and as long as there is some plausible chain of reasoning that leads to the desired conclusion, the evidence is probative of that conclusion.²²

Thus, although the acquittal does not prove that Hess was innocent of the prior charge, the H.W. jury might plausibly have reasoned that the fact of the acquittal made it less likely that Hess recklessly disregarded A.R.'s wishes. It might also plausibly have reasoned that the fact of the acquittal made it less likely that Hess had a propensity to recklessly disregard a companion's lack of consent. The jury therefore might also plausibly have reasoned that the fact of the acquittal made it less likely that Hess recklessly disregarded H.W.'s wishes. Hess's acquittal was therefore relevant.

2. Is evidence of the acquittal inadmissible hearsay?

The superior court did not exclude evidence of Hess's acquittal on hearsay grounds. But the court of appeals discussed hearsay as an alternative ground...