Hughes v. State, 052020 AKCA, A-12580

Docket Nº:A-12580
Opinion Judge:ALLARD Judge.
Party Name:ALAN GLEN HUGHES, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Allard, Chief Judge, and Coats and Mannheimer, Senior Judges.
Case Date:May 20, 2020
Court:Court of Appeals of Alaska
 
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ALAN GLEN HUGHES, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12580

Court of Appeals of Alaska

May 20, 2020

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court No. 4FA-13-02801 CR, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge.

Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Coats and Mannheimer, Senior Judges. [*]

MEMORANDUM DECISION

ALLARD Judge.

In 2013, Alan Glen Hughes and his wife lived in North Pole with their sixteen-year-old daughter P.H., fourteen-year-old son R.H., and twelve-year-old daughter A.H. In October of that year, an initial report led police investigators to interview P.H. and A.H. at Stevie's Place, a child advocacy center. The girls disclosed a long history of sexual abuse by Hughes.

Based on these interviews, Hughes was indicted on twenty-seven counts of first-degree sexual abuse of a minor.[1]All three children testified at Hughes's trial, and they described how their father had engaged in years of sexual abuse. P.H. and A.H. testified to several specific incidents of abuse, including vaginal, anal, and oral penetration by Hughes. For his part, Hughes denied that any sexual abuse had occurred. The jury ultimately convicted Hughes of thirteen counts.

Hughes now appeals. Hughes first argues that the superior court should have ordered an independent psychological evaluation of A.H. before deciding that she would be allowed to testify via closed-circuit television. Second, Hughes argues that the court erred in allowing the prosecutor to repeat a portion of his direct examination of A.H. after it was discovered that her testimony had not been properly recorded. Lastly, Hughes argues that the evidence presented at his trial was not legally sufficient to support several of his convictions.

We agree with Hughes that the evidence presented at trial was insufficient to support three of his convictions. But in all other respects, we reject Hughes's arguments and affirm his convictions.

Hughes's argument that the superior court should have ordered an independent psychological evaluation of A.H. before allowing her to testify via closed-circuit television

Hughes's first argument on appeal is that the superior court should have granted his request for an independent psychological evaluation of A.H. before the court decided whether to allow her to testify remotely at his trial. To explain our resolution of this issue, we must first describe the relevant procedural history of Hughes's claim.

Prior to trial, the prosecutor asked the court to allow A.H. to testify outside the courtroom via closed-circuit television. Testimony by closed-circuit television is permitted under AS 12.45.046(a)(2) "if the court determines that the testimony by the child victim . . . under normal court procedures would result in the child's inability to effectively communicate."2 The prosecutor told the court that A.H.'s psychologist believed that A.H. would be unable to effectively communicate if she were forced to testify in Hughes's presence. The prosecutor requested an evidentiary hearing, where A.H.'s therapist would explain why A.H. should be allowed to testify via closed-circuit television, in order to address this matter.

Before this hearing, Hughes's attorney asked the court to order an independent psychological evaluation of A.H. The prosecutor opposed this request, arguing that AS 12.45.042 prohibited any such evaluation.

Alaska Statute 12.45.042 generally prohibits a court from ordering a crime victim to undergo a psychiatric or psychological evaluation, except when "(1) the victim's psychiatric or psychological condition is an element of the offense charged; or (2) the prosecution has given notice that it will present evidence at trial that the victim suffers from a continuing psychological or psychiatric condition that resulted from the offense charged."

The prosecutor argued that neither of these exceptions applied to Hughes's case, and that therefore the court had no authority to grant Hughes's request for an independent examination of A.H. But Hughes's attorney argued that the second exception applied, because the prosecutor's request to have A.H. testify via closed-circuit television was implicitly premised on the assertion that Hughes's acts of abuse had rendered A.H. incapable of effectively communicating in open court in Hughes's presence.

Hughes's attorney acknowledged that the wording of AS 12.45.042(2) referred to situations where the State intended to present evidence of the victim's psychological condition "at trial." But the defense attorney argued that this clause of the statute should be interpreted to also include pretrial proceedings where the State relies on the assertion "that the victim suffers from a continuing psychological or psychiatric condition that resulted from the offense charged."

The superior court acknowledged that it was "perhaps easy to understand" how A.H.'s appearance by closed-circuit television could be viewed as "a trial issue" under AS 12.45.042(2). But the court then declared that, at that point in the proceedings, it was not yet convinced "that there would be any beneficial purpose" in ordering an independent evaluation of A.H. The court told Hughes's attorney that he could certainly consult a psychological expert prior to the evidentiary hearing to get feedback on the report provided by A.H.'s therapist and to prepare for cross-examination, but that the court would not order an independent evaluation of A.H. until it had some reason to believe that the proposed examination was needed.

At the evidentiary hearing, A.H.'s therapist testified that because of A.H.' s emotional trauma and her relationship with Hughes, A.H. would not be able to effectively communicate her testimony if she was forced to confront Hughes face-to-face. But Hughes's attorney did not renew his request for an independent evaluation...

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