Leviege v. State, 011520 AKCA, A-12221

Docket Nº:A-12221
Opinion Judge:Wollenberg, Judge.
Party Name:RICHARD COURTNEY LEVIEGE, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Andrew Steiner, Attorney at Law, Bend, Oregon (opening brief), and Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage (reply brief), under contract with the Office of Public Advocacy, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorag...
Judge Panel:Before: Allard, Chief Judge, Wollenberg, Judge, and Mannheimer, Senior Judge.
Case Date:January 15, 2020
Court:Court of Appeals of Alaska
 
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RICHARD COURTNEY LEVIEGE, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12221

Court of Appeals of Alaska

January 15, 2020

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Trial Court No. 3AN-12-04967 CR Third Judicial District, Anchorage, Jack W. Smith, Judge.

Andrew Steiner, Attorney at Law, Bend, Oregon (opening brief), and Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage (reply brief), under contract with the Office of Public Advocacy, for the Appellant.

Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

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

MEMORANDUM OPINION

Wollenberg, Judge.

Richard Courtney Leviege was convicted of second-degree sexual assault for sexually penetrating an incapacitated woman, V.C. On the night in question, V.C. drank heavily and passed out in a bedroom at her friend K.C.' s house. Leviege, a friend of K.C.' s boyfriend, entered the bedroom where V.C. was sleeping. A few minutes later, K.C. went into the bedroom and found Leviege on top of V.C; both were naked from the waist down. K.C. testified that V.C. was unconscious and non-responsive.

At trial, Leviege's attorney sought to introduce evidence that K.C. and V.C. had a sexual interaction at a club about a year before the alleged sexual assault. The defense attorney argued that if K.C. and V.C. were engaged in a sexual relationship at the time of the alleged assault, this relationship would demonstrate bias on the part of both K.C. and V.C.

The court held an evidentiary hearing outside the presence of the jury and took testimony from Tank Jones, an individual who claimed to have personal knowledge of the interaction between K.C. and V.C, as well as testimony from K.C. herself, who denied the existence of any sexual relationship. The court ultimately precluded Leviege's attorney from introducing evidence regarding a possible sexual or romantic relationship between K.C. and V.C.

On appeal, Leviege challenges this ruling. Having carefully reviewed the record, we conclude that, given the way this issue was litigated, the trial court did not abuse its discretion when it precluded this evidence. We therefore affirm Leviege's conviction.

Background facts

On May 21, 2012, Leviege hosted a social gathering, which K.C. and her boyfriend attended. At the time, V.C, the victim in this case, was K, C's close friend and housemate. Although V.C. did not attend the initial gathering, she joined the group later that evening.

While the group was playing cards, K.C. noticed V.C. becoming intoxicated. K.C. reported that V.C. drank a 24-ounce can of hard lemonade, some wine, and several shots of tequila. V.C. confirmed that she drank hard lemonade and three to five shots of tequila, and that she became drunk.

After playing cards, Leviege, V.C, K.C., and K, C.'s boyfriend returned to K, C.'s house. K.C. and V.C. went out on the balcony to smoke cigarettes, and Leviege soon joined them. According to K.C., V.C. was very intoxicated and had to lean against the railing for balance. K.C. testified that V.C.'s conversation did not make sense, and that V.C. eventually fell down and was "just slumped in a half sitting position on the ground."

K.C. then prepared a bed for V.C, and Leviege helped V.C. to the bedroom. According to K.C., "[t]here were sounds coming out of [V.C.'s] mouth," but it was "completely incoherent" - "[t]hey didn't seem like words at all." V.C. did not appear to be aware of what was happening.

K.C. went to check on V.C. between five to fifteen minutes later, to make sure she was not on her back (so she would not choke if she vomited). K.C. found V.C. still clothed and lying on her side in bed, partially covered by blankets. K.C. then went into her own bedroom across the hall, leaving both doors open.

A short while later, K.C. heard Leviege go into the bedroom where V.C. was sleeping. She heard the door close behind Leviege, and she assumed Leviege would go to sleep on a futon mattress that was on the floor, across the room from the bed. K.C., however, was unable to sleep, and she was worried that Leviege's truck was blocking a neighbor's vehicle. So, she got up and went to tell Leviege to move his truck.

K.C. did not knock before she opened the door to the bedroom. When K.C. opened the door, she saw Leviege on top of V.C., with her legs spread. Leviege and V.C. were naked from the waist down. Leviege "froze like a statue," and K.C. yelled at Leviege to get off V.C. Leviege moved off of V.C. and began muttering obscenities before leaving the house. According to K.C., V.C. did not move or say anything during this time; she appeared completely comatose.

In Leviege's statement to the police, which was introduced into evidence at trial, he largely corroborated K.C.' s account that V.C. was silent and motionless when K.C. opened the door. But he asserted that V.C. had in fact been "very much... awake" before K.C. entered the room, and that he and V.C. both "froze" when K.C. opened the door.

V.C. testified that, the next morning, she could not remember any part of her encounter with Leviege. But she felt a "little bit sore" - as if she had had sex. After K.C. told her what had happened, V.C. concluded that she had been raped, and she called the police.

A grand jury indicted Leviege for second-degree sexual assault (sexual penetration with a person who Leviege knew was incapacitated or unaware that a sexual act was being committed) and third-degree sexual assault (sexual contact with a person who Leviege knew was incapacitated or unaware that a sexual act was being committed).[1] A jury subsequently found Leviege guilty of both counts. (At sentencing, the court merged these counts.)

Leviege 's defense at trial and his attorney's offer of proof

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