Moor v. State, A-315

• Decision Date: 08 November 1985
• Docket Number: No. A-315,A-315
• Citation: 709 P.2d 498
• Parties: James MOOR, II, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 498

709 P.2d 498

James MOOR, II, Appellant, v. STATE of Alaska, Appellee.

No. A-315.

Court of Appeals of Alaska.

Nov. 8, 1985.

Stephen G. Marks and Michael A. Steinmann, Baxter, Douglas & Marks, Juneau, for appellant.

Robert D. Bacon, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, J.

OPINION

SINGLETON, Judge.

James Moor, II, was convicted by a jury of one count of sexual abuse of a minor, a class C felony in violation of former AS 11.41.440(a)(1) ¹ and two counts of contributing to the delinquency of a minor, a class A misdemeanor in violation of former AS 11.51.130(a)(4). ² The felony conviction was based on an accusation by A.F., a thirteen-year-old girl, that Moor had digitally penetrated her while the two were seated together in a Juneau moviehouse. ³

The two misdemeanor convictions were based on A.F.'s allegations that Moor had touched her breasts on two occasions. ⁴ On appeal, Moor raises a number of evidentiary issues and argues that the jury instructions given constituted error under this court's analysis in Flink v. State, 683 P.2d 725 (Alaska App.1984) and J.E.C. v. State, 681 P.2d 1358 (Alaska App.1984). We reverse Moor's misdemeanor convictions but affirm his felony conviction.

FACTS

Julie Neyhart is a social worker employed in child protection for the State Department of Health and Welfare Division of Family & Youth Services. On March 24, 1983, she received a report from Maureen Eberhart, who was employed at Gastineau Elementary School as a school nurse, that C.W., a student, had been overheard complaining that she had been sexually molested by her uncle, James Moor, II. Apparently, a grocery store clerk had heard C.W. complaining of the molestation to a friend and contacted the school nurse.

Neyhart contacted Ms. Eberhart and arranged to interview C.W. at school during the morning of March 25, 1983. C.W. met with Neyhart and Eberhart at that time. Neyhart described C.W. as "a friendly, open young lady and it was not as difficult for her to talk as it sometimes is for children. She was quite comfortable in answering my questions."

Neyhart testified that C.W. told her that Moor had touched her on a number of occasions causing her discomfort. C.W. allegedly told Neyhart that she could not specify the dates upon which she was sexually molested. C.W. told Neyhart, however, that all of the molestations occurred on Sundays "because that was the day that her family gathered at her uncle's--well, I guess it's her grandparents' house where Uncle Jim lived." C.W. told Neyhart that the "uncomfortable touches" generally occurred when she and Moor were watching television in the living room. She told Neyhart that she and Moor would sit on the couch; the back of the couch was situated in such a way that it separated them from other people sitting nearby. She told Neyhart that Moor would slide his hand under her shirt and touch her breast and that other times he would "snap her bra," while watching television. C.W. told Neyhart that, on at least two occasions, Moor had touched her in a way that she did not feel was comfortable.

Neyhart testified that C.W. indicated that it was relatively easy to extricate herself because other people were there. Sometimes she retreated by leaving the couch and just going over to sit very close to the table where the rest of her family were seated. On other occasions, she would just go outside and play. Finally, C.W. told Neyhart that when she was a much younger child she remembered an occasion when Moor had rubbed her back and "then moved his hands and left them on her breasts." Apparently, C.W. considered this incident quite significant.

Neyhart testified that C.W.'s demeanor was outgoing up until the point that Neyhart indicated that C.W.'s mother would have to be informed of C.W.'s accusations. This made C.W. very uncomfortable. Neyhart asked her why and C.W. replied,

Because my mother will feel very badly to think my Uncle Jim would have done this. That's her brother and she would not like to think that he would have done this to me.

Neyhart said that this was the only time during the interview that C.W. appeared visibly upset.

Neyhart testified that, during this interview, C.W. told Neyhart that Moor had also molested A.F., C.W.'s best friend. C.W. told Neyhart that Moor had molested A.F. on March 20, 1983, the previous Sunday. C.W. told Neyhart that Moor, A.F., and she had gone to the movies and that C.W. and A.F. had sat down in front while Moor sat in the rear. C.W. told Neyhart that A.F. told her that she was going to ask Moor for some money and went back to see him. When A.F. had not returned after five minutes, C.W. went up to look for her. C.W. told Neyhart that she saw A.F. leaning over Moor and saw Moor pull his hand away from A.F.'s crotch area. C.W. informed Neyhart that A.F. left and returned with C.W. to their seats; Neyhart was told that A.F. had been crying, but that A.F. told C.W. she didn't wish to talk about it.

Neyhart testified that C.W. also indicated to Neyhart that she had seen two other incidents involving A.F. and Moor in the living room on the couch area at her grandparents' home. She told Neyhart that, on one occasion, she observed Moor and A.F. sitting together on the couch. C.W. saw A.F. get up and leave; A.F.'s bra was unfastened and A.F. was upset. C.W. said there was another occasion when she observed Moor and A.F. sitting on the couch and saw Moor pull his hand away. C.W. said that Moor had told the girls that they had better not tell anyone or they would be in trouble.

Neyhart testified that she subsequently interviewed A.F. and A.F.'s mother; A.F. confirmed C.W.'s report. Neyhart testified that she telephoned L.W., who is C.W.'s mother and Moor's sister, who was understandably upset by the contact. L.W. promised to talk to C.W. and to meet with Neyhart that afternoon. During the interview, both C.W. and her mother were in tears. Neyhart noted a substantial change in C.W.'s demeanor. During the morning interview, C.W. had indicated that her contacts with Moor were unpleasant and that she tried to avoid them. During the afternoon interview, however, C.W. characterized them as "not that bad."

C.W. and her mother were subsequently interviewed by Diane Dome, an Alaska State Trooper. C.W., her mother L.W., and her father, G.W., were present. C.W.'s parents denied that anything illegal had taken place. Trooper Dome asked permission to speak to C.W. privately. Permission was reluctantly given by the parents. Dome asked C.W. if she'd observed Moor put his hands inside A.F.'s pants. C.W. replied that she had not. Trooper Dome testified about the interview:

A: [Trooper Dome] ... [W]hen I first asked her the question. And I said, "You did not see him put her [sic] hand in his pants--his hand in her pants?" And she said, "Well, not completely inside the pants." And, I said, "What did you see?" And she demonstrated by putting her hand inside the waistband of her pants, and she said, "Like that."

Q: [Prosecutor] Is that pretty much the extent of what she told you about that?

A: I think then I said "Did he put his hand inside her pants?" and she said "Yes."

After these interviews, C.W.'s parents apparently forbade contact between the girls. In addition, they refused to allow C.W. to be interviewed by the district attorney's office. L.W., C.W.'s mother, explained her reasons as follows:

Q: [Prosecutor] Okay. You have not wanted your daughter to talk with my office, is that right?

A: [L.W.] I feel you guys are out to hurt my brother. You don't know him, and I know both of them, my brother and [A.F.] very well. My brother is a very devout Catholic and I know he's telling the truth. I've known Jimmy for a lot of years and he never, ever has done anything wrong or lied.

Q: And you would refuse to believe any allegation to the contrary?

A: Yes.

Q: I'm still not sure--feel that your daughter, with you present, talking with my office we would have put words in her mouth or twisted her story?

A: You weren't there for us, so--and I don't feel that she needs to be subjected anymore than she has already had to go through.

Q: I can understand that. Did you allow her to discuss this case with [defense counsel]?

A: Yes. I let her go in and tell what she knew.

Q: But you wouldn't let her come in and tell what she knew in the district attorney's office, even with you present?

* * *

A: No.

A.F. and C.W. testified at trial. They indicated that on March 20, 1983, Moor took them to see a movie. The girls ran to the front of the theater and sat in the seats closest to the screen. Moor sat three rows from the rear of the theater. A.F. testified that, early in the movie, she left her seat and went to ask Moor if it was all right for the girls to sit apart from him. According to A.F., Moor directed her to sit down and to place her right leg over his legs. He then began rubbing her leg. He unzipped her pants, stuck his hand down her pants, and put his finger up her vagina and moved it around. A.F. testified that he kept his finger inside her vagina for three to five minutes. A.F. didn't say anything because she was scared. When Moor "stopped" he told her not to tell anyone.

When A.F. returned to her seat, she told C.W. what had happened. C.W. told A.F. to tell C.W.'s mother "or someone" when they got home. A.F. testified that she later approached Moor again, by herself, to ask for money for refreshments and game machines; Moor gave her some money, apparently without any further conversation or contact.

C.W. testified that A.F. went to the rear of the theater only once, and that C.W. eventually followed A.F. to see what was taking so long. C.W. said that A.F. was seated next to Moor and that Moor's hand was next to A.F. "like he was giving her money." C.W. said that after A.F. and C.W. returned to their seats, A.F. began "crying a little bit," told...