Napoka v. State

• Decision Date: 18 February 2000
• Docket Number: No. A-6790.,A-6790.
• Citation: 996 P.2d 106
• Parties: Carl J. NAPOKA, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

996 P.2d 106

Carl J. NAPOKA, Appellant, v. STATE of Alaska, Appellee.

No. A-6790.

Court of Appeals of Alaska.

February 18, 2000.

Margi A. Mock, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.

John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

OPINION

MANNHEIMER, Judge.

This case presents an issue under Alaska's rape shield law, AS 12.45.045. Carl J. Napoka was accused of sexually assaulting a teenage girl. At his trial, Napoka tried to introduce evidence that he and the purported victim had repeatedly engaged in consensual sex in the past. The superior court ruled that this evidence was barred by the rape shield law. Having examined Napoka's offer of proof, we conclude that the offered evidence was admissible and that the superior court's ruling denied Napoka a fair trial.

An overview of Alaska's rape shield law, AS 12.45.045

AS 12.45.045 declares that, in prosecutions for sexual assault, "evidence of the [victim's] previous sexual conduct may not be admitted[,] nor may reference be made to it in the presence of the jury", except by order of the trial judge.¹ If a defendant wishes to introduce this type of evidence, the defendant must first apply to the trial judge.² The statute directs the trial judge to hear this matter in camera.³ If the judge concludes "that evidence [of] the [victim's] sexual conduct is relevant, and that the probative value of [this] evidence ... is not outweighed by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the complaining witness", then the judge shall issue an order "stating what evidence may be introduced and the nature of the questions that may be permitted."⁴ The statute adds that "[i]n the absence of a persuasive showing to the contrary, evidence of the [victim's] sexual conduct occurring more than one year before the date of the offense charged is presumed to be inadmissible...."⁵

The basic facts of this case

On February 9, 1996, Alaska State Trooper Gary J. LaMotte spoke to the students at Tuluksak High School concerning sexual assault and sexual abuse. Shortly after he finished his presentation, a teacher contacted him and told him that a student wanted to report that she had been sexually abused. LaMotte had a short conversation with the student, fourteen-year-old N.A., but he had to leave to catch his plane. LaMotte returned to Tuluksak one month later to follow up on N.A.'s report. N.A. told Trooper LaMotte that Napoka had sexually assaulted her nine or ten times, and that the three most recent assaults had occurred approximately two years before, in the summer and fall of 1994.

LaMotte decided to focus his investigation on these three most recent assaults. He interviewed Napoka and asked him about N.A.'s allegations. Napoka ultimately told LaMotte that he had engaged in non-consensual sex with N.A. on the three occasions in mid-1994. He was subsequently indicted on three counts of first-degree sexual assault.⁶

The defendant's offer of proof, the meaning of AS 12.45.045, and the trial judge's erroneous interpretation of this statute

Just before opening statements at Napoka's trial, the prosecutor asked Superior Court Judge Dale O. Curda to exclude all evidence of the other six or seven sexual encounters between Napoka and N.A.. The prosecutor asserted that this evidence was barred by the rape shield law, AS 12.45.045.

Responding to the prosecutor's request for this protective order, Napoka's attorney argued that evidence of the prior sexual encounters was relevant to two disputed issues: (1) whether N.A. consented to the three charged incidents of sexual activity, and (2) if she did not, whether Napoka might have reasonably believed that N.A. was consenting to the sexual penetration.

Defense Attorney: As to [past] sexual contact [between] the defendant and the victim, ... I certainly see it as relevant in this case. The allegation, according to the police report, is that [N.A.] and Mr. Napoka had sex some nine or ten times over the years [when] she was twelve, thirteen, and fourteen years old. And [one must] say that it [is] relevant [because], of course, there's going to be a question of consent in this case. People who have had sex [with each other] some ten times interact differently than people who have never had sex. And in order to show that this is a situation of consent, I certainly need to give the whole picture.... Mr. Napoka is entitled to a fair trial, and certainly [his] entire relationship from childhood onward with [N.A.] is relevant in this case.

...

[L]et me [be] clear to the court: [N.A.] doesn't say that she used to consent and she quit consenting. [According to] the police report, what she says is that all nine or ten times were exactly the same — exactly the same resistance, exactly the same non-consent, exactly the same [modus operandi], and exactly the same result: sexual penetration. [But we contend that] she is a woman who knows when she wants sex and when she doesn't want sex, and it's our position that she always wanted sex with Mr. Napoka.

...

[We] contend that [N.A.'s allegation that] each and every [past] instance [was] forcible is ... false[.] It is our contention that they had consensual sex[.] And to give the whole context [of their relationship] is the only way to show that [the sexual penetration alleged here] was not by way of force.

After hearing the defense's offer of proof, the prosecutor told Judge Curda that evidence of N.A.'s past sexual activity with Napoka should not be admitted even if it was relevant in the way that the defense attorney suggested. The prosecutor maintained that the rape shield law, AS 12.45.045, barred the use of this evidence. The prosecutor asserted that under the statute, "[a]ny past sexual contact or conduct other than what [is alleged here] is deemed inadmissible."

The prosecutor based his position on the fact that AS 12.45.045(a) apparently draws no distinction between a victim's past sexual relations with the defendant and the victim's past sexual relations with other people. The statute simply declares that "evidence of the [victim's] previous sexual conduct may not be admitted".

To this extent, the wording of the statute may not precisely describe its purpose. But that purpose was clarified in Jager v. State⁷, where this court discussed the meaning of AS 12.45.045 and the standard for admission of evidence under that statute.

In Jager, we rejected the contention that the rape shield statute excludes evidence of a victim's past sexual conduct even when that evidence is relevant to the issues being litigated at the defendant's trial. We clarified that the statute "does not prohibit the introduction of evidence of the victim's prior sexual conduct when that evidence is truly relevant."⁸ The purpose of the statute, we explained, is to "guard[ ] against hasty and ill-considered admission of evidence that is only marginally relevant or truly irrelevant."⁹

The rape shield law prohibits evidence of a victim's sexual conduct when the "relevance" of this evidence rests on the impermissible inference that the victim is likely to have freely engaged in sexual relations with the defendant because the victim has freely engaged in sexual relations with other people.¹⁰ As this court explained in Kvasnikoff v. State:

Until recently, female victims of heterosexual rape suffered under a rule of relevancy which reflected the view that a woman who consented to sex with one individual was more likely to have consented to sex with another. This rule was finally rejected [in the rape shield law], when it was realized that such reasoning was "more a creature of ... male fantasy ... than one of logical inference."

674 P.2d 302, 306 (Alaska App.1983).¹¹

Given this clarification of the rape shield law, it is obvious that the statute did not bar evidence of prior sexual activity between N.A. and Napoka. True, the statute requires the defendant to seek the court's permission before introducing any evidence of the victim's prior sexual activity. But this procedural safeguard is intentionally broad, intended to make sure that all evidence of the victim's past sexual conduct is screened before it is presented to the jury. In contrast, the rape shield statute's rule of exclusion is narrower. Like its cousin, Evidence Rule 404(b)(1), the rape shield statute bars specified evidence when that evidence is offered for a specific prohibited purpose.

Napoka's attorney tried to explain the flaw in the prosecutor's interpretation of the statute. The defense attorney pointed out that, even though the rape shield law may not explicitly distinguish between the victim's past conduct with the defendant and the victim's past conduct with other people, the statute is normally concerned with evidence of the victim's past sexual conduct with other people. The purpose of the statute, the defense attorney accurately noted, is to forestall the argument that the victim is promiscuous and therefore probably consented to have sex with the defendant.

Defense Attorney: [And] we don't have [that kind of] situation here[.] [W]e're not showing [N.A.'s] promiscuity. What we're showing is the specific relationship between the two of them [Napoka and N.A.]. And [the] probativeness [of this evidence], as I talked about [before], goes to consent[: what she] communicated to the defendant, and ... all the incidents of [their] sexual interaction[.] So I don't see any possibility of the rape shield law applying [to this] evidence.

...

The Court: Okay, so that I'm clear [on your argument]: What exactly are you offering the evidence for?

Defense Attorney: To show that, in fact, [N.A.] has been a consen[ting] and willing partner in the sexual

...