Olsen v. State, Court of Appeals No. A-10782

• Court: Court of Appeals of Alaska
• Writing for the Court: COATS
• Parties: GLENN OLSEN, Appellant, v. STATE OF ALASKA, Appellee.
• Docket Number: No. 5919,Court of Appeals No. A-10782,Trial Court No. 3DI-08-104 CR
• Decision Date: 13 February 2013

GLENN OLSEN, Appellant,
v.
STATE OF ALASKA, Appellee.

Court of Appeals No. A-10782
Trial Court No. 3DI-08-104 CR
No. 5919

COURT OF APPEALS OF THE STATE OF ALASKA

February 13, 2013

NOTICE

Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION
AND JUDGMENT

Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, and Vanessa H. White, Judges.

Appearances: Glenn Olsen, Pro Se, Hudson, Colorado. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

COATS, Chief Judge.

Glenn Olsen was convicted of sexual assault in the second degree for sexually penetrating M.B. He was also convicted of assault in the fourth degree for assaulting Peter Togiak. Olsen appeals, raising several issues. We remand.

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Factual and procedural background

Benjamin Samuels, Peter Togiak, and M.B. went to a residence on the evening of March 28, 2008, after consuming a significant amount of alcohol. Glenn Olsen arrived at the residence later that night. He had also been drinking alcohol. During the evening, Olsen told Togiak and Samuels to leave. Olsen and Togiak got into an altercation, and Olsen allegedly punched Togiak. Togiak and Samuels went to a neighbor's house to call the police.

Officers Tracy O'Malley and Michael Barnett and Police Chief Richard Thompson responded to a report of a fight at the residence around 6 p.m. According to the officers, everyone at the house appeared intoxicated, and people were screaming and yelling. M.B. was sitting on the floor, highly intoxicated and unable to talk. Olsen acted belligerently toward the officers. Because no one wanted to file a complaint, the officers left.

Following this first police visit, Olsen again told Togiak and Samuels to leave. Samuels testified that Olsen told him and Togiak that it was his house and that Olsen punched, grabbed, and kicked Togiak.

Samuels testified that he saw Olsen grab M.B. by the hair and pull her to the bedroom. Samuels testified that M.B. tried to tell Olsen not to grab her hair and that he believed that M.B. did not want to go to the bedroom. Togiak testified that he saw Olsen hold M.B. by her hair and rape her in the bedroom. Togiak stated that he and Samuels tried to intercede on M.B.'s behalf, but Olsen fought them. Samuels and Togiak then returned to the neighbor's house and called the police.

The police officers returned to the residence around 6:30 p.m. after receiving the report of a second assault. The officers found Samuels and Togiak outside. Samuels told the officers that he had seen Olsen threaten Togiak with a knife. Togiak completed a citizen's arrest form. The officers heard yelling from inside the residence.

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Based on the report of the knife, the yelling inside the residence, and the knowledge that M.B. was intoxicated and likely inside the residence, the officers went inside. In a bedroom, the officers found M.B. face down on a mattress with Olsen on top of her. Both M.B. and Olsen were dressed, but their pants and underwear were pulled down, and Olsen was wearing a condom. The officers either picked up Olsen or told Olsen to get off of M.B. M.B. continued to lie on the bed and was not able to coherently converse with the officers.

The State charged Olsen with sexual assault in the second degree for sexually assaulting M.B. while she was incapacitated and assault in the fourth degree for assaulting Togiak. Olsen testified that M.B. initiated sex and that he believed that she consented to the sexual activity. At trial, M.B. testified that she had no memory of what happened the night of the alleged sexual assault. But the State relied on the testimony of other witnesses to establish that a sexual assault occurred. The jury convicted Olsen of both charges.

Judge Torrisi did not err in denying Olsen's motion to suppress

Prior to trial, Olsen filed a motion to suppress all of the evidence the police observed inside the house. Olsen claimed that the police illegally entered the residence where he and M.B. were having sex because they entered without permission and no exigent circumstances justified the police entry. Olsen argued that all of the evidence that the police obtained from the illegal entry should be suppressed.

Superior Court Judge Fred Torrisi conducted an evidentiary hearing on the motion to suppress. Dillingham Police Officer Michael Barnett and Police Chief Richard Thompson testified at the evidentiary hearing. Officer Barnett testified that when the officers responded to the second report of an assault at the residence, Togiak told the officers that Olsen had kicked him in the ribs, pointed a knife at Togiak, and told Togiak

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to get out of the house. Samuels also told Barnett that Olsen had a knife. Barnett also testified that while he was talking with Togiak and Samuels, he could hear a male and a female yelling in the residence. He concluded that it was likely that M.B. was in danger. Barnett testified that these facts made it necessary to enter the residence. Chief Thompson testified that he concluded it was necessary to enter the house because he did not see M.B. outside, he believed that M.B. was highly intoxicated, he had heard Togiak say that Olsen had used a knife in an assault, and he heard yelling coming from the house. He also concluded that M.B. was in danger.

Following the presentation of the evidence, Judge Torrisi found the police officers' testimony credible. He concluded that the officers reached a reasonable conclusion that M.B. was in danger and that exigent circumstances justified the police entry.

In reviewing a trial court's decision on a motion to suppress, we view the factual findings in the light most favorable to upholding the court's decision. We are to reject findings of fact by a trial court only if they are clearly erroneous. But the question of whether a search falls within an exception to the requirement that a search must be justified by a warrant is a question of law which we review de novo.¹

In Gibson, the Alaska Supreme Court held that the Alaska constitutional standard for the emergency aid doctrine affords greater protection against warrantless searches and seizures than the United States Constitution.² Under this standard, the State must meet the three-pronged Gallmeyer test to justify a warrantless search under the emergency aid exception:

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(1) the police must have reasonable grounds to believe there is an emergency at hand and an immediate need for their assistance in the protection of life or property; (2) the search must not

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