Pete v. State
| Docket Number | A-13313,7089 |
| Decision Date | 24 January 2024 |
| Parties | BRYON DOUGLAS PETE, Appellant, v. STATE OF ALASKA, Appellee. |
| Court | Alaska Court of Appeals |
1
BRYON DOUGLAS PETE, Appellant,
v.
STATE OF ALASKA, Appellee.
No. A-13313
No. 7089
Court of Appeals of Alaska
January 24, 2024
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Trial Court No. 3AN-16-05448 CR
Rachel Cella, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
TERRELL Judge
Bryon Douglas Pete was convicted, following a jury trial, of second-degree sexual abuse of a minor, attempted second-degree sexual abuse of a minor, and fourth-degree assault. Pete sexually assaulted a young girl, tried to assault a second young girl, and physically assaulted a young boy when the children were present in an Anchorage
hotel room where Pete was drinking with their adult female relative. For these offenses, the superior court sentenced Pete to a composite term of 11 years and 180 days to serve with an additional 12 years suspended and a 10-year probation period. Pete now appeals, challenging both his convictions and sentence.
As to his convictions, Pete challenges, on constitutional and rule-based grounds, the admission at trial of videotaped interviews with the children conducted at a Child Advocacy Center (CAC).[1] He notes that the interviews were hearsay at his trial and inadmissible under the federal and Alaska Confrontation Clauses unless the children testified and were available for cross-examination regarding the statements. He argues that two of the childrens' inability to remember facts regarding the events at trial rendered them unavailable as witnesses for Confrontation Clause purposes. He also argues that the superior court erred by not applying a clear and convincing evidence standard and by making insufficient findings as to the foundational admissibility requirements set out in Alaska Evidence Rule 801(d)(3) for CAC interview videos.
As to his sentence, Pete argues that the superior court erred in rejecting his proposed mitigating factor that his second-degree sexual abuse of a minor and attempted second-degree sexual abuse of a minor offenses were among the least serious conduct included within the definition of those offenses.[2] Pete also challenges a probation
condition prohibiting him from having firearms and several probation conditions which effectively prohibit him from having contact with his children without his probation officer's approval. Pete last argues that the presentence report should be corrected to remove a sentence stating that the police officers who responded to the hotel thought that Pete had attempted to have sexual relations with the childrens' adult female relative.
Finding that the bulk of Pete's claims do not warrant relief, we affirm Pete's convictions and sentence. But in light of the State's correct concessions, we remand so that the court may reconsider several of Pete's probation conditions. In particular, we remand the case to the superior court to reconsider the conditions that prohibit Pete from contacting his children, and direct the court to apply special scrutiny to those conditions since they impact his constitutional right of familial association. We also remand for the court to reconsider Pete's request to modify the probation condition prohibiting him from possessing firearms. We also direct the court to correct the presentence report to strike the sentence that Pete challenges.
Background facts and proceedings
On the last weekend of February 2016, Jolene Steve-Pete had four children in her care: twelve-year-old K.N. (her niece), ten-year-old Lu.T. (her son), eight-year-old La.T. (her granddaughter), and one-year-old M.S.P. (her grandson and adopted son).[3]Steve-Pete met up with Pete (not a relative, but whom she knew from her hometown) at a hotel in Anchorage.
K.N. testified at trial (and stated in her CAC interview video, which was played at trial) that Pete and Steve-Pete drank beer together in a hotel room. Steve-Pete
passed out in the bed, lying next to Pete who was awake and watching television with the children. Pete then initiated a series of assaults on the children. La.T. stated in her CAC interview video, which was played for the trial jury, that Pete first touched her genitalia and buttocks through clothing while she was on the bed. La.T. stated that Pete then got up to use the bathroom, and when he came back into the hotel room he did this again to her, while she was standing up watching television.[4] Lu.T. stated in his CAC interview video, which was played at trial, that he then tried to intervene, attempting to remove Pete's hand from La.T., to which Pete responded by punching Lu.T. in the stomach, slapping him, and pulling his hair.[5] K.N. stated in her CAC interview video and at trial that when she was in the bathroom, Pete tried to force his way into the bathroom, telling her "I'm going to do something to you" and attempting to make contact with her genitalia with his hand, but not succeeding because she moved his hand away.
K.N. testified that she then picked up the baby and led the other children out of the room and to the front desk. They told the front desk clerk that Pete touched them, leading the clerk to call 911. Anchorage Police Department officers responded to the scene and found Pete in bed with a passed out Steve-Pete.
K.N., Lu.T., and La.T. were interviewed at a CAC in Anchorage several days after the incident (the Alaska CARES program at Providence Hospital).
Pete was tried for (1) second-degree sexual abuse of a minor (for touching La.T.'s genitals through clothing), (2) attempted second-degree sexual abuse of a minor
(for attempting to touch K.N.'s genitals), (3) fourth-degree assault (for hitting and slapping Lu.T.), and (4) second-degree harassment (for hitting and slapping Lu.T.).[6]
Prior to trial, the State moved to admit the CAC interview videos under Evidence Rule 801(d)(3). Pete opposed admission of the interviews, arguing that the State had not shown that the requirements of Rule 801(d)(3) were satisfied. He argued that "[i]t is not clear that each person who participated in the taking of ten-year-old L[u].T.'s statement is identified on the recording," as required by Rule 801(d)(3)(E). Further, he asserted that "[i]t is not clear that the interests of justice are best served by admitt[ing] K.N.'s recording into evidence," as required by Rule 801(d)(3)(H), because her grand jury testimony showed that she was capable of testifying in detail about the events at trial. Pete also cited Judge Mannheimer's concurrence in Augustine v. State for two propositions: (1) that the State must prove by clear and convincing evidence the facts relied on to establish the foundational requirements for admitting CAC interviews, and (2) that the State must "elicit[] sufficient testimony regarding the allegations to establish that the witness now makes the same accusation against the defendant that he or she made on the recorded statement."[7]
The court heard argument on the motion prior to the start of trial and concluded that the State had satisfied the requirements of Evidence Rule 801(d)(3) and that the CAC interview videos would be admissible at trial. The court did not address Pete's claim regarding the standard of proof.
At trial, the State presented the testimony of Steve-Pete and all three children, as well as the hotel desk clerk and the police officers who responded to the
scene. The State also played the CAC interview videos for all three children. The oldest child, K.N., had some memory of the events and gave substantive testimony at trial, but Lu.T. and La.T. stated that they could not remember the incidents and provided no substantive testimony at trial. After La.T. testified, Pete objected to the introduction of her CAC interview on Confrontation Clause grounds, stating that "due to the witness's lack of memory, the defense has not had a chance to confront her, and as a result of that, the video of her statement to Alaska CARES should be struck from the record."[8] Pete later made this same objection with respect to the introduction of Lu.T.'s CAC interview.
Pete's defense was that the childrens' testimony was simply too vague and contradictory to be credited and that because it was thus impossible to know precisely what happened in the hotel room, the State had not carried its burden of proving the charges beyond a reasonable doubt.
The jury convicted Pete of all charges. At sentencing, the court merged the second-degree harassment conviction into the fourth-degree assault conviction. Pete was sentenced for second-degree sexual abuse of a minor, attempted second-degree sexual abuse of a minor, and fourth-degree assault.
As a second-felony offender, Pete was subject to a presumptive range of 10 to 25 years for second-degree sexual abuse of a minor and 8 to 15 years for attempted second-degree sexual abuse of a minor.[9] He asked the court to find the mitigating factor set out in AS 12.55.155(d)(9), that his conduct was among the least serious conduct included in the definitions of those offenses, and to impose a sentence below the bottom ends of the presumptive ranges. The court rejected the proposed mitigating factor and sentenced Pete to a composite sentence of 11 years and 180 days to serve.
Pete appeals.
Why we reject Pete's Confrontation Clause claim
Both the United States and Alaska Constitutions guarantee a criminal defendant the right "to be confronted with the witnesses against him."[10] In Crawford v. Washington, the United States Supreme Court noted that admission at trial of a witness's prior out-of-court testimonial...
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