Slats v. State, 091119 AKCA, A-12313
| Opinion Judge | HARBISON JUDGE. |
| Party Name | KEVIN A. SLATS, Appellant, v. STATE OF ALASKA, Appellee. |
| Attorney | Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. |
| Judge Panel | Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior Judge. |
| Case Date | September 11, 2019 |
| Court | Alaska Court of Appeals |
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, First Judicial District, Juneau, Trial Court No. 1JU-12-01353 CR. Louis J. Menendez, Judge.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior Judge. [*]
MEMORANDUM OPINION
HARBISON JUDGE.
In this appeal, Kevin A. Slats challenges his conviction for first-degree sexual assault.1 Slats argues that the superior court erred in limiting the introduction of evidence of the victim's sexual history. He also argues that the superior court's failure to instruct the jurors that they had to unanimously agree to convict Slats was structural error requiring reversal of Slats's conviction.
For the reasons we explain in this opinion, we conclude that the superior court's decision excluding evidence of the victim's sexual conduct was not an abuse of discretion. Additionally, because the jurors were polled after they returned their verdict, any error in failing to instruct the jury on the need for unanimity was cured by the superior court.
Underlying incident
According to L. W.' s trial testimony, on the morning of November 10, 2012, she was drinking in a park with several friends, including Slats. At that time, L. W. was homeless and staying in either her boyfriend's car or at Glory Hall, 2 an emergency shelter in Juneau. After a few hours, L. W. prepared to leave the park, and Slats asked to accompany her, saying he wanted to talk. The two walked up a trail to a flat area near an oil tank.
L.W. testified that, shortly after they arrived, Slats grabbed her. L.W. struggled with him and asked what he was doing. Slats responded that L.W. owed him. He removed L.W.'s pants and penetrated her anus with his penis. L.W. testified at trial that Slats also digitally penetrated her vagina-possibly by "fisting" - and performed cunnilingus on her (although she was inconsistent in reporting these sexual acts).
L. W. walked to the police station to report the assault. Her then boyfriend, David Lindoff, went with her. After interviewing L.W., police officers asked her to show them where the sexual assault occurred and then they took L. W. to the hospital.
At the hospital, a nurse performed a sexual assault examination on L.W. and treated her injuries. The sexual assault examination revealed semen near L.W.'s anus, and subsequent DNA testing revealed that Slats was a likely match to this semen.
L.W. later testified that she was menstruating at the time of the sexual assault. She said that the assault was so painful that she was unable to walk normally for several days afterward and that she needed to take a prescribed stool softener and had to use a medical donut cushion to ease the pain of sitting.
Slats was charged with two counts of first-degree sexual assault - one count for digital penetration of L.W.'s vagina and one count for penile penetration of L. W.' s anus.3 His defense at trial was that he engaged in consensual anal sex with L.W., but he did not penetrate her vagina at all. The jury acquitted Slats of digitally penetrating L.W.'s vagina but convicted him of penetration of her anus with his penis, rejecting his consent defense.
The superior court's decision excluding evidence of the victim's sexual conduct was not an abuse of discretion
On appeal, Slats argues that the superior court improperly prevented him from presenting evidence of L.W.'s sexual conduct. Among other things, Slats wanted to present evidence that (1) L. W. routinely engaged in acts of anal penetration and fisting with her boyfriend; (2) L.W. was known to engage in prostitution; and (3) later, after the assault, L.W. went to a hotel with two men, presumably to have sex with them. Slats argues that this evidence was not barred by the rape shield statute because it had situational relevance to his defense.
Alaska's rape shield law, Alaska Statute 12.45.045, provides in part: (a) In prosecutions for the crimes of sexual assault in any degree... evidence of the sexual conduct of the complaining witness, occurring either before or after the offense charged, may not be admitted nor may reference be made to it in the presence of the jury except as provided in this section. . . . If the court finds that evidence offered by the defendant regarding the sexual conduct of the complaining witness is relevant, and that the probative value of the evidence offered 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, the court shall make an order stating what evidence may be introduced and the nature of the questions that may be permitted.4
In accordance with AS 12.45.045, Slats filed a pretrial application seeking to introduce evidence of L.W.'s prior sexual activity.
Slats argued below that the specific acts of sexual assault that were alleged by L. W. - vaginal penetration by fisting and anal penile penetration-were "horrific-sounding" and "arguably deviant." Slats contended that evidence that L.W. routinely consented to such acts was relevant to overcome any belief the jury might have that such acts are per se nonconsensual. But the judge found that Slats had failed to make a case for situational relevance. Instead, the judge found that Slats was seeking to use the evidence in the manner prohibited by the rape shield law - to demonstrate that L.W. was an "unchaste woman ... [who] doesn't deserve the protections of the law" simply because "she engages in varied sexual activity."
Slats challenges this ruling on appeal. He argues that since L.W. was menstruating at the time of the alleged assault, evidence that she previously engaged in anal sex with her boyfriend while menstruating would tend to show that she consented to anal sex with Slats.
An appellate court will...
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