Steven v. State

539 P.3d 880

Charlie Willie STEVEN, Appellant,

v.STATE of Alaska, Appellee.

Court of Appeals No. A-13170

Court of Appeals of Alaska.

November 9, 2023

Marjorie A. Mock, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.

Before: Wollenberg, Harbison, and Terrell, Judges.

OPINION

Judge WOLLENBERG, writing for the Court and concurring separately.

Following a jury trial, Charlie Willie Steven was convicted of second-degree sexual assault for engaging in sexual penetration with M.F. while knowing she was incapacitated.¹ At Steven's trial, the superior court allowed the State to introduce a redacted version of a telephone conversation between Steven and M.F. that had been recorded pursuant to a Glass warrant.

On appeal, Steven argues that the State's redactions unfairly altered the meaning of his statements during the conversation, and that the entirety of the Glass recording should have been admitted under the common law rule of completeness and Alaska Evidence Rule 106. The State responds that Steven's redacted statements were inadmissible hearsay when offered by Steven, and that the redacted statements were unnecessary to provide context for the remaining statements.

Steven's appeal requires us to interpret Alaska Evidence Rule 106. Under this rule, "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."² In prior cases, we have suggested that Rule 106 is only a rule of timing, not admissibility — i.e. , that the rule allows an adverse party to accelerate the introduction of other portions of the statement that are already admissible, but does not provide an independent basis to introduce otherwise inadmissible evidence.

But the facts of this case demonstrate that such a strict reading of the rule — with no allowance for the admissibility of evidence when necessary to provide a complete understanding of a statement — can result in an outcome that is fundamentally unfair and misleading. In the State's redacted version of the telephone conversation, Steven acknowledged that he had sex with M.F. when she was not sober, and he asked M.F. to forgive him. But in the portions kept from the jury, Steven asserted that, when he asked M.F. that day if she would have sex with him, she "kept saying ya." This statement placed Steven's request for forgiveness in context and potentially undermined the State's proof that M.F. was actually incapacitated or that Steven knew that M.F. was incapacitated.

Given our conclusion that these complementary statements were essential to a proper understanding of the conversation and to avoid misleading the jury, we have reviewed our prior decisions on this topic, together with the history of the common law rule of completeness and Evidence Rule 106, as well as cases from other jurisdictions interpreting similar rules. Having done so, we conclude that our prior statements suggesting that Alaska Evidence Rule 106 is solely a rule of timing were dicta and that, upon closer consideration, they were incorrect.

As we explain in detail below, the more well-reasoned interpretation of Evidence Rule 106, and the one that we adopt today, is that Rule 106 is both a rule of timing and a rule of admissibility. In particular, with respect to admissibility, writings and recorded statements that would otherwise be inadmissible if offered by one party are admissible under Evidence Rule 106 when those statements are necessary to explain or clarify a writing or recording that the proponent introduces — that is, when the complementary portions "ought in fairness to be considered contemporaneously."

In light of this holding, and given our determination that the superior court's ruling was not harmless, we reverse Steven's conviction.

Background facts

In the early morning of October 10, 2016, Charlie Steven and his girlfriend, Wilma Michael, heard a woman "hollering" outside their home in Tuntutuliak. When Steven went to investigate, he found M.F., his second cousin, lying on the nearby boardwalk. M.F. was too intoxicated to stand and was yelling incoherently. Together, Steven and Michael carried M.F. into their house, where she fell asleep on the floor.

Two or three hours later, M.F. woke up and moved to a bed in the living room, where Steven was sitting at a table. According to Michael's testimony at trial, M.F. still appeared intoxicated at this point, but she was no longer slurring her words or yelling and she could stand and walk on her own. Michael heard M.F. speaking with Steven, but she could not hear the substance of the conversation. Michael then briefly left the home to run an errand.

After Michael returned, M.F. called her friend, Marcella Jimmie, for a ride home. Jimmie and Michael later testified that M.F. did not seem emotional on the call. When Jimmie arrived at Steven's house a short while later, she observed M.F. sitting at the kitchen table, "look[ing] sad or something" and drinking alcohol. After ten to fifteen minutes, M.F. and Jimmie left because M.F. was becoming intoxicated.

As M.F. and Jimmie were getting on Jimmie's four-wheeler, M.F. began to cry and told Jimmie that Steven had raped her. Jimmie took M.F. to her father's house, where M.F. told her father the same thing. M.F. later contacted the village police officer and told the officer that she had been raped. The officer referred the matter to the Alaska State Troopers.

Later that day, M.F. flew into Bethel for an interview and sexual assault examination. During the interview, M.F. reported that she could not remember how she wound up at Steven's house but that she woke up from a blackout to find herself lying on a mattress with Steven on top of her, penetrating her with his penis.

The next day, Trooper Nicholas Hayes recorded a phone conversation between M.F. and Steven pursuant to a Glass warrant.³ (The call was conducted mostly in Yup'ik — with some statements in English — and a written transcript of the call, with translation from Yup'ik, was prepared prior to trial.⁴ )

During the call, Steven acknowledged having had sex with M.F., and he agreed that M.F. would not have consented to having sex if she had been sober. According to the prepared transcript, the following exchange occurred:

M.F. : You know I wouldn't approve of it if I was sober.

Steven : Yea, I know you wouldn't.

But Steven also told M.F. that he had sought her consent before anything happened, and she "kept saying ‘ya’ ":

M.F. : What made you think it was okay to go ahead and do that while I was unconscious?

Steven : I asked you and you kept saying ya. (Background noise) And if, and if you said no, I would have respected it.

M.F. : I was really drunk and you should know that's not okay.

Steven : You kept. Well you kept saying ya.

M.F. : I don't even —

Steven : Qalarlluten-llu. Qalarlluten-llu assiklarnilua. (You kept saying, you kept saying that you like me.) ... assikpialarnilua qalarlluten. (You kept saying that you really like me.)

Steven also told M.F. that he had asked several times if she was sure about having sex:

Steven : Ya, if you had said no, I would have left you alone, but I asked you five times. And you kept saying ya. And if you were sure about it and you said ya.

M.F. : You should know not to do that to anybody that's really drunk.

Steven : Well that's why, that's why I kept asking.

M.F. : You don't take advantage of that kind of stuff.

Steven : Five times aptell (ask) that's why I asked you five times. And I asked you if you were sure about it and you said ya.

As the call ended, Steven asked M.F. not to report him and promised to "not do that again."

Trooper Hayes also interviewed Steven. During the interview, Steven initially denied having sex with M.F. However, after Hayes informed Steven that he had listened to Steven's call with M.F. earlier that day, Steven acknowledged having had sex with M.F. But Steven also said that he "asked [M.F.] if she wanted to and ... asked her if she was sure about it."

Following the investigation, a grand jury indicted Steven on one count of second-degree sexual assault for engaging in sexual penetration with M.F. while knowing that she was incapacitated.⁵

Trial proceedings

Prior to trial, the State gave notice that it intended to introduce the Glass warrant recording and written transcript (with necessary translation) at trial, but wished to redact certain portions of Steven's statements.⁶ The State argued that the statements it sought to redact were "self-serving" hearsay and inadmissible when offered by Steven.⁷ In particular, the State wanted to redact Steven's assertions that he repeatedly asked M.F. if she wanted to have sex and that she "kept saying ya" — while introducing his acknowledgments that M.F. would not have consented to having sex if she had been sober.

Steven's attorney objected to the State's redactions, arguing that fairness required the entire phone call to be admitted under Alaska Evidence Rule 106.⁸ The attorney noted that Steven did not know the call was being recorded; he contended that the State's proposed redactions would materially misrepresent Steven's statements and mislead the jury into believing Steven had confessed to the crime when in fact he had repeatedly asserted that M.F. was awake and actively consenting (and thus, was either not incapacitated or was acting in such a way that Steven would not know she was incapacitated).

The superior court made some additional redactions that it believed were necessary to avoid misleading the jury, but generally rejected Steven's argument that the entire conversation needed to be admitted for appropriate context. In the end, the...