Judge ALLARD.

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. Trial Court No. 3AN-10-11440 CR

MEMORANDUM OPINION

Appeal from the Superior Court, Third Judicial District, Anchorage, Michael R. Spaan, Judge. Appearances: Marjorie Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.

Michael Don Veibell, Sr., was convicted of physically and sexually assaulting his wife, D.R. On appeal, Veibell argues that the superior court erred when it precluded him from offering expert testimony on a statistical study of genital injuries in sexual assault cases. We conclude that any error in precluding this testimony was harmless in Veibell's case.

Veibell also argues that the court erred when it failed to instruct the jury to presume that certain documents that the State failed to preserve would have been favorable to his defense. For the reasons explained here, we conclude that the superior court's instruction regarding the lost paperwork was not an abuse of discretion.

Accordingly, we affirm Veibell's convictions.

Facts and proceedings

On October 5, 2010, D.R. reported that she had been physically and sexually assaulted by her husband Michael Veibell that morning and two days earlier (on October 3). A forensic nurse examined D.R. and found bruising and swelling on her face, arms, and legs that was consistent with her account of Veibell's physical assaults. However, the nurse found no genital injuries.

Following the sexual assault exam, Anchorage Police Detective Jean Dupuis obtained a Glass warrant and recorded telephone conversations between D.R. and Veibell. The detective also took photographs of text messages Veibell and D.R. had exchanged. Veibell made various incriminating statements during the recorded phone calls and in the text messages.

The State charged Veibell with two counts of first-degree sexual assault and two counts of fourth-degree assault for his conduct in the two separate incidents. At trial, Veibell asserted that D.R. had fabricated her allegations of sexual assaults for a variety of reasons: to get back at him for infidelity, to retaliate against him for reporting her alleged actions of domestic violence against him to the police, and to prevent him from being awarded custody of their children in their pending divorce proceedings.

In an effort to support his claim that D.R. fabricated her sexual assault allegations, Veibell's attorney emphasized the absence of genital injuries in this case. During the defense attorney's cross-examination of Jessica Cain, the forensic nurse who examined D.R., he asked her how often victims of violent sexual assault exhibit no genital injuries. Nurse Cain responded that in her personal experience the "vast majority" of sexual assault cases did not involve genital injuries. Nurse Cain also mentioned that her office kept a "statistical log" of sexual assaults in Alaska and that there was a statistical study based on these state-wide statistics. On re-direct examination, Nurse Cain estimated that she personally saw genital injuries in only ten to fifteen percent of the sexual assault exams she performed.

Veibell's attorney later obtained a copy of the statistical study that the nurse had referenced in her testimony, and he asked the superior court to allow one of the co-authors of the study to testify as a witness for the defense. The attorney made an offer of proof that this statistical study — which included data from sexual assault examinations for all degrees of sexual assault in Alaska between 1996 and 2005 (well over 1,000 cases) — indicated that genital injuries occurred in approximately forty percent of cases, an injury percentage significantly higher than the ten to fifteen percent that Nurse Cain reported seeing in her own experience.

The trial court refused to allow this testimony, ruling that it was expert testimony and that Veibell had not provided the State with timely pretrial notice of this expert. Veibell's attorney subsequently called Nurse Cain as a defense witness and attempted to question her directly about the incidence of genital injury reported in the study. But after Nurse Cain stated that she had not read the whole study, the court ruled that the defense could not continue to cross-examine her on the study or use it to refresh her recollection.

The jury convicted Veibell of both counts of fourth-degree assault (for his conduct in physically assaulting D.R. on October 3 and October 5) and of one count of first-degree sexual assault (for his conduct in sexually assaulting D.R. on October 5). The jury acquitted Veibell of sexually assaulting D.R. on October 3.

This appeal followed.

Why we conclude that any error in precluding the offered evidence of the statistical study was harmless

On appeal, Veibell argues that the superior court erred by precluding him from offering evidence of the statistical study of genital injuries in Alaska sexual assault cases. The superior court ruled that Veibell's attorney could not introduce this evidence because the attorney had failed to comply with Alaska Criminal Rule 16(c)(4), which requires criminal defendants to provide notice to the State of expert witnesses at least thirty days before trial.

Veibell argues that this ruling was error because he could not have anticipated that Nurse Cain was going to testify that the "vast majority" of victims of violent sexual assault — in her experience, eighty-five to ninety percent — exhibit no genital injuries. This assertion was not in her report of D.R.'s examination, which was provided to the defense prior to trial. The State argues that Nurse Cain was only intended to be a fact witness in the State's case and that Veibell cannot claim that her testimony about the incidence of injuries in sexual assault cases was unanticipated when it was Veibell's own attorney who initiated this line of questioning during cross-examination.

We question whether pretrial notice was required for this kind of impeachment testimony but we ultimately conclude that we do not need to resolve this issue because any error in precluding this testimony was harmless in the context of this case.

Although the study showed that sixty percent of sexual assault cases do not involve genital injury (rather than the eighty-five to ninety percent that Nurse Cain observed), the study otherwise confirmed the central point of the nurse's testimony — that most sexual assaults occur without genital injury, and that the absence of genital injury in this case did not necessarily mean that a sexual assault did not occur. Thus, if the jury had heard the results of the study, they would have understood that the majority (rather than the "vast majority") of sexual assault cases do not involve genital injury. But this distinction is unlikely to have had any appreciable affect on the verdict in this case. We therefore conclude that, even assuming that the superior court erred in precluding this evidence, the error was harmless.

Why we conclude that the superior court did not abuse its discretion in refusing to give a full Thorne instruction for the missing divorce paperwork

Veibell's other claim on appeal is that he was entitled to a curative instruction under Thorne v. Department of Public Safety for divorce paperwork that D.R. gave to the police but that the State failed to preserve. In Thorne, the Alaska Supreme Court held that the appropriate sanction for the state's good-faith failure to preserve video evidence of a defendant's field sobriety tests was to remand the case with directions for the fact-finder to presume that the video evidence would have been favorable to the defendant.

The missing divorce paperwork became an issue in the middle of trial. During her cross-examination, D.R. admitted that some time before or after the alleged assaults, she agreed to have sex with Veibell if he would sign the divorce paperwork. She testified that she could not remember exactly when the consensual "divorce sex" took place, although she thought that it had probably taken place at the Executive Suite Hotel, which is where the couple stayed prior to moving to the Black Angus Inn (the site of the charged assaults). D.R. also testified that Veibell did not sign all of the paperwork, despite his promise, and that she gave a copy of the paperwork to Detective Dupuis at some point during the investigation.

Detective Dupuis testified that D.R. told him the "divorce sex" occurred at the Executive Suite Hotel. He confirmed that D.R. had given him a copy of the divorce paperwork, and he stated that he thought he had given the paperwork to the prosecutor, but nobody had been able to locate it.

Following this testimony, Veibell's attorney requested that the court conduct further inquiry into why the divorce paperwork was missing. The court held an evidentiary hearing outside the presence of the jury and found that the State had been negligent in failing to keep track of this evidence but that there was no intentional violation of the State's duty to preserve evidence.

Veibell argued that he was entitled to a Thorne instruction for this missing evidence. He requested that the jury be instructed that it was to presume that the divorce paperwork would have been favorable to the defense. Although the court had granted a similar request with regard to two other pieces of evidence that the State failed to preserve (Detective Dupuis's field notes and D.R.'s cell phone), the court denied the defense request with regard to the missing divorce paperwork. The court agreed that the jury should know that the State had failed in its duty to preserve this evidence, but the court also found that it was "not overwhelmed" by Veibell's claim that he was prejudiced by the State's failure to preserve the paperwork. The court therefore gave what it characterized as a "more neutral" Thorne instruction with regard to this evidence, informing the jury that the missing divorce paperwork was evidence "that should have been preserved" and that they were "free to consider in [their] deliberations whether it might have been favorable to the defendant."

Veibell argues that the superior court erred in giving this "more neutral" instruction, and he contends that he was entitled to a full Thorne instruction on the missing paperwork. In response, the State contends that the court's instruction was a proper Thorne instruction.

We agree with Veibell that the instruction he received was not a complete Thorne instruction because it did not instruct the jury that they were to presume that the missing evidence would have been favorable to the defense. (This presumption is a rebuttable presumption that the State can potentially overcome through other evidence presented at trial.)

We disagree, however, with Veibell's contention that the court's failure to give him a complete Thorne instruction with regard to the missing paperwork was an abuse of discretion.

In determining the appropriate sanction for the State's failure to preserve material evidence in its possession, a court must consider four factors: "the degree of culpability on the part of the state, the importance of the evidence lost, the prejudice suffered by the accused, and the evidence of guilt adduced at the trial or hearing." When it appears that the evidence was lost or destroyed in good faith, the imposition of sanctions hinges on the prejudice to the defendant.

Here, the trial judge found that the State's failure to preserve the missing evidence was not done intentionally or in bad faith — although the trial judge did directly admonish Detective Dupuis that he should have known that he was required to preserve his field notes.

But the judge's comments indicate that he perceived a significant difference between the missing field notes and cell phone information—evidence which was actively collected by the police in the course of their investigation and clearly material to the investigation — and the missing divorce paperwork, which was given to the police by the victim for unknown reasons and its significance to the case remained unclear.

Veibell argues that the judge failed to recognize the potential prejudice caused to the defense by the loss of the divorce paperwork. He claims that the divorce paperwork was potentially material to his defense because it potentially could have shown that the consensual "divorce sex" occurred very close in time to the charged sexual assaults, thus undermining D.R.'s credibility. Veibell also claims that the paperwork could have confirmed that Veibell was seeking custody of the children, thereby supporting his theory that D.R. was fabricating the sexual assaults in order to gain a tactical advantage in the upcoming custody dispute.

But these claims are highly speculative. Moreover, the jury was already aware that custody was an issue between the couple. The jury was likewise already aware that the couple had an on-again, off-again sexual relationship, and there was already evidence (D.R.'s admissions about the "divorce sex" as well as a condom found in the hotel trash can) that the couple likely had consensual sex relatively close in time to the charged assaults. We agree with the superior court that Veibell's claims of prejudice are underwhelming. Accordingly, we conclude that the superior court's decision to give a partial Thorne instruction with regard to the missing divorce paperwork, rather than a complete Thorne instruction, was not an abuse of discretion.

Conclusion

The judgment of the superior court is AFFIRMED.