Opinion
Court of Appeals No. A-12242 No. 6776
02-27-2019
JAMES L. GALAKTIANOFF, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Carolyn Perkins, Law Office of Carolyn Perkins, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
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. 1CR-12-236 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Craig, David V. George, Judge. Appearances: Carolyn Perkins, Law Office of Carolyn Perkins, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
Following a jury trial, James L. Galaktianoff was convicted of one count of first-degree sexual abuse of a minor for digitally penetrating nine-year-old T.H.
On appeal, Galaktianoff argues that the trial court erred in denying his motion for an in camera review of T.H.'s post-assault counseling records, and also by declining to refer his case to the statewide three-judge panel for sentencing.
For the reasons explained in this opinion, we affirm Galaktianoff's conviction and sentence.
Factual background and proceedings
When T.H. was in the third grade and approximately nine years old, she was playing outside her house in Klawock when her neighbor, James Galaktianoff, approached her. Galaktianoff, who was in his fifties, was a family friend and a distant relative of T.H.'s father. Galaktianoff and T.H.'s parents frequently socialized. Galaktianoff asked T.H. to come over to his house, promising her candy and several dollars.
T.H. walked up the trail behind her house, which led to the back of Galaktianoff's house, and met Galaktianoff. Galaktianoff picked up T.H. and put her on top of a propane tank. While Galaktianoff was standing in front of T.H., Galaktianoff put his hand down T.H.'s pants, inside her underwear; he then put his finger inside her vagina, causing T.H. pain.
Galaktianoff lifted T.H. off the propane tank, and T.H. returned home. T.H. did not tell anyone what had happened because she did not realize at the time that Galaktianoff's conduct was wrong. Shortly thereafter, T.H. moved with her family to Hawaii.
Several years later, when T.H. was approximately thirteen years old, she began to question whether Galaktianoff had taken her virginity, and she first began to realize the wrongfulness of Galaktianoff's conduct. However, she continued to suppress her feelings about the event.
Then, following the birth of her son in 2011, when T.H. was approximately seventeen years old, she began to have nightmares. She subsequently told her parents what had happened with Galaktianoff. T.H. then attended four counseling sessions at a clinic in Hawaii.
T.H. also reported the incident to law enforcement. After searching the internet, T.H. located the email address for the Klawock Chief of Police, Terry Stonecipher, and she sent Stonecipher an email in July 2012.
In the email, T.H. reported that Galaktianoff had "raped" her in April 2003, when T.H. was living in Klawock. Stonecipher called T.H. to gather more information, and he also contacted T.H.'s local police station in Honolulu for assistance. With T.H.'s approval, Stonecipher obtained a Glass warrant to record calls between T.H. and Galaktianoff.
See State v. Glass, 583 P.2d 872 (Alaska 1978).
After numerous calls to Galaktianoff went to voicemail, T.H. finally reached him. During the phone call, T.H. told Galaktianoff that she wanted closure. Galaktianoff asked T.H. what happened, and T.H. explained that Galaktianoff had put his hand down her pants. Galaktianoff seemed to remember T.H. and told her that he was in the hospital. T.H. asked Galaktianoff if he wanted to apologize for what he did, again explaining that she wanted closure. Galaktianoff responded yes, and he told T.H. several times that he was sorry.
A grand jury subsequently indicted Galaktianoff on a single count of first-degree sexual abuse of a minor.
AS 11.41.434(a)(1).
T.H. had disclosed to both Stonecipher and a defense investigator that she had attended counseling. Before trial, Galaktianoff filed a motion to compel the production of T.H.'s counseling records from the clinic in Hawaii for an in camera review by the court. Galaktianoff argued that T.H.'s counseling records (as well as the dates T.H. attended counseling) were relevant to assess her assertion that she attended counseling and the credibility of her statements regarding the alleged offense.
The State opposed, arguing that T.H.'s counseling records were protected by the psychotherapist-patient privilege codified in Alaska Evidence Rule 504 and by article I, sections 22 and 24 of the Alaska Constitution, and that Galaktianoff had made an insufficient showing of materiality to overcome these protections.
After oral argument, the court denied Galaktianoff's motion. The court concluded that Galaktianoff had failed to present any factual basis for believing that the records contained the type of favorable information he sought. The court recognized that Galaktianoff could not know what was actually in the records, but the court found that "simply asking [the court] to invade the witness's psychotherapy privilege and rights to privacy in the hopes that there might be an inconsistent statement is really a fishing expedition." (The court did order the release of the dates of T.H.'s counseling sessions.)
A jury found Galaktianoff guilty of first-degree sexual abuse of a minor as charged in the indictment. The jury also found, through a special verdict, that the State had proved an aggravating factor.
Why we uphold the trial court's denial of Galaktianoff's request for in camera review of T.H.'s counseling records
Galaktianoff argues that the trial court erred in denying his motion for an in camera review of T.H.'s counseling records. Galaktianoff does not contest that the records were privileged under Alaska Evidence Rule 504. But he maintains that his constitutional rights to due process and confrontation outweighed this privilege and warranted the court's review of T.H.'s counseling records.
Galaktianoff does not separately address the State's argument that the counseling records are protected under article I, sections 22 and 24 of the Alaska Constitution.
As the predicate for his request, Galaktianoff renews and extends the arguments he made in the trial court. In particular, he argues that T.H.'s memory of the events may have been recovered during therapy, and thus, T.H.'s memory may have been influenced by her therapist or by her participation in therapy. Additionally, Galaktianoff argues that T.H. could have made inconsistent statements that would reflect on her credibility.
We have not previously decided what standard governs a defendant's request for an in camera review of a witness's privileged psychotherapy records. In N.G. v. Superior Court, we declined to decide whether the privilege could be breached upon a sufficiently strong showing, or whether these records are absolutely privileged. At the very least, however, a party seeking a review of psychotherapy records must demonstrate a good-faith basis for believing that the records may lead to the disclosure of favorable evidence. A trial judge need not conduct an in camera review of privileged materials based solely on a generalized assertion that the records might contain some impeachment material.
N.G. v. Superior Court, 291 P.3d 328, 338 (Alaska App. 2012).
See March v. State, 859 P.2d 714, 718 (Alaska App. 1993).
See Cockerham v. State, 933 P.2d 537, 543-44 (Alaska 1997); Risinger v. State, 1998 WL 411300, at *2 (Alaska App. July 22, 1998) (unpublished).
Galaktianoff asks us to apply the standard we articulated in Booth v. State for disclosure of police personnel records. In Booth, we held that, in order to obtain a review of a police personnel file, a defendant must identify a type of information relevant to the defendant's guilt or innocence (in light of the prosecution and defense theories of the case) that would be recorded in an officer's personnel file if the information existed.
Booth v. State, 251 P.3d 369, 374 (Alaska App. 2011).
But even under the Booth test, the defendant must present "a factual predicate for [the] discovery request — either pointing to facts already within the record, or making an offer of proof that provides the evidentiary foundation for the request." In other words, the defendant must support his request with more than conclusory statements or unsupported assertions.
Id. at 377.
Id. at 376.
Here, T.H. went to mental health counseling at least in part to seek assistance in confronting the continued impact of Galaktianoff's conduct on her. There is therefore good reason to believe that T.H. discussed the incident at counseling and that statements she made to her therapist were, in a colloquial sense, "relevant" to this case.
But if this alone were sufficient to justify in camera review, then any time a crime victim sought post-offense mental health counseling related to the crime, the court would be required to undertake an in camera review, without a further showing. This would undermine the very foundation of the privilege: providing a forum in which a patient may talk freely and uninhibitedly with the patient's treatment provider.
Thus, a defendant is not entitled to review a witness's privileged records absent a showing of materiality — i.e., some showing that the information is pertinent to the defense and not merely cumulative.
See State v. Green, 646 N.W.2d 298, 310 (Wisc. 2002) (holding that, in order to obtain an in camera review of an alleged victim's counseling records, the defendant must "set forth a fact-specific evidentiary showing, describing as precisely as possible the information sought from the records and how it is relevant to and supports his or her particular defense"; the mere contention that the victim has been involved in counseling related to the current sexual assault is insufficient); People v. Stanaway, 521 N.W.2d 557, 576 (Mich. 1994) (holding that the defendant's assertion that the complainant's counseling records were necessary to unearth any prior inconsistent statements was no more than a generalized assertion that might exist in every case involving an accusation of criminal sexual conduct and was insufficient to warrant in camera review).
Here, Galaktianoff made only a general and vague assertion in the trial court that the records might contain information valuable to the preparation of his defense. Galaktianoff alleged that T.H. might have revealed information as to how she came to remember the incident, and might have made inconsistent statements which Galaktianoff could use to impeach her credibility. But he did not articulate a good-faith basis for believing that T.H. had actually made any inconsistent statements during counseling, or that any statements she made in counseling would be favorable to his defense. Indeed, while T.H.'s memory of the exact date and peripheral details of the events was hazy, the core of her story remained the same over time.
And contrary to Galaktianoff's argument on appeal, there was no evidence that this was a case of repressed memory, where T.H. uncovered memories of the sexual assault as a result of therapy. The record shows that T.H. began to remember the incident when she was thirteen years old, when she started to believe that Galaktianoff had taken her virginity. The record also shows that T.H. disclosed the assault to her parents, and only after that disclosure did T.H. begin going to counseling. At most, in the trial court, Galaktianoff pointed to the absence of information as the basis for his request, noting that T.H.'s recall of what precisely triggered her memory of the incident, or what she might have said during therapy, was vague.
Because Galaktianoff's request for an in camera review fell short of even the minimum justification necessary to overcome T.H.'s privilege in the records, we conclude that the trial court properly denied Galaktianoff's motion.
Sentencing
The parties agreed that, as a first felony offender charged with conduct occurring in 2003, Galaktianoff was subject to a presumptive term of 8 years. Because the jury found an aggravating factor, the court had the authority to sentence Galaktianoff up to a maximum of 30 years.
Former AS 12.55.125(i)(1)(A) (pre-September 11, 2003 version).
Former AS 12.55.125(i) (pre-September 11, 2003 version) & AS 12.55.155(a).
Galaktianoff proposed a single mitigating factor, AS 12.55.155(d)(9) — that his conduct was among the least serious within the definition of the offense. Galaktianoff also argued that the court should refer his case to the three-judge sentencing panel for two reasons: (1) because he established the non-statutory mitigating factor of extraordinary potential for rehabilitation, and (2) because the applicable presumptive range (even if adjusted for the statutory mitigator) was manifestly unjust.
See AS 12.55.165(a).
Additionally, Galaktianoff objected to certain statements in the presentence report, including statements by T.H.'s sister, R.H., in which R.H. alleged that Galaktianoff had sexually abused her as well. Galaktianoff took the stand and denied these allegations. (These allegations were not presented at trial.)
R.H. then testified. R.H. stated that when she was approximately eight years old (and T.H. was approximately three years old), Galaktianoff was at her residence and appeared drunk. Galaktianoff went outside with R.H.'s parents to smoke a cigarette, but he came back inside before R.H.'s parents did. R.H. stated that Galaktianoff sat on the couch between her and T.H., put his hand under the blanket, and began rubbing R.H.'s vagina with his thumb, outside her underwear. Galaktianoff also asked R.H. if he could buy her underwear. R.H. reported that when her parents came back inside the residence, Galaktianoff quickly got up off the couch and walked into the kitchen.
The court concluded that the State had proved R.H.'s allegations by a preponderance of the evidence, and therefore denied Galaktianoff's request to strike the statements from the presentence report.
The court subsequently found that Galaktianoff had proved the "least serious conduct" mitigator as to the offense involving T.H. The judge noted that Galaktianoff's conduct appeared to be more opportunistic than planned, was brief in duration, and involved digital penetration without force or the threat of force.
Following the parties' arguments, the court denied Galaktianoff's request to refer his case to the three-judge panel. The court imposed a sentence of 12 years with 4 years suspended (8 years to serve).
Why we uphold the denial of Galaktianoff's request for referral to the three-judge panel
Galaktianoff argues that the trial court erred in denying his request for referral to the three-judge panel because he demonstrated extraordinary potential for rehabilitation and because the 8-year presumptive term was manifestly unjust.
But because the trial court found a statutory mitigator, the court was authorized to reduce the 8-year presumptive term to as low as 4 years, even without referring Galaktianoff's case to the three-judge panel. Thus, the question is whether a 4-year term would be manifestly unjust.
See AS 12.55.155(a)(2).
Harapat v. State, 174 P.3d 249, 254 (Alaska App. 2007).
Before a sentencing judge can conclude that a presumptive sentence is manifestly unjust, the judge must articulate specific circumstances that make the defendant significantly different from a typical offender within that category, or make the defendant's conduct significantly different from a typical offense. Specifically, the court must determine, based on the totality of the circumstances in light of the Chaney criteria, whether the sentence would be manifestly unjust as applied to the defendant.
Beltz v. State, 980 P.2d 474, 480 (Alaska App. 1999).
Kirby v. State, 748 P.2d 757, 762 (Alaska App. 1987). --------
Although the sentencing judge found Galaktianoff's conduct against T.H. to be among the least serious within the definition of first-degree sexual abuse of a minor, the judge specifically rejected the notion that a 4-year sentence would be manifestly unjust. While Galaktianoff's criminal history was minimal, it included a driving while intoxicated conviction, a driving under the influence conviction, and a fourth-degree assault conviction. The sentencing judge also expressed concern about the impact of alcohol consumption on Galaktianoff's conduct, given the assertions by both T.H. and R.H. that Galaktianoff was intoxicated when he assaulted them. Based on the totality of the circumstances, we conclude that the trial court was not clearly mistaken in finding that Galaktianoff had failed to establish that it was manifestly unjust to sentence him within the applicable 4- to 30-year sentencing range.
Conclusion
We AFFIRM the judgment of the superior court.