Opinion
Court of Appeals No. A-10782 Trial Court No. 3DI-08-104 CR No. 5919
02-13-2013
GLENN OLSEN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenn Olsen, Pro Se, Hudson, Colorado. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, and Vanessa H. White, Judges.
Appearances: Glenn Olsen, Pro Se, Hudson, Colorado. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
Glenn Olsen was convicted of sexual assault in the second degree for sexually penetrating M.B. He was also convicted of assault in the fourth degree for assaulting Peter Togiak. Olsen appeals, raising several issues. We remand.
Factual and procedural background
Benjamin Samuels, Peter Togiak, and M.B. went to a residence on the evening of March 28, 2008, after consuming a significant amount of alcohol. Glenn Olsen arrived at the residence later that night. He had also been drinking alcohol. During the evening, Olsen told Togiak and Samuels to leave. Olsen and Togiak got into an altercation, and Olsen allegedly punched Togiak. Togiak and Samuels went to a neighbor's house to call the police.
Officers Tracy O'Malley and Michael Barnett and Police Chief Richard Thompson responded to a report of a fight at the residence around 6 p.m. According to the officers, everyone at the house appeared intoxicated, and people were screaming and yelling. M.B. was sitting on the floor, highly intoxicated and unable to talk. Olsen acted belligerently toward the officers. Because no one wanted to file a complaint, the officers left.
Following this first police visit, Olsen again told Togiak and Samuels to leave. Samuels testified that Olsen told him and Togiak that it was his house and that Olsen punched, grabbed, and kicked Togiak.
Samuels testified that he saw Olsen grab M.B. by the hair and pull her to the bedroom. Samuels testified that M.B. tried to tell Olsen not to grab her hair and that he believed that M.B. did not want to go to the bedroom. Togiak testified that he saw Olsen hold M.B. by her hair and rape her in the bedroom. Togiak stated that he and Samuels tried to intercede on M.B.'s behalf, but Olsen fought them. Samuels and Togiak then returned to the neighbor's house and called the police.
The police officers returned to the residence around 6:30 p.m. after receiving the report of a second assault. The officers found Samuels and Togiak outside. Samuels told the officers that he had seen Olsen threaten Togiak with a knife. Togiak completed a citizen's arrest form. The officers heard yelling from inside the residence. Based on the report of the knife, the yelling inside the residence, and the knowledge that M.B. was intoxicated and likely inside the residence, the officers went inside. In a bedroom, the officers found M.B. face down on a mattress with Olsen on top of her. Both M.B. and Olsen were dressed, but their pants and underwear were pulled down, and Olsen was wearing a condom. The officers either picked up Olsen or told Olsen to get off of M.B. M.B. continued to lie on the bed and was not able to coherently converse with the officers.
The State charged Olsen with sexual assault in the second degree for sexually assaulting M.B. while she was incapacitated and assault in the fourth degree for assaulting Togiak. Olsen testified that M.B. initiated sex and that he believed that she consented to the sexual activity. At trial, M.B. testified that she had no memory of what happened the night of the alleged sexual assault. But the State relied on the testimony of other witnesses to establish that a sexual assault occurred. The jury convicted Olsen of both charges.
Judge Torrisi did not err in denying Olsen's motion to suppress
Prior to trial, Olsen filed a motion to suppress all of the evidence the police observed inside the house. Olsen claimed that the police illegally entered the residence where he and M.B. were having sex because they entered without permission and no exigent circumstances justified the police entry. Olsen argued that all of the evidence that the police obtained from the illegal entry should be suppressed.
Superior Court Judge Fred Torrisi conducted an evidentiary hearing on the motion to suppress. Dillingham Police Officer Michael Barnett and Police Chief Richard Thompson testified at the evidentiary hearing. Officer Barnett testified that when the officers responded to the second report of an assault at the residence, Togiak told the officers that Olsen had kicked him in the ribs, pointed a knife at Togiak, and told Togiak to get out of the house. Samuels also told Barnett that Olsen had a knife. Barnett also testified that while he was talking with Togiak and Samuels, he could hear a male and a female yelling in the residence. He concluded that it was likely that M.B. was in danger. Barnett testified that these facts made it necessary to enter the residence. Chief Thompson testified that he concluded it was necessary to enter the house because he did not see M.B. outside, he believed that M.B. was highly intoxicated, he had heard Togiak say that Olsen had used a knife in an assault, and he heard yelling coming from the house. He also concluded that M.B. was in danger.
Following the presentation of the evidence, Judge Torrisi found the police officers' testimony credible. He concluded that the officers reached a reasonable conclusion that M.B. was in danger and that exigent circumstances justified the police entry.
In reviewing a trial court's decision on a motion to suppress, we view the factual findings in the light most favorable to upholding the court's decision. We are to reject findings of fact by a trial court only if they are clearly erroneous. But the question of whether a search falls within an exception to the requirement that a search must be justified by a warrant is a question of law which we review de novo.
State v. Gibson, 267 P.3d 645, 650 (Alaska 2012).
In Gibson, the Alaska Supreme Court held that the Alaska constitutional standard for the emergency aid doctrine affords greater protection against warrantless searches and seizures than the United States Constitution. Under this standard, the State must meet the three-pronged Gallmeyer test to justify a warrantless search under the emergency aid exception:
Gibson, 267 P.3d at 659.
(1) the police must have reasonable grounds to believe there is an emergency at hand and an immediate need for their assistance in the protection of life or property; (2) the search must not be primarily motivated by the intent to arrest a person or to seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
The Court held that a police entry into a residence can be justified under the emergency aid doctrine, if the police have a reasonable belief that there might be someone injured in the premises.
Id. (citing Gallmeyer v. State, 640 P.2d 837, 842 (Alaska App. 1982)).
Id. (citing Gallmeyer v. State, 640 P.2d 837, 842 (Alaska App. 1982)).
Id. at 664.
Judge Torrisi found the officers' testimony credible and that the facts justified the police entry under the emergency aid doctrine. Judge Torrisi's factual findings are not clearly erroneous, and we agree with his conclusion that the police entry was justified under the emergency aid doctrine.
Olsen also argues that the police were required to knock and announce before entering the residence. Olsen bases his argument on AS 12.25.100 (allowing a peace officer to enter a building after notice, to arrest a person) and 18 U.S.C.S. 3109 (allowing an officer to break into a house, after notice, to execute a search warrant), as well as the Fourth Amendment of the United States Constitution (prohibiting unreasonable searches and seizures) and Article 1 Section 22 of the Alaska Constitution (guaranteeing a person's right to privacy). But Judge Torrisi found that the police acted reasonably by entering the residence unannounced because they were confronted with a situation they reasonably believed to be an ongoing emergency. The officers had reasonable grounds to conclude that M.B. was in serious danger and that they needed to enter the residence immediately in order to protect her. We agree with Judge Torrisi and find the officers' unannounced entry reasonable under these circumstances.
See Brigham City, Utah v. Stuart, 547 U.S. 398, 404-06, 126 S.Ct. 1943, 1948-49, 164 L.Ed.2d 650 (2006).
Olsen was allowed to represent himself
Olsen appears to argue that the trial court erred in not letting him represent himself. But the record shows that, when he requested to do so, the court permitted him to represent himself, with advisory counsel. We find no error.
Judge White did not err in excluding the testimony of Jack Allen
Superior Court Judge Vanessa H. White conducted Olsen's trial. During the trial, Olsen moved to present testimony from Jack Allen, a cab driver in Dillingham. In an offer of proof, Allen testified that, when M.B. was intoxicated she had acted in a flirtatious and seductive manner toward him when he gave her a ride in his cab. Judge White concluded that this testimony was not admissible.
Olsen's theory of admissibility was that if M.B. had acted in a flirtatious and seductive manner toward Allen when she was intoxicated, then it was reasonable to infer that she would have acted in a similar manner toward Olsen when she was intoxicated. Olsen argued that the evidence tended to prove that M.B. probably initiated the sexual activity with him or at least had acted in a manner from which he could reasonably have inferred that she consented to sexual activity.
Olsen's theory contravenes the policy of Alaska's rape shield law, set out in AS 12.45.045. That statute provides that, in prosecutions for sexual assault, "evidence of the [victim's] previous sexual conduct may not be admitted[,] nor may reference be made to it in the presence of the jury," except by order of the trial judge. The trial judge may admit the evidence only after determining that the evidence of prior sexual conduct is relevant and not unduly prejudicial.
See AS 12.45.045(a).
In Napoka v. State, 996 P.2d 106 (Alaska App. 2000), we explained that: "[T]he rape shield law prohibits evidence of a victim's sexual conduct when the 'relevance' of this evidence rests on the impermissible inference that the victim is likely to have freely engaged in sexual relations with the defendant because the victim has freely engaged in sexual relations with other people."
Napoka, 996 P.2d at 108 (footnote omitted).
The rape shield law does not strictly apply to Olsen's case. But the policy behind the law does. In this case, M.B.'s alleged conduct with Allen occurred more than one year after Olsen's alleged sexual assault. Judge White concluded that M.B.'s alleged flirtatious behavior with Allen more than a year after Olsen's alleged assault had little relevance and that admission of this evidence would be unfairly prejudicial. By contrast, Olsen was able to introduce evidence of M.B.'s allegedly flirtatious actions on the night of the assault. Judge White did not abuse her discretion in refusing to admit evidence of M.B.'s alleged conduct with Allen.
Olsen argues that Judge White's refusal to allow Allen's testimony violated his confrontation rights under the Sixth Amendment. But a judge does not violate a defendant's confrontation rights when she properly applies the evidence rules.
Johnson v. State, 889 P.2d 1076, 1081 (Alaska App. 1995).
The superior court had jurisdiction
Olsen argues that the superior court did not have jurisdiction over his case. The Alaska Superior Court has original jurisdiction in all civil and criminal matters.
Alaska Const. art. IV, § 1; AS 22.10.020(a).
Olsen's claim of ineffective assistance of counsel
Olsen filed a motion for a new trial ten months after the jury reached a verdict, alleging that he had received ineffective assistance of counsel. Although Olsen's motion was untimely, Judge White decided to relax the time limit and rule on the merits. She denied the motion without conducting an evidentiary hearing.
A court normally cannot make findings of fact, or enter summary judgment against a party, based on the court's assessment of the credibility of factual assertions in affidavits. We conclude that the record was insufficient to support Judge White's conclusion about the credibility of Olsen's affidavit without holding an evidentiary hearing. We accordingly must remand this issue back to the trial court. On remand, it would be beneficial for the trial court to follow the procedures for post-conviction relief actions set out in State v. Jones, 759 P.2d 558 (Alaska App. 1988).
See Boggess v. State, 783 P.2d 1173, 1180 (Alaska App. 1989); see also Collier v. Harris, 261 P.3d 397, 404-05 (Alaska 2011).
Judge White erred in relying on future amendments to AS 12.30.040(b)(2) in denying Olsen's motion for bail pending appeal
Following his conviction and sentencing, Olsen filed a motion for a hearing so that he could obtain bail on appeal. Olsen argued that he was entitled to bail because he had abided by his pretrial conditions of release.
The State opposed the motion, arguing, among other things, that under AS 12.30.040(b)(2), Olsen was ineligible for bail because Olsen had been convicted of "a sexual felony." Judge White denied Olsen's motion "for the reasons put forth by the state."
Judge White erroneously relied on the State's argument that Olsen was not eligible for bail pending appeal under AS 12.30.040(b)(2), which states that a person may not be released if he or she has been convicted of a sexual felony. This language was added to the statute by ch. 19, § 11, SLA 2010, and did not become effective until July 1, 2010 — after Olsen filed his petition for a bail hearing.
In Parker v. State, 667 P.2d 1272 (Alaska App. 1983), this court decided when a defendant's right to bail accrues. In Parker, the defendant was convicted of sexual assault in the first degree, an unclassified felony. He moved for bail pending appeal. But the trial court denied bail, relying on AS 12.30.040(b)(1983) which provided that a person convicted of an unclassified or class A felony could not be released on bail before sentencing or pending appeal.
Parker, 667 P.2d at 1273.
Parker appealed, pointing out that the provision of AS 12.30.040(b) (1983) which restricted bail pending appeal for class A and unclassified felonies became effective after he committed the offense for which he had been convicted. He raised several arguments, including the argument that applying the statute restricting his bail to him constituted an ex post facto law.
Id.
We held that Parker's right to bail was to be determined on the date of his alleged offense, not the date of his conviction. We relied on AS 01.10.100(a), which states that an amendment of a law does not extinguish any right accrued under the law unless the amended statute expressly provides otherwise. Since the amendment to AS 12.30.040(b) did not contain an express statement that the legislature intended the amendment to apply retroactively, we concluded that the amendment was not applicable to Parker.
Id.
Id. at 1275.
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The holding in Parker controls our decision in the present case. Because Olsen's alleged offense occurred prior to the legislature's amendment to former AS 12.30.040, which prohibited the court from releasing a defendant convicted of "a sexual felony," that amendment does not apply to Olsen. Accordingly Judge White erred in relying on the current version of AS 12.30.040(b) to deny Olsen bail pending appeal. On remand, the superior court should reconsider Olsen's application for bail pending appeal.
Olsen's convictions are AFFIRMED. The case is REMANDED for the superior court to reconsider Olsen's new trial motion and his post-conviction bail motion.