Opinion
Court of Appeals No. A-10765 Trial Court No. 3PA-09-125 CR No. 5923
02-27-2013
BRETT TALMADGE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Hanley R. Smith, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Bolger and Allard, Judges.
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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa White, Judge.
Appearances: Hanley R. Smith, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Bolger and Allard, Judges.
BOLGER, Judge.
Brett Talmadge was convicted of three counts of second-degree sexual abuse of a minor and one count of attempted second-degree sexual abuse of a minor. At trial, the prosecution introduced evidence that, after one incident, the victim had confronted Talmadge with statements she heard from two workers who were staying on Talmadge's property. Talmadge argues that this evidence was inadmissible hearsay, but we conclude that the worker's statements were properly admitted to provide the context for the victim's question and Talmadge's response.
Talmadge also argues that there was insufficient evidence that these offenses took place in Alaska, but we conclude that the victim's testimony was sufficient to show that the offenses were committed at Talmadge's home in Wasilla. Talmadge also argues that the judge should have granted his request for a continuance of the sentencing hearing, but we conclude that the judge did not commit an abuse of discretion.
Background
In the fall of 2007, when C.B. was fifteen years old, she and her family were friends with Talmadge and his family. C.B. often babysat Talmadge's two boys at his home in Wasilla.
C.B. competed in a rodeo event at the Alaska State Fair in late August or early September. After the state fair, C.B. and her mother and brother traveled to Chugwater, Wyoming with Talmadge and his family, who were moving there. C.B. and her family then continued to Riverton, Wyoming to visit C.B.'s mother's best friend. While in Riverton, C.B. told her mother's friend that before she left Alaska, Talmadge had had sex with her.
At trial, C.B. testified that there were two incidents when Talmadge had sex with her, both of which occurred between the state fair and the trip south. The first incident was at Talmadge's house in Wasilla after a barbecue.
C.B. testified that, prior to the first incident, she spent the morning helping Talmadge and his wife pack up and load things in a trailer for the move. About the time it turned dark, they took a break and had a barbecue. The people who bought the Talmadges' Wasilla house had hired two workers to put in a foundation for a trailer, and those workers were also at the barbecue.
C.B. testified that she drank too much alcohol and passed out on a lawn chair. The next morning C.B. woke up in Talmadge's house. Her vagina was sore, and she was wearing a t-shirt and shorts that belonged to Talmadge.
C.B. testified that she confronted Talmadge that morning about what had happened at the barbecue. And over objection, the trial judge also allowed C.B. to testify that she asked Talmadge if what the workers said was true—that he had carried her inside the previous night. C.B. testified that Talmadge told her not to worry about it.
The second incident of sexual abuse occurred about two days later, when C.B. returned to Talmadge's house to help pack. Talmadge asked C.B. to go with him to his travel trailer. Once they were inside, Talmadge locked the door. Talmadge said he wanted to have sex with her. C.B. told him no, but Talmadge told her that if she did not agree to have sex, he would call her parents and tell them that C.B. was drinking and smoking. Talmadge undressed C.B. and subjected her to digital, vaginal, and attempted anal intercourse.
Talmadge later admitted having sex with C.B. in telephone calls with C.B.'s mother and her friend.
Although C.B. testified that these incidents happened just before her family and the Talmadges left Alaska, she had a difficult time saying when that was. She testified that these incidents happened in the fall of 2007, and the trial was in January 2010. On cross examination, C.B. admitted that she was "horrible with dates." However, C.B. testified that Talmadge never had sex with her in a state other than Alaska.
The jury convicted Talmadge of all four counts: one count of second-degree sexual abuse of a minor for the first incident where C.B. passed out; two counts of second-degree sexual abuse of a minor for the second incident (one count for digital penetration and one count for penile penetration); and one count of attempted second-degree sexual abuse of a minor (for attempting to have anal intercourse).
At the sentencing hearing, Superior Court Judge Vanessa White merged Counts 2, 3, and 4 (the second incident). The judge imposed ten years with five suspended on Count 1, and fifteen years with seven suspended on the merged counts, with two years to run concurrently. The composite sentence was 23 years, with twelve years suspended. Talmadge now appeals.
Discussion
The workers' statement was not inadmissible hearsay.
At trial, the prosecution was allowed to play a tape recording of C.B.'s interview with a police officer. In the interview, C.B. stated that the morning she woke up in his house she asked Talmadge what had happened and he said "oh, just don't worry about it."
A little later in the interview, the officer asked C.B. about her confrontation with Talmadge, and C.B. responded, "Well I walked up to him and I was like well, hey the guys outside said that you carried me in. Did you? Or did I walk in? He was like, well, I don't know. You just kind of came inside and fell asleep. So he kinda avoided the answer ... ."
Before trial, Talmadge's attorney argued that the workers' statement should not be admitted because it was inadmissible hearsay. Judge White ruled that this evidence was admissible because it was not offered for the truth of the matter asserted.
While C.B. was testifying, the prosecutor asked C.B. why she talked to the workers that morning, and C.B. stated "I wanted to find out how ... I got inside." C.B. then testified that "I asked him if it was true that he had carried me inside." The judge overruled Talmadge's objection to this testimony.
On appeal, Talmadge again argues that the evidence that C.B. confronted Talmadge with the workers' statement was inadmissible hearsay. The State argues that this statement was not offered for the truth of the matter asserted and was therefore not hearsay.
In Estes v. State, we recognized that an out-of-court statement could be offered "to provide the foundation or context for understanding ... statements that [the defendant] made when she responded to ... assertions about what [the declarant] purportedly said." We concluded that the probative aspect of such a statement was not whether the statement was true, but how the defendant responded to the assertion that the statement had been made. We concluded that the jury could be apprised of how the disputed statements were characterized to the defendant, so that the jury could understand the defendant's response in context.
249 P.3d 313, 315 (Alaska App. 2011) (emphasis omitted).
Id.
Id. at 315-16.
This case is similar to Estes. The prosecutor offered C.B.'s testimony about the workers' statement, not to prove that Talmadge actually carried C.B. inside, but to show Talmadge's reaction when confronted with that statement.
Indeed, for the prosecutor's purposes, it did not actually matter if the workers' statements were true, or even if the workers made that statement at all. All that mattered was that C.B. confronted Talmadge with the workers' statements and that his response was arguably evasive and thus indicative of guilt. We conclude that Judge White did not err when she allowed the statement to be admitted, not for its truth, but to provide context for Talmadge's response.
There was sufficient evidence that these offenses were committed in the State of Alaska.
Talmadge argues that the prosecution submitted insufficient evidence that these offenses occurred in Alaska, and that therefore, the State of Alaska lacks subject matter jurisdiction over this controversy. When we review the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and ask whether a reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
C.B. testified repeatedly and consistently that these offenses occurred at Talmadge's home in Wasilla before the families drove south. Talmadge argues that C.B.'s testimony was vague and contradictory, but evaluating the credibility and weight of the evidence is a question for the jury, not for this court.
Id. at 849.
Talmadge is correct that C.B. had difficulty pinning down the exact dates of the two incidents. But most of the testimony at trial indicated that the incidents occurred near the end of August or beginning of September. Regardless of the date of the offenses, C.B. never wavered in her testimony that these offenses occurred in Alaska.
Talmadge argues that there was evidence that his electrical service in Wasilla was shut off on August 9, and that therefore he was not living there and the incidents in question could not have occurred in Alaska in late August or early September. But there was also testimony that Talmadge had an agreement with the people who bought his house that allowed him to live on the property until he left for Wyoming. So the jury could reasonably have concluded that the evidence about Talmadge's electrical account did not seriously undercut C.B.'s testimony. We conclude that C.B.'s testimony was sufficient to prove that Talmadge committed these offenses in Alaska.
The judge's decision to deny Talmadge's motion for a continuance of the sentencing hearing was not an abuse of discretion.
The jury returned its verdict on January 21, 2010, and sentencing was scheduled for Monday, April 26. On Tuesday, April 20, Talmadge's trial attorney filed a motion for a sixty-day continuance. That request was denied on Thursday, April 22, and, the next day, Talmadge's attorney filed a request to withdraw, asking permission for Talmadge to represent himself at the sentencing hearing.
At the sentencing hearing, the prosecutor did not oppose Talmadge's request for self-representation as long as it was not grounds for a continuance, arguing that the sentencing date had been known for three months, and the presentence report had been available for a month.
Judge White indicated that she was not inclined to grant a continuance. She advised Talmadge of the advantages of representation by an attorney at a sentencing hearing, and asked if he still wished to represent himself. Talmadge then conferred with his attorney, and decided to withdraw his request for self-representation.
In response to the prosecutor's request, Judge White made specific findings to support her decision to deny the requested continuance. The judge found that the issues at the sentencing hearing were not "excessively complex." She found that it was within the ability of Talmadge's attorney to address the probation conditions proposed in the presentence report. She also found that Talmadge had personally had the presentence report for at least three weeks.
Judge White found that Talmadge had not indicated why he needed to wait "until literally the [business] day before his sentencing to request self-representation." She concluded that there was no justification for this delay. She stated, "Candidly, the facts and circumstances, when I look at them under the totality of the circumstances, indicate that the request to quote/unquote, exercise his constitutional right to self-representation, is really a request for a continuance. And I have not seen any basis for a continuance." In summary, the judge concluded, "Mr. Talmadge's request to represent himself at the eleventh hour is really a veiled request for a continuance, which is not justified by the facts."
On appeal, Talmadge argues that it was error for the judge to deny a continuance to allow Talmadge to represent himself. We review the judge's decision for an abuse of discretion.
See Salazar v. State, 559 P.2d 66, 71 (Alaska 1976).
In a similar case, Brewer v. State, the defendant was also represented by appointed counsel. On the morning of his probation revocation hearing, Brewer indicated that he wanted to represent himself. The trial judge found that Brewer was trying to manipulate the system, and that Brewer had not shown appropriate diligence: Brewer first raised his request at a hearing that had been scheduled for two months. Since Brewer indicated that he was not prepared to go forward on his own, the judge denied his last-minute request for self-representation. On appeal, we held that "a trial judge may deny a defendant's last-minute request for self-representation when granting the request would necessarily delay the trial and the tardiness of the request is due to the defendant's lack of diligence in pursuing the issue of self-representation."
55 P.3d 749, 751 (Alaska App. 2002).
Id.
Id. at 751-52.
Id.
Id. at 753.
In this case, Judge White concluded that there was no justification for the delay in Talmadge's request to represent himself. She also concluded that Talmadge had made this belated request simply to obtain a continuance of the sentencing hearing.
The timing of Talmadge's request—the day after his motion for continuance was denied—supports the judge's conclusion. Talmadge asked for the same amount of delay his attorney had requested. And Talmadge did not give any specific reason for his request to represent himself; he merely said that he and his attorney did not "see eye to eye." We conclude that there was sufficient evidence supporting Judge White's conclusion that Talmadge asked to represent himself primarily to delay his sentencing hearing. We accordingly hold that Judge White did not abuse her discretion when she denied the requested continuance.
We must issue a separate opinion on Talmadge's excessive sentence claim.
Talmadge argues that his composite sentence is excessive. But both parties acknowledge that, under the decision in Reandeau v. State, this court does not have jurisdiction to hear this claim, because Talmadge's active sentence of imprisonment is within the presumptive range. Talmadge argues that we should reconsider Reandeau and conclude that we have jurisdiction because his total composite sentence (including suspended time) exceeds the presumptive range. This court currently has Reandeau under consideration following a remand from the Alaska Supreme Court. Once we decide this issue in Reandeau, we will issue a separate opinion on Talmadge's excessive sentence claim.
265 P.3d 1045, 1057-60 (Alaska App. 2011).
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Conclusion
This court will issue a separate opinion on Talmadge's excessive sentence claim. In all other respects, we AFFIRM the superior court's judgment.