Braaten v. State

705 P.2d 1311, 1985 Alas. App. LEXIS 355
CourtCourt of Appeals of Alaska
DecidedSeptember 6, 1985
DocketA-279
StatusPublished
Cited by25 cases

This text of 705 P.2d 1311 (Braaten v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Braaten v. State, 705 P.2d 1311, 1985 Alas. App. LEXIS 355 (Ala. Ct. App. 1985).

Opinions

[1314]*1314OPINION

COATS, Judge.

Douglas Braaten was convicted of first-degree sexual assault, AS 11.41.410(a)(1). He appeals his conviction and sentence. We affirm the conviction, but find it necessary to remand for further sentencing proceedings.

I. FACTS

G.J. testified at trial that on Sunday, July 10, 1983, she attended a union picnic. At the picnic she met a man to whom she gave her telephone number. On Saturday, July 16, 1983, G.J. received a telephone call. The caller asked if she knew who this was; G.J. replied she thought it was the man she met at the picnic. The caller replied that he was the man from the picnic. G.J. had talked to the man at the picnic about the Pines Club, and she asked the caller if he had looked for her at the Pines Club since they had met. The caller said he had. The two talked about going to the Pines Club that evening, but the plan was never definite and, in fact, never materialized.

In the early morning hours of July 21, 1983, G.J. was awakened by a telephone call from the man she had talked to on the 16th. She asked him what time it was; he said it was 2:30. She asked him why he was calling, and he said that he was sorry for calling, but that his mother had died, that he was upset, and that he needed someone to talk to. G.J. eventually agreed to let the caller come over, and gave him directions to her apartment.

G.J. waited in the living room. She soon received another call asking for better directions from a nearby Qwik Stop. Shortly thereafter, she heard a truck pull up to her building, and went out into the hall, expecting to see the man she had met at the picnic. The man who walked into the building, however, was definitely not the man G.J. had met at the picnic. G.J. asked this man who he was looking for, and he responded, “Bob.” G.J. then went back into her apartment and shut the door. A short time later, there was a knock at G.J.’s door. When she answered it, the man who had been in the hallway told her that “Bob” had not answered his door, and asked to use her phone to call “Bob.” She allowed him to use the phone, which was by the door, and left the door open. The man dialed twice, unsuccessfully, and then asked to use G.J.’s bathroom. When he returned, he dialed six numbers, then hung up. G.J. then told him he should leave. The man walked toward the door and then slammed it shut and knocked G.J. to the floor. He told her he would cut her with a knife or smother her if she tried to scream. During the struggle the man pulled G.J.’s hair, scratched her face and apparently bit her on the head. He dragged her into the bedroom and forced her to have intercourse three times. G.J. eventually convinced the man to leave by assuring him that she would not call the police and telling him that she was still his friend.

G.J. put on her robe and went upstairs to a friend’s apartment. The friend testified at trial that G.J. had scratches on her face and neck and teeth marks on her head which were bleeding. G.J. was very upset, and told the friend that she had been raped and that she wanted to talk to her parish priest. G.J. called her priest and told him she had been raped by a man she did not know. The priest advised her to call the police, which she did.

G.J. gave a description of the man who had assaulted her to the police. In particular, she told the police that her assailant was wearing a black shirt with the word “Nike” printed on it, and that he had sores on his stomach.

The officer interviewing G.J. remembered seeing a photograph of a man wearing a Nike shirt in connection with another case. The officer located the picture, which was taken in the course of an investigation of a sexual assault on May 11, 1983. The photo was of Douglas B. Braaten. Because Braaten matched the description given by G.J. in other respects, the officer prepared a photographic line-up and showed it to G.J., who quickly identified Braaten.

[1315]*1315Braaten testified at trial that he met G.J. at the Pines Club on July 1, 1983. He got her telephone number that night, and called her a few weeks later. He called her in the early morning hours of July 21st, and she invited him over. After they talked for awhile, G.J. suggested Braaten stay, and walked towards the bedroom. The sexual activity that followed was consensual, according to Braaten. When he got up to leave, she asked him if they would-see each other again, and he told her that he didn’t think so because he was engaged. She became upset and Braaten left.

Following Braaten’s conviction, the state filed notice of presumptive sentencing and of three aggravating factors under AS 12.-55.155. Braaten was subject to a presumptive term of eight years. AS 12.55.125(i). Superior Court Judge Ralph E. Moody found the existence of the three statutory aggravators, and sentenced Braaten to twenty years with twelve years suspended.

II. PHOTO OF BRAATEN IN THE NIKE T-SHIRT

Braaten first argues that the manner in which the state introduced the photo of Braaten taken in connection with the earlier investigation was prejudicial, because it suggested prior bad acts. Oksoktaruk v. State, 611 P.2d 521, 524 (Alaska 1980).

A. Proceedings

Prior to trial, defense counsel indicated that he had not been provided with reports of the prior sexual assault investigation focused on Braaten. Counsel stated that while the prosecution had agreed not to introduce anything from the reports unless the defense “opened the door,” the defense should still be able to examine those reports. The state initially refused to turn over the reports. The court ruled that since Braaten knew about the investigation in May (and also about an earlier investigation that was the subject of other reports held by the prosecution), the reports would really be of no use to him. The court went on to rule:

I think the state’s position is well taken in this case, but with this understanding. You cannot bring it up and cross examine until you’ve shown me the relevancy of it. If you can show the relevancy, the defendant will then be given these statements, and if they can show reason for a continuance, they will be given a continuance.

The court also stated that the reports “will be sealed as having been examined in-camera by the court, and it may very well become relevant at some other time.”

In his opening statement, the prosecutor stated:
Now, in addition to the description of the man’s clothes — remember the Nike shirt. In addition to that [G.J.] also told the police that her assailant had what she thought were red sores on his belly. And the police, when the case was turned over to — to Dave Sherbahn, who was a sergeant head of the sensitive crimes unit, the rape unit, of the Anchorage Police Department, when he interviewed her, he got more information from her. She was not able to ever put a name on the person. But he’s going to tell you that he came across a picture of the-defendant, Doug Braaten, that was taken before the night of the rape wearing a shirt that had those letters written on it. And based on that, and based upon her description of the man, the size and weight and the little mustache, he thought that it was a good possibility that Doug Braaten was the man that had assaulted her.

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Bluebook (online)
705 P.2d 1311, 1985 Alas. App. LEXIS 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braaten-v-state-alaskactapp-1985.