Kelly v. State

116 P.3d 602, 2005 Alas. App. LEXIS 64, 2005 WL 1594570

• Court: Court of Appeals of Alaska
• Decided: July 8, 2005
• Docket: A-8712
• Status: Published

Opinions

OPINION

COATS, Chief Judge.

James T. Kelly was charged with sexual abuse of a minor in the third degree¹ for having sexual contact with K.P., who was under 16 years of age, and with attempted sexual abuse of a minor in the second degree,² for attempting to engage in sexual intercourse with her. Kelly defended on the ground that he reasonably believed that K.P. was 16 years old or older.³ Kelly attempted to introduce the testimony of Stephan Andrews that, on the evening that Kelly was with K.P., Kelly had stated to Andrews that he believed that K.P. was 16 years old. Kelly argued that this statement was admissible to show his state of mind at the time of the offense — that he believed that K.P. was 16 years old. Superior Court Judge Leonard R. Devaney, III excluded this statement on the ground that it was inadmissable hearsay. Kelly appeals from this ruling. We conclude that Stephan Andrews’s testimony about Kelly’s statement at the time of the alleged offense should have been admitted under Evidence Rule 803(3) as a statement of Kelly’s state of mind at the time of the alleged offense. We conclude that the trial court’s failure to admit Andrews’s testimony prejudiced Kelly’s ability to present his mistake-of-age defense. We accordingly reverse Kelly’s conviction.

Factual and procedural background

During the summer of 1999, K.P. accompanied her friend T.E. to the village of Emmo-nak. At that time, K.P. was 13 years old and T.E. was 16 years old. Around midnight, the girls arrived at the home of the defendant, James Kelly, age 19. T.E. was visiting her boyfriend Stephan Andrews, who was staying at Kelly’s home. K.P. was familial’ with Kelly, but did not personally know him. This was K.P.’s first visit to Kelly’s house.

K.P., T.E., Andrews, and Kelly listened to music in the living room. K.P. did not tell Kelly or Andrews her age, and neither asked. After visiting in the living room, T.E. and Andrews went into a bedroom. Kelly and K.P. went into a different bedroom. K.P. and Kelly sat on a bed and listened to music. Kelly touched K.P. on her breasts and legs. She asked him to stop, but he did not. Kelly removed KP.’s pants and attempted to initiate sexual intercourse. K.P. pushed Kelly away, replaced her pants, and left the house. She then knocked on the outside window of the bedroom where T.E. and Andrews were located. K.P. told T.E. she was leaving and began walking away from the house.

Shortly thereafter, T.E. picked K.P. up with her four wheeler and the two girls went to K.P.’s sister’s house. K.P. told T.E. why she left, but she did not tell her sister or anyone else in Emmonak about the incident.

T.E. died from exposure in September 1999.

In the summer of 2000, K.P. was living with Lisa Powell in Homer. During this time, K.P. told Powell of the incident with Kelly. This was the first report K.P. made about the incident, other than to T.E. Powell reported the incident to the local police and K.P. was subsequently interviewed by Trooper Roberts in May of 2000.

Following an investigation, the State charged Kelly with third-degree sexual abuse of a minor and attempted second-degree sexual abuse of a minor in the second degree. Kelly defended on the ground that he reasonably believed K.P. was 16 years of age or older. The jury deadlocked and the court declared a mistrial. At Kelly’s second trial, Kelly attempted to introduce testimony from Stephan Andrews that Kelly had said, during the night in question, that he thought K.P. was 16 years old. The prosecutor objected that the statement was improper hearsay. Kelly argued that the disputed testimony was admissible to show his state of mind. Judge Devaney sustained the State’s objection. But Judge Devaney did allow Andrews to testify that he had told the investigating troopers that he (Andrews) believed K.P. was around 16 years old when the incident took place.

Kelly did not testify. Judge Devaney concluded that Kelly had not presented sufficient evidence for him to instruct the jury on the affirmative defense of mistake of age. The jury convicted Kelly of both charges.

Why we conclude the trial court erred in not allowing Andrews’s testimony about Kelly’s statement

The issue before us is whether Judge De-vaney committed reversible error when he refused to allow Andrews to testify that Kelly made a statement to him, during the evening in question, that he (Kelly) believed K.P. was 16 years old. The defense sought to admit this statement under the state of mind exception to the hearsay rule, Evidence Rule 803(3).

Alaska Evidence Rule 801(c) provides that “[hjearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” A defendant’s out-of-court assertions of innocence are hearsay if they are offered by the defendant to prove the defendant’s innocence.⁴ Such a statement is therefore inadmissible unless it falls within an exception to the hearsay rule.⁵

Evidence Rule 803(3) allows admission of “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) offered to prove the declarant’s present condition or future action, but not including a statement of memory or belief to prove the fact remembered or believed[.]”

In order for a statement to be admissible under Evidence Rule 803(3), the statement must be offered for a permissible purpose: to prove an individual’s state of mind or a plan for a future action.⁶ Evidence Rule 803(3) requires the proponent of the evidence to show: (1) that the statement relates to the declarant’s then existing state of mind; (2) that the statement is not offered “to prove the fact remembered or believed ... ”, and; (3)that the statement relates to a relevant purpose and is only offered for that purpose.⁷

The statement related to Kelly’s then existing state of mind

In order for Kelly’s statement that he believed that K.P. was 16 years old to be relevant, the statement had to show Kelly’s state of mind at the time that his sexual contact with K.P. took place. The State argues that the record fails to show when Kelly allegedly made the disputed statements to Andrews about KP.’s age. But the record shows that Kelly’s attorney represented to the court that Andrews would testify that Kelly told him, on the night in question, that he (Kelly) believed that K.P. was 16 years old. Therefore Kelly represented that, had Andrews been allowed to testify, Andrews would have testified to Kelly’s contemporaneous statement concerning his belief as to K.P.’s age.

Kelly’s statement of his belief was not offered to prove the fact believed

In order to be admissible under the state of mind exception, the statement of memory or belief must not be offered to prove the fact remembered or believed. But in this case, Kelly did not offer the statement to show that K.P. was, in fact, 16 years old. The statement was offered to prove Kelly’s state of mind at the time the statement was made — that he believed K.P. was 16 years old. Therefore Kelly’s alleged statement to Andrews satisfies this requirement.

Kelly’s statement related to a relevant purpose and was offered only for that purpose

Kelly’s statement was offered to prove that he acted under a reasonable mistake of fact. If the jury concluded that Kelly reasonably believed that K.P. was 16 years of age or older and that he had undertaken reasonable measures to verify KP.’s age, the jury was required to acquit him under the law.⁸

General observations

The State argues that evidence of Kelly’s statement to Andrews was a self-serving, unreliable statement forbidden by cases such as State v. Agoney.9 -Of course it is possible that Stephan Andrews was not telling the truth about Kelly’s statement. But Andrews was available for cross-examination and it was up to the jury to evaluate his testimony. It is also possible that, if Kelly made the statement, it did not reflect his true state of mind. But, as Professor Saltzburg points out in his Federal Rules of Evidence Manual, Rule 803(3) (unlike 803(6), which relates to business records) doe,s not contain specific language excluding untrustworthy statements. Professor Saltzburg concludes that, generally, “a criminal defendant’s expression of an innocent state of mind ... is subject to clear attack as to weight. The lack of sincerity in such a statement can easily be understood by the jury, so it makes little sense for the Trial Judge to exclude the evidence on trustworthiness grounds when to do so is contrary to the language of 803(3).”¹⁰

Conclusion

We conclude that the .trial court erred in refusing to admit Andrews’s testimony that, on the evening in question, Kelly stated that he believed that K.P. was 16 years of age. We conclude that exclusion of Andrews’s testimony about Kelly’s statement undermined Kelly’s defense that he reasonably believed that K.P. was 16 years of age or older. We accordingly conclude that Kelly was prejudiced by the trial court’s failure to admit this evidence and reverse Kelly’s convictions.

REVERSED.

1 . AS 11.41.438(a)(1).

2 . AS 11.41.436(a)(1) and AS 11.31.100(a)(1).

3 .AS 11.41.445(b).

4 .State v. Agoney, 608 P.2d 762, 764 (Alaska 1980) (a defendant's self-serving statements are hearsay and cannot be admitted into evidence unless they qualify under some exception to the hearsay rule or are used for a non-hearsay purpose); Marino v. State, 934 P.2d 1321, 1331 (Alaska App.1997); Stumpf v. State, 749 P.2d 880, 899 (Alaska App.1988).

5 . Alaska Evidence Rule 802; Agoney, 608 P.2d at 764.

6 . Wyatt v. State, 981 P.2d 109, 113 (Alaska 1999).

7 . See Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra, Federal Rules of Evidence Manual (8th ed.2002), Rule 803, Vol. 4, pp. 803-23 to 803-29.

8 . AS 11.41.445(b).

9 . 608 P.2d 762, 764 (Alaska 1980).

10 .Id., Vol. 4, pp. 803-29 to 803-31.