Kenny Ray Matthews Jr. v. State of Alaska

• Court: Court of Appeals of Alaska
• Decided: July 8, 2026
• Docket: A-14201
• Status: Unpublished

Opinion

2026 WL 1970865

Only the Westlaw citation is currently available.

NOTICE: UNPUBLISHED OPINION

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, although it may be cited for whatever persuasive value it may have. See McCoy v. State, 80 P.3d 757, 764 (Alaska App. 2002).

Court of Appeals of Alaska.

KENNY RAY MATTHEWS JR., Appellant,

v.

STATE OF ALASKA, Appellee.

Court of Appeals No. A-14201

July 8, 2026

Trial Court No. 4FA-22-01173 CR

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Brent E. Bennett, Judge.

Attorneys and Law Firms

Appearances: Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Madeline M. Magnuson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Wollenberg, Harbison, and Terrell, Judges.

MEMORANDUM OPINION

Judge HARBISON.

Kenny Ray Matthews Jr. was convicted, after a jury trial, of third-degree recidivist assault for hitting his friend, Patsy John, with a broom.¹ At trial, John testified that she could not remember anything from the day Matthews struck her and could not remember telling two other people, who were later called as witnesses, about Matthews striking her. The State then introduced John's prior statements, where she described being hit by Matthews with a broom on the date of the charged offense, through these two witnesses.

Matthews now appeals, raising two points of error. First, Matthews argues that admitting John's prior inconsistent statements was improper. In support of this point, he contends that John's lack of memory rendered her unavailable to testify and that admission of her out-of-court statements thus violated the Confrontation Clause. And, to further bolster this argument, he contends that these statements violated the Alaska Rules of Evidence because the State did not give John a chance to explain or rebut her prior inconsistent statements, as the Evidence Rules require. Second, Matthews argues that there was insufficient evidence to support his conviction.

For the reasons explained in this opinion, we affirm the judgment of the superior court.

Background facts and proceedings

In May 2022, John and Matthews engaged in a verbal altercation while John was staying at Matthews's home. This altercation disturbed Matthews's neighbors across the street, who started video recording the altercation and called 911. One of the neighbors testified that she saw Matthews “getting physical” with John and then saw Matthews hit John at least five times. She further testified that her view of the incident was imperfect because there were trees in the way.

The neighbor's testimony was consistent with the recording she took, which was admitted at trial. The recording is taken at a distance, through trees, and captures part of the altercation. On the recording, sounds resembling a loud thud can be heard, and John can be heard wailing. In another video admitted at trial, John can be heard yelling at Matthews and there are sounds that resemble loud cracks.

Alaska State Troopers responded to the neighbor's 911 call. The responding trooper testified that when he arrived John was crying and appeared to be in pain. The trooper also testified that John told him that Matthews became upset with her after she asked Matthews for a ride into town and that Matthews then hit her roughly five times with a broom. The trooper took photographs of multiple fresh-looking welts on John's body.

Based on this conduct and Matthews's prior convictions, Matthews was charged with one count of third-degree recidivist assault.² Several months later, John spoke with a paralegal from the Fairbanks District Attorney's Office about the incident, and John again reported that Matthews had hit her with a broom.

The matter proceeded to a bifurcated jury trial. At trial, John testified that she knew Matthews and that he was a friend of hers. But when asked about the day Matthews hit her, John testified that she could not remember anything from that day, and that her overuse of alcohol on that day and the days that followed had turned the events into a “blur.” John also denied any memory of her prior statements to the responding trooper and to the paralegal from the District Attorney's Office. The State ended its examination after eliciting this information from John.

The State then called two witnesses — the responding trooper and the paralegal who worked at the District Attorney's Office. Over Matthews's objections, these witnesses testified that, prior to trial, John told them that Matthews assaulted her by hitting her with a broom.

After the close of the State's evidence, and again at the close of the defense's evidence, Matthews moved for a judgment of acquittal, which the superior court denied both times. Matthews was ultimately convicted of third-degree recidivist assault.

This appeal followed.

Admitting the prior inconsistent statements was not error

On appeal, Matthews claims that John's lack of memory rendered her functionally unavailable for cross-examination and that her prior inconsistent statements accordingly should have been excluded under the Confrontation Clause. He further argues that the statements were inadmissible hearsay because John was not given an opportunity to explain or deny them.³

Under the United States and Alaska Constitutions, defendants have the right “to be confronted with the witnesses against [them].”⁴ This includes a right to confront, through cross-examination, the declarant of a testimonial hearsay statement introduced by the State.⁵

But as the United States Supreme Court held in United States v. Owens, “The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion.”⁶ As a result, “[t]he fact that the witness, though physically available, cannot recall either the underlying events that are the subject of an extrajudicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence.”⁷ We have previously reached similar conclusions;⁸ however, we have also been careful to note that there may be exceptional cases of memory loss or unique circumstances that could render a witness unavailable for Confrontation Clause purposes.⁹

Here, John's memory loss did not render her unavailable for purposes of the Confrontation Clause. John testified that she could not remember the assault, her statements to the trooper about the assault, or her later conversation about the assault with the State's paralegal because of her heavy alcohol use. But she willingly answered all questions she was asked and was able to give the jury context about her prior relationship with Matthews. Moreover, John's stated reason for her lack of memory — sustained alcohol use due to grief over her brother's death — provided substantial potential impeachment material for her out-of-court statements.¹⁰ Given these facts, the superior court did not err in concluding that John was available for purposes of the Confrontation Clause.

Likewise, admitting these statements did not violate the Rules of Evidence. While out-of-court statements offered to prove the truth of the matter asserted are generally inadmissible hearsay, a witness's prior inconsistent statement is not hearsay if the witness is confronted with the prior inconsistent statement and given a chance to explain or deny it.¹¹ A sufficient foundation is laid when a “trial judge could reasonably conclude that [the victim] would continue to categorically deny all allegations ... and would continue to disown any and all statements [they] had previously made to the contrary.”¹²

Here, John categorically denied any memory of the criminal incident at issue and any memory of her prior statements about the incident. Given that she persisted in these denials despite multiple questions by the prosecutor, the superior court did not err in concluding that John was given an opportunity to explain or deny her prior inconsistent statements.

For these reasons, we conclude that the superior court did not err in admitting the witness's prior statements.

There was sufficient evidence to support Matthews's conviction

Matthews next asserts that the evidence against him was insufficient, arguing that his conviction rests only upon John's uncorroborated prior inconsistent statements.

When we review the sufficiency of the evidence to support a conviction, we “view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable” to the jury's verdict.¹³ As Matthews points out, a conviction cannot rest solely upon a witness's uncorroborated prior inconsistent statements.¹⁴ But the standard for establishing that a statement is corroborated is “flexible” and “grounded in common sense,” requiring only that the corroborating evidence “induces a rational belief in the truthfulness of a witness’[s] testimony.”¹⁵

Here, John told police that she was beaten by Matthews with a broom, and the evidence demonstrated that John had injuries on her body consistent with being recently hit with a broom. Additionally, Matthews's neighbor testified that she saw Matthews hit John at least five times during the altercation; the video recording of the incident was consistent with the neighbor's testimony. We conclude that this evidence corroborated John's prior inconsistent statements and that the evidence was sufficient to convict Matthews.

Conclusion

The judgment of the superior court is AFFIRMED.

Footnotes

1

AS 11.41.220(a)(5).

2

Id.

3

See Alaska R. Evid. 801(d)(1)(A)(i) (defining hearsay to exclude prior inconsistent statements if the witness testifies and is “so examined while testifying as to give the witness an opportunity to explain or to deny the statement”).

4

U.S. Const. amend. VI; Alaska Const. art. I, § 11.

5

Crawford v. Washington, 541 U.S. 36, 50-59 (2004). For purposes of our analysis, we assume, without deciding, that both of John's statements were testimonial and that Matthews's objections in the superior court were sufficient to preserve the Confrontation Clause issue for appeal.

6

United States v. Owens, 484 U.S. 554, 558 (1988) (quoting Delaware v. Fensterer, 474 U.S. 15, 21-22 (1985) (per curiam)).

7

California v. Green, 399 U.S. 149, 188 (1970) (Harlan, J., concurring); Owens, 484 U.S. at 559 (adopting approach Justice Harlan advocated for in his concurrence).

8

See, e.g., Lee v. State, 507 P.3d 483, 494 (Alaska App. 2022) (recognizing that a witness “is considered ‘available’ for cross-examination, even if the witness is forgetful, confused, or evasive during the State's direct examination” (quoting Dushkin v. State, 2015 WL 996189, at *3 (Alaska App. Mar. 4, 2015) (unpublished))); Vaska v. State, 74 P.3d 225, 228-29 (Alaska App. 2003), rev'd and remanded on other grounds, 135 P.3d 1011 (Alaska 2006) (concluding that, where the victim could not remember the assault or her prior statement, admitting evidence of the prior statement “would not constitute a violation of the Confrontation Clause”); Pete v. State, 2024 WL 260977, at *6 (Alaska App. Jan. 24, 2024) (unpublished) (noting that “as a matter of federal law, in general, memory loss does not render a witness ‘unavailable’ for Confrontation Clause purposes” and concluding that “Alaska's courts have thus far taken the same view of the effect of a witness's memory loss”).

9

Pete, 2024 WL 260977, at *6 (noting that “with very young children, the child's total lack of memory coupled with extreme reluctance to testify and evasive behavior on the stand may justify treating the child as unavailable for Confrontation Clause purposes”); Dushkin, 2015 WL 996189, at *4 (noting that “some jurisdictions have recognized that there are situations in which a child witness who appears at trial is nevertheless unavailable for cross-examination for purposes of the [C]onfrontation [C]lause, owing to the child's inability or unwillingness to answer questions” but declining to “decide whether this same reasoning has any force under Alaska law”); Lee, 507 P.3d at 495 (same).

10

See Owens, 484 U.S. at 559 (holding, for purposes of the Confrontation Clause, that “[i]t is sufficient that the defendant has the opportunity to bring out such matters as the witness’[s] bias, [their] lack of care and attentiveness, [their] poor eyesight, and even (what is often a prime objective of cross-examination) the very fact that [they have] a bad memory” (citation omitted)).

11

Alaska R. Evid. 801(c), (d)(1)(A)(i).

12

Active v. State, 153 P.3d 355, 363-64 (Alaska App. 2007) (quoting Nunn v. State, 845 P.2d 435, 441 (Alaska App. 1993) (first alteration in original)).

13

Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).

14

Brower v. State, 728 P.2d 645, 647-48 (Alaska App. 1986).

15

Bodine v. State, 737 P.2d 1072, 1075 (Alaska App. 1987).

End of Document