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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


BENJAMIN VAITULUI LEGA,
                                                       Court of Appeals No. A-11926
                            Appellant,                Trial Court No. 3PA-13-283 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,
                                                      No. 2593 — March 16, 2018
                            Appellee.


              Appeal from the Superior Court, Third Judicial District, Palmer,
              Eric Smith, Judge.

              Appearances: Marjorie A. Mock, Anchorage, under contract
              with the Public Defender Agency, and Quinlan Steiner, Public
              Defender, Anchorage, for the Appellant. Michael Sean
              McLaughlin, Assistant Attorney General, Office of Criminal
              Appeals, Anchorage, and Craig W. Richards, Attorney General,
              Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
                Benjamin Vaitului Lega was convicted of kidnapping and robbery, based
on evidence that he and an accomplice, Arthur Gray, kidnapped and stole money from
two Big Lake residents, Judy Holmes and Michael Gearing. The kidnapping was ended
when the police conducted a traffic stop of the vehicle in which all four people were
riding.
                In this appeal, Lega argues that his trial judge committed error by allowing
the prosecutor to introduce various statements that the two victims, Holmes and Gearing,
made to the police after the officers had ended the kidnapping and freed the victims.
                For the reasons explained here, we conclude that some of Holmes’s and
Gearing’s prior statements were properly admitted, and that the trial judge’s error in
admitting the remainder of the prior statements was harmless.


          Underlying facts


                Late in the evening on February 2, 2013, Judy Holmes was dozing in a
chair at her home in Big Lake when she was awakened by her dogs barking. When
Holmes opened her eyes, she saw Arthur Gray (Lega’s co-defendant) pointing a gun at
her. Benjamin Lega was also present in the room.
                According to Holmes’s testimony, Gray and Lega asked her to give them
money — $17,000 that they claimed Holmes owed to a woman in Anchorage. When
Holmes told Lega and Gray that she had no idea what they were talking about, the men
began searching Holmes’s house for money and valuables.
                At some point, Holmes’s boyfriend, Michael Gearing, walked over to
Holmes’s house to check on her. (Gearing lived in a separate cabin on Holmes’s
property.) When Gearing tried to enter the house, he was intercepted by Lega, who
pointed a gun in Gearing’s face.

                                            –2–                                        2593

             While Gray guarded Holmes, Lega escorted Gearing to his cabin. Lega
searched the cabin and found Gearing’s wallet and bank cards. When they left the cabin,
Lega noticed a Quonset hut that contained marijuana plants. Lega ordered Gearing to
cut down all these plants and set them aside.
             Lega and Gearing then returned to Holmes’s house. Lega and Gray decided
to force Holmes and Gearing to drive back to Anchorage — to clear things up by
bringing Holmes face to face with the woman who claimed that Holmes owed her
money.
             At Lega’s and Gray’s direction, the valuables from Holmes’s house, plus
the freshly cut marijuana plants and Gearing’s television, were all loaded into Holmes’s
vehicle, a Ford Explorer. Lega and Gray then forced Gearing to drive the Explorer
toward Anchorage, with Holmes riding handcuffed in the rear seat.
             Shortly before 2:00 a.m. that morning (February 3, 2013), Officer William
Rapson observed a Ford Explorer driving on the Parks Highway near Wasilla. The car’s
headlights were flashing erratically, so Officer Rapson conducted a traffic stop of the
vehicle. Gearing was in the driver’s seat, with Lega in the front passenger seat next to
him. Gray and Holmes were in the back seat.
             Officer Rapson testified that he could smell a “strong odor of marijuana”
coming from the vehicle, and he saw a bag in the cargo area that appeared to contain
marijuana plants. Rapson also observed what appeared to be a rifle case inside the car.
             When Officer Rapson attempted to speak to Gearing, Lega kept
interrupting, and Lega answered many of the questions that Rapson directed to Gearing.
It seemed to Officer Rapson that Lega was trying to end the contact as quickly as
possible. When Rapson asked each occupant for identification, all of them claimed not
to be carrying identification. Officer Rapson then asked each passenger for their name,
so he could check the APSIN database for arrest warrants. Rapson was able to locate

                                         –3–                                       2593

three of the occupants’ names in APSIN, but he could not find Lega’s name — because
Lega had given the officer a false name.
              At this point, Officer Rapson had Gearing get out of the car, intending to
question him about the rifle case and the marijuana. Once Gearing was outside the
vehicle, he told Officer Rapson that he and Holmes had been robbed and kidnapped by
Lega and Gray. Officer Rapson radioed for backup. He then patted down Gearing and
placed him in his patrol car.
              By the time Gearing was secured in Rapson’s patrol car, backup police and
troopers had arrived on the scene. The officers first removed Lega from the vehicle, then
Gray, and finally Holmes. When Holmes was removed from the vehicle, the officers
observed that she was bound with handcuffs.
              Holmes was moved to a patrol vehicle, and she was briefly questioned by
State Trooper Paul Wegrzyn. Holmes corroborated Gearing’s statement that she and
Gearing had been robbed and kidnapped. In her conversation with Wegrzyn, Holmes
furnished the basic details of the robbery and kidnapping.
              The officers then drove Holmes and Gearing in separate patrol cars to the
Mat-Su West trooper post. There, they were separately interviewed by Troopers Michael
Henry and David Bower.
              Meanwhile, Officer Rapson and Trooper Wegrzyn drove to Holmes’s
residence to look for evidence of the alleged robbery and kidnapping. They found that
the interior of Holmes’s house appeared to have been ransacked: items were strewn
across the floor, including a gun holster, a broken cell phone, and cards of the type that
would be carried in a wallet (e.g., business cards). Outside the home, the officers found
fresh marijuana leaves lying on the snow.
              Based on the circumstances of the traffic stop, and on Holmes’s and
Gearing’s separate statements, the officers concluded that Holmes and Gearing were

                                           –4–                                       2593

telling the truth about being robbed and kidnapped. Trooper Henry then drove them
back to Holmes’s house. On the way, they talked further about what had happened, and
Trooper Henry recorded this conversation.
              When the three arrived at Holmes’s house, Trooper Henry entered the
house with Holmes and Gearing, and he accompanied them as they walked around the
crime scene and talked again about the events of the evening. Henry recorded this
conversation as well.
              These various prior statements made by Holmes and Gearing became an
issue at trial because of the theory of defense asserted by the attorneys representing Lega
and his co-defendant Gray.
              The defense contended that all four people involved — Lega, Gray,
Holmes, and Gearing — were actually partners in a marijuana growingscheme, and that
Holmes and Gearing(plotting beforehand) had concocted a story to tell the police in case
they were ever stopped and questioned — a story about being robbed and kidnapped by
Lega and Gray.
              Because this was the defense theory of the case, the trial judge allowed the
State to introduce the various statements made by Holmes and Gearing after they were
stopped by the police — under the theory that these statements were “prior consistent
statements” as defined in Alaska Evidence Rule 801(d)(1)(B). The prior statements at
issue were:
              1. the statement that Holmes made to a police officer at the scene of the
       traffic stop;
              2 & 3. the statements that Holmes and Gearing made when they were
       questioned separately by the police within an hour following the traffic stop; and




                                           –5–                                        2593

              4 & 5. the two recorded conversations that took place after the police
       concluded that Holmes and Gearing were telling the truth about being kidnapped.
       One of these conversations occurred while Holmes and Gearing were riding in a
       patrol car back to Holmes’s residence, where the robbery and kidnapping began.
       The other conversation took place after Holmes and Gearing arrived at Holmes’s
       residence, when they toured the residence with Trooper Henry while the officers
       were looking for physical evidence.
              In this appeal, Lega contends that the trial judge committed error by
allowing the State to introduce Holmes’s and Gearing’s prior statements, and that this
error requires reversal of his conviction.


       The applicable law


              Alaska Evidence Rule 801(d)(1)(B) governs the admissibility of a witness’s
out-of-court statements when those prior statements are consistent with the witness’s trial
testimony.
              Generally speaking, Alaska Evidence Rule 801(d)(1)(B) allows a party to
introduce the prior statement of a witness when the other party attacks the witness’s trial
testimony as being the product of “recent fabrication”, or the product of “improper
influence or motive”. But the more precise rule is set forth in this Court’s decisions in
Nitz v. State, Nusinginya v. State, and Thompson v. State. 1 In those cases, this Court
interpreted Evidence Rule 801(d)(1)(B) as allowing the admission of a prior consistent
statement in two distinct situations:



   1
       Nitz v. State, 720 P.2d 55 (Alaska App. 1986); Nusinginya v. State, 730 P.2d 172
(Alaska App. 1986); Thompson v. State, 769 P.2d 997 (Alaska App. 1989).

                                             –6–                                      2593

               If the witness’s prior consistent statement pre-dates the alleged motive for
fabrication or the alleged improper influence — i.e., if the prior consistent statement was
made before the asserted impetus for fabrication arose — then the prior statement is
admissible as substantive evidence. See Nitz, 720 P.2d at 66. That is, the jury is allowed
to rely on the prior consistent statement, not just for purposes of assessing the credibility
of the witness’s trial testimony, but also as independent evidence of the truth of the
matters asserted in the prior statement.
               If the witness’s prior consistent statement does not pre-date the asserted
motive to fabricate or the asserted improper influence, the prior consistent statement can
nevertheless be admissible if the trial judge concludes that the circumstances of the prior
statement reasonably bolster the credibility of the witness’s trial testimony — apart from
the mere fact that the prior statement is consistent with the witness’s trial testimony. See
Nitz, 720 P.2d at 58, 66; Nusinginya, 730 P.2d at 174; Thompson, 769 P.2d at 1001.
               In Nitz, for example, the defendant asserted that the victim had fabricated
allegations of sexual abuse so that Nitz would be removed from her family home. 2 But
the evidence showed that the victim had “consistently been reluctant to discuss Nitz’s
offenses” — that her early accounts of the abuse “included only partial details”, and that
“considerable efforts had to be expended over a lengthy period of time before [the
victim] was willing to discuss her experiences more fully and openly.” 3 Given these
circumstances, we concluded that the victim’s prior statements had relevance that
derived, not so much from the fact that the prior statements were consistent with the
victim’s trial testimony, but rather from the circumstances and manner in which the




   2
       Nitz, 720 P.2d at 68.
   3
       Ibid.

                                            –7–                                         2593

victim made those prior statements. 4 That is, the victim’s repeated reluctance to fully
discuss these matters was seemingly inconsistent with the defense assertion that the
victim purposely made false allegations in order to rid herself of Nitz.
               However, if a prior statement is admitted under this second rationale, the
jury can not consider it as substantive evidence. The witness’s prior statement is only
admissible for purposes of assessing the credibility of the witness’s trial testimony. 5


       Our analysis of the trial judge’s ruling


               In Lega’s case, the trial judge concluded that Holmes’s and Gearing’s prior
statements did not pre-date their alleged motive to falsify, but that those prior statements
were nevertheless admissible under Nitz to bolster the credibility of Holmes’s and
Gearing’s trial testimony. The judge therefore allowed the prosecutor to introduce all
of the prior statements, and to introduce those statements in their entirety.
               The judge’s ruling is problematic in two respects.
               First, the judge did not specifically address the circumstances of Holmes’s
and Gearing’s prior consistent statements, nor did he explain why those circumstances
were probative of Holmes’s and Gearing’s credibility as trial witnesses, apart from the
mere fact that the prior statements were consistent with their trial testimony.
               Second, the judge did not evaluate whether Holmes’s and Gearing’s
statements should be admitted in their entirety, or whether those statements should be
abridged or summarized owing to considerations of cumulativeness, waste of time, or
unfair prejudice. See Evidence Rule 403. Here, the judge allowed the prosecutor to play


   4
       Ibid.
   5
       Nitz, 720 P.2d at 58, 68.

                                           –8–                                         2593

the entire audio recordings of Holmes’s and Gearing’s prior statements — recordings
that (taken together) were hours long.
              As this Court noted in Thompson, the “sheer repetition” of a witness’s
account presents the risk that the jury’s attention may be improperly diverted from its
task of evaluating the witness’s live testimony. 6 Moreover, as explained in Nitz, when
a witness’s prior statements are admitted into evidence, especially at such length and in
such detail, there is an inherent potential for unfair prejudice because the jury may fall
prey to “the false impression that repetition adds substance to the [witness’s] story” 7 —
when, in fact, repetition of the witness’s story adds nothing of substance unless the
timing or the other circumstances of the prior statements will assist the jury in evaluating
the credibility of the witness’s in-court testimony.
              Thus, when either party proposes to introduce a witness’s prior consistent
statements under Evidence Rule 801(d)(1)(B), it is important for trial judges to engage
in the analysis we have described here. That was not done in the present case.
              Nevertheless, with regard to the statement that Holmes made at the scene
of the traffic stop, and with regard to the statements that Holmes and Gearing gave to the
police when they were separately interviewed shortly after the traffic stop, we conclude
that the circumstances of these statements provided ample justification for admitting this
evidence — because the circumstances of these statements obviously supported the
inference that Holmes and Gearing were telling the truth at trial.
              Holmes and Gearing separately gave detailed and largely matching
descriptions of what had happened to them. In their descriptions, Holmes and Gearing
provided specific details of the kidnapping — the chronology of events, the words that


   6
       Thompson, 769 P.2d at 1003.

   7
       Nitz, 720 P.2d at 69.


                                           –9–                                         2593

Lega and Gray spoke during the kidnapping, the specific ways in which Lega and Gray
used force against Holmes and Gearing, and the places on the property where these
assaults occurred.
              It was improbable that Holmes and Gearing could have manufactured this
kind of detail beforehand, and they had no time to manufacture this kind of detail after
the police ended the kidnapping and took the two of them away for separate interviews.
Thus, as in Nitz, the relevance of Holmes’s and Gearing’s prior statements derived, not
so much from the fact that the prior statements were consistent with their trial testimony,
but rather from the circumstances of the prior statements.
              The situation is more complicated with respect to Holmes’s and Gearing’s
later statements — their statements in the patrol car on the way back to Holmes’s
residence, and then their statements at the residence.
              As we have explained, the audio recordings of those statements were quite
long. This meant that a significant portion of the jury’s time was spent listening to
Holmes’s and Gearing’s out-of-court statements — raising concerns under Evidence
Rule 403. And to the extent that the judge allowed the prosecutor to play these later
statements merely because they were repetitions of what Holmes and Gearing had
already told the police in their earlier statements, or repetitions of what Holmes and
Gearing said in their trial testimony, this would be error under Nitz.
              Nevertheless, even if it was improper to admit those later statements, or
even if those later statements should only have been presented in a much-abridged form,
any error was harmless. As we have explained, Holmes’s and Gearing’s earlier
statements were properly admitted. Moreover, the State’s version of events was directly
corroborated by the physical evidence in the case (most significantly, the condition of
Holmes’s and Gearing’s residences, and the fact that Holmes was bound in handcuffs in
the car). This version of events was substantially more plausible than the defense theory

                                          – 10 –                                      2593

of the case. Because of this, we can confidently say that the admission of the later
statements did not appreciably affect the jury’s verdicts. 8
              Accordingly, the judgement of the superior court is AFFIRMED.




   8
        See Love v. State, 457 P.2d 622,634 (Alaska1969) (holdingthat, for instances of non-
constitutional error, the test for harmlessness is whether the appellate court “can fairly say
that the error did not appreciably affect the jury’s verdict”).

                                            – 11 –                                       2593

