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          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,
                                                   Court of Appeals No. A-11734
                         Petitioner,               Trial Court No. 4FA-13-925 CR

                  v.
                                                            OPINION
TRISTAN MORGAN STIDSTON,
                                                    No. 2443 — February 20, 2015
                         Respondent.




           Petition for Review from the Superior Court, Fourth Judicial
           District, Fairbanks, Bethany S. Harbison, Judge.

           Appearances: Diane L. Wendlandt, Assistant Attorney General,
           Office of Criminal Appeals, Anchorage, and Michael C.
           Geraghty, Attorney General, Juneau, for the Petitioner. William
           R. Satterberg, Jr., The Law Offices of William R. Satterberg, Jr.,
           Fairbanks, for the Respondent. Katherine J. Hansen, Victims’
           Rights Attorney, Office of Victims’ Rights, and Renee
           McFarland, Assistant Public Defender, and Quinlan Steiner,
           Public Defender, Anchorage, as amici curiae.

           Before: Mannheimer, Chief Judge, Allard and Kossler, Judges.

           Judge ALLARD.
                Tristan Morgan Stidston is charged with sexually assaulting P.E. and
tampering with physical evidence following that assault.1 The State filed a motion under
Alaska’s rape shield law asking the superior court to preclude Stidston from offering
evidence of P.E.’s past sexual conduct at trial, unless Stidston made a prior application
to the court.
                Under Alaska’s rape shield statute, AS 12.45.045, a criminal defendant
charged with a sexual offense who wishes to present evidence of the complaining
witness’s sexual history must ask the court for permission to present that evidence at
least five days before trial — unless the defendant shows “good cause” to make the
application at a later date.
                When Stidston’s case was litigated in the superior court, the State took the
position that the only “good cause” for making a late application under AS 12.45.045(a)
was if the defendant discovered the relevant information only after the statutory deadline
had passed. Stidston did not dispute this reading of the statute; instead he argued that the
statute, so construed, violated his right against self-incrimination because it required him
to disclose his defense before trial.
                The superior court adopted the parties’ reading of the statute and ruled that
the statute, construed in this manner, was unconstitutional.
                The State petitioned for review of that decision. At our request, the Alaska
Office of Victims’ Rights and the Alaska Public Defender Agency also submitted briefs
as amici curiae. The State and amici curiae reach the same conclusion: that the reading
of the statute the parties adopted in the superior court was wrong; that AS 12.45.045(a)
does, in fact, contain a general good cause exception to the statutory deadline; and that
this exception allows a court to consider a mid-trial application to present evidence of


       1
           AS 11.41.410(a)(1); AS 11.56.610(a)(1).

                                            –2–                                        2443
the complaining witness’s sexual history even if the defendant was aware of that
information before the statutory deadline. We agree with this construction of the statute,
and we therefore reverse the superior court’s order ruling the statute unconstitutional.


      Why we hold that AS 12.45.045(a) contains a general good cause exception
             As we explained, AS 12.45.045(a) limits the right of a criminal defendant
charged with a sexual crime to introduce evidence of the complaining witness’s sexual
history. The statute requires a defendant who seeks to admit such evidence to:
             apply for an order of the court not later than five days before
             trial or at a later time as the court may, for good cause,
             permit. The defendant may, for good cause shown, apply for
             an order during trial if the request is based on information
             learned after the deadline or during the trial. After the
             application is made, the court shall conduct a hearing in
             camera to determine the admissibility of the evidence.2
             This statute is ambiguous on its face: The first reference to “good cause”
appears to create a general good cause exception to the pretrial deadline for making a
request to offer evidence of the complaining witness’s sexual history. But the statute
goes on to state that a request may be made during trial if the information is “learned
after the deadline or during the trial.” This language could be construed to narrow the
general good cause exception by limiting any mid-trial application to information
discovered after the statutory deadline had passed. Alternatively, the clause could be
read as a subset of the general good cause exception — that is, as one particular
circumstance establishing good cause.




      2
          AS 12.45.045(a).

                                          –3–                                       2443
              Because the statute is subject to these two reasonable interpretations, we
look to the legislative history to resolve that ambiguity.3
              In its petition, the State argues that this ambiguity is a “quirk” of the
drafting process, and that the legislature did not intend to narrow the statute’s general
good cause exception by limiting mid-trial applications to newly discovered information.
After reviewing the legislative history, we agree that the legislature intended the first
good cause exception to apply throughout the trial phase of the litigation.
              As originally introduced, Senate Bill 22 (and an identical companion bill,
House Bill 73) only allowed the defendant to make a mid-trial application if the
information about the complaining witness’s sexual history was discovered after the
pretrial statutory deadline:
              When the defendant seeks to admit the evidence for any
              purpose, the defendant shall apply for an order of the court
              not later than five days before trial. The defendant may apply
              for an order during trial if the request is based on evidence
              admitted at trial that was not available to the defendant before
              trial.4
              But during committee discussion of this legislation, Senator Bill
Wielechowski repeatedly voiced concern that this rigid pretrial deadline could
unconstitutionally prevent a defendant from presenting relevant evidence of the
complaining witness’s sexual conduct if a defense attorney’s strategy changed mid-trial




       3
            Anchorage v. Adamson, 301 P.3d 569, 576-77 (Alaska 2013) (“When statutory
language is ambiguous, we look to the purpose of the legislation and the legislative history
for indications of legislative intent.”) (citing Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d
1227, 1234 (Alaska 2003)).
       4
           S.B. 22, 28th Leg., 1st Sess., § 13 (as introduced, Jan. 16, 2013); H.B. 73, 28th
Leg., 1st Sess. § 13 (as introduced, Jan. 16, 2013).

                                            –4–                                          2443

based on a surprise in the State’s case.5 This concern was echoed by Public Defender
Quinlan Steiner.6 During the course of these discussions, the bill was gradually amended
to include both good cause exceptions.7
                Assistant Attorney General Anne Carpeneti described the amended version
of the bill to the Senate Finance Committee as requiring a defendant to make an
application to introduce information on a victim’s sexual conduct five days before trial
unless, for some reason, meeting that deadline was unreasonable.8 Carpeneti likewise
told the House Finance Committee that the bill included language allowing a defendant
to apply after the pretrial deadline “for good cause or if the information is learned at a
later date.”9
                Based on this legislative history, we agree with the State and amici curiae
that AS 12.45.045 contains a general good cause exception to the pretrial application




       5
           See Minutes of Senate Judiciary Committee, Senate Bill 22, 2:33:13-2:33:57 p.m.
(Jan. 30, 2013); Minutes of Senate Judiciary Committee, Senate Bill 22, 1:58:30-1:58:48 p.m.
(Feb. 11, 2013); Minutes of Senate Judiciary Committee, Senate Bill 22, 2:13:22-2:14:34
p.m. (Feb. 18, 2013).
       6
            Minutes of Senate Judiciary Committee, Senate Bill 22, testimony of Public
Defender Quinlan Steiner, 2:16:00-2:16:30 p.m. (Feb. 18, 2013); Minutes of House Judiciary
Committee, House Bill 73, testimony of Public Defender Quinlan Steiner, 1:52:57-54:11 p.m.
(Feb. 11, 2013).
       7
            See S.B. 22, 28th Leg., 1st Sess., § 16 (as introduced, Mar. 15, 2013); see also
Minutes of Senate Judiciary Committee, Senate Bill 22, Senator John Coghill, 2:41:29­
2:42:28 p.m. (Mar. 1, 2013) (noting that the judiciary committee passed an amendment to the
bill providing for a good cause exception).
       8
          See Minutes of Senate Finance Committee, Senate Bill 22, testimony of Assistant
Attorney General Anne Carpeneti, 9:57:23-9:57:39 a.m. (Mar. 20, 2013).
       9
          See Minutes of House Finance Committee, Senate Bill 22, testimony of Assistant
Attorney General Anne Carpeneti, 9:45:02-9:45:19 a.m. (Apr. 2, 2013) (emphasis added).

                                            –5–                                       2443

deadline for introducing information on a complaining witness’s sexual conduct, and that
the reference to newly discovered information is just one example of good cause.
              Accordingly, the superior court’s order declaring AS 12.45.045 uncon­
stitutional in part, and severing the clause “if the request is based on information learned
after the deadline or during the trial,” is REVERSED and this case is REMANDED to
the superior court for further proceedings. We do not retain jurisdiction.




                                           –6–                                        2443

