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Kitchok v. State5/12/2004
Nick Kitchok appeals his convictions for attempted first-degree sexual assault and fourth-degree assault. [FN1] Kitchock contends that the trial judge should have allowed him to impeach the victim of these assaults with evidence that she had previously been convicted of two crimes of dishonesty. Kitchok also appeals the composite sentence he received--19 years with 3 years suspended (16 years to serve). For the reasons explained here, we conclude that the trial judge did not abuse his discretion when he refused to allow Kitchok to impeach the victim with evidence of her convictions for crimes of dishonesty. We further conclude that, given the facts of Kitchok's case, his composite sentence of 16 years to serve is not clearly mistaken.
Underlying facts
Kitchok and the victim, L.B., lived in Manokotak, a village of some 400 residents located 25 miles southwest of Dillingham on the Igushik River. One night in January 2001, Kitchok invited L.B. to his house. The two of them drank and watched videos, and then Kitchok asked L.B. to "come in[to] the back room". L.B. did not know the reason for Kitchok's request, but she accompanied him.
The "back room" turned out to be a bedroom. As soon as L.B. entered the room, Kitchok grabbed her, hit her, and knocked her to the floor. L.B. tried to flee, but Kitchok grabbed her by the hair and pulled her back into the room, and then he knocked her down again. Kitchok climbed on top of L.B., repeatedly striking her, choking her, and tearing her clothes off.
At one point, Kitchok stopped his assault. L.B. grabbed a pair of snow pants and started to climb out of the bedroom window, but Kitchok again seized her by the hair, pulled her back, and resumed his attack. Ultimately, L.B. was able to fight Kitchok off, and she ran to a neighbor's house wearing only the snowpants and a pair of socks. She immediately reported that Kitchok had tried to rape her, and then she contacted the authorities.
The village health aide who examined L.B. later that morning found that L.B. had numerous bruises and other injuries on her face, her arms, and the front of her body. The village police entered Kitchok's house and found L.B.'s coat, shirt, pants, and shoes, as well as a torn portion of L.B.'s bra. A clump of L.B.'s hair was discovered in her shirt, tending to corroborate L.B.'s assertion that Kitchok had grabbed her by the hair.
Kitchok's attempt to impeach L.B. with evidence that she had previously been convicted of forgery and theft
Kitchok's theory of defense was that L.B. had fabricated her story of sexual assault. Before opening statements, the defense attorney asked the trial judge, Superior Court Judge Donald D. Hopwood, for permission to impeach L.B. with evidence that she had been convicted in 1994 of second-degree forgery and second-degree theft.
The parties agreed that forgery and theft were crimes involving dishonesty or false statement for purposes of Alaska Evidence Rule 609(a). However, L.B.'s convictions were from 1994--outside the 5-year time limit imposed by Evidence Rule 609(b).
*2 Rule 609(b) allows a trial judge to relax the 5-year time limit "if the court is satisfied that admission [of the] evidence is necessary for a fair determination of the case". Kitchok's attorney asked Judge Hopwood to exercise this authority and allow the requested impeachment, but Judge Hopwood announced that he would defer his ruling until he heard the other defense evidence on the issue of L.B.'s credibility.
During the trial, Kitchok presented six witnesses who testified either that L.B. had a reputation for untruthfulness or that, in their opinion, L.B. was a dishonest person.
Jamie McIntyre testified that, in her opinion, L.B. was not very honest. José Sanchez, who had two children with L.B., testified th
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