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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

STATE OF ALASKA, 

Petitioner, 

v. 

HARRY NORMAN POWELL, 

Respondent. 

Court of Appeals No. A-13326 

Trial Court No. 3AN-17-07280 CR 

O P I N I O N 

No. 2698 — April 16, 2021 

Petition for Review from the Superior Court, Third Judicial 

District, Anchorage, Catherine M. Easter, Judge. 

Appearances: Hazel C. Blum, Assistant Attorney General, 

Office of Special Prosecutions, Anchorage, and Kevin G. 

Clarkson, Attorney General, Juneau, for the Petitioner. Brooke 

V. Berens, Assistant Public Advocate, and James Stinson, 

Public Advocate, Anchorage, for the Respondent. 

Before: Allard, Chief Judge, and Wollenberg and Harbison, 

Judges. 

Judge HARBISON. 

The State has petitioned for review of a superior court order dismissing two 

counts of an indictment against Harry Norman Powell — one count of second-degree 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1 

sexual abuse of a minor and one count of second-degree misconduct involving a 

controlled substance, both involving fourteen-year-old A.S.1 

During its presentation to the grand jury, the State introduced a video 

recording of a forensic interview of A.S. conducted at a child advocacy center. The State 

did not call A.S. as a witness. 

Powell moved to dismiss the indictment, arguing that the video recording 

was inadmissible hearsay because it did not fall within any exception to Alaska Criminal 

Rule 6(r) or any general exception to the hearsay rules under the Alaska Rules of 

Evidence. In response, the State argued that the video recording was admissible under 

Alaska Evidence Rule 801(d)(3). This rule declares that the recorded pretrial statement 

of a child under sixteen years old is exempted from the hearsay rule if certain 

foundational criteria are met. 

The superior court found that at least one of this rule’s foundational 

requirements, the requirement under Evidence Rule 801(d)(3)(B) that the victim “is 

available for cross-examination,” cannot be met at the time of grand jury. The superior 

court noted thatthereis no cross-examination at grand jury proceedings and found, based 

on the plain language and legislative history of Evidence Rule 801(d)(3), that this 

provision of the rule “contemplates a cross-examination contemporaneous to the 

AS 11.41.436(a)(1) and AS 11.71.030(a)(2), respectively. We granted the petition and 

ordered full briefing, but while this petition was pending, Powell died. The parties then 

agreed that we should decide the petition under the public interest exception to the mootness 

doctrine. We agree that the issues presented by this case are capable of repetition and raise 

important issues of first impression, and accordingly we consider the petition on the merits. 

See Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985) (“The public interest exception 

involves the consideration of three main factors: 1) whether the disputed issues are capable 

of repetition, 2) whether the mootness doctrine, if applied, mayrepeatedlycircumvent review 

of the issues and, 3) whether the issues presented are so important to the public interest as 

to justify overriding the mootness doctrine.”). 

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introduction of the recording.” The superior court accordingly granted Powell’s motion 

to dismiss. 

In its order, the superior court first drewa distinction between the provision 

set out in Evidence Rule 801(d)(3)(B) and one of the grand jury hearsay exceptions set 

out in Criminal Rule 6(r)(2). Evidence Rule 801(d)(3)(B) requires that the victim “is” 

available for cross-examination. In contrast, under Criminal Rule 6(r)(2), a hearsay 

statement by a child victim under ten years old may be admitted before the grand jury 

if certain circumstances are met, including that the child either testifies at the grand jury 

or “will be” available to testify at trial.2 

Second, the superior court noted that the legislative sponsor of Evidence 

Rule 801(d)(3) declared, before the Senate Judiciary Committee, that the “most crucial 

aspect” of the proposed rule was that “the victim [must be] present at the proceeding and 

available to testify.”3 

Because the foundational requirement of Evidence Rule 801(d)(3) that the 

victim “is available for cross-examination” could not be met at the time of the grand jury 

proceeding, the court concluded that the video recording was inadmissible. The court 

further found that, without the video, the remaining evidence before the grand jury was 

insufficient to support the indictment against Powell on the two counts involving A.S. 

On petition before this Court, the State argues that the video recording was 

admissible before the grand jury because the prosecutor had a good-faith belief at the 

time of the grand jury proceeding that the foundational requirements of Evidence Rule 

801(d)(3) would be met at the time of Powell’s trial. The State points to legislative 

2 Alaska R. Crim. P. 6(r)(2). 

3 Senate Judiciary Comm., Senate Bill 117, statement of Senator Hollis French, 9:31­

9:33 a.m. (Mar. 31, 2005). 

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history suggesting that the legislature intended that a child victimunder sixteen years old 

would only have to describe an alleged offense once, during a video-recorded interview 

at a child advocacy center, and would not have to discuss the offense again until the time 

of trial. 

But it is also clear from the legislative history — and from the plain 

language of several of the conditions that the legislature attached to Evidence Rule 

801(d)(3) — that the legislature’s focus was on the admissibility of the video recording 

at trial. The legislative history contains no discussion of the grand jury proceeding or 

how the conditions that the legislature specifically included to protect a defendant’s 

rights at trial could apply at the time of grand jury. And the legislature did not amend 

the criminal rules governing the admissibility of evidence before the grand jury to allow 

this type of hearsay to be introduced at a grand jury proceeding despite the fact that the 

legislature had previously amended these rules to permit other types of child hearsay 

statements to be presented to a grand jury.4 

For these reasons, we agree with the superior court that the video recording 

of the interview with A.S. was inadmissible under Evidence Rule 801(d)(3) at Powell’s 

grand jury proceeding. Accordingly, we affirm the superior court’s dismissal of Counts 

I and II of Powell’s indictment. 

The plain language and legislative history of Alaska Evidence Rule 

801(d)(3) 

The State argues that the video recording was admissible under Alaska 

Evidence Rule 801(d)(3). Under this rule, the recorded statements of victims under the 

SLA 1985, ch. 41, § 1; see also AS 12.40.110. 

– 4 – 2698
 

4 
 

 

 

 

 

 

 

age of sixteen are not hearsay and may be admitted if certain foundational requirements 

are met. These requirements are: 

(A) the recording was made before the proceeding; 

(B) the victim is available for cross-examination; 

(C) the prosecutor and any attorney representing the 

defendant were not present when the statement was taken; 

(D) the recording is on videotape or other format that 

records both the visual and aural components of the 

statement; 

(E) each person who participated in the taking of the 

statement is identified on the recording; 

(F) the taking of the statement as a whole was conducted 

in a manner that would avoid undue influence of the victim; 

(G) the defense has been provided a reasonable 

opportunity to view the recording before the proceeding; and 

(H) the court has had an opportunity to view the recording 

and determine that it is sufficiently reliable and trustworthy 

and that the interests of justice are best served by admitting 

the recording into evidence.[5] 

The parties agree that three of these requirements — those set out in 

subsections (B), (G), and (H) — were not met at the time the State presented the 

recordings to Powell’s grand jury and ordinarily cannot be met during the grand jury 

phase. The plain meaning of the rule therefore suggests that it is inapplicable to grand 

jury proceedings. 

But when we interpret a statute, we do not rigidly rely upon the statute’s 

plain meaning; instead, weemploy asliding scaleapproach incorporatingbothlegislative 

Alaska R. Evid. 801(d)(3). 

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history and the plain text of the statute to understand the legislature’s intent.6 The plainer 

the language is, the more convincing the evidence of contrary legislative purpose or 

intent must be.7 In interpreting Evidence Rule 801(d)(3), we therefore look both to the 

plain meaning and to the legislature’s purpose and intent in enacting it. 

Evidence Rule 801(d)(3) was promulgated by legislative action in 2005.8 

According to the rule’s sponsor, Senator Hollis French, the rule would allow child 

victims to describe the offense in a safe, “child friendly environment,” free of the 

intimidating environment inherent to a courtroom.9 The rule was intended to protect 

children frombeing re-traumatized byhaving to repeatedly articulatethe“most shameful 

and painful private acts that one can imagine.”10 Instead of subjecting a child to a 

“gauntlet of interviews,” which begin with the child’s first report and continue through 

the child’s testimony at trial, the proposed rule would allow a child to describe the 

incident a single time at a child advocacy center.11 Senator French explained that 

“through the use of videotape, this single interview can be the record of the incident, and 

6 State v. Thompson, 425 P.3d 166, 169 (Alaska App. 2018). 

7 Fyfe v. State, 334 P.3d 183, 185 (Alaska App. 2014) (quoting State, Dep’t of Comm., 

Cmty & Econ. Dev., Div. of Ins. v. Alyeska Pipeline Serv. Co., 262 P.3d 593, 597 (Alaska 

2011)). 

8 SLA 2005, ch. 64, § 59. This legislation was initially introduced in 2005 as Senate 

Bill 117, but it subsequently was incorporated into House Bill 53. The portion of House Bill 

53 that was previously Senate Bill 117 was signed into law as SLA 2005, ch. 64, § 59. 

9 Senate Judiciary Comm., Senate Bill 117, statement of Senator Hollis French, 9:27­

9:29 a.m. (Mar. 31, 2005). 

10 See Senate Floor Session, 24th Alaska Legislature, Debate on House Bill 53, Gavel 

Audio Part 1 at 30:00-33:00 (May 9, 2005). 

11 Id. 

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if used correctly, we can spare a child the pain of having to go through this story over 

and over and over again.”12 

Although the legislature wanted to allow the use of video recordings of the 

statements of child crime victims rather than live testimony under certain circumstances, 

it also wanted to ensure that the rule would survive a confrontation clause challenge.13 

(In Crawford v. Washington, the United States Supreme Court interpreted the 

confrontation clause of the United States Constitution to limit the government’s use of 

testimonial hearsay in criminal cases.14 Under Crawford, even if this testimonial hearsay 

fits within a recognized hearsay exception, it is inadmissible unless (1) the declarant 

testifies (and is thus available for cross-examination) at the defendant’s trial or (2) the 

declarant is shown to be unavailable and the defendant had the opportunity to 

cross-examine the declarant in aprevious proceeding.15) Senator French explained to the 

committee that subsection (B) of the rule — requiring that “the victim is available for 

cross-examination” — was included to ensure that the rule was constitutional under 

Crawford.

16 

A final goal of the legislature in enacting Evidence Rule 801(d)(3) was to 

ensure that permitting the use of recorded statements of child crime victims would not 

deprivedefendantsofafundamentally fair proceeding. Senator French spoke of the need 

to include safeguards in the rule to avoid “leading the child . . . to an incriminating 

12 Id. (emphasis added). 

13 Senate Judiciary Comm., Senate Bill 117, 9:40-9:45 a.m. (Mar. 31, 2005). 

14 Crawford v. Washington, 541 U.S. 36, 68 (2004). 

15 Id. 

16 Senate Judiciary Comm., Senate Bill 117, statement of Senator Hollis French, 9:31­

9:33 a.m. (Mar. 31, 2005). 

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statement.” He noted that “[k]ids are obviously easily led, and it’s real important that 

you not put words in their mouths, [that] you let them tell their own story.”17 

To protect against the possibility that children could be led to make false 

accusations, subsections (F) and (H) were added to the rule. These subsections require 

that, in order for the statements to be admissible, a trial judge must: “(1) . . . 

affirmatively determine that the child’s statement was elicited in a neutral and nonleading manner, and (2) . . . independently evaluate the reliability and trustworthiness of 

the statement if it is challenged.”18 The legislature also included, in subsection (G), a 

requirement that the defense be given a reasonable opportunity to view the recording 

before the proceeding. This provision allows a defendant to have the information 

necessary to challenge the admission of a recording if the recording shows that the 

child’s statement either was not elicited in the required neutral manner or is not 

sufficiently reliable and trustworthy. 

Why we conclude that Evidence Rule 801(d)(3) does not apply to grand 

jury proceedings 

In Alaska, a defendant may not be held to answer for a felony crime without 

first being indicted by a grand jury.19 In order for the grand jury to return an indictment 

on a given charge, a majority of the grand jurors must agree that the evidence is 

17 Id. at 9:28-9:30 a.m.
 

18 Augustine v. State, 355 P.3d 573, 584 (Alaska App. 2015).
 

19 Alaska Const. art. I, § 8.
 

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sufficient to support the charge.20 And, with certain exceptions, hearsay is 

inadmissible.21 

Grand jury proceedings are secret; only the prosecuting attorney, the 

witness under examination, the court clerk who is recording the proceedings, and, when 

needed, an interpreter, may be present while the grand jury is in session.22 The 

prosecuting attorney prepares the indictment and instructs the grand jury on the 

applicable law,23 and it is the prosecutor, rather than a judge, who presides over the 

proceeding. Neither the defendant nor the defendant’s attorney has the right to be 

present. 

As we have explained, the legislative history of Evidence Rule 801(d)(3) 

shows that when the legislature promulgated the rule, it wanted to create a procedure by 

which a child victim of a crime could describe the offense once, during a video-recorded 

interview, and would not have to discuss the offense again until the time of trial. The 

State argues that the legislative goal of protecting children from having to testify 

repeatedly about an offense would be thwarted if the rule did not apply to grand jury 

proceedings. According to the State, video recordings of a child’s statement made at a 

child advocacy center are presumptively admissible at grand jury, and the foundational 

requirements of Rule 801(d)(3) may be met later, at the time of trial. 

TheState’s argument for admissibility is grounded in AlaskaCriminal Rule 

6(r)(1). The State contends that this rule relieves the prosecution of the obligation to 

20 Alaska R. Crim. P. 6(n). 

21 Alaska R. Crim. P. 6(r)(1). 

22 Alaska R. Crim. P. 6(k), (l). 

23 Alaska R. Crim. P. 6(i). 

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establish a foundation for the admission of evidence at the time of a grand jury 

proceeding. Criminal Rule 6(r)(1) provides: 

Evidence which would be legally admissible at trial shall be 

admissible before the grand jury. . . . Except as stated in 

subparagraphs (2), (3), and (6), hearsay evidence shall not be 

presentedto thegrand jury absent compelling justification for 

its introduction. If hearsay evidence is presented to the grand 

jury, the reason for its use shall be stated on the record.[24] 

In the State’s view, because this rule specifically allows for the admission of evidence 

which “would be” legally admissible at trial, a recording of a child victim’s statement 

need not meet Evidence Rule 801(d)(3)’s foundational prerequisites for admissibility at 

the time it is presented to a grand jury — so long as the prosecutor believes in good faith 

that the recording would later be admissible at trial. 

As supportfor its contention, theState notes that the language of subsection 

(r)(1) was derived from American Bar Association Standard 3.6(a).25 That ABA 

Standard provided: 

A prosecutor should present to the grand jury only evidence 

which he believes would be admissible at trial. However, in 

appropriate cases the prosecutor may present witnesses to 

24 Subparagraph (2) permits hearsay evidence of the statement of a child abuse victim 

to be admitted before a grand jury under prescribed circumstances, subparagraph (3) allows 

the admission of certain hearsay statements of police officers on the same investigative team, 

and subparagraph (6) allows the admission of hearsay received from APSIN regarding prior 

convictions of the defendant. 

25 State v. Gieffels, 554 P.2d 460, 462 (Alaska 1976). But cf. 4 ABA Standards for 

Criminal Justice § 3-4.6(c) (4th ed. 2015) (“A prosecutor should present to a grand jury only 

evidence which the prosecutor believes is appropriate and authorized by law for presentation 

to a grand jury.”). 

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summarize admissible evidence available to him which he 

believes he will be able to present at trial.[26] 

Based on this standard, the State argues that Criminal Rule (6)(r)(1) authorizes the 

prosecutor to present evidence to the grand jury that the prosecutor believes in good faith 

will later be admissible at trial, even if the prosecutor cannot establish a foundation for 

the admission of the evidence at the time of the grand jury proceeding. The State 

maintains that because the prosecutor in this case believed that the recorded interview 

of A.S. would later meet the requirements of Evidence Rule 801(d)(3), the recording was 

admissible before the grand jury. 

But there is no indication that the legislature contemplated the admission 

of this type of hearsay at a grand jury proceeding. The legislative history of Evidence 

Rule 801(d)(3) contains no discussion at all about whether or how the rule could be 

applied in the grand jury context. In contrast, there was extensive discussion in the 

legislative history about the application of the rule’s requirements at trial. 

For instance, as we have explained, a primary focus of the legislature’s 

discussion was the constitutionality of the rule and the need to ensure that the child 

victim “is available for cross-examination” in order to meet a confrontation clause 

objection.27 And, although a defendant has the right to cross-examine witnesses at trial, 

there is no right to cross-examination at a grand jury proceeding. Thus, the legislature’s 

confrontation clause discussion would not apply to that context. 

Another focus ofthelegislaturewas onensuringthereliability ofthechild’s 

recorded statements and protecting the defendant’s right to challenge the trustworthiness 

26 ABA Standards Relating to the Prosecution Function and the Defense Function § 

3.6(a) (Approved Draft 1971). 

27 Senate Judiciary Comm., Senate Bill 117, 9:40-9:45 a.m. (Mar. 31, 2005). 

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of those statements.28 The subsections of the rule that the legislature included to protect 

a defendant from false accusations, subsections (F), (G), and (H), are readily applied in 

the trial context but cannot be applied to a grand jury proceeding. As we explained in 

Augustine v. State, subsections (F) and (H) of the rule require a trial judge: “(1) to 

affirmatively determine that the child’s statement was elicited in a neutral and nonleading manner, and (2) to independently evaluate the reliability and trustworthiness of 

the statement if it is challenged.”29 Moreover, subsection (G) requires that “the defense 

[be] provided a reasonable opportunity to view the recording before the proceeding.”30 

Neither of the requirements set out in subsections (G) and (H) — permitting a review of 

the recording by the defendant and the court prior to the pertinent proceeding — can be 

met at the time of grand jury. 

Additionally, when the legislature promulgated Evidence Rule 801(d)(3), 

creating a procedure that is clearly applicable to the admission of a recorded statement 

of a child witness at trial, it took no action to broaden Criminal Rule 6(r)(2), the rule that 

allows certain hearsay statements made by child victims to be admitted at grand jury 

proceedings. Criminal Rule 6(r)(2), provides that, in a prosecution for child abuse, 

hearsay evidence of a statement related to the offense made by a child who is the victim 

of the offense may be admitted before the grand jury if: 

28 Senate Judiciary Comm., Senate Bill 117, statement of Senator Hollis French, 9:31­

9:36 a.m. (Mar. 31, 2005). 

29 Augustine v. State, 355 P.3d 573, 584 (Alaska App. 2015). As we noted earlier, 

subsection (F) requires that “the taking of the statement as a whole was conducted in a 

manner that would avoid undue influence of the victim.” And subsection (H) requires that 

“the court has had an opportunity to view the recording and determine that it is sufficiently 

reliable and trustworthy and that the interests of justice are best served by admitting the 

recording.” Alaska R. Evid. 801(d)(3). 

30 Alaska R. Evid. 801(d)(3)(G) (emphasis added). 

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(i) the circumstances of the statement indicate its 

reliability; 

(ii) the child is under 10 years of age when the hearsay 

evidence is sought to be admitted; 

(iii) additional evidence is introduced to corroborate the 

statement; and 

(iv) the child testifies at the grand jury or the child will be 

available to testify at trial. 

Although this rule was promulgated by the legislature in 1985,31 the legislature did not 

expand the rule’s scope when it enacted Evidence Rule 801(d)(3). 

The Nevada Supreme Court considered an argument similar to the one now 

advanced by the State when it decided Rugamas v. Eighth Judicial District Court.

32 In 

Nevada, as in Alaska, a grand jury cannot receive hearsay unless a specific exception 

applies.33 The question in Rugamas was whether a statutory hearsay exception that 

allows the admission of certain statements about sexual or physical abuse, made by a 

victim under the age of ten, applies to grand jury proceedings.34 

In Rugamas, the child victim of a sexual assault was interviewed by a 

forensic interviewer prior to the grand jury proceeding. The State called the child to 

testify before the grand jury, but the child was unable to recall significant details of the 

alleged sexual conduct with the defendant. The State then presented the testimony of 

31 SLA 1985, ch. 41, §1. 

32 Rugamas v. Eighth Judicial Dist. Court, 305 P.3d 887, 890 (Nev. 2013). 

33 Id. at 892-93. 

34 Id. at 894. 

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the forensic interviewer who told the grand jury about the statements made to her by the 

child about the alleged sexual assault. 

At the time, the Nevada statute governing the admissibility of evidence in 

a grand jury proceeding stated: “The grand jury can receive none but legal evidence, . 

. . to the exclusion of hearsay or secondary evidence.”35 The State therefore attempted 

to rely on a recently-promulgated statutory hearsay exception that allowed the admission 

of certain statements about sexual or physical abuse, made by a victim under the age of 

ten.36 

In determining whether the child hearsay exception that the State relied 

upon was applicable to a grand jury proceeding, the Nevada Supreme Court noted that, 

pursuant to the exception, hearsay may not be admitted in evidence unless the court 

conducts a hearing outside the presence of the jury and finds “that there are sufficient 

guarantees that the statements are trustworthy.”37 The court also explained that the 

statutory child hearsay exception “contemplates notice to the defendant, a ruling by a 

court as a precondition to admissibility, and a vigorous contest regarding the reliability 

of the child-victim’s statements.”38 Because thegrand jury proceeding did not afford any 

of these safeguards, and because the legislature did not amend the statute governing the 

admissibility of evidence before a grand jury when it promulgated the statutory child 

35 Nev. Rev. Stat. § 172.135(2) (pre-2015 version).
 

36 Rugamas, 305 P.3d at 891.
 

37 Id. at 894. 


38 Id. at 895.
 

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hearsay exception, the court concluded that the exception did not apply to grand jury 

proceedings.39 

We reach a similar conclusion here. Evidence Rule 801(d)(3) attaches 

specific conditions to the admission of evidence that necessitate a hearing and certain 

findings by the court before the evidence is admissible.40 Because these conditions 

cannot be met at the time of grand jury, and because there is no indication in the 

legislative history that the legislature considered the application of this rule to the grand 

jury, we conclude that Evidence Rule 801(d)(3) does not apply to grand jury 

proceedings. 

We acknowledge the legislature’s stated goal of allowing the statement a 

child makes during a recorded forensic interview to be the only statement the child 

makes about a crime prior to being cross-examined at trial. But when the legislature 

promulgated Evidence Rule 801(d)(3), it did not consider the grand jury proceeding and 

how the rule would operate in relation to that proceeding. As a result, the rule it 

promulgated does not accomplish its stated goal. Moreover, the important safeguards 

that are provided by Rule 801(d)(3) when video recordings are offered at trial are 

entirely absent from a grand jury proceeding. 

The separation of powers doctrine prohibits this Court from enacting 

legislation or redrafting defective statutes.41 It is therefore up to the legislature in the first 

39 Id. 

40 Augustine v. State, 355 P.3d 573, 584-85 (Alaska App. 2015). 

41 State v. Campbell, 536 P.2d 105, 111 (Alaska 1975) (citing Alaska Const. art. II, § 1, 

and art. IV, § 1), overruled on other grounds by Kimoktoak v. State, 584 P.2d 25 (Alaska 

1978); see Gottschalk v. State, 575 P.2d 289, 296 (Alaska 1978) (noting that the court may 

not “step [] over the line of interpretation and engag[e] in legislation”). 

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instance to decide whether, and under what conditions, this evidence should be admitted 

before a grand jury. 

Because we conclude that the recordings of child advocacy center 

interviews cannot be admitted at a grand jury proceeding under the hearsay exception set 

out in Evidence Rule 801(d)(3), and because we agree with the superior court that the 

admission of A.S.’s recorded interview at the grand jury proceeding in this case was not 

harmless, we uphold the superior court’s decision to dismiss Counts I and II of Powell’s 

indictment. 

Conclusion 

We AFFIRM the superior court’s dismissal of Counts I and II of the 

indictment. 

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