NOTICE
 

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

BENJAMIN VAITULUI LEGA, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-11926 

Trial Court No. 3PA-13-283 CR 

O P I N I O N 

No. 2593 — March 16, 2018 

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. 

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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 

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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 

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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: 

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
 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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. 

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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. 

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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.
 

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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 

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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. 

See Love v. State, 457 P.2d 622,634 (Alaska1969) (holdingthat, for instances of nonconstitutional error, the test for harmlessness is whether the appellate court “can fairly say 

that the error did not appreciably affect the jury’s verdict”). 

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