The Alaska Court of Appeals affirmed Wednesday the conviction of a man who sexually abused the little girl who once called him “Daddy Dave,” now left with “permanent and severe scars.”
In 2008, David Lester Pierren moved into an Anchorage apartment with his girlfriend, a Ms. Brown (whose identity is protected by the Alaska Court System), and Brown’s six-year-old daughter.
Pierren and Brown had previously lived together from 2003 to 2005, a time when Brown’s daughter learned to call Pierren “Daddy Dave.”
Though Pierren moved to Kenai in 2009, he would stay with Brown in Anchorage once or twice a month until he and Brown broke up in 2010.
Later in 2010, Brown became concerned when she noticed her daughter clinging to Brown’s subsequent boyfriend and rubbing his back. When Brown asked her daughter if she had any secrets, her daughter said she and Pierren had had sex.
At Alaska CARES, a clinic associated with Providence Health & Services that evaluates child abuse, Brown’s daughter told investigators that, on separate occasions, Pierren penetrated her anally and vaginally. Pierren also put his penis in her mouth and “peed” in it, she said.
Brown was away from the apartment when all of these incidents occurred.
While a jury eventually acquitted Pierren of anal and vaginal penetration of a minor, he was convicted for fellatio with a minor and the lesser counts of anal and vaginal contact with a minor.
Pierren appealed, arguing that Superior Court Judge Michael Spaan improperly barred evidence that Brown’s daughter was sexually abused in Idaho.
Brown and her daughter moved to Boise in 2005, in between stints living with Pierren. While in Boise, Brown dated a man, Burt, who her daughter said took nude photos of her and penetrated her vagina with his fingers and a massage tool.
Brown’s daughter was four years old at the time.
“Burt was not prosecuted — reportedly, because he passed lie detector tests and because the police determined that [Brown’s daughter] would not be an articulate witness,” Judge Marjorie Allard wrote for the Court of Appeals.
Pierren sought to bring up the Idaho abuse at trial, hoping to make a case that “the past Idaho allegations were true and the current sexual abuse allegations against Pierren were false and a ‘manifestation’ of the past abuse. Pierren also wanted to argue that [Brown’s daughter’s] sexualized behavior towards Brown’s most current boyfriend and her general knowledge of sexual terms and conduct could be explained by the prior sex abuse in Idaho, rather than by the current allegations.”
Pierren argued that the Idaho evidence was essential to his defense, and by not allowing it, Spaan had denied Pierren his constitutional right to that defense.
But by the time of Pierren’s trial, Brown’s daughter could no longer remember the abuse in Idaho. Brown was not present during questioning by Boise police in 2006 and therefore could not testify about that interview.
The Alaska Court of Appeals agreed with Spaan that, because of the memory issues and the lack of criminal charges in Idaho, Anchorage jurors would have had to “resolve the truth or falsity of those [Idaho] allegations. And they would have little or no evidence to enable them to do that.”
“[E]ven relevant evidence may be excluded… ‘if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or waste of time,'” Allard wrote in Wednesday’s opinion. “The trial court bears the ‘primary responsibility’ for deciding when these dangers warrant the exclusion of relevant evidence. We accordingly defer to the trial court’s judgment on the admissibility of evidence… unless we are firmly convinced that the court exercised its discretion in a manner that was untenable or unreasonable.”
“Having reviewed the entire record in this case, and considering the paucity of admissible evidence that existed on the Idaho allegations, we conclude that the trial court’s decision to preclude this evidence was not an abuse of discretion,” the Court of Appeals ruled.
The Court of Appeals also rejected Pierren’s claim that his sentence of 29 years to serve was excessive.
During sentencing, Spaan doubted that Pierren could be rehabilitated and noted that Pierren had planned his abuse.
“It wasn’t rocket science,” Spaan said of Pierren’s plan. “But mom would leave and you would take advantage of a seven-year-old girl. I find a very vulnerable victim.”
Spaan added that Brown’s daughter has been left with “permanent and severe scars.”
The Court of Appeals ruled the sentence Spaan issued was within the permissible range and not clearly mistaken.