## Facts

- James T. Kelly (age 19) was with 13-year-old K.P. and others at Kelly’s home late at night; K.P. did not disclose her age and was not asked.
- K.P. and Kelly went into a bedroom, sat on a bed, and listened to music.
- Kelly touched K.P.’s breasts and legs; K.P. asked him to stop, but he continued.
- Kelly removed K.P.’s pants and attempted to initiate sexual intercourse; K.P. pushed him away, replaced her pants, and left.
- Kelly was charged with third-degree sexual abuse of a minor (sexual contact with a person under 16) and attempted second-degree sexual abuse of a minor (attempted sexual intercourse with a person under 16).
- Kelly asserted a statutory mistake-of-age defense, claiming he reasonably believed K.P. was at least 16 and took reasonable measures to verify her age.
- At the second trial, Kelly sought to introduce testimony from Stephan Andrews that Kelly said that night he believed K.P. was 16; the trial court excluded it as hearsay and Kelly was convicted.

## Issues

1. Whether Andrews’s testimony about Kelly’s contemporaneous statement that he believed K.P. was 16 was admissible under Alaska Evidence Rule 803(3) as evidence of Kelly’s then-existing state of mind.
2. Whether excluding that testimony prejudiced Kelly’s statutory mistake-of-age defense and constituted reversible (non-harmless) error.

## Decision

- The Alaska Court of Appeals held the excluded statement was admissible under Alaska Evidence Rule 803(3) as evidence of Kelly’s then-existing belief about K.P.’s age.
- The court rejected exclusion based on the statement being “self-serving,” concluding such concerns go to weight rather than admissibility when Rule 803(3) applies.
- The court ruled the exclusion prejudiced Kelly’s ability to present his mistake-of-age defense and was not harmless.
- The court reversed Kelly’s convictions and remanded for further proceedings.

## Legal Principles

- Alaska Evidence Rule 803(3) permits admission of a declarant’s out-of-court statement of then-existing state of mind (including belief) when offered to prove that state of mind at the relevant time.
- A statement offered to show what the defendant believed (rather than to prove the underlying fact believed) fits Rule 803(3)’s state-of-mind exception.
- A defendant’s contemporaneous statement is not inadmissible merely because it is potentially self-serving; credibility is generally for the jury.
- When a statutory mistake-of-age defense requires acquittal if the jury finds a reasonable belief and reasonable verification measures, excluding key state-of-mind evidence supporting that defense can be reversible error if it could have affected the verdict.

## Conclusion

The court reversed because the trial court improperly excluded, as hearsay, testimony that Kelly contemporaneously stated he believed the complainant was 16, evidence admissible under Rule 803(3) and central to a mistake-of-age defense that could have required acquittal.


Kelly v. State, 116 P.3d 602 (Alaska Ct. App. 2005)