Opinion
A-13182
09-21-2022
CALVIN AKEYA, Appellant, v. STATE OF ALASKA, Appellee.
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Second Judicial District, Nome Trial Court No. 2NO-14-00193 CR, Timothy Dooley and Raymond Funk, Judges.
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
ALLARD. JUDGE
Calvin Akeya was convicted, following a jury trial, of first-degree sexual assault for sexually penetrating a woman, L.K., without her consent. Akeya was separately convicted of second-degree sexual assault and third-degree assault for sexually and physically assaulting his fourteen-year-old daughter, A.O., after she tried to help L.K. Akeya was also convicted of furnishing alcohol to a person under twenty-one years of age (A.R.), manufacturing liquor without a license in a local option area, and two counts of third-degree misconduct involving a controlled substance for delivering marijuana to two people under nineteen years of age (A.R. and A.O.). At sentencing, Akeya received a composite sentence of 48 years with 10 years suspended (38 years to serve). Akeya now appeals his sexual assault convictions and his sentence. For the reasons explained here, we reject his claims of error on appeal and affirm the judgment of the superior court. We do, however, remand for the superior court to correct various errors in the judgment.
AS 11.41.410(a)(1).
AS 11.41.420(a)(1) and AS 11.41.220(a)(1)(B), respectively.
AS 04.16.051(a) & (d)(1), AS 04.11.010(a), and AS 11.71.030(a)(2), respectively.
Factual background-In
March 2014, Akeya hosted a party at his house in Savoonga. Akeya manufactured homebrew for the party and gave homebrew and marijuana to his guests, including his fourteen-year-old daughter, A.O., and her friend, A.R.
Also at the party were Akeya's adult niece and her girlfriend, L.K. At some point in the day, Akeya told everyone to leave except for L.K. and his niece. L.K. drank the homebrew and she got "drunk kind of fast." She later testified that she "blacked out for a little bit or passed out." L.K's girlfriend (Akeya's niece) left to get cigarettes, and Akeya locked the door behind her, locking out everyone except himself and L.K. L.K. testified that when she regained consciousness, Akeya had removed her pants and was penetrating her vagina with his penis.
According to L.K., "the next thing [she] [knew]... [h]e was forcing [her] to have sex," and she testified that he held her down by her arms. She testified that she tried to fight back, but she was not strong enough. She could hear Akeya's daughter, A.O., banging on the door and screaming to be let in, but Akeya told L.K. to ignore A.O. She passed out again, and the next thing she remembered was waking up at home with her girlfriend and "hurting down there."
A.O. testified that when she got into the house, she saw Akeya on top of L.K. in bed and neither of them had pants on. She and Akeya's niece got Akeya off L.K., and then Akeya's niece and L.K. left. A.O. tried to leave, but Akeya locked her inside. A.O. told Akeya that she was going to tell people what he did. He then pushed her on the bed, held his hand over her nose and mouth, and choked her.
At trial, A.O. testified that Akeya undid her pants, touched her vagina with his hands, and penetrated her with his fingers and penis. A.O. testified that she told Akeya to stop and tried to push him off but could not. A.O.'s testimony at trial that Akeya had touched her vagina and digitally penetrated her was consistent with her grand jury testimony, although she had originally reported only that Akeya "tried" to touch her vagina. A.O. had not previously said that Akeya penetrated her with his penis.
Following the incident, A.O. was examined by a nurse, Terra Abbott, who reported that A.O. had petechiae on her neck; she also had abrasions on the tip of her nose and her neck. A.O. had a hoarse voice and "was tender on her back and front of her neck and she had difficulty swallowing." L.K. was also examined by Abbott, who reported that a pelvic exam showed redness and abrasions and that L.K. had bruising on her back.
A grand jury indicted Akeya on the following charges: (1) two counts of first-degree sexual assault for engaging in sexual penetration with L.K. and A.O. without their consent; (2) two counts of second-degree sexual assault for engaging in sexual penetration with L.K. while he knew she was incapacitated and engaging in sexual contact with A.O. without her consent; (3) one count of first-degree sexual abuse of a minor for engaging in sexual penetration with A.O. while she was under eighteen and he was her parent; (4) one count of second-degree sexual abuse of a minor for engaging in sexual contact with A.O. while she was under eighteen and he was her parent; (5) one count of third-degree assault for recklessly causing physical injury to A.O. by means of a dangerous instrument; (6) one count of furnishing alcohol to a person under twenty-one for giving alcohol to A.R. (A.O.'s friend) (which was a felony because it occurred in a local option area); (7) one count of manufacturing liquor without a license or permit in a local option area for making the homebrew; and (8) two counts of third-degree misconduct involving a controlled substance for giving marijuana to A.O and A.R. while they were under nineteen and at least three years younger than Akeya.
AS 11.41.410(a)(1).
AS 11.41.420(a)(3) and (1), respectively.
AS 11.41.434(a)(2).
AS 11.41.436(a)(3).
AS 11.41.220(a)(1)(B).
AS 04.16.051(d)(3). Akeya was not charged for providing alcohol to A.O. because the statute expressly does not prohibit parents from giving their children alcohol. AS 04.16.051(b)(1).
AS 04.11.010(a).
AS 11.71.030(a)(2).
The jury found Akeya guilty on all counts except the counts of first-degree sexual assault and sexual abuse of a minor involving A.O. (In other words, the jury found Akeya guilty of touching A.O.'s vagina but found that there was a reasonable doubt as to whether he sexually penetrated her vagina.)
At sentencing, the judge merged the first-degree sexual assault count against L.K. with the second-degree sexual assault count against L.K. for a single conviction of first-degree sexual assault. The judge also merged the second-degree sexual assault count against A.O. with the second-degree sexual abuse of a minor count. The judge expressly considered whether to run the counts concurrently or consecutively but concluded that consecutive sentences were required because of the need for isolation and community condemnation. The judge ultimately imposed a composite sentence of 48 years with 10 years suspended (38 years to serve).
See Yearty v. State, 805 P.2d 987, 995 (Alaska App. 1991) (holding that first-degree sexual assault and first-degree sexual abuse of a minor convictions must merge, because "a single act of sexual penetration with a child cannot properly support separate sentences and convictions for both [counts]").
This appeal followed.
Akeya's argument that the evidence was insufficient to support his first-degree sexual assault conviction involving L.K.
Akeya argues that the evidence was insufficient to support the jury's guilty verdict for first-degree sexual assault of L.K. - i.e., that he engaged in sexual penetration with L.K. without her consent. He also argues that the evidence was insufficient to support the jury's guilty verdict for second-degree sexual assault of L.K. - i.e., that he engaged in sexual penetration with L.K. while she was incapacitated. (This guilty verdict for second-degree sexual assault merged with the guilty verdict for first-degree sexual assault.)
When we review a claim of insufficiency on appeal, we are required to view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the verdict. Here, L.K. testified that she "got drunk kind of fast" and "blacked out for a little bit or passed out" when her girlfriend went to get cigarettes. L.K. testified that when she regained consciousness, Akeya had removed her pants and was penetrating her vagina with his penis. L.K. further testified that Akeya was forcing her to have sex with him by holding her down by the arms. She testified that she tried to fight back, but she was not strong enough. Viewing these facts in the light most favorable to upholding the verdict, we conclude that a reasonable juror could find proof beyond a reasonable doubt that Akeya sexually penetrated L.K. while she was incapacitated and that he sexually penetrated her "without [her] consent" as that term is defined under AS 11.41.470(10).
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Id. (holding that the evidence was sufficient for a reasonable juror to conclude that the defendant had attempted to penetrate the victim without his consent); see also AS 11.41.470(10)(A) (defining "without consent" to mean that a person "with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone").
Akeya's argument that the evidence was insufficient to support the jury's guilty verdicts for second-degree sexual assault and second-degree sexual abuse of A.O.
Akeya argues that the evidence was insufficient to support the jury's finding beyond a reasonable doubt that he touched A.O.'s vagina and therefore insufficient evidence to support the jury's guilty verdicts for second-degree sexual assault and second-degree sexual abuse of A.O. At trial, A.O. testified that Akeya prevented her from leaving the house after L.K. and her girlfriend left, and that Akeya pushed her down on the bed, put his hand over her mouth and nose, and then strangled her. She further testified that Akeya unzipped her pants, pulled them down, and touched her vagina "[a] lot." A.O. "kept telling him to stop and get off." On appeal, Akeya argues that this testimony was not credible because A.O. had been inconsistent about whether there had been sexual contact and whether that sexual contact had included penetration. But when we review a claim of insufficiency on appeal, we do not re-weigh the evidence or evaluate witness credibility because those are questions for the jury.Accordingly, viewing A.O.' s trial testimony in the light most favorable to upholding the verdict, we find no merit to Akeya's claim of legal insufficiency.
See Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
Akeya's argument that the sexual assault conviction involving A. O. should have merged with the physical assault conviction
Akeya argues that the second-degree sexual assault conviction involving A.O. should have merged with the third-degree physical assault.
In Whitton v. State, the Alaska Supreme Court provided the following framework for determining whether multiple sentences may be imposed:
The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether there were involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. The social interests to be considered would include the nature of personal, property or other rights sought to be protected, and the broad objectives of criminal law such as punishment of the criminal for his crime, rehabilitation of the criminal, and the prevention of future crimes.
If such differences in intent or conduct are significant or substantial in relation to the social interests involved, multiple sentences may be imposed, and the constitutional prohibition against double j eopardy will not be violated. But if there are no such differences, or if they are insignificant or insubstantial, then only one sentence may be imposed under double jeopardy. Ordinarily the one sentence to be imposed will be based upon or geared to the most grave of the offenses involved, with degrees of gravity being indicated by the different punishments prescribed by the legislature.
Whitton v. State, 479 P.2d 302, 312 (Alaska 1970) (citation omitted).
Applying this test, the supreme court concluded in State v. Occhipinti that rape and assault with a dangerous weapon under the prior criminal code did not merge:
[The defendant's] sexual abuse of [the victim] against her will violated her personal dignity, apart from any fear of physical harm which she experienced. As we noted in Newsom v. State, 533 P.2d 904,911 (Alaska 1975), the crime of rape "amounts to a desecration of the victim's person which is a vital part of her sanctity and dignity as a human being." See also State v. Lancaster, 550 P.2d 1257, 1260 (Alaska 1975). Thus, his actions in raping [the victim] violated personal rights which are distinct from those protected by the prohibitions against kidnapping or assault with a dangerous weapon.
State v. Occhipinti, 562 P.2d 348, 351 (Alaska 1977).
Akeya does not address this case and instead appears to argue that this Court's reasoning concerning the merger of robbery and assault should apply. This Court has held that convictions for robbery and assault merge if the force used in the robbery is the same as the underlying conduct for the assault conviction.
Smith v. State, 426 P.3d 1162,1164-67 (Alaska App. 2018); Moore v. State, 2\S P.3d 303,305-06 (Alaska App. 2009) (citing Sudbury v. State, 2007 WL 293129, at *4-5 (Alaska App. Jan. 31,2007) (unpublished); Tremontv. State, 1994 WL 16196222, at *3 (Alaska App. Mar. 30, 1994) (unpublished); Holmes v. State, 1984 WL 908540, at *3-4 (Alaska App. June 20, 1984) (unpublished)).
Akeya is correct that, on its face, this supports the merger of sexual assault and assault convictions if the force used in order to engage in the sexual assault was the basis for the assault conviction. This Court has said that "robbery might justifiably be categorized as assault with intent to take property." It is conceivable that sexual assault could similarly be classified as assault while also engaging in sexual contact, in which case they would merge.
Tremont, 1994 WL 16196222, at *2.
The problem with this analysis is that it ignores the "social interests involved." The Alaska Supreme Court recently addressed the "social interests" underlying sexual assault: "The criminal prohibition on rape has as its goal preventing the loss of autonomy, dignity, free will, and bodily integrity that comes with non-consensual sexual penetration." This reasoning is in line with the conclusion in Occhipinti that "actions in raping [a person] violate[] personal rights which are distinct from those protected by the prohibition[] against... assault."
Whitton, 479 ?.2d at 312.
Johnson v. State, 328 P.3d 77, 89 (Alaska 2014).
Occhipinti, 562 P.2d at 351.
Accordingly, because the record shows that the sexual and physical assaults of A.O. in this case were sufficiently distinct in intent and conduct and protect substantially different societal interests, we find no merit to Akeya's merger claim.
See id.; Whitton, 479 P.2d at 312; see also Torrence v. State, 2013 WL 1283396, *6-7 (Alaska App. Mar. 27, 2013) (unpublished) (trial court did not merge sexual assault and physical assault convictions); Tolen v. State, 2012 WL 104477, *4-5 (Alaska App. Jan. 11, 2012) (unpublished) (same); cf. State v. Thompson, 435 P.3d 947, 961 (Alaska 2019) (holding, in the context of sexual assault, that "[e]ach change in either the orifice or the penetrating object or body part inflicts a distinct violation of the victim's 'autonomy, dignity, free will, and bodily integrity' and is sufficiently significant to warrant a separate conviction" (quoting Johnson, 328 P.3d at 89-90)).
Akeya 's sentencing claims
Lastly, Akeya challenges his sentence as excessive. As part of this claim, Akeya argues that the prosecutor and sentencing judge "demonstrated racial and cultural bias." But Akeya fails to substantiate his claims of bias.
In his opening brief, Akeya points to comments made by the prosecutor and the sentencing judge regarding the fact that it is not uncommon in certain rural communities for sexual assault to occur in situations where homebrew is being consumed to the point of incapacitation. According to Akeya, these remarks were evidence of "biased opinions about Native people and communities." The State argues that Akeya's interpretation of the comments is not a reasonable reading of the record. As the State points out, the defense attorney also talked about the problems caused by homebrew parties in his sentencing remarks, but Akeya does not claim that his attorney was biased. And the judge's comments were made in the context of explaining why, in his view, Akeya's case was so much worse than the typical case because Akeya not only sexually assaulted L.K. but also sexually and physically assaulted his own daughter. We note that Akeya did not file a reply brief and therefore made no arguments in response to the State's arguments. Having independently reviewed the record, we agree with the State that the judge's sentencing remarks do not support Akeya's allegations of racism and cultural bias.
Akeya also argues that the sentencing judge violated the Neal-Mutschler rule when he imposed a composite term of active imprisonment that was greater than the maximum sentence that Akeya could receive for his most serious offense. But our case law is clear that sentencing judges can exceed the Neal-Mutschler "ceiling" as long as they provide "some reason" under the Chaney criteria for doing so. Here, the sentencing judge expressly considered running the counts concurrently but ultimately decided that they should be run consecutively because of the need for isolation and community condemnation. The court explained that it viewed this case as "particularly horrific" because Akeya strangled and sexually molested his own daughter partly to keep her from reporting the other sexual assault of L.K. The court also noted that Akeya had been accused by multiple victims of "predatory sexual conduct," as evident in verified police reports in the presentence report. Because the court's reasons for running the counts consecutively are clear and well supported by the record, we find no violation of the Neal-Mutschler rule.
Under the Neal-Mutschler rule, before a sentencing judge imposes consecutive sentences that exceed the maximum term of imprisonment for the defendant's most serious offense, the judge must find that confinement for the composite term is necessary to protect the public or to satisfy another sentencing goal. Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977); Phelps v. State, 236 P.3d 381, 393 (Alaska App. 2010). The relevant term for application of the Neal-Mutschler rule is the active term of imprisonment. See Steve v. State, 875 P.2d 110, 126 (Alaska App. 1994), abrogated on other grounds by Jeter v. State, 393 P.3d 438 (Alaska App. 2017); Davis v. State, 793 P.2d 1064,1066 (Alaska App. 1990); Peruski v. State, 711 P.2d 573, 574 (Alaska App. 1985); Stone v. State, 2009 WL 795211, at *3 (Alaska App. Mar. 25, 2009) (unpublished); Burk v. State, 2004 WL 1933624, at *2 (Alaska App. Sept. 1, 2004) (unpublished).
Phelps, 236 P.3d at 389-93 (citing State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970), codified in AS 12.55.005).
Nor do we find the composite sentence excessive. This Court reviews an excessive sentence claim under the "clearly mistaken" standard of review. The clearly mistaken standard of review implies a permissible range of reasonable sentences that a reviewing court, after an independent review, will not modify. After independently reviewing this record, we do not find the composite sentence imposed here clearly mistaken.
Brown v. State, 12 P.3d201,210 (Alaska App. 2000) (citing Neal, 628 P.2dat21 n.8, 22; Comegys v. State, 141 P.2d 554, 558-59 (Alaska App. 1987)).
McClain v. State, 519 P.2d 811,813 (Alaska 1974).
Errors in Akeya 's judgment
Although Akeya does not raise this issue, we conclude that a remand is needed to correct Akeya's written judgment, which appears to have multiple errors. As an initial matter, the numbering of the counts in the judgment does not correspond to the numbering in the indictment and also does not correspond to the numbering of the counts in the sentence portion of the judgment. The judgment also erroneously states that the first-degree sexual assault and first-degree sexual abuse of a minor counts were "dismissed." But the record shows that the jury acquitted Akeya of those charges. Lastly, the judgment erroneously states that various counts were merged "for the purposes of sentencing." But this is incorrect; the first-degree sexual assault count and the second-degree sexual assault count merged into a single conviction of first-degree sexual assault. Likewise, the second-degree sexual assault and the second-degree sexual abuse of a minor merged into a single conviction, and the State should be permitted to elect which count is merged into the other.
See Nicklie v. State, 402 P.3d 424, 426 (Alaska App. 2017) ("Alaska law does not recognize the existence of a merger 'for sentencing purposes only.' Because of the prohibition against double jeopardy..., when a defendant is found guilty of counts that must merge, the merger results in a single conviction of record (and thus a single sentence).").
Conclusion
This case is REMANDED to the superior court to correct the errors in the written judgment. In all other respects, the judgment of the superior court is AFFIRMED.