Opinion
Court of Appeals No. A-10246.
April 14, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-06-7050 CR.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Aaron D. Sperbeck, Assistant District Attorney, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Alfred Allen appeals his convictions for attempted sexual assault in the second degree and sexual assault in the third degree. He argues that the State failed to present sufficient evidence of his guilt. We conclude that the evidence presented at trial was sufficient to support his convictions. But we remand to the superior court to determine whether these convictions should merge because the record may be ambiguous as to whether these convictions are based on one continuous course of conduct.
Background
On July 5, 2006, just after 2:00 p.m., the Anchorage Community Service Patrol (CSP) responded to the intersection of 13th Avenue and Gambell Street and picked up two intoxicated people: Alfred Allen and F.C. The CSP picks up inebriates in Anchorage and takes them to a "sleep off center." F.C. was "in bad shape" — she was unresponsive, unaware of her surroundings, and had to be helped into the van. Emergency medical technicians Morgan Diemer and Bailey McCune were working in the CSP van. After Diemer and McCune collected Allen and F.C., they made a stop at 12th and Gambell where they picked up Alfred Painter. Next, Diemer drove the van to the Alaska Native Medical Center (ANMC) to pick up Martha Fletcher, a passenger whom he and McCune had dropped off earlier in their shift due to her high blood alcohol level.
Alfred Painter testified that unbeknownst to Diemer and McCune, Allen began "touching," "trying to bother," and "messing with" F.C. during the trip to the ANMC. Painter testified that Allen pulled down F.C.'s pants and his own, then "got on" F.C. and started "pumping," which led Painter to believe that Allen was "raping" F.C. Painter testified that Allen started pulling up his pants after the van reached the ANMC. F.C. was lying unresponsive on the gurney in the back of the van.
Diemer and McCune went into the ANMC to get Fletcher. As they returned to the van, Diemer was following McCune from some distance. McCune testified that when he reached the rear of the van, it appeared to him that Allen was trying to pull up his pants. McCune observed that Allen was so close to F.C. that "they were probably touching each other." McCune yelled at Allen "to pull his pants up" and waited to enter the van until Diemer arrived so he would "have a . . . witness."
Diemer testified that when he arrived at the van and looked inside the open rear doors he observed that F.C. was unconscious, lying face-down with her torso on the gurney, with her shirt pulled up to her armpits and her pants pulled down. Allen was naked from the waist down and Diemer testified that "it looked like . . . he was performing an unwanted sexual act on [F.C.]"
Diemer testified that both he and McCune entered the van to get Allen off of F.C., to re-clothe them, and to secure everyone for the remainder of the drive to the CSP sleep off center. Diemer testified that he strapped F.C. onto the gurney then got out of the van while McCune finished getting all the occupants situated. McCune testified that Allen pulled up his own pants while McCune pulled up F.C.'s pants, and that F.C. remained unresponsive. McCune recalled laying F.C. on her side on the floor of the van and telling Fletcher to call out if Allen attempted to touch F.C. during the rest of the trip to the sleep off center. Before the van left the parking lot Fletcher yelled out that Allen was touching F.C. Diemer stopped the van, opened the back doors and re-fastened Allen's seatbelt. For the remainder of the trip Allen repeatedly "inched" toward F.C. but would return to his spot on the bench when Diemer or McCune caught him.
Detective John McKinnon interview ed Allen in response to a sexual assault complaint from CSP. Detective McKinnon noted that Allen was "extremely intoxicated" but "cooperat[ive]," and that they were "having a dialogue where [Allen and McKinnon were] both understanding [McKinnon's questions]." When McKinnon asked him if he knew why he was "here today," Allen replied "I think I got accused for having sex in the public, I guess." When Detective McKinnon asked Allen if he had had sex with someone, Allen responded "on the, um, what you call that, CSP van. We had sex then. And that's how — why I'm here."
A Sexual Assault Response Team (SART) examined F.C. at the SART center. F.C. could not recall a sexual assault nor could she remember having any contact with CSP personnel. F.C. was very intoxicated and had no memory of why she was at the SART center.
A grand jury indicted Allen on one count of second-degree sexual assault, one count of attempted second-degree sexual assault, and one count of third-degree sexual assault. At trial, the State called Detective McKinnon, Painter, Diemer, McCune, SART Nurse Morris, and F.C. as witnesses. At the close of the State's case, Allen moved for a judgment of acquittal on all charges. Superior Court Judge Larry D. Card denied the motion, and the jury acquitted Allen of second-degree sexual assault, but convicted him of attempted second-degree sexual assault and third-degree sexual assault. Allen now appeals.
AS 11.41.420(a)(3)(B) and (C).
AS 11.41.420(a)(3)(B) and (C); AS 11.31.100.
AS 11.41.425(a)(1)(B) and (C).
Discussion
Allen argues that there was insufficient evidence to support his convictions for attempted second-degree sexual assault and third-degree sexual assault. When a defendant attacks a conviction for insufficiency of the underlying evidence, this court must view the evidence presented in the light most favorable to upholding the jury's verdict. A motion for judgment of acquittal should be granted only when fair-minded persons would have to agree that the State failed to carry its burden of proof beyond a reasonable doubt — otherwise, the motion should be denied. Attempted Sexual Assault in the Second Degree
Collins v. State, 977 P.2d 741, 747 (Alaska App. 1999).
Gipson v. State, 609 P.2d 1038, 1040 (Alaska 1980); see also Pavlik v. State, 869 P.2d 496, 497 (Alaska App. 1994) ("[A] motion [for judgment of acquittal] must be denied if . . . fair-minded jurors in the exercise of reasonable judgment could differ on the question of whether guilt had been established beyond a reasonable doubt.").
Allen argues that there was insufficient evidence to support the conviction because the evidence at trial showed that Allen was too intoxicated to form the intent to commit the crime. Additionally, Allen submits that the conflicts in the testimony of the witnesses at trial "were so extreme that no reasonable juror could have found, beyond a reasonable doubt, that Allen had taken a substantial step towards committing the crime of second-degree sexual assault." Finally, Allen argues that his own statements to Detective McKinnon about what happened in the van were not credible due to Allen's extreme intoxication.
A person commits the crime of second-degree sexual assault when he or she: (1) knowingly engages in sexual penetration; (2) with a person he or she knows is incapacitated or unaware that a sexual act is being committed. In order to find a person guilty of attempt, the jury must conclude that, with the intent to commit the crime, the defendant engaged in conduct which constituted a substantial step toward the commission of that crime.
AS 11.41.420(a)(3)(B) and (C).
AS 11.31.100(a).
Alaska courts have recognized that "[e]vidence of intent is seldom established through direct evidence; the state may prove this element through circumstantial evidence." In this case, Painter testified that he witnessed Allen touch F.C. in the van, "bother[ing]" her, and that Allen then removed her pants along with his own, climbed on her and "started trying to rape her," "pumping" his body on top of her. McCune and Painter both testified that when the van stopped at the ANMC, Allen stopped assaulting F.C. and tried to pull up his pants.
Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994) (citing Gray v. State, 463 P.2d 897, 905 (Alaska 1970)).
In his interview with Detective McKinnon, Allen admitted that he was in trouble for having sex in the CSP van, explaining that he was "accused [of] having sex in public" and that "[he] and [his] girlfriend w[ere] on a bus" and that he was accused of "sexual harassment or something." Allen told McKinnon that the time in the CSP van was "like a blur," but he also provided accurate details about the incident. This evidence could reasonably lead a jury to conclude that Allen was aware of his actions and was able to form the requisite intent for attempted sexual assault.
Allen points out that evidence of voluntary intoxication can negate the element of intent. But the State presented ample evidence at trial, including the testimony of several eyewitnesses, to warrant the jury's ultimate conclusion that Allen was sufficiently in control of his faculties to form the requisite intent for attempted sexual assault in the second degree. Sexual Assault in the Third Degree
See AS 11.81.630; Moore v. State, 123 P.3d 1081, 1087 (Alaska App. 2005).
See generally Simpson, 877 P.2d at 1321 (detailing the court's analysis regarding Simpson's intoxication defense).
Allen submits that the State failed to prove the requisite elements of third-degree sexual assault: that Allen knowingly engaged in sexual contact with F.C. when he knew she was incapacitated or unaware that a sexual act was being committed. Sexual contact is defined as "the defendant's knowingly touching, directly or through clothing, the victim's genitals, anus, or female breasts."
AS 11.81.900(b)(58)(A)(i).
Specifically, Allen notes that Painter used inexact language in his testimony, saying that Allen "was trying to bother [F.C.] . . . he was touching her. And then he took her pants down, he was — I believe he was raping her." Painter also reported that Allen was "messing with [F.C.] and "was feeling [F.C.] up." Allen argues that "`messing with her,' `touching her,' or `feeling her up' are insufficient to meet the statutory definition of sexual contact" in the absence of Painter's direct testimony that Allen touched F.C.'s genitals, anus, or breast.
Id.
But Diemer, McCune, and Painter all testified that F.C. was naked — that her pants had been pulled down and her shirt pushed up around her chest. Diemer testified that he observed what appeared to him to be Allen "performing an unwanted sexual act" on F.C. This evidence, along with Painter's report that Allen was "feeling her up," "took her pants down," got on top of her and began "pumping" and "raping her," could easily lead a reasonable juror to conclude that Allen had sexual contact with F.C. while she was incapacitated.
Double Jeopardy May Require These Two Counts to Merge
In his reply brief, Allen argues, citing Whitton v. State, that it violates double jeopardy to enter two sexual assault convictions for the same misconduct. Ordinarily we do not recognize an argument that is raised for the first time in an appellant's reply brief. In this case, however, the double jeopardy argument is a fair reply to an argument that was raised for the first time in the State's brief on appeal.
479 P.2d 302 (Alaska 1970).
See McCracken v. State, 914 P.2d 893, 897 n. 1 (Alaska App. 1996).
In the trial court, the State argued that the charge of sexual assault in the third degree was established by Painter's testimony that Allen was groping or touching the victim as a "precursor" to sexual intercourse. Painter's testimony — that Allen "was touching [F.C.] [a]nd then . . . he was raping her" — supported this argument.
In Allen's opening brief on appeal, he argued that Painter's testimony that Allen was "touching" or "messing with" F.C., or "feeling her up" was insufficient to establish that he had sexual contact with the victim. In response, the State argued in its brief that this court should look at all of the evidence to determine sufficiency, including the evidence that Allen had raped the victim. In other words, the State's argument suggested that Allen's conduct in the CSP van should be viewed as a continuous incident.
Allen's reply was a legitimate response to the State's brief: if this misconduct constitutes a continuous course of conduct, then a separate conviction for sexual assault in the third degree, in addition to the conviction for attempted sexual assault in the second degree, would violate double jeopardy. Alternatively, if there were two indisputably separate incidents of sexual assault — one witnessed by Painter and another witnessed by Diemer — then two convictions could be warranted. We therefore remand to allow the superior court to determine whether these two convictions should merge.
See Jimmy v. State, 206 P.3d 750, 751 (Alaska App. 2009); Moore, 123 P.3d at 1092-94; Newsome v. State, 782 P.2d 689, 691-92 (Alaska App. 1989); Horton v. State, 758 P.2d 628, 632-33 (Alaska App. 1988); Oswald v. State, 715 P.2d 276, 280-81 (Alaska App. 1986); Tookak v. State, 648 P.2d 1018, 1022-23 (Alaska App. 1982).
See Soundara v. State, 107 P.3d 290, 299 (Alaska App. 2005).
The burden rests with the State to show that these two counts involve separate incidents: if the record is ambiguous, Allen should prevail. If the superior court determines that both offenses arose from a continuous course of conduct, then the conviction for sexual assault in the third degree should be vacated. The court may then reevaluate the sentence for attempted sexual assault in the second degree, but the new sentence may not exceed the composite sentence originally imposed for both counts. Conclusion
See Horton, 758 P.2d at 632-33.
See Allain v. State, 810 P.2d 1019, 1021-22 (Alaska App. 1991).
We therefore REMAND to the superior court for further proceedings consistent with this opinion.