Opinion
Court of Appeals No. A-11216 No. 6191
06-03-2015
ROBERT LEE BELLUOMINI, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
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 authority for any proposition of law. Trial Court No. 3AN-10-9526 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael R. Spaan, Judge. Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Robert Lee Belluomini was convicted of one count of third-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor for conduct involving his girlfriend's fifteen-year-old daughter.
Belluomini argues that he is entitled to reversal of his convictions because he claims that there was a fatal variance between the grand jury's indictment and the trial jury's verdicts. For the reasons explained here, we conclude that there was no fatal variance. We therefore affirm Belluomini's convictions.
Belluomini also argues that the superior court should have merged his three sexual abuse convictions for sentencing. We conclude that two of the counts should have merged. We therefore remand this case to the superior court and direct the court to merge Counts I and II and resentence Belluomini. Because Belluomini will be resentenced, we do not address his claim that he received an excessive sentence.
Facts and proceedings
On April 11, 2010, Tracy F. came home to find her sixteen-year-old daughter, N.F., topless in bed, and Tracy's thirty-nine-year-old boyfriend, Belluomini, in his underwear, hiding in N.F.'s closet. N.F. told Tracy that she and Belluomini had been having sex and that their sexual relationship had begun before N.F. turned sixteen on March 21, 2010. Tracy and N.F.'s father reported this sexual relationship to the police.
Belluomini was arrested and charged with second- and third-degree sexual abuse of a minor. At grand jury, N.F. testified about two sexual encounters with Belluomini that occurred during the last week of February 2010 — approximately three weeks before her sixteenth birthday. N.F. testified that during the first encounter, Belluomini touched her breasts and penetrated her vagina with his finger. She testified that during the second encounter a few days later, Belluomini penetrated her vagina with his penis for the first time.
AS 11.41.438(a)(1) (an offender commits the crime of sexual abuse of a minor in the second degree if, being 17 years of age or older, the offender engages in sexual penetration with a person who is 13, 14, or 15 years of age, and at least four years younger than the offender); AS 11.41.436(a)(1) (an offender commits the crime of sexual abuse of a minor in the third degree if, being 17 years of age or older, the offender engages in sexual contact with a person who is 13, 14, or 15 years of age, and at least four years younger than the offender).
Based on this testimony, the grand jury indicted Belluomini on two counts related to the first encounter — Count I (third-degree sexual abuse of a minor for touching N.F.'s breasts) and Count II (second-degree sexual abuse of a minor for penetrating N.F.'s vagina with his finger). The grand jury also indicted Belluomini on one count related to the second encounter — Count III (second-degree sexual abuse of a minor for penetrating N.F.'s vagina with his penis). The indictment alleged that all the offenses occurred "on or about February, 2010," without directly specifying that the different counts covered two different sexual encounters.
At trial, N.F. initially testified consistently with her grand jury testimony, but she subsequently corrected herself and testified that Belluomini penetrated her vagina with his penis during both sexual encounters.
In his testimony at trial, Belluomini admitted that both sexual encounters included all three types of sexual conduct — i.e., touching N.F.'s breasts, penetrating her vagina with his finger, and penetrating her vagina with his penis. But Belluomini claimed that both sexual encounters took place after N.F.'s sixteenth birthday and that the conduct was therefore lawful.
The jury convicted Belluomini of all three counts.
This appeal followed.
Why we reject Belluomini's claim that a fatal variance exists between the grand jury indictment and the jury's verdicts
Under Alaska law, a person has a constitutional right to grand jury indictment on a felony charge. Consequently, if there is a "fatal variance" between the indictment and the jury's verdict — that is, if the jury convicts the defendant of an offense for which he was not indicted — the defendant is entitled to an acquittal on that offense.
Alaska Const. art. I, § 8 ("No person shall be held to answer for a ... crime [punishable by imprisonment for more than one year, i.e., a felony], unless on a presentment or indictment of a grand jury ... ."); see Alaska R. Crim. P. 7(a); Adams v. State, 598 P.2d 503, 510 (Alaska 1979).
See Michael v. State, 805 P.2d 371, 373 (Alaska 1991).
However, not every variance between the indictment and the jury's verdict constitutes a fatal variance necessitating reversal. The Alaska Supreme Court has distinguished "between a departure in the proof from the indictment sufficiently great to be regarded as a constructive amendment," which calls for automatic reversal, and "a mere variance, which is reversible error only if prejudicial to the defendant."
Id. (quoting 2 W. LaFave & J. Israel, Criminal Procedure § 19.2(h), at 466-67 (1984)).
Belluomini asserts that a fatal variance exists in his case because the jury instructions may have improperly allowed the jury to convict him of offenses for which he was not indicted.
As already explained, the grand jury indicted Belluomini on Count I and Count II (hand-to-breast contact and digital penetration) based on his conduct during his first sexual encounter with N.F. and on Count III (penile penetration) based on his conduct during the second sexual encounter. But at trial there was undisputed testimony from both N.F. and Belluomini that all three types of sexual conduct occurred during both encounters.
Belluomini argues that because the jury instructions did not specifically explain which charges related to which encounter, the jury might have convicted him of offenses for which he was not indicted — that is, the jury might have convicted him of Counts I and II for his conduct during the second sexual encounter and of Count III for his conduct during the first sexual encounter, the mirror opposite of the conduct that formed the basis of the grand jury's indictment.
While Belluomini is correct that the jury instructions did not specify which counts belonged to which sexual encounter, Belluomini ignores the fact that during closing argument the prosecutor explained to the jury precisely which counts applied to which acts:
I'm just going to tell you what — how the State's charged this case. The first charge is for sexual abuse of a minor in the third degree. That's hand to breast. And that relates to the first time they had sex. The second charge is SAM II ... . That's hand to genitals and it also relates to the first incident of sex. And the second — or the third charge of SAM II relates to the second time they had sex. Obviously you heard testimony describing other times there [were] sexual acts during both — or other sexual acts that were not charged during both those first two incidents. But that's how you're to analyze the charges before you.
We conclude that this explanation was sufficient to defeat Belluomini's claim of a fatal variance.
See Grandstaff v. State, 171 P.3d 1176 (Alaska App. 2007) (rejecting defendant's claim of fatal variance where prosecutor's statements at closing focused jury on the conduct that was the basis for the indictment).
Belluomini asserts that the jury may have disregarded the prosecutor's explanation of the charges and decided to convict him for conduct that was not the basis of the indictment. In support of this claim, he points to the following question the jury sent to the court during deliberations: "Were the two counts of SAM in the 2nd degree [i.e., the counts involving digital and penile penetration] referring to the same alleged sexual encounter or encounters separated by a meaningful time gap[?]" Belluomini points out that the prosecutor erroneously urged the trial court to instruct the jury that it could convict Belluomini of digital and penile penetration for his conduct during a single sexual encounter, even though Belluomini was only indicted on digital and penile penetrations that occurred in different sexual encounters.
But, fortunately, the superior court rejected the prosecutor's proposed instruction. Instead, at Belluomini's request, the court simply pointed the jury to the jury instructions they had already received and provided no further guidance on this issue. Given this record, we are not convinced that the jury convicted Belluomini for conduct the grand jury had not charged.
We also note that, given the way the case was litigated, there is no possibility that any potential variance between the indictment and the jury's verdicts altered the outcome of Belluomini's case. As we have explained, the parties did not dispute the nature of the sexual conduct that took place, and N.F. and Belluomini both testified that penile penetration, digital penetration, and hand-to-breast contact occurred during each encounter. N.F. was fifteen years old at the time and therefore under the age of consent. Because Belluomini's defense did not turn on which sexual acts occurred during which sexual encounters, Belluomini cannot show that any non-fatal variance between the charges at grand jury and the way the jury may have interpreted the charges at trial actually prejudiced his ability to prepare or present his defense at trial, or otherwise altered the outcome of his trial.
See Harvey v. State, 604 P.2d 586, 588 (Alaska 1979).
Why we conclude that Counts I and II should merge but that Count III should remain a separate conviction
The double jeopardy clause of the Alaska Constitution prohibits multiple punishments for the same offense.
Johnson v. State, 328 P.3d 77, 86-88 (Alaska 2014); Iyapana v. State, 284 P.3d 841, 849-50 (Alaska App. 2012).
Here, the parties agree that Belluomini was convicted of Count I (third-degree sexual abuse of a minor for hand-to-breast contact) and Count II (second-degree sexual abuse of a minor for digital penetration) based on his conduct during a single continuous sexual encounter.
In Johnson v. State, we concluded that "two acts of sexual contact performed as part of a single transaction with a single incident of sexual penetration permit but one conviction for the most serious contact, in this case the sexual penetration." The State asks us to disavow Johnson and hold that a sexual contact conviction merges with a conviction for sexual penetration only if the sexual contact was a "necessary or inevitable precursor" to the act of penetration.
Johnson v. State, 762 P.2d 493, 495 (Alaska App. 1988).
We recently reaffirmed our reasoning from Johnson in Joseph v. State; we likewise decline to overrule Johnson here. We therefore conclude that Counts I and II must merge.
293 P.3d 488, 493 (Alaska App. 2012).
Belluomini also argues that Count III (the penile penetration) must merge with Count II (the digital penetration). Belluomini argues that merger is required under Oswald v. State, which held that separate sexual penetrations of the same bodily opening during the same continuous sexual encounter must merge. The State argues in response that Oswald has been effectively overruled by later cases.
Oswald v. State, 715 P.2d 276 (Alaska App. 1986).
See Rodriguez v. State, 741 P.2d 1200, 1207-08 (Alaska App. 1987) (separate convictions are proper when different types of penetration occur during the same criminal episode); see also Yearty v. State, 805 P.2d 987, 995 n.3 (Alaska App. 1991) (overruling Oswald to the extent it is inconsistent with Rodriguez); but see Iyapana v. State, 284 P.3d 841, 853 (Alaska App. 2012) (Mannheimer, J. concurring) (Oswald controls when there are two separate penetrations of the same orifice during the same criminal episode).
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We conclude that we do not need to resolve whether Oswald remains good law because we have already rejected the underlying premise of Belluomini's merger argument — that is, his claim that the jury may have erroneously convicted him of the digital and penile penetrations taking place in the same sexual encounter, rather than the digital and penile penetrations taking place in two separate sexual encounters, as the case was originally charged and indicted. Because we conclude that the jury convicted Belluomini of separate sexual penetrations of the same bodily opening during separate sexual encounters, Oswald is inapposite to this case.
Conclusion
We AFFIRM Belluomini's convictions and REMAND the case to the superior court for merger of his convictions on Counts I and II and resentencing consistent with this decision. We do not retain jurisdiction.