Opinion
Court of Appeals No. A-10467.
November 9, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael R. Spaan, Judge, Trial Court No. 3AN-07-7506 Cr.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Nathawn Katurl Johnson was convicted of kidnapping, two counts of first-degree sexual assault, and one count of third-degree assault. In this appeal, he contends that the evidence presented at his trial was legally insufficient to support any of his convictions. Specifically, Johnson argues that because the testimony of the government's witnesses was not corroborated by physical evidence, and because these witnesses' testimony contained significant inconsistencies and contradictions, no reasonable juror could have concluded that the government had proved Johnson guilty of any of the charged crimes beyond a reasonable doubt.
In addition, Johnson argues that his two sexual assault convictions should be merged into a single conviction. Johnson was convicted of two counts of first-degree sexual assault because he forced the victim to engage in two types of sexual penetration (fellatio and vaginal intercourse). In Yearty v. State, 805 P.2d 987, 995 (Alaska App. 1991), and again in Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997), this Court held that a defendant may be convicted of a separate count of sexual assault for each distinct type of sexual penetration the defendant perpetrates on the victim. Johnson argues that Yearty and Erickson were wrongly decided, and that we should now adopt the rule that a single sexual assault will support only a single conviction, no matter how many different types of sexual penetration the assault involves.
As we explain in this opinion, we conclude that the evidence presented at Johnson's trial was sufficient to establish his guilt. We further conclude that Johnson failed to preserve his merger claim for appeal ( i.e., he never presented this merger argument to the superior court), and that the superior court did not commit plain error when the court failed to merge the two sexual assault counts sua sponte. Johnson's claim that the evidence presented at his trial was legally insufficient to support his convictions
Because the issue is whether the evidence presented at Johnson's trial was sufficient to support his convictions, we present that evidence here in the light most favorable to upholding the jury's verdicts.
See, e.g., Silvera v. State, 244 P.3d 1138, 1142 (Alaska App. 2010); Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009); Daniels v. State, 767 P.2d 1163, 1167 (Alaska App. 1989).
On July 11, 2007, twenty-year-old S.S. and her cousin, N.S., were sitting on a bench in downtown Anchorage. Nathawn Johnson approached them; he identified himself as "Rico", and he asked for a cigarette. Neither S.S. nor N.S. had ever seen Johnson before. Johnson asked the young women if they had jobs. When they responded that they did not, Johnson told them that he was the manager at Kentucky Fried Chicken, and that the company was hiring.
The young women told Johnson that they were looking for a place to smoke marijuana, and Johnson offered to let them smoke in his car. The women followed Johnson back to his vehicle, and he drove them to a nearby elementary school parking lot, where they smoked their marijuana. After they finished smoking, Johnson asked the women if they were interested in getting an employment application for KFC. S.S. said she was interested, but N.S. said she was not, so Johnson dropped N.S. off downtown.
Then, instead of driving S.S. to the restaurant, Johnson drove her to a trailer park. S.S. asked what they were doing there, and Johnson responded, "Let's go inside [so] I can get to know you." S.S. was reluctant to get out of the car, but Johnson told her they could go inside the trailer and he could interview her there for the job. He also told her that she could trust him, and he assured her that nothing was going to happen. S.S. eventually agreed to get out of the car, but she told Johnson that she did not want to go inside the trailer.
S.S. sat down on the front steps of the trailer. When Johnson started asking S.S. personal questions, S.S. refused to answer, and she told Johnson that she wanted to leave. At this point, Johnson pulled a knife out of his pant leg and started waving it around. S.S. started crying; she asked Johnson why he was doing this. Johnson replied, "Shut up. Don't cry. Cooperate [and] I won't have to use this [knife] on you."
Johnson forced S.S. inside the trailer and took her to a furniture-less bedroom. He told S.S. to get on her knees, and he threatened to use the knife on her if she did not comply. Holding the knife to S.S.'s temple, Johnson forced S.S. to give him oral sex. After awhile, Johnson walked across the room and got a pillow. He threw the pillow at S.S. and told her, "You know what to do. Get comfortable." Johnson told S.S. to take her pants off. Again holding the knife to her temple, Johnson got on top of S.S. and engaged in vaginal intercourse with her. After he was done, he whispered in her ear, "Have you ever been raped before?"
A little while later, Johnson left the room. S.S. quickly dressed herself and ran out of the trailer. She memorized the license plate of Johnson's car, and then she ran a couple blocks, until she collapsed at a bus stop. She ran up to a man who was walking his dog, and she asked to borrow his cell phone. The man did not have a cell phone, but he helped S.S. flag down passing vehicles until they found someone with a cell phone and called the police.
S.S. told the police that she had been sexually assaulted, and she directed the police to the trailer. She also provided a description of Johnson and his car. Anchorage Police Officer Kevin Armstrong found a pillow and a knife on the floor of a bedroom in the trailer. There was also a wet stain on the floor that smelled like semen; this stain would have lined up with the genital area of someone lying on the floor with their head on the pillow.
That evening, police responded to a domestic disturbance between Johnson and his girlfriend, Natasha Howard. A vehicle matching S.S.'s description of her attacker's car — including the license plate number — was parked outside the residence.
When the police interviewed Howard about the domestic disturbance, Howard explained that she and Johnson had been fighting about Johnson's whereabouts for the afternoon. Howard had been unable to locate him, and she suspected that he was cheating on her. Howard told the police that when Johnson returned home, he was carrying some blankets that Howard recognized as being from the trailer. Howard also told the police that "Rico" was the name that Johnson used when he did not want people to know his real name.
The police brought S.S. to the scene, and she identified Johnson as the man who assaulted her. Later, DNA testing showed that Johnson could not be excluded as the source of the sperm found in samples taken from S.S.'s body and from the floor of the trailer.
At trial, Johnson's attorney conceded that Johnson had engaged in sex with S.S., but the attorney suggested that the sex was consensual. The jury rejected this defense and convicted Johnson of kidnapping, first-degree sexual assault (two counts), and third-degree assault.
On appeal, Johnson argues that the foregoing evidence is insufficient to support his convictions because the State's case was based largely on S.S's testimony, and because various aspects of S.S.'s testimony were contradicted by other witnesses. However, when an appellate court decides a claim that the evidence is insufficient to support a conviction, the court does not assess the credibility of witnesses or the weight that might be given to the discrepancies in the government's evidence. Rather, the appellate court must view these questions in the light most favorable to supporting the jury's verdict.
See Phillips v. State, 211 P.3d 1148, 1151 (Alaska App. 2009).
Ibid.
Johnson further contends that "there was a distinct lack of [physical] evidence to support any conclusion other than that [S.S.] and Johnson had consensual sex". He notes that no DNA was found on the knife, and that there was no DNA evidence to prove that S.S. and N.S. were ever in his vehicle. But this argument is premised on viewing the evidence in a light favorable to Johnson, while the law calls on us to view the evidence in the light most favorable to upholding the verdicts.
S.S. testified that the sex was not consensual, and her actions following the sexual encounter tend to support her testimony. Moreover, when the police arrived on the scene and S.S. directed them to the trailer, the police found a knife on the floor of the bedroom. The State's forensic analyst testified that there were cells on the knife, even though there was not a sufficient quantity to provide a DNA profile. In addition, both S.S. and N.S. testified that they rode in Johnson's car, and S.S. was able to give a detailed description of the vehicle and its contents.
When we view the trial evidence, and the inferences to be drawn from that evidence, in the light most favorable to the jury's verdicts, we conclude that the evidence was sufficient to support Johnson's convictions. Johnson did not preserve his claim that, as a matter of law, his two convictions for first-degree sexual assault should merge
At Johnson's sentencing hearing, Johnson's attorney suggested that the sentencing judge (Superior Court Judge Michael R. Spaan) had the discretion to merge Johnson's three most serious offenses — the two first-degree sexual assault convictions and the kidnapping conviction — into a single conviction and sentence. This was the first time that Johnson's attorney raised this possibility: this issue was not mentioned in the sentencing memorandum that Johnson's attorney submitted prior to the sentencing hearing.
When Johnson's attorney broached this idea, Judge Spaan immediately responded that he did not think he had the authority to merge the sexual assault counts, and the defense attorney did not pursue the matter further:
Defense Attorney: [T]he [third-degree] assault [charge] should merge with all the other counts, because [that offense] is a part of the sex[ual] assault conviction. . . . But the Court also, I think, could have the discretion to merge the other charges, including the two [first-degree sexual] assaults and the kidnapping.
. . .
The Court: I don't think I have any authority at all to merge the [one] sexual assault [count] with the [other] sexual assault [count].
The discussion then turned to other matters, and there was no further discussion in the superior court about merging the sexual assault counts.
Now, on appeal, Johnson argues that Judge Spaan not only possessed the discretionary authority to merge the two sexual assault counts, but that Judge Spaan was actually required to merge these two counts by Alaska's double jeopardy clause, as construed in Whitton v. State, 479 P.2d 302 (Alaska 1970).
Johnson concedes that in Yearty v. State, 805 P.2d 987, 995 (Alaska App. 1991), and again in Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997), this Court held that when a defendant perpetrates distinct types of sexual penetration upon a victim during a single episode of sexual assault, the defendant can be convicted of separate counts for each type of penetration. But Johnson argues that these two cases were wrongly decided, and that they should now be overruled.
As we have explained, Johnson did not present this argument to the superior court. Indeed, when Judge Spaan declared that he did not believe he had any authority to merge the two sexual assault counts, Johnson's attorney made no response. As a consequence, Johnson must now show that Judge Spaan's failure to merge the two counts constituted "plain error".
Under Alaska law, an asserted error is "plain" only when the error was "so obvious that it should have been noticed by the trial court sua sponte". Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008), quoting Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983). Further, "[i]f a claim of error is reasonably debatable — if reasonable judges could differ on what the law requires — then a claim of plain error fails." Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005).
In Johnson's case, there was controlling precedent on the question of whether Johnson's two sexual assault counts should merge. Under that precedent, the counts should not merge — because each count was based on a different type of sexual penetration (fellatio and vaginal penetration).
Thus, Johnson's claim of plain error amounts to the claim that Judge Spaan, acting sua sponte, should have declared that Yearty and Erickson were wrongly decided, and should have declined to follow the precedent set in those two cases. Merely stating this proposition provides the answer to Johnson's claim: A trial court judge does not commit "plain" or "obvious" error when the judge follows governing precedent on the issue before the court.
Moreover, even if we agreed with Johnson that there were substantial grounds for believing that Yearty and Erickson were wrongly decided, the matter is no more than debatable. And when a legal matter is no more than debatable, there is no plain error.
Accordingly, we hold that Judge Spaan did not commit plain error when he failed to order merger of Johnson's two sexual assault counts.
Conclusion
The judgement of the superior court is AFFIRMED.