Opinion
Court of Appeals No. A-12252 No. 6764
01-30-2019
MATTHEW JOHN JONES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Maureen E. Dey, Gazewood & Weiner, P.C., Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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-12-7911 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Maureen E. Dey, Gazewood & Weiner, P.C., Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
Matthew John Jones appeals his convictions on three counts of first-degree sexual assault and one count of first-degree harassment, as well as his composite sentence for these crimes. Jones raises three issues on appeal.
First, Jones argues that the trial court erred in granting the State's motion to introduce evidence of Jones's prior unlawful sexual conduct if Jones testified and asserted a consent defense. But Jones did not testify, and as a result, evidence of Jones's prior conduct was never admitted. Jones has therefore failed to preserve this issue for appellate review.
Second, Jones contends that the trial court erred in denying his motion for a mistrial after the prosecutor questioned prospective jurors about the capacity of an alleged victim to maintain a false allegation for two years, the length of time that Jones's case spent in pretrial status. Although we question the propriety of the prosecutor's questions, we conclude that the court did not abuse its discretion in denying a mistrial.
Finally, Jones challenges his composite sentence. We reject Jones's challenge and affirm his sentence.
Underlying facts and prior proceedings
One night in August 2012, Jones and A.K. were drinking together with two other people in downtown Anchorage. Jones and A.K. had just met. Sometime later that night, Jones and A.K. engaged in consensual sexual intercourse in a nearby wooded area.
Afterward, Jones and A.K. started walking together toward their respective residences. Jones invited A.K. to come back to his house, but A.K. declined. As the two neared an overpass, Jones pulled A.K. under the overpass; Jones was squeezing A.K.'s hand and would not let go.
Jones pulled A.K. down and sat on top of her. Jones wanted to have sex again, and he tried to remove A.K.'s pants. When A.K. refused, Jones pinned A.K.'s arms above her head and ripped off her pants.
Jones forced A.K. to engage in a number of sexual acts with him, including penetration of A.K.'s genitals, anus, and mouth. While he was assaulting A.K., Jones repeatedly threatened A.K. and called her degrading names. At one point, while Jones was forcing A.K. to perform fellatio, he pulled her head up, spat on her, and rubbed his saliva on her face.
A.K. eventually escaped and ran to a hotel; a hotel employee contacted the police. The police found and arrested Jones that night.
Based on these events, a grand jury indicted Jones on four counts of first-degree sexual assault (for penile penetration of A.K.'s mouth and anus, and for digital penetration of A.K.'s genitals and anus) and one count of second-degree assault (for strangling A.K.). The State also charged Jones with one count of first-degree harassment (for subjecting A.K. to offensive physical contact with human saliva, with the intent to harass or annoy).
AS 11.41.410(a)(1) and AS 11.41.210(a)(1), respectively.
AS 11.61.118(a)(1).
Jones's case proceeded to a jury trial. The trial court granted Jones's motion for a judgment of acquittal on one of the four counts of first-degree sexual assault (digital-anal penetration). The jury could not reach a verdict on the second-degree assault count, and the State dismissed that charge. The jury convicted Jones of the remaining three counts of sexual assault and the single count of first-degree harassment.
Because Jones was a first felony offender, he was subject to a presumptive range of 20 to 30 years for each first-degree sexual assault conviction. The trial court was required to run at least 6.25 years of the sentence on each of the second and third counts of sexual assault consecutively to the sentence imposed on the first count. Jones also faced a sentence of up to 1 year on the first-degree harassment conviction (with no minimum required consecutive time). Absent mitigating factors or referral of his case to the statewide three-judge sentencing panel, Jones therefore faced a minimum composite sentence of 32.5 years.
Jones had a prior conviction in the United States Army for "indecent acts with another." Prior to sentencing, the State indicated that Jones's prior conduct did not qualify as a "prior conviction" for presumptive sentencing purposes because the State was unable to show that the elements of the military offense were similar to the elements of an Alaska felony, as required by AS 12.55.145(a).
AS 12.55.125(i)(1)(A)(ii).
AS 12.55.127(c)(2)(E) & (e)(3).
Former AS 12.55.135(a) (pre-2016 version).
Jones asked the court to refer his case to the three-judge panel based on the nonstatutory mitigator of extraordinary potential for rehabilitation. The court denied Jones's request and imposed a composite sentence of 35.5 years to serve.
Jones failed to preserve his challenge to the trial court's ruling regarding admission of evidence related to his prior conviction
Prior to trial, the prosecutor filed a conditional motion to introduce evidence that, six years prior to the events in this case, Jones admitted to putting his hand inside the underwear of his roommate's girlfriend while she was asleep. Based on this conduct, Jones was convicted at a United States Army court-martial of "indecent acts with another." The prosecutor argued that evidence of this prior conduct would be admissible under Alaska Evidence Rule 404(b)(3) if Jones testified and asserted a consent defense. Jones opposed this motion.
Evidence Rule 404(b)(3) provides, in relevant part:
In a prosecution for a crime of sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible if the defendant relies on a defense of consent.
After analyzing the evidence under Bingaman v. State, the trial court ruled that the evidence was conditionally admissible. Ultimately, however, Jones did not testify, and the prosecutor never offered evidence of Jones's prior conduct.
See Bingaman v. State, 76 P.3d 398, 415-16 (Alaska App. 2003).
Jones now appeals the trial court's ruling. Jones argues that the trial court's ruling forced him to choose between telling the jury his side of the story or remaining silent.
But because Jones chose not to testify, he failed to preserve this claim for appeal. In State v. Wickham, the Alaska Supreme Court held that "a defendant must testify to preserve for review a claim of improper impeachment by prior conviction." Although Wickham involved impeachment by a prior conviction under Alaska Evidence Rule 609, we have previously applied the same rule in the context of impeachment by prior bad act evidence under Evidence Rule 404(b). In both cases, the "factual vacuum" created by the absence of the defendant's testimony and the contested evidence is the same, and our review of the alleged error and any potential harm would be "wholly speculative."
State v. Wickham, 796 P.2d 1354, 1358 (Alaska 1990); see also id. at 1356-57 (adopting the rule articulated by the United States Supreme Court in Luce v. United States, 469 U.S. 38, 43 (1984): "[T]o raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.").
See Melovedoff v. State, 2006 WL 120168, at *2-3 (Alaska App. Jan. 18, 2006) (unpublished) (applying the Wickham rule to bar an appellant from challenging the trial court's conditional admission of prior act evidence under Evidence Rule 404(b)(3), where the defendant did not testify and the evidence was therefore never admitted).
Wickham, 796 P.2d at 1358; Melovedoff, 2006 WL 120168, at *3.
(For further applications of this claim-preservation rule to conditional evidentiary rulings, see Wagner v. State, 347 P.3d 109, 113-14 (Alaska 2015); Williams v. State, 214 P.3d 391, 392-93 (Alaska App. 2009); and Sam v. State, 842 P.2d 596, 598-99 (Alaska App. 1992).)
Jones does not address these cases and offers no reason why his case should be exempt from this rule. Accordingly, we conclude that Jones has failed to preserve for appeal his challenge to the court's conditional admission of the prior act evidence under Evidence Rule 404(b)(3).
The trial court did not abuse its discretion in denying Jones's request for a mistrial
During voir dire, the prosecutor asked several jurors to consider whether they believed an alleged victim could easily maintain a false accusation throughout the investigatory and judicial processes that typically follow a sexual assault allegation. Jones did not object to these questions at the time they were asked. But when the prosecutor completed his round of questioning, Jones's attorney moved for a mistrial. The attorney primarily argued that the prosecutor had improperly impugned Jones's right to take time to prepare his defense, and that the jurors would potentially hold the delay against Jones. Jones also argued that the prosecutor's questioning had encouraged the jurors to prejudge A.K.'s credibility. The trial court denied Jones's request for a mistrial.
Jones now appeals the trial court's denial of his motion for a mistrial.
We question the propriety of the prosecutor's questions. The purpose of voir dire is to detect biases or prejudices that might lead a prospective juror to decide the case on improper grounds, rather than solely on the evidence presented in court. As we have previously recognized, "questions that invite the prospective jurors to prejudge the facts of the case are not proper." Here, although the prosecutor did not directly state that A.K.'s account was consistent over the two-year period of time between her initial accusation and Jones's trial, or that the prospective jurors should presume her credible on that ground, that was the implication of his questioning. That is, rather than use his questioning to detect bias, the prosecutor sought to present an argument about A.K.'s credibility by asking jurors about the difficulty of maintaining a false allegation throughout a lengthy investigative and judicial process.
See Irvin v. Dowd, 366 U.S. 717, 722 (1961) ("[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors."); Mallott v. State, 608 P.2d 737, 745-46 (Alaska 1980) ("The ultimate objective of the trial court [during voir dire] is to find twelve jurors 'who would, under the proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court.'") (quoting Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 569 (1976)); see also Smock v. State, 1986 WL 1165536, at *3 (Alaska App. Feb. 5, 1986) (unpublished) (noting that Alaska case law expresses "a clear preference for case-by-case inquiry into actual bias through individualized juror voir dire").
Crawford v. State, 337 P.3d 4, 29 (Alaska App. 2014).
But when we review the denial of a mistrial, we examine whether the trial court abused its discretion. We will only reverse when, "after reviewing the whole record, we are left with a definite and firm conviction that the trial court erred in its ruling."
Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005).
On appeal, Jones argues that the prosecutor "used Jones' exercise of his right to take two years to prepare a defense to imply that the alleged victim could not have made false allegations," and that the jury was prejudiced by the prosecutor's action because, when the prospective jurors responded to the prosecutor's questions, "only one of [the prospective jurors] could think of a reason why somebody would maintain their allegations for two years if [they were] untrue."
As an initial matter, we disagree with Jones's characterization of the prosecutor's questions. The prosecutor never attributed the two-year delay to Jones, nor did the prosecutor make reference to any decisions Jones and his attorney may have made to postpone the trial to prepare his defense. Rather, the prosecutor referred to the steps common to all sexual assault cases — "from initial report to sexual assault forensic examination to testimony in court" — and, without attribution of blame, queried whether a person could maintain a consistent, false version of events over that span of time.
More importantly, however, Jones's claim of prejudice is not supported by the record. Although the prosecutor asked several jurors a version of the question challenged by Jones, on appeal Jones challenges the questioning of only a single juror. Jones exercised a peremptory challenge against this juror, and she was removed from the jury venire.
Moreover, the trial court found, based on its observation of the jury selection process and the totality of the prosecutor's questioning, that the jurors had not committed to believing one person, but instead intended to listen to the evidence before making a decision. We have reviewed the record, including the jurors' responses to the later questioning by defense counsel, and conclude that the record supports these findings.
See Roth, 626 P.2d at 585 (noting that the trial court is in the best position to observe the impacts of the complained-of statements or evidence on the jury).
We note that at least two jurors suggested that a person could maintain a false allegation for two years. At the conclusion of questioning by the prosecutor, one juror volunteered that, although it would be difficult for a person to maintain a consistent, false narrative for two years, a person could do it and might go to great lengths to do so. And then, during defense questioning, a different juror opined that a person might honestly, though incorrectly, believe the accusation or "may be down a road so far now that she can't turn back."
For these reasons, the trial court's denial of Jones's request for a mistrial was not so "clearly untenable or unreasonable" as to constitute an abuse of discretion.
Gonzales v. State, 691 P.2d 285, 286 (Alaska App. 1984).
Jones's sentence claims
Prior to sentencing, Jones requested that the court refer his case to the three-judge sentencing panel based on his claim that he had extraordinary potential for rehabilitation. Jones argued that his long-term alcohol abuse was the cause of both his current and past criminal conduct — which included convictions for operating under the influence, refusal to submit to a chemical test, driving while license revoked, and his military conviction for indecent acts with another. He argued that this conduct could be adequately addressed through treatment and strict community supervision, and that imposition of a sentence of imprisonment within the presumptive range was unwarranted.
The prosecutor opposed Jones's request on the merits. The prosecutor also argued that the court was statutorily barred from referring Jones's case to the three-judge panel on the basis of extraordinary potential for rehabilitation because the State had proved aggravating factor AS 12.55.155(c)(2) — that Jones manifested deliberate cruelty to A.K. during commission of the offense.
See AS 12.55.165(b).
The court denied Jones's request for referral to the three-judge panel. The court then imposed a composite sentence of 35.5 years to serve.
On appeal, Jones argues that it was improper under Blakely v. Washington for the court to find aggravator (c)(2) and to then deny referral to the three-judge panel on this basis. But the record indicates that the court did not make a finding on aggravator (c)(2). At the conclusion of the sentencing hearing, when the prosecutor asked the court to make an explicit finding on this aggravator; the court instead indicated that it had denied Jones's request for referral on the merits — that is, based on a finding that Jones had failed to prove that he had extraordinary potential for rehabilitation.
See Blakely v. Washington, 542 U.S. 296, 303-04 (2004).
Given this, the real question is whether the court erred in rejecting the nonstatutory mitigator of extraordinary potential for rehabilitation. Jones does not directly challenge the trial court's decision on this ground. In the interest of justice, however, we have independently reviewed the record and conclude that the trial court did not err in rejecting this mitigating factor.
We note that Jones had a prior sex-related conviction and that his score on the Static-2002R examination showed that he was at moderate risk of re-offending. (The Static-2002R is an actuarial risk assessment designed to assist in predicting the risk of recidivism for sex offenders.) Jones argued that this score would be lower, absent the influence of alcohol on his conduct — a risk factor that was readily treatable. But, although the court recognized that Jones was young and that alcohol played a significant role in Jones's criminal conduct, the court found that it had no information that Jones was committed to treatment or sobriety, or any indication that Jones had taken steps to address his substance abuse. The court's findings are supported by the record.
Jones also argues that the ultimate sentence imposed "was greater than that necessary to achieve the Chaney goals of reformation and the need for protecting the public." But when we review a sentence for excessiveness, we independently examine the record to determine whether the sentence is clearly mistaken. The "clearly mistaken" standard contemplates that different judges, confronted with identical facts, will differ on what constitutes an appropriate sentence, and that a reviewing court will not modify a sentence that falls within a permissible range of reasonable sentences. Having independently reviewed the record, we conclude that the sentence imposed by the superior court is not clearly mistaken.
See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997). --------
Conclusion
The judgment of the superior court is AFFIRMED.