Opinion
Court of Appeals No. A-12225 No. 6707
09-19-2018
LAWRENCE R. LUKE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Susan Orlansky, Reeves Amodio LLC, 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-12-7748 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Appearances: Susan Orlansky, Reeves Amodio LLC, 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, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury found Lawrence R. Luke guilty of sexually assaulting R.G., a homeless person. Luke now brings three challenges on appeal. First, Luke challenges an evidentiary ruling by Superior Court Judge Philip R. Volland excluding evidence of a prior sexual assault of R.G. by a different person. For the reasons that we explain herein, we find no error.
Second, during Luke's trial, R.G. testified that she would never have consented to have sex in public. In fact, R.G. had previously been charged with disorderly conduct for having sex in a public park. The judge allowed the defense lawyer to question R.G. about that incident, but the judge ruled that the attorney could not offer extrinsic evidence to impeach R.G.'s testimony on the matter.
Luke now appeals this limitation. We conclude that any error was harmless.
Lastly, Luke appeals ten of his conditions of probation. Since he did not object to these conditions at trial, he must show plain error. Several of the probation conditions that Luke challenges are plainly erroneous, and we direct the superior court to reconsider those conditions.
State v. Ranstead, 421 P.3d 15, 23 (Alaska 2018).
Underlying facts
On July 31, 2012, two security guards and two employees of businesses located in the Centerpoint Business Park, an office complex in midtown Anchorage, approached two homeless persons — a man and a woman later identified as Luke and R.G. — who were passed out under some trees on Centerpoint property. After one of the employees unsuccessfully attempted to awaken Luke and R.G. by yelling and clapping loudly, one of the security guards called the Anchorage Police Department for assistance. The four onlookers remained nearby to await the arrival of the police.
While the onlookers waited, Luke awakened, stood up, and lowered his pants below his knees, exposing his penis. After attempting unsuccessfully to awaken R.G., he pulled her pants down, positioned himself on top of her, and began thrusting his hips against hers. Seeing these events, the security guard again called the police. While she was on the phone to the 911 operator, the security guard described Luke's ongoing sexual assault of R.G., which was occurring in front of her.
Luke's actions eventually awakened R.G. When R.G. realized what was happening, she immediately protested and struck Luke. Luke hit her back. R.G. pushed Luke away, rolled over onto her side, and attempted to go back to sleep. Luke then repeatedly tried to roll R.G. onto her back and to get on top of her. This continued until the police arrived minutes later and arrested him.
Luke was charged with attempted second-degree sexual assault, second-degree sexual assault, and third-degree sexual assault, all for assaulting R.G. while she was incapacitated. Luke was also charged with first-degree sexual assault for penetrating R.G. without consent, second-degree sexual assault for sexual contact without consent, and third-degree assault for recklessly causing R.G. physical injury by means of strangulation.
AS 11.41.420(a)(3)(B) or (C) and AS 11.31.100, AS 11.41.420(a)(3)(B) or (C), and AS 11.41.425(a)(1)(B) or (C), respectively.
AS 11.41.410(a)(1), AS 11.41.420(a)(1), and AS 11.41.220(a)(1)(B), respectively.
The trial
R.G. testified at trial that she was a homeless alcoholic subject to blackouts. Prior to this incident, Luke and R.G. were friends who had engaged in occasional sex.
R.G.'s testimony suggested that she recalled very little of her assault at Centerpoint or of her ensuing examination by a nurse from the sexual assault response team (SART). R.G. testified that she did not remember being with Luke that day. She stated that she had been drinking heavily, consuming "a couple of fifths, [and] a half-gallon" of whiskey. When she was asked if she consented to have sex, she replied, "I believe not. I was — I was highly intoxicated, and I would never agree to have sex in public."
Three of the eyewitnesses present during the assault testified to what they had observed, as set forth above.
The jury acquitted Luke of strangling R.G. The jury could not reach verdicts on the two counts charging that Luke sexually penetrated R.G., so those two counts were dismissed. The jury found Luke guilty of attempted penetration of an incapacitated person, engaging in sexual contact with an incapacitated person, and engaging in sexual contact without consent. The judge merged the three convictions and entered judgment for a single conviction for second-degree sexual assault.
This appeal followed.
Why we conclude that the judge's exclusion of evidence of a prior sexual assault on R. G. was not an abuse of discretion
After R.G.'s direct testimony, Luke requested permission from the judge to cross-examine R.G. about an earlier occasion when she was sexually assaulted, slightly more than a year before the sexual assault in the present case. Luke's defense attorney argued that this earlier sexual assault was relevant because R.G. might have somehow confused details of the earlier sexual assault with those of the present case. But the defense attorney was unaware of the details of the prior sexual assault, so he was unable to say with specificity in what way R.G. might have confused the two events.
The judge allowed the defense attorney to voir dire R.G. outside the presence of the jury. During this voir dire, R.G. testified that she remembered none of the details of the earlier sexual assault. After hearing R.G.'s testimony, the judge ruled that, because Luke had no evidence specifically indicating that R.G. might have conflated the two events, the prior sexual assault was irrelevant.
During R.G.'s voir dire testimony about the prior sexual assault, and her trial testimony about the sexual assault in the present case, R.G. testified to virtually no details about either event. Accordingly, there is no possibility that R.G.'s testimony was based on a confused recollection of the prior sexual assault. The State proved its case through the three testifying eyewitnesses, the responding officers, and the SART nurse, and not through the testimony of R.G.
Under these circumstances, we conclude that the judge did not abuse his discretion when he precluded the defense attorney from cross-examining R.G. about the prior sexual assault.
Exclusion of evidence of R.G.'s prior voluntary sexual conduct, if error, was harmless
We now turn to the second evidentiary ruling that Luke challenges. During his direct examination of R.G., the prosecutor asked her if she had agreed to have sex with Luke at the Centerpoint Business Park. R.G. replied, "I believe not. I was — I was highly intoxicated and I would never agree to have sex in public."
Luke's attorney asked the judge's permission to impeach this testimony with evidence that, several years previously, in 2009, R.G. had engaged in sexual intercourse in a public park and that she had been cited for disorderly conduct because of this. The disorderly conduct charge was dismissed.
The judge granted this request in part, ruling that the defense attorney could question R.G. about the 2009 incident, but that Luke could not later present extrinsic evidence to impeach R.G.'s answers. When R.G.'s testimony resumed, the attorney stated to her that "in 2009, you were charged with disorderly conduct, public sex." The attorney then asked R.G. whether she recalled that incident. R.G. did not directly deny that she had engaged in sex in public. Instead, she replied that she had not been charged with this. Rather than questioning R.G. further about the details of the incident as permitted by the judge's ruling, the attorney turned to other matters.
Several days later, the defense attorney subpoenaed the officer who had observed R.G. during the 2009 incident. The attorney renewed his request to present evidence that R.G. had been charged with disorderly conduct for engaging in public sex.
The judge denied this request to reverse his previous ruling prohibiting impeachment of R.G. by extrinsic evidence. The judge reiterated that the 2009 incident was a collateral matter that would distract the jury from the important issues in the case. And the judge noted that, based on the officer's police report, the officer would not be able to testify that the 2009 incident necessarily involved consensual sex.
We need not decide whether the judge's ruling excluding this extrinsic evidence was correct, because, under the circumstances of this case, any error was harmless. When R.G. was confronted at trial with the 2009 incident, she gave a weak denial of it; rather than testifying that she did not agree to have sex in a public park, she merely denied that she had been charged with this.
And the evidence at trial was very strong that Luke's conduct with R.G. was not consensual. The three testifying eyewitnesses viewed the entire incident from close range, and they all agreed that R.G. was initially unconscious, and that when she regained consciousness, she vigorously resisted Luke. We perceive no likelihood that additional evidence regarding the previous sex-in-the-park incident would have affected the jury's verdict. Accordingly, any error was harmless.
See Love v. State, 457 P.2d 622, 631 (Alaska 1969).
Luke's appeal of his conditions of probation
Luke contests ten of his probation conditions. Luke did not object to any of these conditions at his sentencing. Accordingly, we review the judge's imposition of these conditions for plain error.
Ranstead, 421 P.3d at 23.
Special Condition no. 1: submit to urinalysis or blood analysis for drugs and alcohol
Special Condition no. 1 requires Luke to provide, at the direction of a probation officer, a urine or a blood sample for testing for the presence of alcohol or drugs. Luke does not contest this condition with respect to alcohol. But Luke argues that no evidence links him or his crime to drug use, other than his conviction for a misdemeanor drug crime twenty years previously.
In State v. Thomas, the defendant challenged a condition of probation requiring him to submit to searches for controlled substances. Thomas argued that, because his prior convictions were alcohol-related but did not involve drug use, the condition was unjustified. We upheld the condition on the ground that the sentencing judge could reasonably have concluded that, in light of Thomas's alcohol abuse, a condition that he abstain from all forms of substance abuse was justified to further his rehabilitation and to protect the public.
State v. Thomas, 133 P.3d 684 (Alaska App. 2005).
Id. at 684.
Id. at 686.
In light of our holding in Thomas, we conclude that Luke has not shown that the judge committed plain error in imposing a substance abuse prohibition including drugs, as well as alcohol.
Several other challenged conditions are not plainly erroneous
Luke challenges a provision of Special Condition no. 6, which authorizes Luke's probation officer to require Luke's participation in a domestic violence program. Luke argues that this condition is unjustified because his sexual assault on R.G. was not a crime of domestic violence. But R.G. testified at trial that she and Luke had a prior sexual relationship; this qualified Luke and R.G. as "household members" as that term is defined in AS 18.66.990(5)(D), and renders his crime one of domestic violence. Luke does not otherwise dispute the provision, and we uphold it.
Luke also challenges Special Conditions no. 15 (prohibiting contact with his victim), and no. 19 (requiring him to advise members of his household of his criminal history), and General Conditions no. 5 (prohibiting him from possessing weapons and authorizing a search for weapons), and no. 6 (forbidding his association with felons or persons on probation or parole). Having reviewed the record, we find that the imposition of these conditions was not plainly erroneous.
Several challenged conditions are plainly erroneous
The State implicitly concedes that several conditions of Luke's probation are plainly erroneous and should be reconsidered. These conditions are as follows: the provision of Special Condition no. 4 requiring Luke to undergo a plethysmograph assessment if ordered by his probation officer; the provision of Special Condition no. 6 requiring Luke to ingest medications prescribed as part of treatment programs; Special Condition no. 16, prohibiting Luke from possessing "sexually explicit material" and requiring him to submit to searches for this material; Special Condition no. 17, also referencing "sexually explicit material"; and Special Condition no. 21, requiring Luke to inform persons with whom he has a "significant relationship" or is "closely affiliated" about his sexual offending history. We agree with the State that these conditions in their present form are plainly erroneous and that they must be reconsidered by the superior court.
Why we vacate a requirement for residential treatment as an illegal sentence
One clause of Special Condition no. 6 requires Luke to participate in residential mental health or sex offender treatment "for a length of time determined necessary by the appropriate professionals." This is an illegal sentence under our decision in Christensen v. State, which holds that a sentencing court must specify the upper limit of any residential treatment. We accordingly vacate the clause of Special Condition no. 6 authorizing residential treatment of Luke.
Christensen v. State, 844 P.2d 557 (Alaska App. 1993). --------
Conclusion
We AFFIRM Luke's convictions. We REMAND this case to the superior court for reconsideration of Luke's conditions of probation, consistent with this opinion. We do not retain jurisdiction of this case.