Opinion
A-13299
10-06-2021
TIMOTHY DANIEL TANBERG, Appellant, v. STATE OF ALASKA, Appellee.
Renee McFarland, Deputy Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Trial Court No. 4FA-16-00619 CR, Michael A. MacDonald, Judge.
Renee McFarland, Deputy Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
Following a jury trial, Timothy Daniel Tanberg was convicted of first-degree sexual assault for engaging in sexual penetration with his ex-girlfriend, M.P. At the time of the incident, Tanberg and M.P. were living together, although they were no longer a couple.
Tanberg now appeals his conviction, raising two claims.
First, Tanberg argues that there was insufficient evidence to support his conviction for first-degree sexual assault. To prove this charge, the State was required to establish that (1) Tanberg knowingly engaged in an act of sexual penetration with M.P., (2) the sexual penetration was coerced by the use of force or the threat of force, and (3) Tanberg recklessly disregarded M.P.'s lack of consent. Tanberg contends that M.P.'s testimony lacked sufficient corroboration and therefore a reasonable juror could not have found him guilty beyond a reasonable doubt.
AS 11.41.410(a)(1); see also AS 11.41.470(8) (defining "without consent"); Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983) (recognizing that, to establish a violation of AS 11.41.410(a)(1), the State must prove that the defendant knowingly engaged in sexual penetration and recklessly disregarded the alleged victim's lack of consent).
When this Court reviews the sufficiency of the evidence to support a conviction, we view the evidence, and all reasonable inferences from that evidence, in the light most favorable to upholding the jury's verdict. We then ask whether a reasonable juror could have concluded that the State had proved its case beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
Viewing the evidence, including M.P.'s testimony, in the light most favorable to upholding the jury's verdict, we conclude that there was sufficient evidence to support Tanberg's conviction.
At trial, M.P. testified that Tanberg engaged in penile penetration with her despite her attempts to stop him and push him away. In particular, M.P. testified that on August 11, 2015, while she was showering, Tanberg opened the shower curtain and began masturbating. According to M.P., Tanberg touched her body, including her breasts and her vagina, and forced her to masturbate him. M.P. tried to pull her hand away, but Tanberg would not let her. M.P. testified that Tanberg then penetrated her vagina with his penis as she tried to push him away, told him to stop, and said she did not want to have sex with him. Tanberg continued to penetrate her until he "finished" and left the bathroom. M.P.'s testimony established the elements of first-degree sexual assault, and as an appellate court, we do not weigh the credibility of witnesses - that is exclusively the role of the jury.
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009) (citing Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990)); Daniels v. State, 767 P.2d 1163, 1167 (Alaska App. 1989).
Moreover, there was additional evidence that the jury could have reasonably viewed as corroborating M.P.'s account. M.P.'s friend testified that M.P. came to his house and told him that Tanberg had sexually assaulted her; the friend then encouraged her to report the assault and go to the hospital, which she did. At the hospital, M.P. underwent a sexual assault examination, in which the forensic nurse observed a recent laceration in M.P.'s vagina that had been bleeding. And Tanberg subsequently sent numerous text messages to M.P. that were admitted at trial. In those messages, Tanberg admitted that "[t]his was a mistake," and that he was "more regretful about this than anything else I've ever done in my life[.]" Tanberg characterized M.P. as "a victim" and apologized. He also wrote, "I know what I did was wrong, and I deserve to be punished for it."
Based on this evidence, a reasonable juror could have found beyond a reasonable doubt that Tanberg committed the crime of first-degree sexual assault. We therefore conclude that there was sufficient evidence to support Tanberg's conviction.
Second, Tanberg argues that the superior court committed plain error by failing to intervene when the prosecutor made certain comments during closing argument that Tanberg claims were improper. Although he did not object to these statements during trial, Tan berg now contends that these comments either improperly communicated the prosecutor's personal opinion of Tanberg's credibility or shifted the burden of proof to the defense. We have reviewed the State's closing argument, and we disagree with Tanberg's characterization of these statements. But even assuming that the statements were improper or inartful, we conclude that any error was not obvious and did not result in a miscarriage of justice necessitating reversal of Tanberg's conviction.
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011) (noting that plain error involves such "egregious conduct as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice" and establishing that plain error is "an error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial" (internal quotations omitted)).
Accordingly, we AFFIRM the judgment of the superior court.