Opinion
Court of Appeals No. A-10785 Trial Court No. 3AN-08-3388 CR No. 5930
03-27-2013
PATRICK H. TORRENCE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Bolger and Allard, Judges.
Judge MANNHEIMER.
Patrick H. Torrence appeals his convictions for kidnapping, first-degree sexual assault, and second- and third-degree assault. He contends that the evidence presented at his trial was not legally sufficient to support his kidnapping and sexual assault convictions. Torrence also contends that the grand jury proceedings that led to his indictment were flawed for two reasons: first, because one of the grand jurors was familiar with one of the grand jury witnesses; and second, because the prosecutor failed to present potentially exculpatory evidence to the grand jury.
In addition, Torrence challenges the composite sentence that he received for these crimes — a total of 50 years to serve. Torrence argues that the superior court improperly rejected two proposed mitigating factors, and he further argues that his sentence of 50 years' imprisonment is excessive.
For the reasons explained here, we conclude that none of Torrence's claims has merit, and we therefore affirm his convictions and his sentence.
Underlying facts
Because Torrence contends that the evidence presented at his trial was insufficient to support his convictions for kidnapping and sexual assault, we present that evidence here in the light most favorable to upholding the jury's verdicts.
See, e.g., Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
Torrence and his wife C.T. separated in October 2007, and Torrence moved into a separate residence (located across the street from his wife). Both Torrence and C.T. began to date other people. In particular, C.T. began to spend time with a man named Celestino Lee.
One evening in March 2008, C.T. went over to Lee's house; they watched a movie together, and they engaged in sexual relations. Around 3:30 in the morning, Torrence called C.T. on her mobile phone while she was still with Lee. When C.T. informed Torrence she was at Lee's home, Torrence became angry and demanded that C.T. return home immediately. C.T. decided to drive home and try to calm Torrence down.
When C.T. pulled into her carport, Torrence was standing there, holding a handgun. Pointing the gun at C.T.'s windshield, Torrence told C.T. to move over to the passenger seat of the vehicle. Torrence then entered the car and got behind the wheel. He put the handgun in the back of his pants.
Torrence demanded that C.T. direct him to where Lee lived. C.T. initially refused to take Torrence to Lee's home, explaining that Lee was not even aware that C.T. was married to Torrence. In response, Torrence told C.T. that he would kill her if she did not take him to Lee's house.
Following this threat, C.T. directed Torrence to Lee's apartment complex. On the way there, Torrence pulled C.T.'s hair and struck her repeatedly in the face. When they arrived at the apartment complex, C.T. did not direct Torrence to Lee's apartment; instead, she misdirected Torrence to another apartment which was empty. Torrence thus failed to locate Lee.
Having failed to locate Lee, Torrence drove C.T. to the trailer that C.T. used as the site of her childcare business. (Given the time of day, no one else was there.) Inside the trailer, Torrence forced C.T. to undress and, at some point, he strangled her. Torrence spoke about killing C.T. and committing suicide. He threatened to insert the handgun into C.T's vagina and then pull the trigger while the gun was inside her. After holding C.T. captive for about three and a half hours, Torrence raped her. Eventually, Torrence released C.T. and drove her home.
Following her release, C.T. called the police. When the police arrived, Torrence barricaded himself inside his house, but the police were finally able to arrest Torrence.
Torrence's claim that the evidence was not sufficient to support his conviction for sexual assault
To prove Torrence guilty of first-degree sexual assault, the State had to prove that Torrence's act of sexual intercourse with C.T. was "without consent" — i.e., that C.T. was coerced by force or by the threat of force to engage in the act of sexual intercourse. In addition, the State had to prove that Torrence acted recklessly with respect to the circumstance that C.T. was coerced.
See AS 11.41.410(a)(1) (declaring that a person commits the offense of first-degree sexual assault if the person engages in sexual penetration with another person "without consent of that person") and AS 11.41.470(8) (defining the term "without consent").
See Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983).
In his brief to this Court, Torrence claims that, from his perspective, C.T. was not coerced to engage in intercourse with him; rather, she consented to have intercourse with him because she was still his wife, and she wanted to calm him down. Thus, Torrence argues, the evidence was insufficient to prove beyond a reasonable doubt that he acted recklessly with respect to the circumstance that C.T.'s acquiescence in the act of sexual intercourse was the result of coercion.
Torrence's argument hinges on viewing the evidence in the light most favorable to himself. But when we assess the sufficiency of the evidence to support a criminal conviction, the law requires us to view the evidence (and all inferences that could reasonably be drawn from that evidence) in the light most favorable to upholding the jury's verdict. Viewing the evidence in that light, it was sufficient to support Torrence's conviction.
See, e.g., Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
Torrence's claim that the evidence was not sufficient to support his conviction for kidnapping
To prove Torrence guilty of kidnapping, the State had to prove that Torrence restrained C.T. with the intent to sexually assault her, or to inflict physical injury upon her, or to make her fear that she would be subjected to serious physical injury or sexual assault.
See AS 11.41.300(a)(1)(C).
Torrence concedes that he restrained C.T., but he argues that no reasonable jury could have concluded that his intention was to subject C.T. to sexual or physical assault. Again, Torrence's argument hinges on viewing the evidence in the light most favorable to himself, while we must view the evidence in the light most favorable to upholding the verdict. Viewed in this light, the jurors could reasonably conclude that Torrence acted with the requisite intent.
Torrence also argues that, even if he did intend to sexually or physically assault C.T., his restraint of C.T. was only incidental to his accomplishment of these crimes, and thus he could not legally be convicted of the additional offense of kidnapping. See Hurd v. State, 22 P.3d 12, 18-19 (Alaska App. 2001), and Alam v. State, 776 P.2d 345, 349 (Alaska App. 1989) (both cases holding that when the offense of kidnapping is charged in addition to a related physical or sexual assault, the State must prove that the defendant's restraint of the victim was more than an incidental feature of the related assault).
In Hurd, we explained that a charge of kidnapping requires proof that the defendant restrained the victim, either temporally or spatially, beyond what was necessary to commit the underlying sexual or physical assault. We then identified five factors that the jury should consider in determining whether a restraint is "incidental" to the target crime:
(1) how long the victim was restrained; (2) if the victim was moved, how far the victim was moved and where the victim was taken; (3) whether, under the facts, the restraint exceeded what was necessary for commission of the defendant's target crime; (4) whether the restraint significantly increased the risk of harm to the victim beyond the risk of harm inherent in the target crime itself; and (5) whether the restraint had some independent purpose — i.e., whether the restraint made it significantly easier for the defendant to commit the target crime or made it significantly easier for the defendant to escape detection.Hurd, 22 P.3d at 19.
The jury in Torrence's case was instructed in accordance with Hurd. Given the evidence presented at Torrence's trial, and applying the Hurd factors, the jurors could reasonably have concluded that Torrence's hours-long restraint of C.T. was more than merely incidental to his sexual and physical assaults upon her.
In sum, the evidence presented at Torrence's trial was sufficient to support his kidnapping conviction.
Torrence's claim regarding the potential bias of one of the grand jurors
At the beginning of the grand jury proceeding that led to Torrence's indictment, the prosecutor listed the State's witnesses and asked the grand jurors if any of them knew any of the witnesses. One of the grand jurors stated that she was professionally acquainted with one of the witnesses, Anchorage Police Detective Eric Hamre. The prosecutor asked this grand juror if her acquaintance with Detective Hamre would interfere with her ability to fairly evaluate the evidence. When the grand juror answered "no", the prosecutor did not pursue the matter further.
After Torrence was indicted, he asked the superior court to dismiss the indictment based on this exchange between the prosecutor and the grand juror. Torrence claimed that the prosecutor shirked his duty to inquire further and clarify the grand juror's acquaintance with Detective Hamre — and that, because the prosecutor did not pursue this issue, it was impossible to know whether this grand juror harbored a bias in favor of Hamre that influenced the grand juror's vote and, potentially, the entire grand jury's deliberations.
The superior court denied Torrence's motion, and Torrence now renews this claim on appeal.
As this Court has repeatedly explained, when a defendant claims that the grand jury proceedings were tainted by the bias or extra-judicial knowledge of one or more grand jurors, the defendant must make a factual showing that the challenged grand jurors were actually biased, and that this bias actually affected the grand jury's decision to return the indictment.
See State v. McDonald, 872 P.2d 627, 638 (Alaska App. 1994); Chief v. State, 718 P.2d 475, 477 (Alaska App. 1986); Hohman v. State, 669 P.2d 1316, 1319 (Alaska App. 1983). In particular, see Patterson v. State, 747 P.2d 535, 537 (Alaska App. 1987) ("In the absence of [specific] circumstances establishing the likelihood [that the bias or prejudice of one grand juror had] a significant influence on the grand jury as a whole, we see no legitimate basis for imputing the bias of one grand juror to [the] others. [If] the grand jury vote[s] unanimously to indict ... , and [if the defendant] has, at most, established bias on the part of only one member of the panel, no deprivation of [the defendant's] right to a fair and unbiased grand jury has been established.").
Inevitably, there will be instances where a grand juror has been exposed to extra-judicial information concerning the case, or where the grand juror is acquainted with one or more of the participants. In such instances, if the grand juror professes to be capable of rendering a fair and impartial decision based on the evidence, and if the record fails to show a substantial reason to doubt the grand juror, the indictment will stand. See State v. McDonald, 872 P.2d 627, 638 (Alaska App. 1994); Chief v. State, 718 P.2d 475, 477 (Alaska App. 1986).
Compare our decision in Markgraf v. State, unpublished, Alaska App. Memorandum Opinion No. 4993 (December 21, 1994), 1994 WL 16197101, where we reversed a grand jury indictment for vehicular assault because the grand jury record itself revealed substantial reason to doubt the impartiality of two grand jurors. One of these grand jurors stated that he happened upon the motor vehicle accident shortly after it occurred, that he knew all three parties to the accident, and that he had engaged in "multiple discussions" about the accident. This grand juror told the prosecutor that he "[could] listen to the [grand jury] evidence[,] but [his pre-formed] opinion [might] be hard to let go [of]". The second grand juror stated, in front of his fellow grand jurors, that he was "very familiar" with the defendant, and that the defendant was the father of his stepsister's child out of wedlock. This second grand juror announced that he had "very bad feelings toward [the defendant]", and that he "[could not] stand the man".
Returning to the facts of Torrence's case, the grand juror in question stated that she was professionally acquainted with a police witness, and that this acquaintance would not impair her ability to impartially evaluate the evidence. There is nothing in the record to indicate otherwise. Accordingly, Torrence's case is governed by our decisions in MacDonald and Chief, and the superior court correctly denied Torrence's challenge to the indictment.
Torrence's claim that the prosecutor failed to present exculpatory evidence to the grand jury
At the grand jury hearing, C.T. testified that Torrence abducted her at gunpoint, driving her first to the apartment complex where Celestino Lee lived, and then to the trailer where C.T. ran her childcare business. When they got to the trailer, Torrence ordered C.T. to remove her clothes, and C.T. complied. Torrence kept C.T. in the trailer, naked, for three and half hours.
In the trailer, Torrence took out the handgun and threatened C.T.'s life. He repeatedly put the gun to her head and to her throat, asking C.T. if she was "ready to die". Torrence also threatened to kill C.T. by inserting the gun into her vagina and then pulling the trigger. Toward the end of this hours-long ordeal, Torrence forced C.T. to have sex with him. A short time later, Torrence allowed C.T. to dress, and then he released her.
Following his indictment, Torrence filed a motion in which he contended that the prosecutor had violated the duty to present exculpatory evidence to the grand jury. See Frink v. State, 597 P.2d 154, 164-65 (Alaska 1979).
Torrence argued that the prosecutor failed to apprise the grand jury that, when C.T. was interviewed by the police, C.T. stated that, at one point during her abduction, while Torrence was holding her naked in the trailer, and after he had repeatedly threatened to kill her, Torrence handed the gun to C.T. and told her to shoot him:
C.T.: [H]e told me ... to take my clothes off. And then ... we were in the bedroom [of the trailer]. ... [He took] the gun and he put it right here, to my head, and it was touching me. ... And he put the gun [to my throat] too, touching me. ... [And he was saying] that he was gonna shoot me — [asking me,] "You wanna die? Are you ready to die?" [And he said,] "I'm gonna kill you, and then I'm gonna kill myself."
[Then, at one point], he handed me the gun and told me to shoot him with it. [But] I set [the gun] back down. And this whole time, I was naked ... , and [he] wouldn't let me put my clothes back on. And then he finally ... went and just had sex with me. And then ... he let me get dressed, and then[,] shortly after we had sex, ... we left [the trailer].
In the superior court, Torrence argued that this evidence — i.e., C.T.'s statement that Torrence handed the gun to her at one point, and that Torrence encouraged C.T. to shoot him — was "exculpatory" within the meaning of the Frink rule. Torrence noted that, when C.T. testified before the grand jury, she stated Torrence had coerced her to engage in sexual intercourse with him because he was holding her naked, at gunpoint, and she feared what he would do if she refused to have sex with him. In his motion to dismiss the indictment, Torrence argued that his act of handing the gun to C.T., and his act of encouraging C.T. to shoot him, was evidence that substantially negated the State's allegation that C.T. was coerced to engage in sex with Torrence.
Evidence is "exculpatory" for purposes of the Frink rule only if the evidence "tends, in and of itself, to negate the defendant's guilt". Cathey v. State, 60 P.3d 192, 195 (Alaska App. 2002). Given the circumstances of C.T.'s hours-long abduction, and Torrence's repeated threats to kill C.T., the fact that Torrence temporarily relinquished control of the gun to C.T., and encouraged C.T. to shoot him, does not constitute exculpatory evidence for purposes of Frink. More specifically, it does not substantially undercut the State's allegation that Torrence coerced C.T. to engage in sexual intercourse with him.
Quoting State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994).
We accordingly uphold the superior court's denial of Torrence's motion to dismiss the indictment.
Torrence's proposed sentencing mitigators
With regard to his sentencing for first-degree sexual assault, Torrence was a second felony offender who faced a presumptive sentencing range of 30 to 40 years' imprisonment. Torrence proposed two of the mitigators codified in AS 12.55.155(d): (d)(6) (that Torrence's offense was the result of serious provocation on C.T.'s part), and (d)(9) (that Torrence's conduct was among the least serious within the definition of the offense). The superior court ruled that Torrence had failed to prove these proposed mitigators. On appeal, Torrence contends that the superior court erred when it rejected these mitigators.
AS 12.55.125(i)(1)(C).
With respect to the "serious provocation" mitigator, Torrence points out that even though he and C.T. were living separately at the time of the offense, they were still legally married. Torrence argues that his sexual assault of C.T. was prompted by his discovery that C.T. was in another man's apartment late at night — and that C.T.'s decision to visit this man in the early morning hours constituted a "serious provocation" for purposes of mitigator (d)(6).
Factors in mitigation of a felony sentence must be proved by clear and convincing evidence. Although Torrence may have suspected that C.T. had engaged in sexual relations with this other man, Torrence knew only that C.T. was in the man's apartment late at night. Thus, Torrence did not personally observe C.T. engage in sexual infidelity, nor did he have other conclusive proof that she had done so. See Dandova v. State, 72 P.3d 325, 334 (Alaska App. 2003).
AS 12.55.155(f).
Moreover, Torrence did not rape C.T. until several hours after he discovered that she had been spending time in another man's apartment — hours in which Torrence held C.T. captive, naked and at gunpoint, and repeatedly threatened to kill her. Even if C.T.'s conduct had amounted to "provocation", the superior court could properly conclude that Torrence's ensuing reaction was disproportionate to the provocation. See Dandova, 72 P.3d at 334; Martin v. State, 664 P.2d 612, 618 (Alaska App. 1983).
For these reasons, we uphold the superior court's ruling on mitigator (d)(6).
With regard to proposed mitigator (d)(9), i.e., whether Torrence's conduct was among the least serious within the definition of first-degree sexual assault, the record speaks for itself. The superior court had ample reason to conclude that Torrence had failed to prove this mitigator.
Torrence's claim that his composite sentence of 50 years to serve is excessive
As we have explained, Torrence was a second felony offender, and he therefore faced a presumptive sentencing range of 30 to 40 years' imprisonment for the offense of first-degree sexual assault. Torrence was also convicted of kidnapping, which carries a sentence of 5 to 99 years' imprisonment. In addition, Torrence was convicted of second-degree assault (for strangling C.T.) and third-degree assault (for placing C.T. in fear of imminent serious physical injury by means of a dangerous instrument). For these crimes, Torrence received a composite sentence of 50 years to serve, with an additional 5 years suspended.
AS 12.55.125(b).
On appeal, Torrence argues that the superior court's sentencing remarks were "alarmingly sparse", and that these remarks do not contain a sufficient analysis of the sentencing goals codified in AS 12.55.005 to justify a sentence of 50 years to serve.
The sentencing judge's remarks were terse, but they addressed the primary sentencing criteria. The judge found that, given the facts underlying Torrence's offenses, the sentencing goal of community condemnation required "a significant penalty". The judge also found that Torrence's potential for rehabilitation was "guarded" because Torrence had shown himself to be "viciously assaultive [when] things don't go [his] way". In particular, the sentencing judge stated:
The Court: This was a really bad [thing] that happened. But my impression of you [Mr. Torrence, is that] you're a very bright, articulate guy. At your best, you're very thoughtful.
But what I also conclude[] from the events [in question], and [from] your previous offense [i.e., felony assault], and [from] your comments in court throughout these proceedings, is that there is another part of you [which insists that] the world is going to work according to the law of Patrick Torrence, and [that] people are going to behave according to the desires of Patrick Torrence. And if they don't, they [are going to] get the treatment that was given to [C.T.].
Although the sentencing judge did not expressly mention the need to isolate Torrence to protect the public, the judge's remarks implicitly address this sentencing goal. The judge essentially found that, unless Torrence was isolated, Torrence could not be deterred from engaging in further "viciously assaultive" behavior.
Torrence was a second felony offender who engaged in an extremely violent kidnapping and sexual assault. Because Torrence was subject to a presumptive sentencing range of 30 to 40 years' imprisonment for the sexual assault, and because he failed to prove any mitigating factors, Torrence faced a minimum sentence of 30 years to serve for the sexual assault. And because the offense of kidnapping has a mandatory minimum sentence of 5 years' imprisonment, at least 5 years of Torrence's kidnapping sentence had to be imposed consecutively to the sexual assault sentence. See AS 12.55.-127(c)(2)(B). Thus, as a practical matter, Torrence's minimum sentence was 35 years to serve.
Given the seriousness of Torrence's overall conduct, and especially given the level of violence that he manifested, the superior court was not clearly mistaken when it sentenced Torrence to serve a composite term of 50 years.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
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Conclusion
The judgement of the superior court is AFFIRMED.