Opinion
A-13748
06-12-2024
GEORGE CALVIN DOW, Appellant, v. STATE OF ALASKA, Appellee.
Sharon Barr, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Third Judicial District, Anchorage, Trial Court No. 3AN-17-06377 CR, Dwayne W. McConnell, Judge.
Appearances:
Sharon Barr, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
ALLARD, JUDGE.
George Calvin Dow was charged with first-, second-, and third-degree sexual assault after R.S. alleged that she awoke from an alcoholic blackout to Dow penetrating her vagina with his penis. At trial, the jury found Dow not guilty of first- and second-degree sexual assault - i.e., the charges related to penetration. But the jury found Dow guilty of one count of third-degree sexual assault based on a theory of hand-to-genital contact.
Former AS 11.41.410(a)(1) (2017) and former AS 11.41.420(a)(3) (2017), respectively.
Former AS 11.41.425(a)(1)(B) (2017).
On appeal, Dow raises three challenges to his conviction. First, Dow argues that the superior court erred in limiting his cross-examination of the investigating officer about an out-of-court statement Dow made to the police. Second, Dow argues that he was convicted under a theory of third-degree sexual assault that differed from the theory under which he was indicted, constituting a fatal variance. Lastly, Dow argues there was insufficient evidence to sustain the third-degree sexual assault conviction.
For the reasons explained here, we reject these claims of error and affirm Dow's conviction.
The evidence presented at grand jury
At Dow's grand jury proceeding, R.S. testified that on August 12, 2017, she had been drinking and hanging out in the area around the Brother Francis Shelter in Anchorage. At some point, she remembered waking up on the sidewalk near the intersection of Third Avenue and Karluk Street; she was lying on her back and her pants were halfway down. She testified that a man whom she did not know was on top of her, penetrating her vagina with his penis. She told the man to stop and tried to push him away, but he continued for another ten to fifteen seconds.
R.S. could not recall how or when the man got off of her, but the next thing she remembered was sitting on the side of the road with two other women. One of the women testified that R.S. was "crying and shaking" and told them that she had just been raped. R.S. pointed out the man who had done it and, according to the woman, when the man walked by them, he "was saying that he was gonna rape her again and he said he was gonna rape [one of the other women] too."
The police were called, and R.S. identified Dow as the man who had sexually assaulted her. An employee of the shelter testified that shortly before the police arrived, Dow had come into the shelter and told her that he had just been "beaten up" by several people. The employee explained that surveillance footage near the shelter showed Dow following a woman across the street until they both went out of view of the camera. The employee testified that, after a while, Dow reappeared on the screen and he was approached by a group of people who started beating him up.
The investigating officer testified that after arresting Dow, he took photographs of Dow's body, a sample of his blood, and swabs of the inside of Dow's mouth, his genital area, his hands and fingers, and the area underneath his fingernails. R.S. also underwent a SART examination, where swabs were taken from her genitals; the examining nurse testified that R.S. had reported "penile/vaginal penetration" and that she had documented some injuries to the tissue that surrounded R.S.'s vaginal opening and the inside of her vaginal wall. All of the swabs taken from R.S. and Dow were sent to the crime lab for analysis.
Based on this evidence, Dow was indicted on three charges: (1) one count of first-degree sexual assault for "engag[ing] in sexual penetration, penis to vagina, with R.S. without the consent of R.S. and recklessly disregard[ing] R.S.'s lack of consent"; (2) one count of second-degree sexual assault for "engag[ing] in sexual penetration, penis to vagina with R.S., a person who [Dow] knew was incapacitated"; and (3) one count of third-degree sexual assault for "engag[ing] in sexual contact with a person who he knew was incapacitated."
Former AS 11.41.410(a)(1) (2017), former AS 11.41.420(a)(3) (2017), and former AS 11.41.425(a)(1)(B) (2017), respectively.
The evidence presented at trial
Prior to trial, the State filed notice that it intended to call an expert witness to discuss the DNA testing results. The notice explained that the initial testing, completed in January 2018, did not detect any male DNA in the sample taken from inside R.S.'s vagina. The lab results did indicate that male DNA was present in the sample collected from R.S.'s external genitals, but that it was an insufficient sample for analysis. The notice also described how follow-up testing, completed in October 2018, found DNA consistent with R.S.'s DNA profile present in the scrapings from underneath Dow's right fingernails.
Trial began in October 2019. Before the jury was selected, Dow asked the superior court to limit the State's theory of sexual contact underlying the third-degree sexual assault count to penis-to-vagina contact, arguing that any other theory of contact would not be supported by the grand jury's indictment. The prosecutor responded:
Your Honor, the State's contention would be that the sexual contact could be the penis to vagina. It could also be hands to female genitals, based on the testimony at grand jury regarding that this occurred while she was asleep. That this occurred with her pants being pulled down. And therefore it appears to this prosecutor to be somewhat axiomatic that there would be some contact between the defendant's hands and the female genitalia. I certainly understand that as to Counts I and II, that we are bound by, we're not alleging digital penetration.
The court denied Dow's request, and allowed the State to proceed under multiple theories of sexual contact.
At trial, the same witnesses who had been called before the grand jury testified again. In addition to this evidence, the State presented the results of the DNA testing. The laboratory technician testified that the testing was not able to detect any female DNA in the swabs taken from Dow's penis or any male DNA in the swabs taken from the inside of R.S.'s vagina. She testified that the testing yielded a "low amount of male DNA" on R.S.'s "external anal and genital area," but it was not possible to identify the source of the male DNA.
The technician testified that initially, she had only tested the swabs taken from Dow's and R.S.'s genitals because the allegations in this case concerned "vaginal/penile rape." However, upon request, she later tested the swabs taken from Dow's hands. This additional testing revealed that the scrapings taken from under one of Dow's right fingernails matched R.S.'s DNA profile. The technician was not able to say which of Dow's right fingers the DNA came from. The technician testified that vaginal secretions are a "rich source" for DNA, and could be the source of the DNA under Dow's right fingernails. However, the technician also acknowledged that the DNA could have been transferred if R.S. and Dow had been sharing a joint or a bottle of alcohol, since saliva is also a "rich source" of DNA.
During the investigating officer's testimony, Dow's attorney tried to elicit evidence that Dow had told a different police officer that he had smoked marijuana with R.S. that day. The prosecutor objected on the ground that such testimony would constitute inadmissible hearsay. The superior court agreed, and sustained the objection.
R.S. testified that she could not remember whether the man's hand had touched her during the sexual assault, but only remembered that his penis had touched her. On cross-examination, Dow's attorney played a recorded statement in which R.S. affirmatively told police that the man did not touch her genitals with his hand. R.S. testified that, in addition to drinking alcohol, she had been smoking marijuana the day of the incident.
After the close of evidence, the jury was provided with a special verdict form with respect to the charge of third-degree sexual assault. The form required that the jury choose which theory or theories of sexual contact Dow engaged in: (1) penis-to-genital; (2) right hand-to-genital; and/or (3) right hand-to-anus.
During her closing argument, the prosecutor described the third-degree sexual assault charge as follows:
The third charge is sexual assault in the third degree, and it differs from the other two in that it requires no proof of penetration. No proof of actual vaginal penile penetration. This is sexual contact short of penetration. You might think of it as all the things that lead up to the actual penetration. So it is in addition to the other two offenses. And you're going to be given three different options on the verdict form. There are three different, and we argue three different ways, all of which the State's established Mr. Dow engaged in this sexual contact while she was incapacitated. ....
One is the contact of penis to vagina short of penetration. We argue that that's been fully established. The second is hands to female genitalia. ....
And we argue that that has been established clearly by the DNA evidence that I'll talk to you more about later. And third is hands or penis to the anal area.
The prosecutor then explained that the jury could find one, two, or all three of these options in its verdict, but that all jurors had to be unanimous as to each theory found. Later, the prosecutor briefly touched on the DNA evidence:
You heard the description of how the collection is under those fingernails. And you learned that there was no DNA on the palms, on the end of his fingers, but there was under his fingernails. That requires, I argue, very, very close contact.
Toward the end of the prosecutor's closing remarks, she described the State's theory regarding hand-to-genital contact:
[R.S.] wanders over, George Dow comes and follows, sees an opportunity. She's asleep. He pulls down her pants. He uses one hand to open up her vagina, resulting in her DNA under his fingernails, and then he engages in that intercourse.
Following deliberations, the jury acquitted Dow of first- and second-degree sexual assault. That is, the jury found Dow not guilty of the penile penetration charges.
However, the jury found Dow guilty of third-degree sexual assault. On the verdict form, the jury indicated that it found Dow guilty of the third-degree sexual assault count on the theory of right hand-to-genital contact. The jury found that the State had not established the two other theories, penis-to-genital contact and right hand-to-anus contact.
This appeal followed.
Why we conclude that the superior court did not abuse its discretion in excluding evidence of the defendant's statement to the police regarding smoking marijuana with R.S.
As previously mentioned, Dow's attorney tried to elicit testimony from the investigating officer regarding Dow's statement to another officer about smoking marijuana with R.S. The prosecutor objected on the ground that the statement was inadmissible hearsay without an applicable hearsay exception.
In response, Dow's attorney argued that she was not seeking to admit the evidence for the truth of the matter asserted - i.e., to prove that Dow did, in fact, smoke marijuana with R.S. Instead, the attorney claimed that she was eliciting this information for the nonhearsay purpose of criticizing the thoroughness of the police investigation. That is, she wanted to show that the police had information that Dow may have smoked marijuana with R.S. and to argue that the police did not properly investigate that information because they did not test Dow's urine for marijuana. The superior court rejected this argument, and precluded the evidence as inadmissible hearsay.
On appeal, Dow renews his argument that the evidence was being admitted for the nonhearsay purpose of attacking the police investigation and demonstrating the police bias against Dow. The State disputes that this was Dow's actual purpose, and the State argues that Dow was trying to get his statement before the jury in hopes that they would take it for the truth of the matter asserted - i.e., in hopes that the jury would believe Dow's statement that he smoked marijuana with R.S. and therefore think that the marijuana cigarette could be the source of R.S.'s DNA under Dow's right fingernails.
See Commonwealth v. Moore, 109 N.E.3d 484, 497 (Mass. 2018) ("A defendant may rely on deficiencies or lapses in police investigations to raise the specter of reasonable doubt."); cf. Stumpf v. State, 749 P.2d 880, 893 (Alaska App. 1988) (finding admissible an out-of-court statement "for the purpose of showing why the police did not further investigate" a suspect other than the defendant).
The State points out that the defense's theory of deficient investigation did not make much sense. The State argues that the police could not be criticized for failing to test Dow's urine for marijuana because it would have been unreasonable at the time to expect the police to recognize the potential evidentiary significance of Dow's statement that he smoked marijuana with R.S. The State also points out that testing Dow's urine for marijuana would have shown, at best, that Dow had smoked marijuana in the recent past, but it would not have shown who he smoked the marijuana with (and would therefore be of little to no investigative value).
See Moore, 109 N.E.3d at 497 (noting that out-of-court statements can be introduced for the nonhearsay purpose of proving that police did not take "reasonable steps to investigate," but that the probative value of such evidence rests on the reasonableness of the police action or inaction); State v. Gomes, 256 A.3d 131, 148 (Conn. 2021).
The superior court has "broad discretion in balancing the nonhearsay probative value of evidence against possible prejudice if evidence is improperly accepted for the truth of the matter asserted." We review the superior court's decision to admit an out-of-court statement for its nonhearsay relevance for an abuse of discretion.
Stumpf, 794 P.2d at 893.
Id.
We agree with the State that the proffered evidence had relatively little probative value for the deficient investigative purpose for which it was being offered while still presenting a large risk that, notwithstanding any limiting instructions, the jury would use it for its prohibited hearsay purpose - i.e., to establish that Dow smoked marijuana with R.S. We also note that the defense attorney was able to attack the police investigation as inadequate in multiple other ways. The defense attorney also was able to get the point across that the police should have tested Dow for marijuana and should have interviewed the people at the shelter to see if anyone had seen Dow and R.S. smoke marijuana together without eliciting Dow's statement that he smoked marijuana with R.S.
See Moore, 109 N.E.3d at 497; Gomes, 256 A.3d at 148.
Given all this, we conclude that the court did not err in excluding the statement for its purported nonhearsay investigative purpose.
Why we conclude that there was no fatal variance
Under Alaska law, a defendant may not be convicted "based on evidence that is materially different from the evidence that supported the grand jury indictment."A fatal variance occurs where there is a "departure in the proof from the indictment sufficiently great to be regarded as a constructive amendment," requiring automatic reversal. "The doctrine of fatal variance protects a defendant's right to a grand jury finding on every essential element of the offense."
Taylor v. State, 400 P.3d 130, 135 (Alaska App. 2017) (citing Lindeman v. State, 244 P.3d 1151, 1159 (Alaska App. 2011)).
Michael v. State, 805 P.2d 371, 373 (Alaska 1991) (quoting 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 19.2(h), at 469-70 (1984)).
Riley v. State, 515 P.3d 1259, 1264 (Alaska App. 2022) (citing Rogers v. State, 232 P.3d 1226, 1240 (Alaska App. 2010)).
Dow argues that there is a fatal variance in his case because, according to Dow, the grand jury never indicted him on the hand-to-genital theory of third-degree sexual assault for which he was ultimately convicted.
But not every variation in proof between the grand jury and trial requires reversal. "Rather, 'reasonable variations are permissible so long as the evidence is not materially different and involves the same basic criminal act or transaction that was considered by the grand jury in issuing the indictment.'"
Paukan v. State, 536 P.3d 1216, 1220 (Alaska App. 2023) (quoting Riley, 515 P.3d at 1264).
Here, the indictment specified the type of penetration - "penis to vagina" - alleged in the first- and second-degree sexual assault charges. However, the indictment did not specify the type of sexual contact alleged in the third-degree sexual assault charge. Instead, the indictment on that charge simply read:
That on or about August 12, 2017, at or near Anchorage, in the Third Judicial District, State of Alaska, GEORGE C DOW engaged in sexual contact with a person who he knew was incapacitated.
When the prosecutor described this charge to the grand jury, the prosecutor stated that "sexual contact is something lesser than sexual penetration." The prosecutor then read the statutory definition of sexual contact, which states, "'[S]exual contact' means the defendant's knowingly touching, directly or through clothing, the victim's genitals, anus, or female breast[.]" The prosecutor did not specify which body part was touched or which part of the defendant's body did the touching.
AS 11.81.900(b)(61)(A)(i).
While unusual, this was not itself error. Typically, indictments charging crimes involving sexual contact use "to wit" language. That is, they typically specify what type of touching - hand-to-genital; hand-to-breast; penis-to-genital, etc. - is involved in the sexual contact. But this level of specification is not strictly required. In Riley v. State, we held that, although the jury had to be unanimous as to the conduct for which it was convicting the defendant, the specific type of touching involved in sexual contact was not an element of the offense of attempted second-degree sexual abuse of a minor. We therefore concluded that the trial court in Riley did not create a fatal variance when it removed the "to wit" language from the jury instructions, given the overall consistency of the evidence between the grand jury proceeding and the jury trial.
Riley, 515 P.3d at 1264-65.
Id. at 1262, 1264-65.
Here, the grand jury heard evidence of penile-vaginal penetration and was instructed that the sexual contact charge was for sexual conduct that was less than penetration. At trial, the prosecutor argued again that the sexual contact charge was for sexual conduct that was "short of penetration," but he also specifically argued that the sexual contact could have been hand-to-genital on the theory that Dow used his hand to open the vagina and to guide his penis into the vagina. Because the switch from a generalized sexual contact allegation to a specific hand-to-genital allegation did not materially alter the nature of the criminal act being alleged, we do not find a fatal variance.
See Bowers v. State, 2 P.3d 1215, 1217, 1221 (Alaska 2000) (finding no fatal variance when indictment did not specify whether the defendant used a rifle or revolver and the jury convicted based on the rifle, but reversing conviction because prosecutor had explicitly disavowed any reliance on the rifle theory); Harvey v. State, 604 P.2d 586, 58889, 588 n.8 (finding no fatal variance where indictment alleged that victim died from "striking" but evidence at trial showed that the victim "died from an indirect injury to the head probably not caused by a blow" and the jury was allowed to consider whether the defendant had caused the injury by shaking the victim).
Why we conclude that the evidence was sufficient to support Dow's conviction
Dow argues that the evidence presented at trial was insufficient to support his conviction for third-degree sexual assault for engaging in sexual contact with an incapacitated victim. Dow emphasizes that virtually all of the testimony at trial was about the alleged penile-vaginal penetration that he was acquitted of. He asserts that because there was no testimony from the victim alleging hand-to-genital contact, the evidence was insufficient to establish that theory of sexual contact.
We disagree. The fact that R.S. did not testify to Dow touching her with his hands is not dispositive because R.S. was incapacitated for parts of the sexual assault. Moreover, the fact that the jury acquitted Dow of the penetration charges does not mean that it discounted all of R.S.'s testimony. The jury may very well have believed most of R.S.'s testimony but concluded that the absence of DNA created a reasonable doubt as to the penetration charges but not the sexual contact charge.
Here, the DNA results directly supported the jury's verdict. There was no male DNA found in the sample taken from inside R.S.'s vagina, but there was male DNA (that could not be further identified under current testing) in the sample taken from the external part of R.S.'s vagina. Moreover, R.S.'s DNA was found under Dow's fingernails on his right hand, and there was testimony at trial that the DNA could have been obtained from Dow touching R.S.'s vagina as a precursor to an attempt to penetrate her with his penis. There was also testimony that Dow had the opportunity to wipe his hands after the assault, and that this action can wipe away DNA evidence, which could explain why only the sample under his fingernails matched R.S.'s DNA profile.
There was also significant evidence that something sexual had happened to R.S. while she was incapacitated. Two other women testified to seeing R.S. crying and upset. R.S. told the women that she had just been raped and she identified Dow as the man who raped her. According to one of the women, Dow responded by saying that he was going to rape her again and "he said he was gonna rape [one of the other women] too."
When we review the sufficiency of the evidence to support a criminal conviction, we are required to view the evidence, and all reasonable inferences arising from that evidence, in the light most favorable to the verdict. Here, viewing the evidence in this light, we conclude that a reasonable juror could find that Dow was guilty of engaging in hand-to-genital sexual contact with R.S. while she was incapacitated. We therefore reject Dow's argument that the evidence presented at trial was insufficient to support his conviction.
Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
Conclusion
The judgment of the superior court is AFFIRMED.