Opinion
Court of Appeals No. A-10975 Trial Court No. 3DI-09-573 CR No. 5921
02-20-2013
NICK NICOLI, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Whitney G. Glover, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Nancy R. Simel, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge.
Appearances: Whitney G. Glover, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Nancy R. Simel, 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.
BOLGER, Judge.
Nick Nicoli was convicted of first-degree sexual assault, second-degree sexual assault, and third-degree sexual assault for an incident involving a victim named S.A. Nicoli argues on appeal that there was insufficient evidence to support his convictions, particularly his first-degree sexual assault conviction. He also argues that the prosecutor's instructions misled the grand jury on the issue of consent. We conclude that there was sufficient evidence on all counts, and that the prosecutor did not mislead the grand jury on the element of consent.
Background
On the night of this incident, S.A. was at her friend Sarah Wood's apartment in Dillingham with several other people. Everybody was drinking, and S.A. had about six shots of Rich and Rare Whiskey. The last thing S.A. remembered was sitting on the couch and passing out.
Ben Coopchiak testified that he had been drinking at Wood's apartment and had shared about two fifths of alcohol that night. He testified that Wood slept in her own room, but that he, his brother, his sister, Nicoli, and S.A. slept in the living room.
At some point during the night, Coopchiak got up to get water, and noticed that S.A. was sleeping on the couch, fully dressed, and that Nicoli was sitting at the end of the couch near S.A.'s feet. When Coopchiak got up a second time, he noticed that S.A.'s pants were pulled down below her buttocks, and that Nicoli was still sitting beside her feet. When Coopchiak got up for water a third time, he saw that S.A.'s pants were off, that S.A. was laying face down on the couch, and that Nicoli was behind her, thrusting his pelvis into S.A.'s pelvis. Coopchiak testified that S.A. said, "Don't do that," and Nicoli replied, "Don't bite."
When S.A. woke up, Nicoli was sitting next to her on the couch. S.A.'s pants were on, but her underwear was only on one leg. Coopchiak told S.A. what he had seen, and they called the police.
The nurse who examined S.A. observed a small laceration in her posterior fourchette consistent with recent intercourse. S.A.'s neck swab revealed at least two foreign sources of DNA; Nicoli could not be excluded as the source of one. The State's expert testified that the most likely source of DNA on a person's neck would be saliva (which can be transferred from kissing or even simply from speaking in close proximity) or shed skin cells from "very aggressive skin to skin contact."
S.A.'s vaginal swabs did not contain any sperm. The State's expert testified that sperm can be absent after intercourse for a variety of reasons — for example, if a condom was used or if the male did not ejaculate. Sperm of unknown age and origin (not Nicoli's) was found in a stain in S.A.'s underwear. The expert from the crime lab testified that sperm can remain on clothing for days, weeks, and even months and can survive laundering.
Nicoli voluntarily agreed to a DNA test but refused to have any part of his body swabbed other than his penis. The penile swab did not reveal any sperm. DNA from an unknown source (gender undetermined) was found on the swab. S.A. was excluded as a source of the unknown DNA.
Discussion
There was sufficient evidence to support Nicoli's convictions.
Nicoli first argues that there was insufficient evidence to support his sexual assault convictions. When reviewing a claim of insufficiency of the evidence, we view the evidence in the light most favorable to the verdicts and ask whether a reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
Nicoli contends specifically that the DNA evidence gathered from Nicoli and S.A. was inconsistent with Coopchiak's testimony and should have exonerated him as the person who assaulted S.A. that night. But the DNA evidence was not as exonerating as Nicoli claims. There were alternative reasonable explanations for the DNA evidence that a fair-minded juror could accept and still find Nicoli guilty beyond a reasonable doubt based on the other evidence in the case.
Nicoli also appears to argue that no reasonable juror would have accepted Coopchiak's testimony as proof beyond a reasonable doubt because Coopchiak was too intoxicated to be a reliable eyewitness. But when we review the legal sufficiency of the evidence, we do not weigh the evidence or assess witness credibility: these are issues for the trial jury. Moreover, Coopchiak's eyewitness testimony was corroborated by other evidence, including the nurse's finding that intercourse had occurred and the incriminating presence of Nicoli's DNA on S.A.'s neck.
Iyapana, 284 P.3d at 849.
Finally, Nicoli argues that there was insufficient evidence to support a conviction for sexual assault in the first degree because there was insufficient evidence that S.A. was conscious enough that the intercourse could reasonably be viewed as "without consent." Nicoli correctly notes that first-degree sexual assault does not include sexual penetration with a victim who is unconscious. But a defendant who continues forcible intercourse after a sleeping victim awakes can be convicted of first-degree sexual assault even though the victim was unaware of the initial penetration.
See Miller v. State, 44 P.3d 157, 159 (Alaska App. 2002).
See Jimmy v. State, 206 P.3d 750, 751 (Alaska App. 2009).
In this case, Coopchiak testified that S.A. was passed out on the couch the first two times he got up to get some water. From this testimony, a reasonable juror could conclude that, when Nicoli began to engage in sexual penetration with S.A., she was incapacitated or unaware that a sexual act was being committed. But Coopchiak also testified that when he got up for the third time, he saw Nicoli apparently engaged in sexual penetration and heard S.A. objecting. This evidence was sufficient to support the jury's conclusion that Nicoli's assault occurred while S.A. was conscious and without S.A.'s consent.
There was sufficient evidence to support Nicoli's indictment.
Nicoli also argues that there was insufficient evidence presented to the grand jury to support his indictment. The evidence supporting an indictment is sufficient if it would warrant a conviction of the defendant if unexplained or uncontradicted. We will not overturn an indictment if there was substantial evidence supporting the grand jury's conclusion.
Mudge v. State, 760 P.2d 1046, 1049 (Alaska App. 1988).
Here, the evidence presented to the grand jury was essentially the same as the evidence presented at trial. In particular, Coopchiak testified that he saw Nicoli apparently engaged in intercourse with S.A., and heard her say, "Don't do that." We conclude that there was sufficient evidence to support the charges contained in the indictment.
The prosecutor's instructions to the grand jury are not fatal to the indictment.
The prosecutor has a duty to advise the grand jury of the applicable law and to answer any relevant legal questions from the jurors. Nicoli argues that the prosecutor violated this duty by giving a misleading instruction to the grand jury regarding the definition of the term "without consent," a required element of the crime of first-degree sexual assault.
Cameron v. State, 171 P.3d 1154, 1157 (Alaska 2007).
As this court explained in Ritter v. State, the sexual assault statutes employ a specialized definition of "without consent." Under this specialized definition, "without consent" does not refer simply to the victim's lack of subjective consent, but also to the fact that (1) the victim was coerced by force or the threat of force, or (2) the victim was incapacitated by an act of the defendant.
97 P.3d 73, 76 (Alaska App. 2004)
Id. at 76 (construing AS 11.41.470(8)).
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In Nicoli's case, after the prosecutor informed the grand jury of the statutory definitions of first- and second-degree sexual assault, a grand juror asked if an incapacitated person could give consent. The prosecutor replied that she would instruct the grand jury on the definition of consent "in just a minute," but she first wanted to go over the different culpable mental state requirements.
The prosecutor then stated that, with regard to the offense of first-degree sexual assault and "the consent of the [victim], the mental state is recklessly. ... So the perpetrator would have to knowingly engage in sexual penetration. But as to the obtaining of consent, it is a reckless standard." The prosecutor later went on to give the correct statutory definitions of "recklessly" and "without consent."
Nicoli argues that the prosecutor made a fatal error by using the phrase "the obtaining of consent" — because "obtaining consent" implies that "consent" involves only the victim's subjective consent to the sexual conduct (omitting the additional requirement of coercion). But the prosecutor prefaced her comment by saying that she would give the grand jurors a fuller definition of "without consent" a little later. And the prosecutor did, in fact, later provide the grand jurors with the statutory definition of "without consent." Viewing the prosecutor's remarks to the grand jury as a whole, we conclude that the grand jury was given an accurate definition of "without consent," including the requirement of coercion.
Nicoli also argues that the prosecutor misled the jury during her opening remarks by stating that the victim "had no intention of having sex with anyone that night, [did] not even recall [Nicoli], and will tell you that she never gave him permission to have sex with her." The prosecutor made this statement while explaining that S.A. only knew Nicoli from high school 20 years earlier, that they had never dated, and that S.A. was a married woman.
The prosecutor's statements that S.A. had no intention of having sex and that she did not give Nicoli permission to have sex with her appear to have been an accurate summary of the evidence the prosecutor expected to present to the grand jury. It should have been obvious to the grand jury that these statements were not instructions on the law of consent. We conclude that Nicoli has not established that the prosecutor made any misstatements during her instructions that had an appreciable effect on the proceedings.
Conclusion
We therefore AFFIRM the superior court's judgment.