Opinion
Court of Appeals No. A-12924 No. 6913
12-09-2020
DYLAN A. PAUL, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Carolyn Perkins, Law Office of Carolyn Perkins, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3PA-14-03014 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, David L. Zwink, Judge. Appearances: Carolyn Perkins, Law Office of Carolyn Perkins, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge HARBISON.
A jury convicted Dylan A. Paul of first-degree sexual abuse of a minor based on his conduct toward twelve-year-old A.H. Paul was also convicted of second-degree sexual assault, third-degree sexual assault, and exploitation of a minor for conduct involving a different victim (a teenaged girl identified as B.S.), as well as nine counts of possession of child pornography. For these crimes, Paul was sentenced to a composite sentence of 95 years' imprisonment with 57 years suspended (38 years to serve).
AS 11.41.434(a)(1).
AS 11.41.420(a)(3), AS 11.41.425(a)(1)(B), AS 11.41.455, and AS 11.61.127, respectively.
On appeal, Paul challenges his first-degree sexual abuse of a minor conviction, arguing that there was insufficient evidence that he engaged in sexual penetration of A.H. Paul does not challenge any of his other convictions, and he does not challenge his composite sentence. But he does challenge his sentence for his second-degree sexual assault of B.S.
For the reasons explained in this opinion, we agree with Paul that the evidence presented at his trial was insufficient to establish that he sexually penetrated A.H. But because the evidence was sufficient to establish that Paul touched A.H.'s vagina, we vacate Paul's conviction for first-degree sexual abuse of a minor and direct the superior court to enter a conviction for the lesser included crime of second-degree sexual abuse of a minor. Because the court will need to resentence Paul based on this change to his convictions, we do not address his sentencing claim.
Factual background and prior proceedings
In January 2014, A.H.'s mother contacted the state troopers after A.H. told her that Paul had put his hand down her (A.H.'s) pants and touched her with his fingers the previous April. The state trooper assigned to investigate this report, Investigator Sherry Ferno, interviewed both A.H. and Paul. As a result of the investigation, Paul was arrested and charged with first-degree sexual abuse of a minor for sexually penetrating A.H.
As we have explained, Paul was also charged with and convicted of several other crimes, but those convictions involved a different victim and are not challenged on appeal.
During Paul's trial, A.H. testified about the April 2013 incident. According to A.H., she was twelve years old at that time and was visiting her father, who had invited Paul over to play poker. While Paul was there, A.H. fell asleep on the couch in the living room. According to A.H., she later woke up because she felt Paul's hand on her ribcage under her clothes. When she woke up, Paul pulled his hand away, and she fell back asleep.
A.H. testified that she woke up again because Paul touched her over her clothes. She asked Paul to stop, and he apologized to her. After A.H. fell back asleep, she was repeatedly woken up by Paul, who was touching her inner thigh. She asked him to stop several more times, and each time she fell back to sleep. Eventually, A.H. went upstairs.
During A.H.'s testimony, the prosecutor asked her whether Paul ever touched her breasts, and she replied, "Not that I can remember." When asked to clarify, she said, "Not that I noticed, really. . . . I had been sleeping for a few hours before this happened, so not that I was aware of." The prosecutor asked A.H. whether she recalled Paul touching her vagina, and she replied that she did not.
A.H. then testified about Facebook messages she had exchanged with Paul. Printouts of the messages were admitted as exhibits. These messages showed that A.H. told Paul to leave her alone and also told him that the incident had been traumatic for her. Paul responded, "I honestly thought you enjoyed it [be]cause you were showing signs of enjoying it[.] [M]y mistake for misreading[.]" A.H. then messaged, "You can't be serious!!! I asked you to stop at least 3 times!!!" Paul replied that he did not recall that and again apologized. He then said, "I would like to know[,] if at all possible[,] why you got wet and excited if you didn't enjoy it[]? That'll help in the future so I don't make the same mistake[n] assumption[.]"
After the prosecutor reviewed these Facebook messages with A.H., he asked her if this refreshed her recollection about Paul touching her "private area." She replied, "No. I never remembered, or noticed, at least, any of that happening." Although she provided many details about the incident during her trial testimony, A.H. never testified that Paul penetrated her.
At trial, the State played a recording of Investigator Ferno's interview with A.H. for the jury. In the interview, A.H. told Investigator Ferno that Paul "almost touched [her] boobs" and "kind of touched [her] butt." But when Ferno asked if Paul touched her anywhere else, A.H. replied, "Not that I know of." When Ferno specifically asked A.H. if Paul ever put anything in her vagina, A.H. said he did not.
In addition to playing a recording of the interview with A.H., the State also played a recording of Ferno's interview with Paul. During the interview, Paul told Ferno that he may have acted inappropriately with A.H. And when Ferno confronted Paul with his text about A.H. being "wet and excited" and with A.H.'s statement about his hand being down her pants, Paul acknowledged that was "probably what happened."
Two witnesses — A.H.'s mother and A.H.'s friend, A.W. — testified to statements that A.H. made to them about the incident. A.H.'s mother testified that when A.H. told her about the incident, A.H. said that Paul had put his hand down the back of her pants. The prosecutor then asked, "Did you specifically ask [A.H.] whether there was any penetration?" A.H.'s mother responded, "Yes. I asked [A.H.] if he had sex with her, and she said no." A.H.'s mother went on to testify, "He used his fingers, that's what she said." Similarly, A.H.'s friend, A.W., testified that A.H. recounted being "molested" and touched "down there," which A.W. understood to be A.H.'s vagina. Neither A.W. nor A.H.'s mother testified that A.H. had reported being penetrated.
The evidence presented at Paul's trial was insufficient to support his conviction for first-degree sexual abuse of a minor but was sufficient to support a conviction for second-degree sexual abuse of a minor
To prove first-degree sexual abuse of a minor, the State was required to establish beyond a reasonable doubt that Paul was over sixteen years of age and that he engaged in sexual penetration with A.H., who was under thirteen years of age. Sexual penetration is defined in relevant part as "an intrusion, however slight, of an object or any part of a person's body into the genital or anal opening of another person's body."
AS 11.41.434(a)(1).
AS 11.81.900(b)(62)(A).
At trial, the jury heard Paul's statement to Investigator Ferno that he did not penetrate A.H. and that the Facebook messages were just drunken ramblings. Because A.H. did not testify that Paul sexually penetrated her, the State argued that other evidence — e.g., the statements A.H. made to her mother and to A.W., the Facebook messages Paul sent to A.H., and the statements Paul made to the troopers — established that Paul had sexually penetrated A.H.
The jury convicted Paul of first-degree sexual abuse of a minor, finding that the State had proven beyond a reasonable doubt that Paul had sexually penetrated A.H.
On appeal, Paul argues that the evidence was insufficient to support a finding of sexual penetration. Paul points out that, in her testimony, A.H. denied that Paul touched her vagina, and he asserts that the testimony of A.H.'s mother and friend regarding what A.H. reported to them is too vague to support a finding of sexual penetration beyond a reasonable doubt.
Paul briefly argues on appeal that both A.H.'s friend and A.H.'s mother were improperly permitted to testify at trial about the statements A.H. made to them. But Paul did not object to the testimony at trial, and he does not argue that allowing these witnesses to testify about A.H.'s statements was plain error. Paul did not object at all to A.H.'s friend's testimony about the statements. He initially objected to A.H.'s mother's testimony about A.H.'s report to her, arguing that the statements were hearsay under Greenway v. State, 626 P.2d 1060 (Alaska 1980). But when the superior court responded that Greenway did not apply and that, instead, A.H.'s statements were admissible as prior inconsistent statements, Paul abandoned his objection. To the extent that Paul is raising this as a separate claim of error, we reject it.
When an appellant argues that the evidence was insufficient to support a conviction, we view the evidence — and the inferences arising from that evidence — in the light most favorable to the verdict 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).
A.H. testified at trial that she did not remember Paul touching her "private area." She acknowledged that in Facebook messages, she told Paul to leave her alone and also told him that the incident had been traumatic for her. She also acknowledged that Paul responded, "I honestly thought you enjoyed it [be]cause you were showing signs of enjoying it[.] . . . I would like to know[,] if at all possible[,] why you got wet and excited if you didn't enjoy it[]?" But even after reviewing these messages, A.H. testified that she "never remembered, or noticed, at least, any of that happening." Similarly, Investigator Ferno testified that when she asked A.H. if Paul ever put anything in her vagina, A.H. said he did not.
The State argues that the evidence was sufficient to establish that Paul penetrated A.H. A.H.'s mother testified that A.H. told her that Paul had put his hand down the back of A.H.'s pants. According to A.H.'s mother, A.H. denied that Paul had sex with her, but she did say that Paul "used his fingers." Additionally, A.H.'s friend, A.W., testified that A.H. told her that Paul touched A.H. "down there," which meant, "[h]er vagina, that area." Moreover, Paul told Investigator Ferno that he may have acted inappropriately with A.H. and admitted that was "probably what happened."
The State argues that this evidence, together with A.H.'s Facebook message telling Paul that the incident had been traumatic for her, suggests that something more occurred than what A.H. recounted at trial — i.e., that Paul could have digitally penetrated A.H. while she was sleeping.
But a criminal conviction cannot rest on nebulous statements and speculation. Evidence that Paul touched A.H. in the area of her vagina, that he "used his fingers," and that he was capable of assessing the dampness of her vagina does not support an inference strong enough to allow a juror to conclude beyond a reasonable doubt that Paul digitally penetrated A.H.'s vagina. Accordingly, the evidence, even viewed in the light most favorable to the verdict, was insufficient to support a conclusion beyond a reasonable doubt that sexual penetration occurred. A judgment of acquittal must therefore be entered on the charge of first-degree sexual abuse of a minor.
Augustine v. State, 355 P.3d 573, 590 (Alaska App. 2015).
See id. at 589-90 (holding that a child victim's testimony that it hurt when defendant touched her genitals with his finger was insufficient to establish penetration).
We nonetheless conclude that the evidence was sufficient to support a conviction on the lesser included offense of second-degree sexual abuse of a minor. We accordingly direct the trial court on remand to enter a conviction for the second-degree sexual abuse of a minor for that count.
To prove second-degree sexual abuse of a minor, the State was required to establish beyond a reasonable doubt that Paul was over sixteen years of age and that he engaged in sexual contact with A.H., who was under thirteen years of age. Sexual contact is defined as "knowingly touching, directly or through clothing, the victim's genitals, anus, or female breasts." The record shows that the jury was instructed on this lesser included offense but it did not reach a verdict on this charge because it convicted Paul of the greater offense of first-degree sexual abuse of a minor.
AS 11.41.436(a)(2).
AS 11.81.900(b)(61)(A)(i).
As we have explained, the jury was presented with testimony that Paul touched A.H. "down there," that he put his hand down the back of her pants, that he "used his fingers," and that he was in a position to assess the dampness of her vagina. This evidence is sufficient to support a finding that Paul engaged in sexual contact with A.H. and is therefore guilty of second-degree sexual abuse of a minor.
An indictment charging a greater offense necessarily charges all lesser included offenses as well as attempts. State v. Ison, 744 P.2d 416, 420 (Alaska App. 1987). As a result, when a court finds that there was insufficient evidence to permit an indictment charging the greater offense, but sufficient evidence to charge the lesser offense, the indictment should not be dismissed, but the charges should be reduced to the lesser offense. Id. We have reviewed the grand jury proceedings and conclude that there was sufficient evidence to support the lesser charge.
Why we do not reach the merits of Paul's sentencing claim
Lastly, Paul argues that his sentence for second-degree sexual assault of B.S. is clearly mistaken. But the sentence the trial court imposed for this offense was part of a composite sentence involving several other convictions.
Both the Alaska Supreme Court and this Court have repeatedly held that when a defendant is sentenced for two or more offenses, Alaska law does not require that each of the defendant's separate sentences be individually justifiable under the Chaney sentencing criteria, as if that sentence had been imposed in isolation. Rather, the question is whether the defendant's combined sentence is justified in light of the entirety of the defendant's conduct and history.
The sentencing goals were first enunciated in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), and are now codified in AS 12.55.005.
Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Richards v. State, 249 P.3d 303, 307 (Alaska App. 2011). --------
Paul attacks only a single sentence from among the entirety of the sentences imposed. For this reason, and also because Paul will need to be resentenced on remand, we decline to reach the merits of his sentencing claim.
Conclusion
The judgment of conviction for Count 1, first-degree sexual abuse of a minor, is REVERSED. We REMAND this case to the superior court for entry of an amended judgment and resentencing. The superior court is instructed to: (1) enter a judgment of acquittal for the first-degree sexual abuse of a minor charge; (2) enter a judgment of conviction for the lesser included crime of second-degree sexual abuse of a minor; and (3) resentence Paul in light of the amended judgment.