Opinion
Court of Appeals No. A-10159 Trial Court No. 3PA-07-14 CRNo. 5793
01-11-2012
ARIC TOLEN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Marjorie Allard, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, 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, Palmer,
Eric Smith, Judge.
Appearances: Marjorie Allard, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Daniel S.
Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
In a jury trial conducted by Superior Court Judge Eric Smith, Aric Tolen was convicted of sexual assault in the first degree, assault in the second degree, and assault in the third degree. Tolen's conviction was based upon a series of acts where he confined and assaulted S.C., the mother of his two children, Samuel, age three, and Ruth, six months. During the assault, Tolen strangled S.C. until she was unconscious and then, over a period of several hours, cut her numerous times with a knife while threatening to kill or cripple her. He also anally raped S.C. The children were present during the assaults. Judge Smith imposed a composite sentence of eighty-five years with fifteen years suspended.
AS 11.41.410(a)(1).
AS 11.41.210(a)(1).
AS 11.41.220(a)(1)(B).
Pseudonyms have been used to protect the identity of the victim.
Tolen appeals, arguing that Judge Smith committed reversible error by giving a jury instruction that referred to S.C. as "the victim" and by instructing the jury that S.C.'s possible use of drugs or alcohol was not relevant to the case. We agree with Tolen that it was error for Judge Smith to refer to S.C. as "the victim." Whether S.C. was a victim was an issue for the jury to determine. But we conclude that the error was harmless in the context of the jury instructions as a whole0. We conclude that Judge Smith did not err in instructing the jury that any drug or alcohol use by S.C. was not relevant to the decision in this case.
Tolen also argues that the sentence Judge Smith imposed was excessive. We conclude that the sentence was not clearly mistaken.
Factual and procedural background
S.C. testified that she and Aric Tolen had been a couple for approximately eight years, starting when she was thirteen years old. They had two children together. Tolen had been in and out of jail for most of the children's lives. They lived in a trailer in Wasilla owned by Tolen's parents.
On New Year's Day of 2007, S.C. and Tolen were visited by Tolen's parents, Tolen's sister, and the sister's children. Tolen was on bail release on a charge of driving while his license was suspended. S.C. was his third-party custodian. One of Tolen's conditions of bail was that he not consume alcohol. In spite of the no-alcohol provision, Tolen was drinking.
At around 9:00 to 10:00 p.m., the gathering disbanded, leaving Tolen, S.C., and the children alone in the trailer. Tolen continued to drink and became very drunk. He began arguing with S.C. about her mother, whom he did not like. He accused the mother of molesting Samuel, their son. S.C. stated that Tolen yelled at her about this, but she didn't listen to him because this issue was a "never ending battle" between them.
S.C. put the children to bed and got ready for bed herself. The bed was a bunch of blankets on the floor. The children slept in the same bed with S.C. and Tolen. After the children were asleep, Tolen came into the bedroom and took off S.C.'s pajama bottoms. S.C. assumed Tolen wanted to have vaginal sex with her, but he attempted to have anal sex with her, insisting that he was going to give her "what [she] deserve[d]." S.C. fought him, and the children woke up. Samuel kept asking what was going on. Tolen told S.C. to get them back to bed. She was able to get Ruth back to sleep by nursing her. But Samuel would not go back to sleep. Tolen left the bedroom while S.C. was trying to put the kids back to sleep.
S.C. testified that Tolen came back into the bedroom and put both of his hands around her neck as she lay on her back. He told her he was going to choke her until she passed out. He apparently had done this to someone in the past. S.C. stated that the next thing she knew, Tolen was telling her to "wake the fuck up." He was standing above her, smacking her. Both Samuel and Ruth were crying. S.C. was panicked and gasping for air. Samuel asked S.C. if she was okay and told Tolen to leave his mother alone.
S.C. opened the door of the trailer and attempted to leave. She got the door open and started screaming for help, knowing that her sister lived across the street. But Tolen caught her and pulled her back into the trailer by her hair. Tolen closed and locked the door and told S.C. that what she had done was a "stupid [thing] to do." Tolen then pulled a pocket knife from his pocket. Tolen told her to put the children back to sleep.
After S.C. got the children back to sleep, Tolen came into the bedroom, holding the knife. He then began to interrogate S.C. about whether she had been unfaithful to him. Each time he asked a question, Tolen would cut her with the knife. He told her that if she did not tell the truth, he would push down harder on the knife. Tolen cut S.C. on her legs, foot, and neck, continuing the interrogation for more than three hours, from 11:30 p.m. to 3:00 a.m. Tolen also cut S.C.'s toe; he stated he was doing this so she would not be able to balance and walk away. Tolen threatened to cut her Achilles tendon for the same reason. S.C. testified that, although the cuts were not deep, they hurt, and she was very frightened. She testified that Tolen was "very angry." Samuel was awake and watching the assault.
S.C. testified that she was answering Tolen truthfully, but he apparently was not getting the answers that he wanted to hear. At one point, Tolen put the knife to her neck and made cuts across her neck. At another point, he put the tip of the knife against her neck and said, "I should just push it through and end it now, huh?" S.C. begged him not to do that. Later, while he was cutting her legs, he put the knife against her lower back and said, "I should make you poop in a bag for the rest of your life, make you have to use a bag. You know I could push it through. I know how to do that." S.C. begged him not to do that. She testified that meanwhile, the kids were "freaking out again."
Tolen pulled down his pants and demanded S.C. give him oral sex, which he knew S.C. did not like to do. He told her that if she did not comply, he would use the knife. S.C. gave him oral sex for about ten minutes; she could see the knife. S.C. testified that Tolen then forced her to have anal sex. S.C. testified that it was very painful. S.C. told him to stop. She testified that her children were awake "during the whole entire thing from beginning to end."
When Tolen got up to use the bathroom, S.C. took the opportunity to escape the trailer. Barefoot, wearing only a t-shirt and underwear, she ran to her neighbor's trailer. It was winter, and there was two to three feet of snow on the ground. The neighbor gave S.C. a phone so she could call the police. The police arrived and took S.C. to the hospital for a sexual assault examination.
The State indicted Tolen on one count of sexual assault in the first degree, two counts of assault in the second degree, and two counts of assault in the third degree. The case proceeded to trial before Judge Smith.
At trial, Tolen took the stand in his own defense. He claimed that S.C. had inflicted the knife wounds on herself. He also claimed that S.C. had consented to oral, vaginal, and anal sex. The jury convicted Tolen of all counts. Judge Smith sentenced Tolen to a composite sentence of eighty-five years with fifteen years suspended.
Why we conclude Judge Smith did not commit reversible error in instructing the jury that "any drug or alcohol use by the victim is not relevant to this case"
During Tolen's trial, Judge Smith allowed the jurors to submit to the court written questions for witnesses. After the nurse who conducted the sexual assault medical examination testified that she had tested S.C. for drugs and alcohol, two jurors submitted questions about the results of the drug and alcohol tests. In a conference at the bench, Judge Smith suggested to counsel that he could just tell the jury "that drug and alcohol use by the victim [is] not relevant." There was no objection to Judge Smith's suggestion.
Judge Smith then asked the nurse several questions about S.C.'s injuries. These questions were apparently based upon questions that the jurors submitted. At the conclusion of this questioning, Judge Smith instructed the jurors as follows: "[There is] one other thing before we have follow-up questions. A couple jurors asked about the results of any drug or alcohol testing. Any drug or alcohol use by the victim is not relevant in this case, and you should not speculate as to that issue at all."
The prosecutor then conducted a short redirect examination of the nurse. At the conclusion of this examination, Tolen's attorney approached the bench and indicated that he wanted the court to refer to S.C. as "the alleged victim," not "the victim." The State suggested that it was proper to refer to S.C. as "a victim" under Alaska statutes. Judge Smith appeared to agree. Tolen's attorney replied that he didn't "want to really get into it," but he "just wanted to say [he] thought it was wrong for [the judge] to say that. I didn't know." Judge Smith pointed out that he repeatedly told the jury that Tolen was innocent until proven guilty. Tolen's attorney said, "Okay."
Tolen first contends that Judge Smith erred in referring to S.C. as "the victim." In Liska v. Anchorage, an unpublished case, this court addressed the use of the term "victim" by the prosecutor during opening statement and during examination of the complaining witness. Liska was charged with assault for grabbing his wife's throat.This court held that there was no reversible error, because when Liska objected, the court instructed the prosecutor to use the term "alleged victim." Liska appears to be the only Alaska case addressing this issue.
Mem. Op. & J. No. 3795, 1998 WL 191166 (Alaska App. Apr. 22, 1998).
Id. at * 1.
Id. at *2.
In State v. Wigg, the Vermont Supreme Court held that: "[W]here the commission of a crime is in dispute and the core issue is one of the complainant's credibility, it is error for a trial court to permit a police detective to refer to the complainant as the 'victim.'" The court concluded that the error was harmless because the record showed that the testifying officer used the term as synonymous with "complainant" and never expressed an opinion that Wigg was guilty.
889 A.2d 233 (Vt. 2005).
Id. at 236.
Id. at 237.
In Jackson v. State, the Delaware Supreme Court held that: "The term 'victim' is used appropriately during trial when there is no doubt that a crime was committed and simply the identity of the perpetrator is in issue. ... [T]he word 'victim' should not be used in a case where the commission of a crime is in dispute." But it found that, in that case, it was not plain error for the court to have allowed investigating officers to use the word "victim" during their testimony. The court's reasoning was similar to that of the Vermont court in Wigg .
600 A.2d 21 (Del. 1991).
Id. at 24.
Id. at 24-25.
Compare Jackson, 600 A.2d at 24-25, with Wigg, 889 A.2d at 236-37 (both noting that law enforcement officers use the word "victim" as a relatively neutral term synonymous with "complaining witness").
We find the reasoning in Wigg and Jackson persuasive. In a case such as Tolen's, where it is a jury question whether a crime was committed, the court should not refer to the complainant as "the victim." On the other hand, we conclude that, in the context of this case, Judge Smith's single reference to S.C. as "the victim" was harmless error. In general, courts have only found reversible error where the term was used multiple times and/or was coupled with other prejudicial error or misconduct.Furthermore, courts have held that the error was harmless when other instructions properly informed the jury of the State's burden of proof. In the present case, Judge Smith thoroughly instructed the jury on the presumption of innocence and the burden of proof. He also instructed the jury that it was to determine what the evidence was in the case and what conclusions should be drawn from the evidence. We accordingly conclude that the error in referring to S.C. as "the victim" was harmless.
See, e.g., State v. Cortes, 851 A.2d 1230, 1239-41 (Conn. App. 2004) (multiple times); People v. Davis, 423 N.Y.S.2d 229, 229-30 (N.Y. App. Div. 1979) (multiple times and other prejudicial statements by the court); Talkington v. State, 682 S.W.2d 674, 674-75 (Tex. App. 1984) (multiple times).
State v. Brown, 984 A.2d 86, 95-96 (Conn. App. 2009); State v. Rodriguez, 946 A.2d 294, 305-06 (Conn. App. 2008); State v. Nomura, 903 P.2d 718, 722-23 (Haw. App. 1995).
Tolen next contends that Judge Smith erred in instructing the jury that "any drug or alcohol use by [S.C.] is not relevant in this case." Tolen argues that this instruction was error because whether S.C. had been using drugs on the day of the alleged assault was relevant evidence that the jury could use to evaluate her credibility. But Tolen never objected to Judge Smith's instruction on this ground. We therefore only review this issue for plain error. Tolen did not argue or offer to present any evidence that S.C. was under the influence of drugs or alcohol during the time of the alleged assaults. His failure to object to Judge Smith's instruction on this ground appears to have been tactical. We do not find plain error.
Why we conclude that Tolen's sentence was not clearly mistaken Tolen was twenty-two years old at the time of sentencing. He had two prior felony convictions; one for assault in the third degree, and another for robbery in the second degree. He was therefore subject to presumptive sentencing as a third felony offender. He faced a presumptive range of forty to sixty years and a maximum term of ninety-nine years for his conviction of sexual assault in the first degree. He was subject to a presumptive range of six to ten years and a maximum of ten years for each of the assault in the second degree convictions. And he was subject to a presumptive range of three to five years and a maximum of five years for each conviction for assault in the third degree.
AS 12.55.125(i)(1), (i)(2)(E).
AS 12.55.125(d), (d)(4).
AS 12.55.125(e)(3)
Judge Smith merged both of Tolen's convictions for assault in the second degree and one of his convictions for assault in the third degree into a single consolidated count of assault in the second degree. This merged count addressed Tolen's strangulation of S.C. The assault in the third degree count addressed Tolen's assault of S.C. with the knife.
Judge Smith found several aggravating factors: that Tolen's prior criminal history included repeated instances of assaultive behavior; that Tolen was on bail release on another felony charge at the time he committed the present offenses; that Tolen committed his offense against a spouse or member of the social unit made up of those living together in the same dwelling as the defendant; and that Tolen was on probation for a prior felony conviction at the time he committed the present offenses.In addition, Judge Smith found an aggravating factor that Tolen's prior felonies were of a more serious class than the present offense (this applied only to the conviction for assault in the third degree); and that Tolen's criminal history included repeated instances of conduct similar in nature to his present offense (this applied only to the convictions for assault in the second and third degree).
AS 12.55.155(c)(8).
AS 12.55.155(c)(12).
AS 12.55.155(c)(18)(A).
AS 12.55.155(c)(20).
AS 12.55.155(c)(7).
AS 12.55.155(c)(21).
Tolen had two prior convictions for violent felonies. In 2002, Tolen was convicted of robbery in the second degree. In 2004, he was convicted of assault in the third degree for beating up a female victim, resulting in her receiving "a lacerated lower lip, multiple contusions on her head, a black and swollen shut left eye, and broken ribs."
In sentencing Tolen, Judge Smith generally observed that, in his allocution prior to sentencing, Tolen never accepted any responsibility for his actions but blamed everyone else. He concluded that Tolen's failure to accept responsibility raised questions about Tolen's potential for rehabilitation.
Judge Smith first addressed Tolen's conviction for assault in the third degree, the assault with the knife. He concluded that it was difficult to characterize this assault "as anything other than a form of torture." He concluded that, based on the nature of this conduct, this was a particularly serious assault, and he found that Tolen was a "worst offender" based upon this conduct.
Judge Smith then turned to the conviction for assault in the second degree, Tolen's strangulation of S.C. He concluded that this was a "horrible" offense, but that, because of Tolen's young age, he would not make a "worst offender" finding. He concluded that, although Tolen had a troubling criminal history, he was not prepared to conclude that Tolen had no prospects for rehabilitation.
Judge Smith then turned to the conviction for sexual assault. He observed that this was a particularly brutal rape that was conducted "in the context of an ongoing series of violent acts and ... verbally abusive acts." He observed that the sexual assault was committed in the presence of Tolen's two very young children and that one of these children was old enough to understand "that his mother was being attacked in a very brutal way." He concluded that observing this incident would have a long-term impact on the child.
Judge Smith then observed that the legislature had made the decision that sexual assaults were particularly serious offenses and that the legislature had concluded that it was appropriate to set a sentencing range which was similar to the sentencing range for murder. He concluded that the circumstances of this particularly violent rape and the manner in which it was carried out justified imposing a sentence at the upper end of the presumptive range. He concluded that he would use the aggravating factors to impose suspended time.
On the sexual assault conviction, Judge Smith imposed a sentence of seventy-five years with fifteen years suspended. On the merged conviction for assault in the second degree, Judge Smith imposed a sentence of eight years, with five years consecutive to the sexual assault conviction. He imposed a maximum five-year sentence for the conviction for assault in the third degree and imposed all of that sentence consecutively. This resulted in a composite sentence of eighty-five years with fifteen years suspended.
Tolen raises several objections to the sentence that Judge Smith imposed. First, Tolen argues that the legislative history of the sentencing statutes shows that the legislature intended for a sentencing judge to impose a sentence at the bottom of the presumptive range unless the judge could justify giving a greater term. Tolen points out that, prior to 2005, Alaska felony sentencing was governed by presumptive sentences that had set terms. Tolen points to Juneby v. State,where we indicated that the legislature intended for the presumptive term to be the appropriate sentence for a normal case and stated that "only in unusual cases ... can it be anticipated that substantial deviation from the presumptive term will be called for."
See former AS 12.55.155(a), (c) (2004).
641 P.2d 823 (Alaska App. 1982), modified on other grounds, 665 P.2d 30, 38-39 (Alaska App. 1983).
Id. at 833.
Tolen then points to the legislative history of the 2005 sentencing revisions which the legislature made in response to the United States Supreme Court's decision in Blakely v. Washington. Tolen points to the portion of the Senate Journal in which the legislature stated its intent in establishing the sentencing ranges:
S.B. 56, 24th Leg., 1st Sess. (2005).
542 U.S. 296 (2004).
It is the intent of the legislature in passing this bill to preserve the basic structure of Alaska's presumptive sentencing system, which is designed to avoid disparate sentences. With this bill the legislature sets out a sentencing framework, subject to judicial adjustment for statutory aggravating or mitigating factors that are determined in a manner that is constitutional under the decision of the U.S. Supreme Court in Blakely v. Washington. The single, definite presumptive terms set out in current law can unduly constrain the sentencing process, particularly under the mandates of Blakely v. Washington. Although the presumptive terms are being replaced by presumptive ranges, it is not the intent of this bill in doing so to bring about an overall increase in the amount of active imprisonment for felony sentences. Rather,Tolen also points out that the fiscal notes in the Senate Journal from the Department of Law, Department of Corrections, and Department of Public Safety indicated that they did not anticipate any fiscal impact from the change in the sentencing provisions — in other words, that they did not anticipate that sentences would be increased by the presumptive ranges. Tolen argues that this legislative history supports the conclusion that the legislature intended for sentencing judges to impose a sentence at the bottom of the presumptive range unless, as under the pre-2005 provisions, there were substantial reasons to impose a greater sentence.
the bill is intended to give judges the authority to impose an appropriate sentence, with an appropriate amount of probation supervision, by taking into account the considerations set out in AS 12.55.005 and 12.55.015.
2005 Senate Journal 102-03 (Jan. 21) (emphasis added).
We find it is unnecessary to resolve Tolen's legislative history argument at this time because we conclude that Judge Smith, in imposing sentence, articulated substantial reasons for imposing a sentence at the top of the presumptive range. First, as we pointed out, Judge Smith found several aggravating factors that applied to Tolen's sentence. Tolen argues that, to the extent the aggravating factors were based upon his prior criminal record, that record had already been taken into account by the fact that Tolen was being sentenced as a third felony offender. But aside from the mere number of Tolen's convictions, Tolen had a prior history of serious assaultive behavior, and he was on felony probation at the time he committed his present offenses. In addition, he was on bail release, and S.C. was his third-party custodian. Furthermore, Judge Smith considered the extremely brutal and sadistic nature of Tolen's sexual assault. We also note that the evidence presented at trial supported two additional offenses that were not charged. Tolen committed another sexual assault when he forced S.C. to give him oral sex. In addition, by confining S.C. to the trailer for several hours, Tolen committed the offense of kidnapping. Judge Smith emphasized that these brutal acts were carried out in front of Tolen's and S.C.'s young children, and he considered the traumatic effect that this must have had and would continue to have on the older child. We conclude that Judge Smith gave substantial reasons for imposing a sentence at the top of the presumptive range for sexual assault.
AS 11.41.410(a)(1).
AS 11.41.300(a)(1)(C), (a)(2)(B).
Tolen argues that Judge Smith erred in imposing substantial separate, additional sentences for the assault in the second degree and assault in the third degree convictions. He argues that Judge Smith had already taken these offenses into account when he imposed the sexual assault sentence. But Judge Smith factually separated and analyzed the assault cases in arriving at a composite sentence. The assault in the second degree conviction was for strangling S.C. The assault in the third degree conviction was for cutting her with a knife. Judge Smith concluded that these offenses justified imposing terms of imprisonment in addition to the term imposed for the sexual assault.
Cf. Juneby, 641 P.2d at 842-43.
Tolen also argues that, in imposing sentence, Judge Smith mistakenly compared this case to a homicide. But, in his sentencing remarks, Judge Smith simply acknowledged that the legislature had concluded that sexual assaults were particularly serious offenses, that the legislature had set the presumptive range, and that he was required to follow the legislative directive. There was nothing inappropriate in this observation.
We conclude that Judge Smith's findings are supported by the record and that the sentence he imposed is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813 (Alaska 1914).
Conclusion
The judgment of the superior court is AFFIRMED.