Opinion
Court of Appeals No. A-12397 No. 6841
12-18-2019
JERRY A. ACTIVE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Douglas O. Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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. 3AN-13-05742 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Appearances: Douglas O. Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
On the evening of May 25, 2013, Jerry A. Active broke into an Anchorage apartment where an extended family lived—a married couple, their two young children, the husband's grandparents, and one of the husband's great-grandparents. The married couple was away from the apartment, having gone to see a movie, but the older relatives and one of the couple's young children (their daughter) were in the apartment when Active broke in.
When the married couple returned from seeing the movie, they discovered Active inside the apartment. He had barricaded himself inside the children's bedroom, and he was naked from the waist down. When the couple tried to capture Active, he fought with them and managed to flee outside, but one of the neighbors called 911, and Active was quickly apprehended by the police.
Active had murdered both of the husband's grandparents, after sexually assaulting the grandmother. Active had also sexually assaulted the husband's great-grandmother and the couple's daughter.
For this conduct, Active was convicted of first-degree burglary, two counts of first-degree murder, multiple counts of sexual assault, and one count of first-degree sexual abuse of a minor. He now appeals these convictions.
Active argues that the trial judge should not have allowed the jury to hear evidence that Active refused to give his name when he was arrested. Active also challenges the jury instructions pertaining to the definition of sexual assault. And finally, Active argues that the evidence presented at his trial is legally insufficient to support one of his convictions for first-degree sexual assault.
For the reasons explained here, we conclude that Active has failed to adequately brief his claim of evidentiary error. And although we agree with Active that there was a flaw in the jury instructions pertaining to sexual assault, we conclude that this flaw was harmless beyond a reasonable doubt. Finally, we conclude that the evidence was sufficient to support the challenged sexual assault conviction.
Evidence that Active refused to reveal his name to the police when he was arrested
At Active's trial, during the testimony of one of the police officers, the jury heard that when the police first took Active into custody and asked him what his name was, Active refused to respond.
In this appeal, Active argues that the officer's testimony was an impermissible comment on Active's constitutional right to remain silent following his arrest. We conclude that Active has waived this issue by failing to adequately brief it.
In his opening brief, Active's argument of this point consists of these two conclusory paragraphs:
In Adams v. State, [261 P.3d 758, 765 (Alaska 2011)], the supreme court affirmed that article I, section 9 of the Alaska Constitution prohibits the state from using a defendant's post-arrest silence as substantive or impeachment evidence ... . According to the court, "[a]n inference of guilt may not be drawn from a failure to speak or to explain when a person has been arrested."
[Active's] trial [judge] drew a distinction between Active's request for counsel [which the judge excluded from evidence] and his refusal to identify himself. But that distinction has no basis in the law. Active was under no obligation to identify himself. He had a constitutional right to remain silent ... . As a result, the trial court erred when it allowed the state to [introduce evidence] about Active's refusal to identify himself.
But in reality, the law on this point is substantially more complex. As the State points out in its brief, the United States Supreme Court declared in Hiibel v. District Court of Humboldt County, Nevada that, despite the Fifth Amendment's prohibition on compelled self-incrimination, the State of Nevada could lawfully make it a crime for a person to refuse to tell the police their name.
Hiibel v. District Court, 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004).
The Supreme Court pointed out that the Fifth Amendment only protects communications that are "testimonial, incriminating, and compelled", and the Court concluded that, at least under normal circumstances, a person's disclosure of their name "present[s] no reasonable danger of incrimination". As the Court explained:
Id., 542 U.S. at 189, 124 S.Ct. at 2460.
Answering a request to disclose [one's] name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. In every criminal case, it is known and must be known who has been arrested and who is being tried. Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand.Hiibel, 542 U.S. at 191, 124 S.Ct. at 2461 (internal citations omitted).
(The Supreme Court acknowledged that there might be circumstances where furnishing one's identity to the police might provide "a link in the chain of evidence needed to convict the individual of a separate offense", and the Court declared that it would reserve that question for another day.)
Id., 542 U.S. at 191, 124 S.Ct. at 2461.
Based on this principle that the Fifth Amendment does not confer a right to refuse to divulge one's name, several courts have held that the government can lawfully introduce evidence of a person's silence in the face of a police request for their name.
See, e.g., People v. Hall, 245 Cal.Rptr. 458, 462 (Cal. App. 1988); State v. Baca, 804 P.2d 1089, 1095 (N.M. App. 1990); Commonwealth v. Reed, 19 A.3d 1163, 1168 (Pa. App. 2011); Massie v. State, 744 S.W.2d 314, 317 (Tex. Crim. App. 1988).
And although this Court has not addressed this precise question, we have held that a motorist has no Fifth Amendment privilege to refuse to produce their driver's license, their vehicle registration, or their proof of insurance. See Winterrowd v. Anchorage, 139 P.3d 590, 592 (Alaska App. 2006), and Collier v. Anchorage, 138 P.3d 719, 721 (Alaska App. 2006).
Active's opening brief contains no discussion of these cases or of any other pertinent cases. Instead, he simply asserts that the constitution bars the government from introducing evidence of a person's refusal to identify themself to the police. But as we have just explained, this assertion is far from self-evident; in fact, it goes against the weight of authority in this country.
In his reply brief, Active acknowledges the federal cases that reject his position, but he declares that he is not making his claim under the Fifth Amendment to the Federal Constitution. Rather, Active declares that he is making his claim under the self-incrimination clause of the Alaska Constitution (Article I, Section 9). Active notes that, in the past, the Alaska Supreme Court has interpreted Alaska's protection against self-incrimination more broadly than its federal counterpart.
See, for example, Scott v. State, 519 P.2d 774, 785 (Alaska 1974) (holding that the Alaska Constitution's self-incrimination clause protects criminal defendants from being compelled to make detailed pre-trial discovery to the government), and State v. Gonzales, 853 P.2d 526 (Alaska 1993) (holding that a grant of use/derivative use immunity is not sufficient to override a person's claim of the Alaska privilege against self-incrimination, and that only a grant of transactional immunity will suffice).
But the decisions of the Alaska Supreme Court that Active cites in his reply brief do not specifically address the question presented here. At most, these cases only show that Active's claim might be debatable under Alaska law.
Given this briefing, we decline to decide whether the self-incrimination clause of the Alaska Constitution bars the government from introducing evidence of a person's refusal to disclose their name to the police. Rather, we conclude that this issue is waived because of inadequate briefing.
See, e.g., Berezyuk v. State, 282 P.3d 386, 398-99 (Alaska App. 2012).
The omission in the jury instructions relating to sexual assault
To prove the sexual assault charges against Active, the State had to establish that Active's sexual penetration of the victims was "without consent" — i.e., that it was coerced by force or threat of force.
See AS 11.41.470(8); Inga v. State, 440 P.3d 345, 348-49 (Alaska App. 2019).
In Active's case, although the trial judge instructed the jury that the State had to prove that the acts of sexual penetration were "without consent", the jury instructions did not contain an express definition of this term. Because Alaska law uses the phrase "without consent" in a non-standard way, it was error for the judge to fail to apprise the jury of this non-standard definition.
See Inga, 440 P.3d at 348-49.
Nevertheless, Active's attorney did not object to this omission in the jury instructions, and we conclude that the error was harmless beyond a reasonable doubt.
At trial, no one questioned the fact that assaultive sexual acts had been perpetrated on the victims. From the very beginning of the trial, Active's attorney conceded that "heinous crimes" had been committed in the apartment. And when the defense attorney delivered his summation to the jury, he expressly conceded that the three victims were sexually assaulted.
Rather than contesting that these sexual crimes occurred, Active's defense was that he had never been in the victims' apartment, and that he was not involved in any of the crimes that took place there.
We further note that when the prosecutor argued the case to the jury, he repeatedly referred to the victims' extensive physical injuries as proof that the acts of sexual penetration occurred without their consent.
Given this record, we conclude that even though the trial judge failed to expressly instruct the jury on the special legal meaning of "without consent", this error was harmless beyond a reasonable doubt.
The sufficiency of the evidence to support Active's conviction for sexually assaulting the great-grandmother
Active claims that the evidence presented at his trial was legally insufficient to establish that he sexually assaulted the great-grandmother. To resolve this claim, we must view the evidence (and all reasonable inferences to be drawn from the evidence) in the light most favorable to the jury's verdict, and then ask whether a fair-minded person who viewed the evidence in that light could have concluded that the State had proved all the elements of sexual assault beyond a reasonable doubt.
See, e.g., Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).
Active first argues that the evidence was insufficient to establish that an act of sexual penetration occurred. He points out that the nurse who conducted the sexual assault examination testified only that the great-grandmother's injuries were "consistent" with sexual penetration, and that she could not say for certain how those injuries occurred. Active also points out that the great-grandmother was unable to provide the nurse with a narrative of what had happened to her.
But as we have explained, we are required to assess the sufficiency of the evidence by drawing all reasonable inferences in favor of the jury's verdict. Here, the victim had injuries consistent with forcible sexual penetration, and two other occupants of the apartment were sexually assaulted by the intruder. This evidence, viewed in the light most favorable to the jury's verdict, was legally sufficient to support a finding of sexual penetration.
Active also argues (in the alternative) that even if he forcibly penetrated the great-grandmother, her dementia rendered her incapable of understanding what was happening to her, and thus she would not have been able to either consent to the sexual penetration or withhold her consent. In these circumstances, Active suggests, he could not properly be convicted of first-degree sexual assault, but only the lesser offense of second-degree sexual assault.
See AS 11.41.420(a)(3) and AS 11.41.470(4). --------
But, again, we must assess the sufficiency of the evidence by drawing all reasonable inferences in favor of the jury's verdict. While there may be little doubt that the victim suffered from dementia, this does not mean that the victim necessarily lacked the capacity to understand that she was being sexually assaulted. The evidence showed that the victim suffered both interior and exterior bruising of her genitalia, as well as bruising of her arm. Viewed in the light most favorable to the verdict, these injuries support the conclusion that the sexual penetration was forcible and that it was accomplished over the victim's physical resistance. And if the victim fought against her attacker, it is reasonable to conclude that she understood what was happening to her and that she did not consent to it.
For these reasons, we conclude that the evidence was sufficient to support Active's conviction for first-degree sexual assault.
Conclusion
The judgement of the superior court is AFFIRMED.