Opinion
Court of Appeals No. A-10422 Trial Court No. 2KB-07-960 CR No. 5822
03-28-2012
ROY D. ADAMS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: H. Conner Thomas, Lewis & Thomas, P.C., Nome, for the Appellant. Ann B. Black, 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, Second Judicial District, Kotzebue, Richard H. Erlich, Judge.
Appearances: H. Conner Thomas, Lewis & Thomas, P.C., Nome, for the Appellant. Ann B. Black, 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.
BOLGER, Judge, concurring.
Roy D. Adams was convicted of sexual assault in the first and second degree in a jury trial conducted by Superior Court Judge Richard H. Erlich. Adams appeals, arguing that there was insufficient evidence to convict him of sexual assault in the first degree. Adams also contends that the statute that criminalizes sexual assault in the first degree is unconstitutionally vague as applied to his case. He contends that Judge Erlich committed reversible error in evidentiary rulings which he made during the trial. He argues that, at sentencing, Judge Erlich erred in rejecting his proposed mitigating factor that his offense constituted least serious conduct and erred in imposing an unduly restrictive probation condition. We affirm Adams's conviction and sentence. We conclude that the probation condition was unduly restrictive and remand the case to allow the superior court to reconsider the probation condition.
AS 11.41.410(a)(1).
AS 11.41.420(a)(3)(B)-(C).
Factual and procedural background
Roy Adams was charged with sexual assault for having sexual intercourse with his stepdaughter, S.S. Adams had been married to Anita Adams, S.S.'s mother, since S.S. was about nine or ten years old.
On April 27, 2007, when she was about twenty-one years old, S.S. and her two-month-old child were living at the house of Anita Adams and her stepfather, Roy Adams. This had been her home since childhood.
S.S. testified at trial that, on April 27, 2007, she had been out with friends and had a few drinks. Later, she went to bed in her room in her parents' house dressed in pajamas and a t-shirt. She was the only person in the room — her child was in her parents' room with Anita Adams. The next thing that she remembered was being awakened by her stepfather, who was on top of her having sex with her. S.S. testified that she did not push Adams off of her and pretended to be asleep because she was afraid. When Adams left, S.S. immediately got up, dressed, fled with her child to her cousin's house next door, and reported the sexual assault.
In his testimony, Adams admitted having sex with S.S., but said that it was consensual. He said that S.S. was fully conscious and invited him to have sex with her. He testified that he and S.S. had engaged in consensual intercourse several times previously. After hearing the evidence, the jury convicted Adams of sexual assault in the first and second degree.
Why we conclude that there was sufficient evidence to convict
Adams of sexual assault in the first degree
Adams contends that there was insufficient evidence to support the jury's verdict that he committed sexual assault in the first degree because there was no evidence that he used force or threats to coerce S.S. to engage in sexual intercourse.
Adams was convicted of first-degree sexual assault under AS 11.41.410(a)(1), which provides that "An offender commits the crime of sexual assault in the first degree if ... the offender engages in sexual penetration with another person without consent of that person."
Under AS 11.41.470(8)(A), "without consent" is defined to mean "that a person ... with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone."
Adams was also convicted of second-degree sexual assault under AS 11.41.420(a)(3)(C), which provides that "An offender commits the crime of sexual assault in the second degree if ... the offender engages in sexual penetration with a person who the offender knows is unaware that a sexual act is being committed."
Adams argues that, if the jury rejected his testimony, the jury could only have convicted him of sexual assault in the second degree. But our former case law supports convicting Adams of sexual assault in the first degree. In Nicholson v. State, K.R., a fifteen-year-old girl, woke up at 5:00 a.m. "to find a naked Gerald Nicholson uninvited in bed with her, fondling her breasts, and kissing her." Although K.R. had seen Nicholson before, he was a stranger to her and there was no reason for him to be in her bedroom. K.R. testified that she hesitated, and then she jumped out of bed, fled downstairs, armed herself with a knife, and telephoned a neighbor for help.
656 P.2d 1209 (Alaska App. 1982).
Id. at 1210.
Id.
Id.
Nicholson argued that there was insufficient evidence to show that he coerced K.R. to engage in sexual contact. We held that Nicholson could reasonably foresee that K.R. would be momentarily stunned by fear and that her momentary acquiescence would be coerced by an implied threat:
Id. at 1213.
The evidence supports a finding that Nicholson could reasonably foresee that K.R. would be momentarily stunned by fear caused by Nicholson's unexpected and uninvited entry into her bed in the early morning hours, enabling him
to continue to caress her after she awoke. She testified she was temporarily in shock and that she was afraid he would hurt her. Under these circumstances, we believe that a jury could find that K.R.'s momentary acquiescence in Nicholson's fondling of her breast was "coerced by an implied threat of imminent physical injury" and this constituted second degree sexual assault.
Id. at 1213.
We followed Nicholson in Ritter v. State. Ritter was a massage therapist who was convicted of assault in the second degree for inappropriately touching three of his clients. In deciding Ritter, we first distinguished Nicholson. Unlike Nicholson, Ritter's victims were his patients and had come to him on several prior occasions for massage therapy. In addition, they knew that they would be alone with Ritter and that he would touch them. But we concluded that ultimately the case was very much like Nicholson, because the victims were coerced:
97 P.3d 73, 77 (Alaska App. 2004).
Id. at 74.
Id. at 77.
Id.
Id.
In addition, like the defendant in Nicholson, Ritter could reasonably have foreseen that the circumstances of the massage therapy would make his victims afraid to protest or resist: they were alone with him, they were undressed, and it was not feasible to run outside into the cold. All of the women testified that these circumstances made them decide to endure the touching.We concluded that the evidence was "sufficient to support the jury's decision that the sexual contact was 'without consent.'"
For these reasons, we conclude that the evidence presented at Ritter's trial reasonably supports a finding that the women were coerced by an implicit threat of imminent physical injury or kidnapping ... .
Id. at 77-78.
Id. at 78.
When we examine a verdict to determine whether it is supported by sufficient evidence, we view the evidence and the reasonable inferences from the evidence in the light most favorable to the jury's verdict and determine whether reasonable jurors could conclude that the defendant's guilt was established beyond a reasonable doubt. In Adams's case, the State presented other evidence from which the jury could conclude that Adams had a history of sexually abusing his stepdaughters which established a pattern of coercion.
Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
Adams has another stepdaughter, L.S., who is S.S.'s older sister. L.S. testified at trial that in 2001 (about five and a half years before Adams assaulted S.S. in this case), when she was eighteen years old, she was in Anchorage and stayed in a hotel room with Adams and her mother. Her mother and Adams shared one bed; she had the other. She stated that she woke up to find Adams on top of her having sex with her. L.S. stated that she did not say anything because she was frightened. She stated that Adams stopped shortly after she woke up. She stated that she changed her reservations and took an earlier flight to leave Anchorage so that she would not have to stay in the same room with Adams.
L.S. also testified that in 2004 (about two years before Adams assaulted S.S. in this case), she saw Adams pulling down S.S.'s pants while S.S. was passed out from intoxication. L.S. testified that she gathered some other people who helped her interrupt the assault, and that she pushed Adams to the door of the house and hollered at him. Two other people escorted S.S. away from the house.
S.S. testified to a prior incident in 2004 when she was staying at her parents' house when Adams came into her room when she was sleeping. She stated that Adams was touching her bottom over the blanket. S.S. said that she was frightened, she told him to go, and he left.
In the light most favorable to the State, the record shows that Adams had a history of sexually molesting his stepdaughters. The jury could have concluded that Adams had to be aware that his stepdaughters were in fear of him and were too intimidated to stop or resist the unwanted sexual contact. For his part, Adams admitted having sexual intercourse with both S.S. and L.S. He simply contended that the sexual intercourse was consensual. But the jury could certainly have rejected his testimony and believed the testimony of his stepdaughters. We conclude that the evidence was sufficient to support Adams's convictions.
Why we conclude that AS 11.41.410 is not unconstitutionally vague
Adams argues that AS 11.41.410, the statute which criminalizes sexual assault in the first degree, is unconstitutionally vague as it was applied in this case. His argument is that the offense he committed was actually sexual assault in the second degree for engaging "in sexual penetration with a person who the offender knows ... is unaware that the sexual act is being committed." Adams is apparently arguing that he did not have adequate notice that if he sexually penetrated a sleeping person, and the person woke up during the sexual assault, he could be convicted of sexual assault in the first degree.
AS 11.41.420(a)(3)(C).
We have previously set out the evidence from which the jury could conclude that Adams acted with reckless disregard of S.S.'s consent. The evidence supports the conclusion that Adams was aware that S.S. did not want to have sexual intercourse with him, that there was a substantial possibility that she would wake up during the intercourse, and that, if she did wake up, she would be too intimidated to do anything about it.
See AS 11.41.470(8).
To convict Adams of sexual assault in the first degree, the State had to show that Adams engaged in sexual penetration with S.S. with reckless disregard that her consent was coerced. In De Nardo v. State,we stated that a statute is not unconstitutionally vague if "study of [a] statute's wording, examination of its legislative history, and reference to other relevant statutes and case law makes the statute's meaning clear." By this standard, the elements of sexual assault in the first degree are not vague.
Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983).
819 P.2d 903 (Alaska App. 1991).
Id. at 908.
Why we conclude that Judge Erlich did not err in admitting evidence
of Adams's prior sexual misconduct with his stepdaughters
Adams argues that Judge Erlich erred in admitting evidence of Adams's prior acts of sexual misconduct with his stepdaughters, L.S. and S.S. We have previously discussed this testimony and the relevance of this testimony to this case. This evidence was admissible to show the relationship between Adams and his stepdaughters and was necessary to establish Adams's reckless disregard of S.S.'s lack of consent to his sexual assault, her fear of resisting the sexual assault, and his knowledge that S.S. would be afraid to resist. Judge Erlich did not abuse his discretion in concluding that the testimony about Adams's prior sexual misconduct with his stepdaughters was relevant under Evidence Rules 404(b)(1) and 404(b)(3) and that admission of this evidence was not unfairly prejudicial under Evidence Rule 403.
See Frink v. State, 597 P.2d 154, 169-70 (Alaska 1979) (discussing when evidence of prior criminal conduct is admissible); State v. Bingaman, 991 P.2d 227, 229-30 (Alaska App. 1999).
Why we conclude that Judge Erlich did not commit plain error by refusing to allow Adams to present evidence that S.S. had consensual sexual intercourse with another person within the twenty-four hour period before Adams sexually penetrated S.S.
After S.S. reported the sexual assault, nurse Marcia Bitner performed a sexual assault examination of her. At the trial, Bitner testified that S.S. reported that Adams had sexually penetrated her. Bitner testified that she examined S.S. for genital trauma and described the injuries which she observed.
At this point, Adams asked to approach the bench. Judge Erlich moved the discussion into chambers. Adams asserted that during the sexual assault examination, S.S. acknowledged having consensual sex with another man within twenty-four hours of having been sexually penetrated by Adams. Adams wanted to ask Bitner whether S.S.'s injuries could have been caused by this earlier sexual penetration. In response, the prosecution asserted that, under the rape shield law, Adams could not introduce evidence that S.S. had prior sexual intercourse. Ultimately, Judge Erlich asked Adams if all he needed to establish was that S.S.'s injuries could have been caused by consensual sex. Adams agreed that, at this point, that was all he had to establish. Judge Erlich stated, "[L]et's try it that way. ... And then, if there is a problem, we'll come back in here."
Bitner subsequently testified that S.S.'s injuries were "consistent with forcible sexual assault," and that "they could have been caused by consensual sex," but that the "injury is more consistent with non-consensual sex than consensual sex." Adams did not renew his request to elicit evidence of S.S.'s prior sexual encounter.
Later in the trial, Judge Erlich stated that the evidence that S.S. had the prior sexual encounter was barred by the rape shield statute. He concluded that the evidence would not be admissible to show S.S.'s character through evidence of her prior sexual conduct. In making this determination, he considered the parties' earlier discussion of this issue and concluded that the evidentiary problem had been resolved because Adams was able to get in all of the information that he wanted. Adams did not respond to Judge Erlich's statement.
Adams recognizes that he never objected to Judge Erlich's assertion that Adams was able to get in all the information he wanted. Therefore, Adams must now establish plain error. The rape shield statute, AS 12.45.045(a), does not bar evidence of a victim's sexual conduct when that conduct is sufficiently relevant in a particular case. If Adams established that S.S.'s injuries could have been caused in part by the fact that S.S. had consensual sexual intercourse with another man within twenty-four hours of when Adams sexually penetrated her, this evidence would have had case-specific relevance and would not be barred by the rape shield statute unless the probative value of the evidence was outweighed by the danger of "undue prejudice, confusion of the issues, or unwarranted invasion of privacy of" S.S. But, because Adams conceded that he only needed to establish that S.S.'s injuries were consistent with consensual sex, he did not preserve this issue for appeal. And, in light of Adams's concession, Judge Erlich did not commit plain error in excluding this evidence.
See Napoka v. State, 996 P.2d 106, 107-10 (Alaska App. 2000).
AS 12.45.045(a).
Why we conclude that Judge Erlich did not commit plain error by
delaying on ruling that Adams could present evidence that he and
S.S. had previously engaged in consensual sexual intercourse
Adams's defense at trial was that he and S.S. had previously engaged in consensual sex and that, in the current case, he and S.S. had engaged in consensual sexual intercourse. Adams argues that he was prejudiced because Judge Erlich delayed in ruling on the admissibility of his evidence that he and S.S. had engaged in past consensual sexual conduct. Adams does not contend that he was ultimately prevented from presenting any evidence in support of his defense. But he contends that, because Judge Erlich delayed in ruling that this evidence was admissible, he was prejudiced in conducting jury voir dire and making a comprehensive opening statement. But the record shows that Judge Erlich merely stated that he was not going to allow the admission of this testimony until the court and the parties were able to discuss this issue. Judge Erlich told Adams that Adams was free at any time to ask him to conduct a hearing to consider the admissibility of this evidence. Adams agreed.
Adams never asked for a hearing. Ultimately, Judge Erlich considered the evidence that Adams wanted to present and allowed Adams to present the evidence. Therefore, the fact that Judge Erlich did not earlier rule on the admissibility of this evidence was attributable to the fact that Adams never asked for an earlier ruling, despite the fact that Judge Erlich had offered to hold a hearing at any time that Adams requested. Therefore, Judge Erlich did not commit plain error by not making an earlier ruling on this evidence.
Why we conclude that Judge Erlich did not err in rejecting Adams's
proposed mitigating factor
Adams argues that Judge Erlich erred in rejecting his proposed mitigating factor, that "the conduct constituting the offense was among the least serious conduct included in the definition of the offense." Adams's argument is based upon his contention that his offense, taking evidence at trial in the light most favorable to the State, constituted the lesser offense of sexual assault in the second degree, rather than the offense for which he was convicted, sexual assault in the first degree.
AS 12.55.155(d)(9).
Adams had the burden of establishing the mitigating factor by clear and convincing evidence. Judge Erlich rejected Adams's contention that Adams's offense was least serious because Adams had committed the less serious offense of sexual assault in the second degree. Rather, he concluded that the offense fell within the normal range of offenses designated as sexual assault in the first degree. We affirm Judge Erlich's conclusion and we affirm this decision.
AS 12.55.155(f)(1).
See Michael v. State, 115 P.3d 517, 519 (Alaska 2005) (in reviewing trial court decision on "least serious" mitigating factor, appellate court accepts trial court's factual findings unless they are clearly erroneous, but independently reviews whether that conduct constitutes least serious conduct).
The special conditions of probation
Adams objects to two special conditions of probation which Judge Erlich imposed. The first special condition prohibited Adams from having any contact or communication with S.S., either directly or indirectly, without prior written approval from his probation officer. The other special condition specified that Adams "shall not reside with, remain overnight, cohabit with, or engage in an intimate relationship with any person without the prior written permission of a probation officer." (The condition specifically did not apply to Adams's wife.)
Conditions of probation must be "reasonably related to the rehabilitation of the offender and the protection of the public and must not be unduly restrictive of liberty." The first special condition of probation, which prohibited Adams from having any contact or communication with S.S., was not an abuse of discretion. The condition was closely tailored to protect S.S. from further contact with Adams.
Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
The State concedes, however, that the second special condition of probation is problematic. In Bodfish v. State, an unpublished decision, we reviewed this same special condition of probation. We concluded that the challenged condition was vague and overbroad. We accept the State's concession. We reach the same conclusion here. We therefore vacate the special condition of probation. The court may, in its discretion, consider less restrictive alternatives.
Mem. Op. J. No. 5526, 2009 WL 3233716, at *4 (Alaska App. Oct. 7, 2009).
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (court independently reviews State's concession of error).
Conclusion
The judgment of the superior court is AFFIRMED, with the exception of the challenged probation condition. That probation condition is VACATED. BOLGER, Judge, concurring.
I agree with the reasoning in the lead opinion, and I have an additional reason why the trial evidence was sufficient to sustain the conviction for first-degree sexual assault. The evidence also supports the conclusion that the victim was "coerced by the use of force."
In the sexual assault statute, sexual penetration is "without consent" if the victim "with or without resisting, is coerced by the use of force against a person or property." "Force" is defined in the criminal code as "any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement." This element can be established whether the victim is resisting or not resisting.
AS 11.41.470(8)(A).
AS 11.81.900(b)(27).
See AS 11.41.470(8).
On the night in question, Adams was already on top of the victim when she awakened. The jury could reasonably infer that Adams had removed the victim's pajamas, and that he spread her legs or otherwise positioned her body so that he could have sexual intercourse with her. In his closing argument, the prosecutor relied on this evidence when he argued that the victim was coerced by the use of force — the force that Adams used when he restrained her underneath his body.
See Petla v. State, Mem. Op. & J. No. 5677, 2011 WL 676112, at *1 (Alaska App. Feb. 23, 2011) (holding that defendant's use of his body weight to hold sleeping victim down while engaging in sexual intercourse constituted the "bodily impact" or "restraint" necessary to establish that victim was "coerced by the use of force").
The evidence at trial also showed that the victim had a good reason to be frightened of Adams's outrageous behavior. Adams had attempted to have sexual contact with the victim without her acquiescence on at least two prior occasions. On one occasion, she directly told him to leave. On the second occasion other villagers had to break in his front door to keep him from molesting the victim while she was passed out.
This past history explains why the victim was coerced by Adams's conduct. Indeed, the victim testified that she was actually coerced by Adams's behavior — she did not object or resist because she was frightened. This evidence was sufficient to establish — as the prosecutor argued — that when Adams assaulted the victim, she was coerced by the use of force.
This evidence was also sufficient to establish that Adams behaved recklessly. The question is not whether the victim objected or resisted, but rather whether Adams was aware of, and consciously disregarded, a substantial and unjustifiable possibility that he was subjecting the victim to sexual penetration without her consent.Based on this evidence, a jury could reasonably conclude that Adams acted at least recklessly with respect to the risk that he was acting with her consent.
See Ritter v. State, 97 P.3d 73, 78 (Alaska App. 2004) (holding that a jury could reasonably conclude that defendant recklessly disregarded victims' lack of consent even though victims never verbalized their lack of consent).
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