Opinion
Court of Appeals No. A-9876, No. 5421.
January 7, 2009.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred J. Torrisi, Judge, Trial Court No. 3DI-06-277 Cr.
Doug M iller, Assistant Public Advocate, Appeals Statewide Defense Section, and Joshua Fink and Rachel Levitt, Public Advocates, Anchorage, for the Appellant. Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Homer Moses Bartman appeals his conviction for second-degree sexual assault under AS 11.41.420(a)(3)(B) and (C) (sexual penetration with a victim who is either unaware of the sexual conduct or incapacitated). Bartman argues that the evidence presented at his trial was legally insufficient to support the jury's verdict on two of the elements of the crime.
In particular, Bartman points to the fact that the victim of the assault had no recollection of the event. According to Bartman, this means that there was no direct evidence that the victim was either unaware of the sexual conduct or incapacitated. In addition, even assuming that the evidence was sufficient to support a finding that the victim was unaware or incapacitated, Bartman points out that there was no direct evidence that Bartman knew that the victim was unaware or incapacitated.
But under Alaska law, there is no distinction between direct and circumstantial evidence when it comes to assessing the sufficiency of the evidence to support a verdict. Thus, even in the absence of direct evidence of the two elements discussed in the preceding paragraph, the verdict would be supported if there was sufficient circumstantial evidence of these elements to persuade reasonable jurors that the State's case had been proved beyond a reasonable doubt.
See Ashley v. State, 6 P.3d 738, 743 (Alaska App. 2000) ("[W]hen assessing the sufficiency of the evidence to support a criminal conviction, we apply the same standard regardless of whether the state's case is based on circumstantial or direct evidence."). See also Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976); Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994); Willett v. State, 836 P.2d 955, 957 (Alaska App. 1992).
See Ashley, 6 P.3d at 743 ("Evidence is sufficient to support a conviction when fair-minded jurors, exercising reasonable judgment and taking the evidence in the light most favorable to the [verdict], could find that the government had met its burden of establishing the defendant's guilt beyond a reasonable doubt."). See also Dorman v . State, 622 P.2d 448, 453-54 (Alaska 1981); Pavlik v. State, 869 P.2d 496, 497 (Alaska App. 1994).
For the reasons explained here, we conclude that the evidence was sufficient to meet this test. We therefore affirm Bartman's conviction. Underlying facts
As we have explained, the issue raised in this appeal is the sufficiency of the evidence to support the verdict. When an appellate court evaluates the sufficiency of the evidence, the court must view the evidence in the light most favorable to upholding the verdict. Accordingly, we describe the evidence in that light.
Eide v. State, 168 P.3d 499, 500 (Alaska App. 2007); Tipkin v. Anchorage, 65 P.3d 899, 901 (Alaska App. 2003); Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
On the afternoon of November 1, 2004, M.B. traveled to the village of Manokotak to visit her cousin. M.B. brought about a gallon of vodka with her (one half-gallon bottle and two fifths). M.B. and her cousin began drinking this vodka. Later that evening, at M.B.'s request, her cousin invited Homer Bartman to come over.
Sometime between 8:00 and 9:00 p.m., Bartman arrived with his sister, Katherine Bartman. Both Bartman and his sister had two or three drinks with M.B. and her cousin over the next hour or so. Both Bartman and his sister later testified that, while they were drinking, M.B. was seated next to Bartman and was touching or rubbing his leg.
Around 10:00 p.m., Bartman drove his sister home, and then he returned to continue drinking with M.B. and her cousin.
M.B. testified that, after Bartman returned from taking his sister home, her cousin went to sleep on the couch, and then Bartman "tried to come on" to her. M.B. stated that Bartman was "trying to mess around with [her]", and that he "wanted to go to bed [with her]", but that she did not want that to happen. She told Bartman "not to bother [her]", that she "[didn't] like men messing around [with her]", and that "[she] was going to go to bed and [she] didn't want to be bothered."
According to M.B., after she had this conversation with Bartman, she went into a bedroom, put a blanket around her, and lay down to sleep fully clothed. Her next memory was of waking up at 8:15 a.m. . She discovered that her pants and underwear were off, and her genital area was wet. From this, M.B. concluded that someone had had sex with her during the night — and she suspected Bartman.
Bartman was not there when M.B. awoke. The only other person in the house was M.B.'s cousin. M.B. did not tell her cousin (who is male) about her suspicions, but when a female friend called the house later that morning, M.B. told her what had happened, and the friend called the Manokotak health aide. Later, M.B. was sent to Dillingham for a medical examination, which included vaginal and oral swabs. That same day, M.B. was interviewed by the state troopers, and the troopers sent her clothing and body samples to the state crime lab for analysis.
In September 2005, the troopers went to interview Bartman, who was then living in the Seward area. During this interview, the troopers served a search warrant that authorized seizure of a sample of Bartman's DNA (so that it could be compared to the DNA identified by the crime lab from M.B.'s body samples).
During this interview, Bartman denied having sex with M.B. . However, when Bartman's DNA was compared to the DNA found in the sperm collected from M.B.'s vaginal swab, the DNA matched at 15 different sites. An analyst from the crime lab testified that, given these 15 matches, "it [was] extremely unlikely that [the DNA] could have come from an unrelated person" — i.e., from a person who was not biologically related to Bartman. Why we conclude that the evidence is sufficient to support the verdict
As we have explained, the test for determining the sufficiency of the evidence at a criminal trial is whether, viewing the evidence in the light most favorable to upholding the verdict, fair-minded jurors could have concluded that the State had proved its case beyond a reasonable doubt.
Given the evidence described in the preceding section of this opinion, fair-minded jurors could reasonably conclude: (1) that sometime after M.B. went to sleep, Bartman removed her clothing and had sex with her; (2) that M.B. remained unaware of what was happening to her, or was incapacitated by intoxication, or both; and (3) that Bartman knew, when he had sex with M.B., that she was unaware and/or incapacitated.
It is true, as Bartman asserts, that the State's proof of elements two and three rested to a large degree on circumstantial evidence. But, as we explained earlier in this opinion, Alaska law employs the same test for evaluating the sufficiency of the evidence, regardless of whether the government's evidence is direct or circumstantial. The question is whether reasonable jurors could have concluded, based on this evidence, that the government had proved its case. Here, the answer is "yes".
Accordingly, the judgement of the superior court is AFFIRMED.