Summary
affirming Belluomini's conviction on direct appeal
Summary of this case from Belluomini v. StateOpinion
Court of Appeals No. A-11235 No. 6202
07-01-2015
ROBERT LEE BELLUOMINI, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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. Trial Court No. 3AN-10-10700 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge ALLARD.
Robert Lee Belluomini was convicted of two counts of first-degree sexual abuse of a minor for sexually abusing his minor daughter and son. He was sentenced to a composite term of 48 years with 10 years suspended (38 years to serve) and 15 years of probation.
AS 11.41.434(a)(2).
On appeal, Belluomini argues that the evidence presented at his trial was insufficient to support the jury's verdicts. We conclude that, when viewed in the light most favorable to upholding the jury's verdicts, the evidence was legally sufficient to support Belluomini's convictions.
Belluomini also argues that the superior court abused its discretion when it permitted the State to introduce evidence that Belluomini was in custody on unrelated charges at the time the children came forward with their sexual abuse accusations. For the reasons explained here, we conclude that Belluomini has failed to show that this evidentiary ruling was an abuse of discretion.
Lastly, Belluomini challenges his sentence, arguing that it is both illegal and excessive. The State concedes that Belluomini's sentence on the count involving his daughter is illegal because the superior court imposed a sentence above the applicable presumptive range without finding any statutory aggravators.
The State's concession is well-founded. Accordingly, we vacate Belluomini's sentence on that count and remand his case to the superior court for re-sentencing consistent with this decision. Because we are remanding Belluomini's case for resentencing, we do not address Belluomini's remaining claim that his composite sentence is excessive.
See Boles v. State, 210 P.3d 454, 455 (Alaska App. 2009) (citing Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972)) ("[T]his Court has an independent duty to evaluate whether the State's concession of error is well-founded.").
Factual background and prior proceedings
Robert Belluomini and T.B. have four children: A.B., B.B., T.B., and R.B.
In May 2008, the Belluominis' youngest son, six-year-old R.B., stated that Belluomini made the oldest son, nine-year-old B.B., perform oral sex on Belluomini. As a result of this allegation, the staff at Alaska CARES interviewed all four children.
Although only R.B. reported any sexual abuse, Belluomini's ten-year-old daughter, A.B., cried at the beginning of her interview, and B.B. stated that before he came to Alaska CARES, Belluomini told him "that if he lied or talked about bad things that he might have to go live somewhere else." B.B. also said that Belluomini spanked and slapped him, and kicked his mother, with whom Belluomini fought about "money and pills."
The sexual abuse investigation was closed after the investigators concluded that R.B.'s allegations were unsubstantiated.
Two years later, in May of 2010, A.B. came to her mother and tearfully told her that "Dad stuck his wiener in my butt." The mother confronted Belluomini with A.B.'s accusation, and Belluomini told her that A.B. must have been thinking of a time when he was trying to wipe toilet paper off of A.B.'s backside. The mother thought this was odd, as A.B. was twelve years old and had been toilet trained since age four. But she did not call the police because she wanted to give Belluomini "the benefit of [the] doubt."
A few months later, Belluomini was arrested and incarcerated on charges that he sexually abused the fifteen-year-old daughter of a woman with whom he was having an extramarital affair. This prompted A.B.'s mother (Belluomini's wife) to talk to A.B. again about her prior allegation, and A.B said Belluomini had sex with her. The mother reported this allegation to the police, and the children were again interviewed at Alaska CARES.
These charges were the subject of 3AN-10-9526 CR, appealed to this court in A-11216.
During these interviews, B.B., who was now eleven years old, said his father was a "pervert" who made him "suck his dick" when he was about five or six years old. He also reported that Belluomini made A.B. perform oral sex on him. B.B. stated that he denied any sexual abuse in the 2008 interviews because he was afraid of his father.
A.B. told her interviewer that her father did something to her that started with an "r" and ended with an "e" but she would not recount any details, saying only that something "disgusting" and "bad" had happened.
A.B. returned to Alaska CARES on September 20, 2010, for a follow-up interview. She brought a written note stating that her father had "intercourse" with her. Alaska CARES nurse practitioner Judith Pressen conducted a physical examination of A.B. During that examination, A.B. told Nurse Pressen that Belluomini's penis had gone inside her (A.B.'s) vagina.
Belluomini was indicted on three counts of first-degree sexual abuse of a minor for orally and vaginally penetrating A.B. and for orally penetrating B.B.
At trial, all four children testified, as did their Alaska CARES interviewers, their mother, and the nurse who examined A.B. The 2008 and 2010 Alaska CARES interviews were also played for the jury.
Belluomini's defense was that his wife had persuaded the children to falsely accuse him of sexual abuse based on her anger over his infidelity and their failing marriage. In support of this defense, Belluomini presented the testimony of Dr. David Raskin, a psychologist who testified that various elements of the children's reports of sexual abuse appeared neither credible nor reliable, particularly in light of their earlier denials of sexual abuse.
The jury convicted Belluomini of two counts of first-degree sexual abuse of a minor, one for vaginally penetrating A.B. and one for orally penetrating B.B. The jurors were unable to reach a verdict on the count charging first-degree sexual abuse of a minor for orally penetrating A.B., and that count was later dismissed by the State.
Prior to sentencing, the State proposed two aggravating factors: AS 12.55.155(c)(18)(A), that the crime was committed against members of the same social unit, and AS 12.55.155(c)(18)(B), that Belluomini had engaged in the same or similar conduct with another victim (the fifteen-year-old daughter of the woman with whom he was having an affair). Belluomini proposed one mitigating factor: AS 12.55.155(d)(9), that his conduct was among the least serious included in the definition of the offense, based on his claim that the children's reports were neither consistent nor reliable.
At sentencing, Superior Court Judge Michael L. Wolverton expressed some ambivalence about the convictions, noting that he would not have been surprised if the jury had acquitted Belluomini. He ruled, however, that this did not make the case "least serious," and he therefore rejected Belluomini's proposed statutory mitigating factor. Judge Wolverton did not address the State's requested statutory aggravating factors or make any explicit findings on them, and the State did not ask for a ruling.
Belluomini faced a presumptive term of 8 years for the sexual abuse involving B.B., which was alleged to have occurred before the 2005 and 2006 legislative changes to sex offender sentencing. However, he faced a presumptive range of 25 to 35 years for the sexual abuse involving A.B., which was alleged to have occurred after the 2006 legislation.
See former AS 12.55.125(i)(1)(A) (pre-March 2005); see also Collins v. State, 287 P.3d 791, 794 (Alaska App. 2012) ("In 2006, the legislature amended the sentencing statutes to sharply increase the sentencing ranges for sexual offenders."), superseded by statute, ch. 43, §§ 1, 22 SLA 2013.
AS 12.55.125(i)(1)(A)(i), as enacted by ch.14, § 4, SLA 2006.
Judge Wolverton imposed the 8-year presumptive term on the count involving B.B. and imposed 40 years with 10 years suspended — a sentence above the presumptive range — on the count involving A.B.
This appeal followed.
The evidence presented at trial was legally sufficient to support Belluomini's convictions
Belluomini argues that the evidence at trial was insufficient to support his convictions because the children's testimony was neither credible nor reliable.
When we review sufficiency of the evidence claims on appeal, we do not judge the credibility of the witnesses; those are matters for the trier of fact. Instead, we view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the verdict and, viewing the evidence in this light, determine whether a fair-minded juror could reasonably conclude that the State met its burden of proof beyond a reasonable doubt.
See Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
Dorman v. State, 622 P.2d 448, 453-54 (Alaska 1981); Eide v. State, 168 P.3d 499, 500-01 (Alaska App. 2007).
Viewing the evidence in this light, the evidence at Belluomini's trial, which included direct testimony from his children about the abuse, was legally sufficient to support his convictions.
The superior court did not abuse its discretion when it allowed the State to introduce evidence that Belluomini was in custody on unrelated charges at the time the children disclosed the sexual abuse
As noted above, after initially denying that their father sexually abused them, A.B. and B.B. later reported that their father had sexually abused them. These reports came soon after Belluomini was arrested and charged with having sex with the fifteen-year-old daughter of a woman with whom he was having an affair.
Belluomini subsequently went to trial on the charges involving the fifteen-year-old and was convicted of two counts of second-degree sexual abuse of a minor and one count of third-degree sexual abuse of a minor.
The State then sought to introduce these convictions at Belluomini's trial in the present case, arguing that they were admissible under Evidence Rule 404(b)(2). Belluomini objected, arguing that the conduct in the two cases was not sufficiently similar and that introducing the other convictions would likely result in additional litigation consuming an inordinate amount of time. The superior court agreed and ruled that the State could not introduce this evidence.
Alaska Evidence Rule 404(b)(2) provides that:
[I]n a prosecution for a crime involving a physical or sexual assault or abuse of a minor, evidence of other acts by the defendant toward the same or another child is admissible if admission of the evidence is not precluded by another rule of evidence and if the prior offenses
(i) are similar to the offense charged; and
(ii) were committed upon persons similar to the prosecuting witness.
However, the superior court allowed the State to introduce the evidence that Belluomini had been arrested and was in custody on undisclosed charges when his children reported the abuse to Alaska CARES, because the court found that this evidence was relevant to explain why the children did not report the abuse until they felt "comfortable enough" to do so.
On appeal, Belluomini argues that the superior court erred in allowing the State to introduce evidence of his arrest and incarceration on other charges, claiming that the probative value of this evidence was greatly outweighed by its potential for unfair prejudice. Belluomini also contends that less prejudicial evidence was available to explain his absence from the home and to explain why the children would believe he was not coming back.
This Court reviews a trial judge's weighing of the probative value of evidence versus its potential for unfair prejudice under the deferential abuse of discretion standard. We will disturb a trial judge's ruling only if it "was 'clearly untenable or unreasonable.'"
Leopold v. State, 278 P.3d 286, 290 (Alaska App. 2012).
Stepovich v. State, 299 P.3d 734, 740 (Alaska App. 2013) (quoting Gonzales v. State, 691 P.2d 285, 286 (Alaska App. 1984)).
We conclude that the superior court's decision to admit this evidence was not an abuse of discretion. The evidence was clearly relevant as a potential explanation for why the children reported the abuse in the later interview after failing to report the abuse in the earlier interview. In addition, while there may have been less prejudicial evidence to establish the same point, Belluomini did not make this argument in the trial court, nor did he offer to stipulate to a less prejudicial version of the relevant facts.
Belluomini's case must be remanded to the superior court for resentencing
As noted above, the superior court never expressly found any statutory aggravating factors, but the court nevertheless imposed a sentence above the presumptive range on the count involving A.B.
On appeal, the State concedes that this is an illegal sentence and agrees with Belluomini that the case must be remanded to the superior court for resentencing. The parties disagree, however, on whether the superior court has the authority on remand to impose a sentence above the presumptive range.
The State asserts that the superior court has the authority to impose a sentence above the presumptive range based on one of the aggravating factors originally proposed by the prosecutor: the aggravator that Belluomini engaged in the same or other conduct with another victim. Belluomini argues that the State waived this aggravator by failing to obtain a ruling in the trial court. We conclude that the State did not waive reliance on this aggravator, because it is an aggravator that may be found by the court sitting without a jury by clear and convincing evidence.
AS 12.55.155(c)(18)(B). We note that the other aggravating factor proposed by the prosecutor — AS 12.55.155(c)(18)(A) — cannot be found by the superior court and requires a jury finding, as the State implicitly recognizes in its briefing on appeal. See AS 12.55.155(f)(2); Milligrock v. State, 118 P.3d 11, 17 (Alaska App. 2005).
See AS 12.55.155(f)(1); Blakely v. Washington, 542 U.S. 296 (2004).
Belluomini also argues that it would violate the prohibition against double jeopardy if the court found this aggravating factor because Belluomini was separately punished for his conduct involving the fifteen year old in the other case. In support of this argument, Belluomini cites to Turney v. State, a case in which we recently vacated this aggravating factor as impermissible double punishment under Juneby v. State. But Turney is inapposite, as it involved conduct that was part of the same case and that was included within the consolidated counts for which Turney was convicted and sentenced.
Turney v. State, 2013 WL 5209862, at *5 (Alaska App. Sept. 11, 2013) (unpublished); see also Juneby v. State, 641 P.2d 823, 842-43 (Alaska App. 1982) (holding that a sentence can not be aggravated based on an aggravating factor involving conduct that formed the basis of a separate conviction at the same trial), modified on other grounds by Juneby v. State, 665 P.2d 30 (Alaska App. 1983).
We therefore conclude that, on remand, the superior court has the authority to consider whether this aggravating factor applies and to determine what weight, if any, it should be given in crafting an appropriate sentence for the sexual abuse count involving A.B.
Conclusion
We AFFIRM Belluomini's convictions. We VACATE Belluomini's sentence on Count I and REMAND this case to the superior court for resentencing consistent with the guidance provided here.
We do not decide Belluomini's excessive sentence claim at this time. Instead, we direct the superior court to resentence Belluomini within 90 days of the effective date of our decision. Within 30 days of the time Belluomini is resentenced, Belluomini shall notify this court whether he wishes to renew his excessive sentence claim. If Belluomini wishes to renew his sentence appeal, a schedule for supplemental briefing, if appropriate, will be set. If Belluomini does not wish to renew his excessive sentence claim after his resentencing, this appeal will be closed.