Opinion
Court of Appeals No. A-8548.
March 23, 2005.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Dale O. Curda, Judge, Trial Court No. 4BE-01-00577 CR.
Avraham B. Zorea, Office of Public Advocacy, and Joshua P. Fink, Public Advocate, Anchorage, for Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
David H. David Sr. appeals his convictions for sexual assault in the first degree and assault in the fourth degree. David argues that Superior Court Judge Dale O. Curda erred in failing to grant his mistrial motion and that his convictions were not supported by sufficient evidence. We conclude that Judge Curda did not err in denying David's motion for a mistrial and that the evidence was sufficient for the jury to convict him. David also argues that Judge Curda was clearly mistaken in sentencing him to the 30-year maximum sentence for sexual assault in the first degree. We affirm David's sentence.
Facts and proceedings
Sometime after midnight, D.H. was dropped off at home by a taxi. She lived at the Swanson apartments in Bethel. However, D.H. was locked out and was unable to get anyone to let her into her apartment. She began walking back to Hospital Housing, where she had been earlier that night.
At some point a young Alaska Native man approached D.H. from the opposite direction. The man was wearing glasses, a black baseball hat, and a black jacket with white stripes down the sleeves. The man claimed to know D.H., and her boyfriend Paul Chief, and he asked D.H. to go with him to a party on Alder Street. D.H. did not recognize the man. After initially agreeing to accompany him, she quickly changed her mind.
D.H. turned to walk away, but the man grabbed her from behind and pulled her behind a nearby hardware store. D.H. fought against the man, but he hit her in the jaw. He then pinned her down, removed her pants, and penetrated her vagina with his fingers. D.H. testified that this attack continued for "a long time."
At some point a woman, Margene Egoak, happened by. Egoak saw a man kneeling over D.H. with his hand covering her mouth. Egoak described this man as young and Native. When Egoak approached to check on D.H., the man ran away. Egoak then helped D.H. put on her pants and shoes, and later helped her flag down a police officer. While assisting D.H., Egoak found a black "Raiders" baseball cap near the site of the attack. She gave this hat to the police.
Bethel Police Sergeant Terry Stonecipher interviewed D.H. in the hospital. Based on the description provided by D.H. and Egoak, Sergeant Stonecipher suspected that the assailant was David. This suspicion was based on the fact that Sergeant Stonecipher believed that David lived on Alder Street and the fact that David had been dressed in black pants, coat, and hat during all of Stonecipher's previous contacts with him. Immediately after speaking with D.H., Sergeant Stonecipher went to the crime scene and recovered a CD case and condom packages which were on the ground. Sergeant Stonecipher attempted to contact David at the Alder Street address, but he had recently moved out.
In the days after the assault, D.H.'s boyfriend, Paul Chief, pointed out different men to D.H. and asked whether any of them was her assailant. Some time after the assault, Chief and D.H. saw a man across the street. Chief asked D.H. if this man was her assailant. At first D.H. said she didn't know, but after getting a better look, she said he "looks like the guy."
D.H. then called Sergeant Stonecipher and told him that she had identified the man who had assaulted her and his name was David David. Sergeant Stonecipher prepared a photo lineup of six men including David. The other five men had roughly the same appearance as David. D.H. "immediately pointed [to] . . . David David as the person who assaulted her."
David's cousin Alfred Nicolai testified that, around the time of the attack, he had overheard David telling his [David's] brother that he was "scared that the police were looking for him and that [the] woman he raped might have told on him." David later told Nicolai not to tell the police what he had said or he would "beat [Nicolai] up."
David was indicted on one count of sexual assault in the first degree and one count of assault in the fourth degree. His first trial ended in a mistrial because of a hung jury.
AS 11.41.410 (a)(1).
AS 11.41.230 (a)(1).
At his second trial, the jury convicted David of both charges. At sentencing, Judge Curda found that David was a worst offender. He sentenced David to 30 years of imprisonment on the conviction for sexual assault in the first degree and to 1 year concurrent on the conviction for assault in the fourth degree.
Judge Curda did not err in denying David's motion for a mistrial
In his opening statement during the second trial, David's attorney said that tests performed on the physical evidence failed to connect David to the attack. He also asserted that the police had waited three weeks to log in the physical evidence that Sergeant Stonecipher had recovered from the crime scene. Apparently, just after David's attorney finished the opening statement, the prosecuting attorney provided him with a copy of the police department evidence log. The evidence log was not admitted into evidence and we do not have a copy in the record on appeal. But the log apparently showed that the police had placed the physical evidence into storage shortly after the sexual assault.
David's attorney moved for a mistrial, arguing that his mistaken representation that the police had waited three weeks to place the physical evidence in storage would undermine his credibility with the jury. In the alternative, he contended that Judge Curda should give a curative instruction to inform the jury that after his opening statement he received new information about the police evidence log. Judge Curda concluded that a curative instruction would cure any prejudice and ruled that it was not necessary to declare a mistrial. David argues that Judge Curda's instruction was insufficient and that Judge Curda erred in denying his motion for a mistrial.
David contends that the State committed a discovery violation by not providing him with a copy of the evidence log before trial. But Criminal Rule 16(b)(1) only requires the State to automatically disclose certain information to the defense. The only part of the rule that arguably required the prosecutor to automatically disclose the evidence logs is Criminal Rule 16(b)(1)(A)(iv), which requires the State to disclose "books, papers, documents or tangible evidence which the prosecuting attorney intends to use in the . . . trial."
It is questionable that the evidence log was subject to automatic disclosure under Criminal Rule 16. David does not discuss this issue. Rather, he merely assumes that there was a discovery violation. But the prosecutor represented that she had not seen the evidence log until after she made her opening statement. According to her representation, she only realized that the document (given to her that morning by Sergeant Stonecipher) was the evidence log during opening statement. She then immediately gave David's attorney the evidence log. Therefore, according to the prosecutor's representation at trial, she did not intend to use the evidence at trial. David never challenged this assertion, and Judge Curda therefore had no occasion to decide this issue of fact.
It is true that in David's first trial, David's attorney had cross-examined the investigating officer, Sergeant Stonecipher, about the physical evidence that the police found at the crime scene. Sergeant Stonecipher testified in the trial that he was not sure where the evidence was from May 12 to June 4, 2001. But he also stated that the evidence was either in the evidence room or secured in his office. He surmised that the evidence was probably placed into the evidence room soon after the offense.
In his final argument at the close of the first trial, David's counsel spent three or four sentences pointing out that Sergeant Stonecipher did not know when he placed the evidence into the evidence room. But it does not appear that whether Sergeant Stonecipher delayed in placing the physical evidence in the evidence room was critical to David's defense. The physical evidence simply did not directly implicate David. The case against him turned on D.H.'s identification and Alfred Nicolai's testimony. Therefore, even though the issue of when Sergeant Stonecipher logged the physical evidence into the evidence room was brought up in the first trial, we are not convinced that the State should have foreseen that this would be an issue in the second trial. To the extent that the State should have foreseen that this would be an issue in the second trial, it should have been at least equally obvious to David's attorney, who could have requested the discovery.
As we have previously stated, it does not appear that whether Sergeant Stonecipher delayed in logging the physical evidence into the evidence room was an important issue in the case. We recognize that David attacked the police investigation, but this point appears to be a small part of the attack. And we fail to see that under the circumstance, David's attorney's inaccurate statement about when the evidence was placed in the evidence room would hurt his credibility with the jury.
As the trial judge, Judge Curda was in a position to determine any possible prejudicial impact to David. He had tried the first case and heard the opening statements in the second trial. From our review of the record, it appears that Judge Curda could properly determine that David had not been prejudiced by his counsel's opening statement. Furthermore, Judge Curda gave a prompt instruction to the jury designed to preclude any potential prejudice. We conclude that Judge Curda did not err in denying David's mistrial motion.
David's convictions were supported by sufficient evidence
David argues that insufficient evidence was presented at trial to support his convictions for sexual assault in the first degree and assault in the fourth degree. At trial the defense conceded that D.H. was assaulted. The only contested issue was whether the State presented sufficient evidence to identify David as D.H.'s assailant.
The State presented substantial evidence, both direct and circumstantial, identifying David as D.H.'s attacker. The most significant evidence was D.H.'s repeated identification of David — on the street, from the photographic lineup, and in court. Second, Margaret Egoak's description of the attacker as a young native male in a black jacket with white stripes fit David's description and corroborated the description given by D.H. Additionally, David had lived on Alder Street around the time of the attack, and Alder Street was where the attacker had attempted to lure D.H. Egoak and D.H.'s description of the assailant's attire also matched David's usual attire (as related by Sergeant Stonecipher and David's probation officer). Nicolai also testified that David owned a Raiders hat, like the hat Egoak found at the scene and gave to the police.
Finally, Nicolai testified to overhearing a conversation in which David told his brother, Michael David, that "he [David] was scared that the police were looking for him, and that [the] woman he raped might have told on him, and that he's scared of the police." David later told Nicolai not to tell the police what he had heard David say or he would "beat [Nicolai] up." Kay Chadwick, Michael David's girlfriend, corroborated Nicolai's testimony, stating that she overheard David telling his brother that he was "in trouble."
David argues that Nicolai's testimony is inconsistent with his prior testimony to the grand jury where, David alleges, Nicolai stated that David had not said he raped anyone. However, it is not this court's role to make decisions on the credibility of witnesses — "weight and credibility are matters for the jury to consider in reaching a verdict, not for a reviewing court to decide in ruling on the legal sufficiency of the evidence."
Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990) (citing Anthony v. State, 521 P.2d 486 (Alaska 1974)).
Viewing the evidence in the light most favorable to the State, reasonable jurors could have found beyond a reasonable doubt that David was guilty of attacking D.H. David's convictions are therefore supported by sufficient evidence.
The sentence was not clearly mistaken
First-degree sexual assault is an unclassified felony and, at the time of David's offense, was punishable by a maximum of 30 years of imprisonment. David, as a second felony offender, was subject to a presumptive sentence of 15 years on this charge.
AS 11.41.410 (b); former AS 12.55.125(i)(1) (2000).
AS 12.55.125 (i)(1)(C).
Judge Curda found that four aggravating factors applied to David's case: (1) that a person, other than an accomplice, had been physically injured as a result of his conduct, (2) that his criminal history involved aggravated or repeated instances of assaultive behavior, (3) that his juvenile criminal history included adjudications for conduct that would have been a felony if committed by an adult, and (4) that he was on parole for third-degree assault when he committed his current offense. The defense did not oppose any of the aggravating factors.
AS 12.55.155 (c)(1).
AS 12.55.155 (c)(8).
AS 12.55.155 (c)(19).
AS 12.55.155 (c)(20).
David was 21 years old at the time Judge Curda sentenced him. David's criminal history dates back to 1994, when he was 13 years old. He has an extensive record of juvenile offenses, including numerous offenses which would have been felonies had he been convicted as an adult. David's criminal history as an adult consisted of a felony conviction for third-degree assault (for pointing a gun at a man, the man's wife, and their children, and threatening to kill them), and a conviction for second-degree criminal trespass, a class B misdemeanor.
AS 11.41.220(d) and AS 11.46.3 30(b), respectively.
The presentence report sets out the following evaluation of David:
Mr. David is young. At 21, however, he has amassed an alarming criminal history. The record indicates that [David] has been in the State's custody or supervision since he was 13 years old. There has not been a break in supervision or a break in the defendant's criminal behavior. He was on parole at the time of the present offense . . . and out of prison just seventeen (17) days after his release on a parole violation. Mr. David's first parole violation occurred just eight (8) days after his initial release. In total, the defendant was out of prison a total of twenty-five days (25) after his last conviction, yet managed to commit a B-misdemeanor and an Unclassified felony offense. Mr. David does not appear to be able to live in society without committing crimes and harming people. . . .
Despite David's relative youth, Judge Curda found that he was a worst offender. He found that, although the sexual assault that David committed was not a worst offense, combined with David's history of criminal offenses, the offense made him a worst offender. In spite of this finding, Judge Curda was reluctant to impose a maximum sentence because of David's youth. But ultimately, Judge Curda concluded that the 30-year maximum sentence was justified. David argues that this finding was error.
A finding that a defendant is a worst offender may be based on the facts of his present offense, his criminal history, or both. Furthermore, in Williams v. State, we rejected the argument that a defendant's youth alone could disqualify him from being a worst offender. We conclude that Judge Curda's findings are supported by the record and support his finding that David was a worst offender who qualified for the maximum sentence.
Moore v. State, 597 P.2d 975, 976 n. 4 (Alaska 1979); Capwell v. State, 823 P.2d 1250, 1256 (Alaska App. 1991).
928 P.2d 600 (Alaska App. 1996).
David contends that Judge Curda's findings were vague and suggest that Judge Curda might have been confusing him with another defendant. David bases his claim on Judge Curda's erroneous reference to the year 1981 as the year that David's criminal history began. But our review of the transcript makes it clear that Judge Curda simply misspoke, stating the year when David was born. He quickly corrected himself. Judge Curda's sentencing comments make it clear that he was familiar with David's offense and his prior record.
Based on David's extensive criminal history and the facts of the current offense, we conclude that Judge Curda was not clearly mistaken in classifying him as a worst offender and sentencing him to the maximum 30 years of imprisonment for first-degree sexual assault.
See Amarok v. State, 789 P.2d 377, 380-81 (Alaska App. 1990) (approving of composite sentence of 33 years to serve for defendant convicted of first-degree sexual assault and first-degree burglary).
The convictions and sentence are AFFIRMED.