Opinion
Court of Appeals No. A-12441 No. 6806
07-17-2019
MICHAEL JOSEPH DAVIS JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Phillip Paul Weidner and A. Cristina Weidner Tafs, Weidner & Associates, 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. Trial Court No. 3AN-12-12425 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge. Appearances: Phillip Paul Weidner and A. Cristina Weidner Tafs, Weidner & Associates, 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: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Michael Joseph Davis Jr. was convicted, following a jury trial, of attempted second-degree sexual assault. Davis raises three claims on appeal.
First, Davis argues that there was insufficient evidence to convict him of attempted second-degree sexual assault. For the reasons explained here, we conclude that the evidence was sufficient to support his conviction.
Second, Davis argues that the jury was not properly instructed on the elements of attempted second-degree sexual assault. We agree with Davis that the jury's instructions were not as clear as they should have been. However, for the reasons explained here, we conclude that any error in the instructions was harmless.
Lastly, Davis argues that the trial court erred when it failed to sua sponte instruct the jury on lesser included offenses that were not requested by his defense counsel. For the reasons explained in this decision, we find no plain error.
Background facts and prior proceedings
In August 2012, S.S. ran into her neighbor, Davis, while taking a walk around her neighborhood. Davis invited S.S. to come inside and have a beer with him. S.S. accepted the invitation.
According to S.S.'s trial testimony, after Davis and S.S. talked for a short while, Davis asked S.S. to go upstairs and have sex with him. S.S. refused. According to S.S., Davis then grabbed S.S.'s arm, pushed her hand down his pants, and rubbed her hand on his body. S.S. testified that she pulled her hand away, but Davis grabbed it and again forced it down his pants. (At trial, S.S. was not certain whether her hand touched his penis.)
S.S. testified that she left Davis's house, but that Davis followed her and walked with her. Instead of returning to her apartment, S.S. stopped in front of the ground-floor bedroom window of her next-door neighbor and friend, Tomy Woo. Woo lived in the apartment with his brother Tony, who has cognitive disabilities.
Woo testified at trial. According to Woo's testimony, he saw S.S. and Davis through his partially open window from his bedroom. S.S. and Davis were standing about an arm's length from one another. Woo did not notice anything amiss until he saw S.S. mouth "help me." Woo testified that Davis was holding S.S.'s arm at a 45-degree angle towards his crotch area. When Woo stood up, he could see that Davis's pants were undone and that Davis's left hand was rubbing where his penis was, and his other hand was pulling on S.S.'s arm towards his crotch area.
S.S. testified that Davis repeatedly grabbed her arm and tried to force her hand down his pants while the two stood outside of Woo's window. S.S. testified that she was struggling with Davis and trying to pull her arm away.
Woo testified that, through the open window, he told Davis to put his penis away. According to Woo, Davis responded by challenging Woo to compare penis sizes. Woo testified that he refused to engage, and instead sat back down.
Several minutes later, Woo's brother Tony came in from the bus and said that Davis had smacked S.S. (Tony did not testify at trial.) Woo then went outside and told Davis to leave. Davis responded aggressively and Woo yelled for his brother to call 911. Davis left.
After Davis left, Woo encouraged S.S. to talk to her ex-husband about what happened. (S.S.'s ex-husband had previously worked for law enforcement.) A day later, S.S. called the police at the urging of her ex-husband. When S.S. initially spoke to the police, she only described the hand-pulling incident outside of Woo's window. It was only during later interviews with the police that she reported that anything sexual had happened at Davis's house.
At trial, Davis testified in his own defense. According to Davis, nothing sexual happened at his house or outside of Woo's window. Davis testified that he offered S.S. a beer when he saw her outside of his house. She accepted, and the two of them talked about Davis's children and S.S.'s medical condition. (S.S. has multiple sclerosis and was severely underweight at the time.) According to Davis, the two also discussed smoking pot, and S.S. offered to take him somewhere so they could get pot and smoke together. Davis testified that they left the house together. A neighbor testified that he saw the two of them walking on the street and that everything seemed normal. According to Davis, when they arrived at Woo's house, Woo was suspicious of Davis, and the two of them got into a verbal altercation. Davis agreed that he left when Woo threatened to call the police.
Davis was charged with second-degree sexual assault for the incident at his house (Count I) and attempted second-degree sexual assault for the incident outside of Woo's window (Count II). At trial, the jury acquitted Davis of the allegations related to the incident at his house (that is, the jury acquitted Davis of second-degree sexual assault, as well as the lesser included offense of attempted second-degree sexual assault with regard to Count I). The jury convicted Davis of attempted second-degree sexual assault for the incident that occurred outside of Woo's window.
At sentencing, Davis faced a presumptive sentence in the range of 15-20 years because he had three prior felony convictions. The trial judge found that Davis's conduct was "among the least serious included in the definition of the offense," and he sentenced Davis to 9½ years' imprisonment with 2 years suspended (7½ years to serve).
AS 12.55.125(i)(4)(D).
AS 12.55.155(d)(9).
Davis's argument that the evidence was insufficient to support his conviction for attempted second-degree sexual assault
On appeal, Davis argues that the evidence was insufficient to support his conviction for attempted second-degree sexual assault. In particular, Davis argues that there was insufficient evidence to support the conclusion that he used or intended to use force (or threat of force) to coerce S.S. to engage in the sexual contact.
We recently clarified the elements of attempted second-degree sexual assault in State v. Mayfield. As we explained in Mayfield, to prove the crime of attempted second-degree sexual assault, the State must prove beyond a reasonable doubt that:
State v. Mayfield, ___ P.3d ___, Op. No. 2643, 2019 WL 1970114 (Alaska App. May 3, 2019).
(1) the defendant intended to engage in sexual contact with the victim;Sexual contact in this context means "knowingly touching, directly or through clothing, the victim's genitals, anus, or female breast" or "knowingly causing the victim to touch, directly or through clothing, the defendant's or victim's genitals, anus, or female breast." "Force" means "any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement," other than the bodily impact, restraint or confinement inherent in the intended sexual contact.
(2) the defendant recklessly disregarded a substantial and unjustifiable risk that the victim was unwilling to engage in the sexual contact;
(3) the defendant intended to use force or threat of force if necessary to achieve the sexual contact; and
(4) the defendant took a substantial step toward achievement of the completed crime.
Id. at *7.
AS 11.81.900(b)(60)(B).
AS 11.81.900(b)(28); Inga v. State, 440 P.3d 345, 349 (Alaska App. 2019).
On appeal, Davis argues that the State failed to prove that Davis used or intended to use force, or the threat of force, to achieve sexual contact with S.S. Throughout his brief, Davis refers to his conduct as merely a "clumsy attempt at seduction," and he asserts that the evidence showed, at most, that he was "merely attempt[ing] to guide [S.S.'s] hand to his penis to seduce her." Davis claims that there was no evidence that he used force or the threat of force against S.S.
But when a defendant challenges the sufficiency of the evidence to support a criminal conviction, an appellate court is required to view the evidence, and all reasonable inferences that can be drawn from that evidence, in the light most favorable to upholding the jury's verdict. Viewing the evidence in this light, the court then asks whether a reasonable juror could find that the State had proved the defendant's guilt beyond a reasonable doubt.
See Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Id.
Here, S.S. directly testified to Davis's use of force. S.S. testified that Davis repeatedly grabbed her arm and tried to force her hand down his pants while the two stood outside of Woo's window. S.S. further testified that she struggled with Davis and tried to pull her arm away.
In addition, Tomy Woo testified that he saw Davis with his pants undone and his penis out. According to Woo, Davis was rubbing himself in the area of his penis and "pulling" on S.S.'s arm with his other arm.
Viewing this evidence in the light most favorable to upholding the jury's verdict, it is sufficient to establish not only that Davis was willing to use force to accomplish the sexual contact, but that he in fact did use force in his efforts to accomplish the sexual contact. Accordingly, the evidence presented at Davis's trial was legally sufficient to support his conviction for attempted second-degree sexual assault.
Davis's argument that the trial court erred when it denied his post-verdict motion for judgment of acquittal
Davis next argues that the trial court erred when it denied his post-verdict motion for judgment of acquittal on the attempted sexual assault count.
On appeal, Davis argues that the trial judge should have granted his motion for judgment of acquittal because, according to Davis, the jury's decision to convict him of the attempted sexual assault outside of Woo's house is irreconcilable with the jury's decision to acquit him of the alleged assault inside his own house. Davis maintains that the jury's decision to acquit him of the latter charge could only mean that the jury found S.S. not credible. Davis therefore argues that this credibility finding should also apply to the jury's verdict on the count involving the attempted sexual assault outside of Woo's house (through a doctrine Davis calls "quasi collateral estoppel").
This argument is without merit. Jurors are free to accept none, some, or all of a witness's testimony. The jury apparently concluded that S.S.'s uncorroborated testimony regarding the incident at Davis's house was not convincing beyond a reasonable doubt. But there is no logical inconsistency between this conclusion and the jury's further conclusion that S.S.'s testimony, coupled with the corroborating testimony of Tomy Woo, was sufficient to establish Davis's guilt of the attempted sexual assault that took place outside of Woo's house.
White v. State, 298 P.3d 884, 885-86 (Alaska App. 2013) (citing Taylor v. State, 262 P.3d 232, 233-34 (Alaska App. 2011)).
We therefore uphold the trial judge's denial of Davis's motion for judgment of acquittal.
We note that Davis also appears to misunderstand the legal standard that governs motions for judgment of acquittal. In this portion of his brief, Davis relies on the standard that applies to a motion for a new trial based on the weight of the evidence.
See Dorman v. State, 622 P.2d 448, 454 (Alaska 1981); Howell v. State, 917 P.2d 1202, 1212 (Alaska App. 1996); cf. Hunter v. Philip Morris USA Inc., 364 P.3d 439, 450 (Alaska 2015) (clarifying the standard for motion for a new trial based on the weight of the evidence in the civil context).
In the trial court, Davis made both a motion for judgment of acquittal and a motion for a new trial based on the weight of the evidence, however, on appeal, Davis only challenges the denial of his motion for judgment of acquittal. To the extent that Davis is making a separate claim of error regarding the trial court's handling of the untimely motion for a new trial, we conclude that this claim is waived for inadequate briefing.
See Windel v. Carnahan, 379 P.3d 971, 980 (Alaska 2016); Petersen v. Mut. Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990); Berezyuk v. State, 282 P.3d 386, 398-99 (Alaska App. 2012). We note that the motion for a new trial was, indeed, untimely — a fact that Davis does not address or acknowledge in his briefing. See Alaska R. Crim. P. 33(c).
Davis's argument that the jury was not properly instructed on the elements of attempted second-degree sexual assault
Davis argues that the trial court failed to instruct the jury on all the essential elements of attempted second-degree sexual assault. He also maintains that this flaw constitutes structural error — i.e., that it requires automatic reversal of his conviction, even though the record may not show any reasonable possibility that the flaw in the jury instructions affected the jury's verdict.
Although Davis now objects to the jury instructions given in his case, Davis made no objection to these instructions in the trial court. Because of this, Davis is required to show plain error on appeal. In the context of jury instructions, "an appellate court will only find plain error where the erroneous instruction or lack of instruction creates a high likelihood that the jury followed an erroneous theory, resulting in a miscarriage of justice."
Brown v. State, 435 P.3d 989, 992 (Alaska App. 2018) (quoting Dobberke v. State, 40 P.3d 1244, 1247 (Alaska App. 2002)).
The jury in this case received three instructions that dealt with the elements of sexual assault. The first of these instructions (Instruction Number 13) related to Count I of the indictment — the charge of second-degree sexual assault based on the incident that occurred inside Davis's house. This instruction informed the jury that, to prove Davis guilty of second-degree sexual assault, the State was required to prove each of the following elements beyond a reasonable doubt:
(1) the defendant knowingly engaged in sexual contact with S.S., S.S.'s hand to defendant's penis;Davis does not argue that there was any error in this instruction.
(2) the sexual contact occurred without the consent of S.S.; and
(3) the defendant recklessly disregarded S.S.'s lack of consent.
The second instruction (Instruction Number 15) related to attempted second-degree sexual assault as a potential lesser included offense of the second-degree sexual assault charged in Count I.
The third instruction (Instruction Number 17) related to Count II of the indictment—the charge of attempted second-degree sexual assault based on the incident that occurred outside of Woo's house.
These second and third instructions were substantively identical. They informed the jury that, to prove Davis guilty of attempted second-degree sexual assault, the State was required to prove each of the following elements beyond a reasonable doubt:
(1) the defendant intended to engage in sexual contact with S.S., S.S.'s hand to defendant's penis;Davis did not object to these instructions at trial. However, on appeal, he argues that this listing of the elements of attempted second-degree sexual assault was deficient because (according to Davis) it failed to explicitly state that the attempted sexual touching, if achieved, would have been "without consent."
(2) the defendant recklessly disregarded S.S.'s lack of consent; and
(3) the defendant engaged in conduct which constituted a substantial step toward the commission of Sexual Assault in the Second Degree.
We agree with Davis that the instruction was not as clear as it could have been. But we disagree with Davis that the instruction failed to inform the jury of the essential elements of attempted second-degree sexual assault.
The term "without consent" has a specialized legal meaning under Alaska law. As defined in AS 11.41.470(8)(A), "without consent" means 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."
A sexual act is also "without consent" if the person is "incapacitated as a result of an act of the defendant." AS 11.41.470(8)(B). This portion of the definition is not at issue in this case.
Davis's jury was instructed on the statutory definition of "without consent" in Instruction Number 19. The jury was therefore aware that, in this context, the legal phrase "without consent" incorporated both the concept of the victim's lack of subjective consent and the defendant's use of coercion. The jury was also aware, from Instruction Number 13, that the completed crime of second-degree sexual assault required proof of a sexual contact that occurred "without consent."
When we evaluate the propriety or sufficiency of jury instructions, we do not review the challenged instruction(s) in isolation. Instead, we review them in the larger context of the jury instructions as a whole. Here, Davis's jury was properly instructed that, to prove the crime of attempted second-degree sexual assault, the State had to prove that Davis took a substantial step toward the completed crime of second-degree sexual assault—which, according to Instruction Number 13, meant that the State had to prove that Davis took a substantial step toward accomplishing a sexual contact with S.S. that would occur without consent.
Baker v. State, 905 P.2d 479, 490 (Alaska App. 1995).
Id.
The jury was also instructed that a "substantial step" is "conduct of such a character that it shows the defendant's intent to begin to commit the crime." (Emphasis added.) In other words, the jury was told that it could not convict Davis of attempted second-degree sexual assault unless it found, beyond a reasonable doubt, that Davis intended to engage in sexual contact with S.S. "without consent," and that his actions demonstrated this intent.
See State v. Mayfield, ___ P.3d ___, Op. No. 2643, 2019 WL 1970114, at *6-7 (Alaska App. May 3, 2019) (recognizing that "to be guilty of attempted sexual assault, a defendant must intend — or conditionally intend — to use 'whatever force is required to commit the sexual act against the victim's will'" (quoting United States v. Bolanos-Hernandez, 492 F.3d 1140, 1147 n.5 (9th Cir. 2007)).
Thus, even though the two jury instructions on the elements of attempted second-degree sexual assault were not as clear as they could have been, the jury instructions, taken as a whole, informed the jury that the State was required to prove that Davis intended to engage in sexual contact with S.S. "without consent," and that Davis's conduct manifested this criminal intention.
Davis also argues that the instructions were flawed because they instructed the jury that the State had to prove that Davis "recklessly disregarded S.S.'s lack of consent," rather than instructing the jury that the State had to prove that Davis acted "without regard to" S.S.'s lack of consent. We find no merit to this claim.
It is not obvious to us that there is a substantive difference between these two formulations. But to the extent there is any difference, the use of the word "recklessly" is preferable, because it refers to the statutorily defined culpable mental state that the State is required to prove. In contrast, the phrase "without regard" does not have a statutory definition, and it is potentially susceptible of meanings that would be inconsistent with Alaska law.
See AS 11.81.900(a)(3).
To act "recklessly" as defined in AS 11.81.900(a)(3), a defendant must be subjectively aware of a risk and consciously disregard it. Under Davis's proposed wording of "without regard," the jury might not understand that the State was required to prove that the defendant was subjectively aware of the risk. Instead, the jury might believe that it was sufficient for the State to prove that the defendant simply failed to perceive the risk (for reasons other than voluntary intoxication). This might lead the jury to improperly convict the defendant based on the conclusion that the defendant acted with culpable negligence as defined in AS 11.81.900(a)(4), even though the State is legally required to prove the higher culpable mental state of recklessly as defined in AS 11.81.900(a)(3).
See AS 11.81.630.
In addition, we note that Davis's defense was unrelated to any perceived difference between "recklessly" and "without regard to." In contrast to the arguments Davis now makes on appeal, Davis never argued at trial that his actions were a "clumsy attempt at seduction" that was misunderstood by S.S. Instead, in his trial testimony, Davis categorically denied making any sexual overtures toward S.S., or engaging in any of the conduct described by S.S. and Tomy Woo.
Lastly, we find no merit in Davis's claim that the jury instructions in his case constituted structural error under Jordan v. State. As we have explained, the instructions in Davis's case, although not as clear as they could have been, adequately informed the jury of the essential elements of attempted second-degree sexual assault. The jury instructions also allowed Davis to pursue and argue his chosen defense to this charge. Davis's case therefore does not present the kind of structural error that occurred in Jordan.
Jordan v. State, 420 P.3d 1143 (Alaska 2018).
See Brown v. State, 435 P.3d 989, 992 (Alaska App. 2018) ("We do not read Jordan as requiring automatic reversal of a criminal conviction whenever there is some flaw in the jury instruction on the elements of the crime.").
Davis's argument that the trial judge erred in failing to sua sponte instruct the jury on certain lesser included offenses
Davis argues that the trial court erred by failing to instruct the jury on certain lesser included offenses. Davis acknowledges that he did not request jury instructions on any lesser included offenses in the trial court, but he argues that the trial judge should either have acted sua sponte to instruct the jury on these lesser included offenses or, alternatively, the trial judge should have conducted a LaVigne-type inquiry to determine whether Davis was knowingly waiving the opportunity to have the jury instructed on the applicable lesser included offenses.
See LaVigne v. State, 812 P.2d 217 (Alaska 1991) (requiring trial judge to conduct personal inquiry of defendant to confirm that the defendant's decision not to testify is voluntary).
But as Davis acknowledges, nothing in our existing case law required the trial judge to take either course. In Heaps v. State, this Court held that a trial judge's failure to sua sponte instruct a jury on lesser included offenses did not constitute plain error because "reasonable judges could differ regarding a trial judge's duty to instruct the jury on lesser included offenses in the absence of a request from either party." We also noted in Heaps that the majority of jurisdictions do not require a trial court to instruct a jury on lesser included offenses unless requested by a party.
Heaps v. State, 30 P.3d 109, 116 (Alaska App. 2001).
Id. at 115.
As the State points out, a defense attorney may choose not to request lesser included offenses in order to present the jury with an all-or-nothing choice. This is apparently what occurred here. Davis's defense was that nothing sexual happened between him and S.S., either at his house or in front of Woo's window. Davis took the stand at trial and expressly denied all of the alleged conduct. The trial attorney's decision not to have the jury instructed on lesser included offenses is consistent with this defense strategy. Given these circumstances, we find no plain error in the trial judge's failure to sua sponte instruct the jury on the lesser included offenses that Davis now proposes.
On appeal, Davis points to an affidavit submitted by his trial attorney, in which the attorney states that Davis wanted to have the jury instructed on lesser included offenses but the attorney overrode his wishes. This affidavit was submitted to the trial court as part of a motion for a new trial, which was denied as untimely by the trial court. Davis does not directly challenge that ruling on appeal.
(For this reason, we do not reach the State's arguments that none of Davis's proposed lesser included offenses were actually lesser included offenses under the facts of this case. We note, however, that the legislative history of the first-degree harassment statute suggests that the legislature may have intended for the crime of first-degree harassment to qualify as a lesser included offense of second-degree sexual assault, even though first-degree harassment includes the additional element of "intent to harass or annoy.")
See Governor's Transmittal Letter for Senate Bill 222, 2010 Senate Journal 1237-38 (Jan. 15, 2010) (noting that the bill would adopt a class A misdemeanor for offensive touching that does not rise to the level of sexual assault in the first, second, or third degree); cf. AS 28.35.410(b) (establishing negligent driving as a lesser included offense of reckless driving under AS 28.35.400(a), even though negligent driving includes an additional element of actually endangering a person or property). --------
Conclusion
The judgment of the superior court is AFFIRMED.