Opinion
Court of Appeals No. A-11116 No. 6144
02-11-2015
KENNETH M. DION, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Hanley Robinson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. 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-07-4339 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Jack Smith, Judge. Appearances: Hanley Robinson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. 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, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Following a jury trial, Kenneth M. Dion was convicted of first-degree murder, two counts of second-degree murder, and first-degree sexual assault for the rape and murder of B.C., an eighteen-year-old student whose body was found at the bottom of a cliff at McHugh Creek Recreation Area in 1994.
Former AS 11.41.100(a)(1)(A) (1994).
Former AS 11.41.110(a)(1) (1994); Former AS 11.41.110(a)(3) (1994).
Former AS 11.41.410(a)(1) (1994).
Dion raises three arguments on appeal. Dion argues first that a 2006 search warrant application used to obtain his DNA contained intentional misrepresentations and omissions about the 1994 investigation. Dion argues next that the State should not have been permitted to introduce B.C.'s hearsay statements about her love for her boyfriend to rebut the defense's claim that Dion and B.C. had consensual sex. Lastly, Dion argues that the evidence presented at trial was legally insufficient to support his convictions for murder and sexual assault.
For the reasons explained here, we conclude that the evidence at trial was legally sufficient to support Dion's convictions and that his other arguments on appeal are without merit. We therefore affirm Dion's convictions.
Factual background and prior proceedings
Because Dion claims that the evidence used to convict him at trial was legally insufficient, we recite these facts in the light most favorable to upholding the jury's verdict. See Joseph v. State, 293 P.3d 488, 490 (Alaska App. 2012).
Around 2:00 p.m. on September 28, 1994, a hiker discovered the body of eighteen-year-old B.C. in a pool of water below a cliff at McHugh Creek Recreation Area, about twelve miles outside Anchorage.
An autopsy of B.C.'s body revealed that she had died from a series of blows to the head. The doctor who performed the autopsy found eleven separate lacerations to B.C.'s head that were made by a single object, indicating one episode of multiple blows. The doctor also found that one of the blows inflicted a skull fracture that was itself severe enough to cause B.C.'s death. The doctor found significant defensive wounds on one of B.C.'s hands, including a fractured finger and a laceration across her ring finger that went down to the bone.
The autopsy also revealed a small laceration to B.C.'s vagina. The doctor determined that the laceration was more consistent with sexual assault than with consensual sex and that it had occurred within the twelve hours of B.C.'s death. Sperm from an unknown male was detected on her clothing and in her vagina, and the sperm's DNA profile was subsequently entered into a national DNA database.
The investigation into B.C.'s murder revealed that B.C. was seen early that morning walking from her family's house to the bus stop. She was on her way to the University of Alaska Anchorage — where she was a student — to attend a 7:00 a.m. class and take an exam that she had studied for the night before. However, B.C. never arrived at the university, and none of her family or friends saw her again until her body was found later that day at McHugh Creek.
The Alaska State Troopers received a number of reports from people who thought they might have seen B.C. at McHugh Creek on the day she died, but they lacked any clear investigative leads, and the investigation stalled.
In 2006, the Troopers were notified that the national DNA database had matched the DNA profile of the sperm found in B.C.'s vagina to the DNA profile of Kenneth Dion, who was serving time in a New Hampshire prison.
After confirming that Dion had been in Alaska during September 1994, the Troopers applied for a search warrant in New Hampshire to collect Dion's DNA and other biological material. Trooper Merlin D. Ehlers provided the affidavit in support of the search warrant application. In the affidavit, Trooper Ehlers focused on the autopsy findings, the DNA match through the national DNA database, and the fact that Dion was in Alaska at the time of B.C.'s death. Towards the end of the affidavit, he also mentioned that Dion had received a traffic ticket in a dark colored Ford passenger car and that a witness had reported seeing a dark colored passenger car in the McHugh Creek parking lot at approximately 8:00 a.m. on the day B.C. was murdered.
The New Hampshire court granted the search warrant. Trooper Tim Hunyor traveled to New Hampshire to execute the search warrant and to interview Dion. During the interview, Dion acknowledged that he had lived in Anchorage between 1990 and 1996. When asked about B.C., he said he had never met her, did not recognize her name, and did not recognize her from her photograph.
At trial, however, Dion's defense was that he had met B.C. and had consensual sex with her sometime before she died, but that he had nothing to do with her death. The defense also argued that the State could not prove that B.C.'s death was not accidental or that the sex was not consensual. In response, the State introduced evidence tending to refute Dion's claim that B.C. willingly had sex with him, including emails from B.C. to her boyfriend in California. Dion objected to these emails as hearsay, but the superior court allowed the State to introduce them under Alaska Evidence Rule 803(3) as evidence of B.C.'s then-existing state of mind.
The jury convicted Dion of all the charges against him. At sentencing, the court merged the first-degree and second-degree murder convictions and sentenced Dion to 99 years to serve on the murder and 25 years to serve on the first-degree sexual assault, for a composite sentence of 124 years to serve.
This appeal followed.
Why we affirm the superior court's denial of Dion's motion to suppress
After Dion was indicted, he filed a motion to suppress the DNA evidence obtained through the 2006 search warrant, asserting that Trooper Ehlers had purposely misrepresented various facts from the 1994 investigation when he applied for the search warrant in order to make the case against Dion seem stronger than it was. Dion pointed out that the trooper's affidavit failed to mention a 1994 report from a witness who believed that he saw B.C. hiking with a group at McHugh Creek on the day of her death. Dion also pointed out that the witness who reported seeing a "dark-colored passenger car" had actually been inconsistent about whether the vehicle was a car or a truck.
Under Alaska law, once a defendant has identified a misstatement or omission in a search warrant application, the burden shifts to the State to prove by a preponderance of the evidence that the statement was not made intentionally or with reckless disregard for this truth. If a misstatement or omission was made intentionally — that is, with the deliberate intent to mislead the court — the entire warrant is invalidated. Reckless misstatements or omissions are excised from the warrant affidavit, and the remainder of the affidavit is reviewed for probable cause.
See State v. Malkin, 722 P.2d 943, 946 (Alaska 1986); Lewis v. State, 862 P.2d 181, 186 (Alaska App. 1993).
See Malkin, 722 P.2d at 946 n.6; Lewis, 862 P.2d at 186.
Malkin, 722 P.2d at 946; Lewis, 862 P.2d at 186.
Here, the superior court held an evidentiary hearing on Dion's motion to suppress in which Trooper Ehlers testified about his reasoning for deciding what information to include in the search warrant application. The superior court's findings at the hearing indicate that it found that there was no deliberate attempt to mislead the court and that any misstatements or omissions was, at most, reckless. The superior court also found that none of the misstatements or omissions were in any way material to probable cause, which was already firmly established by the prior DNA match and the circumstances of B.C.'s death. We agree, and we therefore affirm this ruling.
Why we affirm the superior court's evidentiary ruling permitting the State to introduce B.C.'s hearsay statements regarding her feelings for her boyfriend
Over Dion's hearsay objection, the State introduced various statements made by B.C. about her commitment to her boyfriend in California. The trial court allowed the State to introduce this evidence under Evidence Rule 803(3), the hearsay exception for then-existing state of mind, because the court ruled that the evidence was relevant to rebut Dion's claim that he and B.C. had consensual sex around the time of B.C.'s death.
On appeal, Dion argues that B.C.'s love for her boyfriend was irrelevant and the court therefore erred in admitting the hearsay statements. We disagree. As we recently noted in Linehan v. State, "[g]enerally ... when hearsay evidence of a person's state of mind is relevant [to a disputed issue in the case], that relevance will rest upon an inference about the person's related conduct." Here, B.C.'s statements about her love for her boyfriend in the months prior to her death were relevant because they were contemporaneous statements of her then-existing state of mind that tended to disprove Dion's claim of consensual sex with B.C. sometime before her death.
224 P.3d 126, 131 (Alaska App. 2010).
Dion argues that the statements were irrelevant because they were not made close enough in time to her death and thus it was possible her feelings had changed. Dion also argues that the fact that B.C. loved her boyfriend does not necessarily mean that she did not cheat on him. But as the State correctly points out, these are arguments that go to the weight of the evidence, rather than its admissibility under the state of mind hearsay exception. We conclude that the superior court did not err in admitting this evidence at trial.
Why we conclude that Dion's convictions are supported by legally sufficient evidence
Dion argues that the evidence presented at his trial was legally insufficient to support his convictions for murder and sexual assault.
When we review a claim of insufficient evidence on appeal, we are required to view the evidence presented at trial — and all reasonable inferences from that evidence — in the light most favorable to upholding the jury's verdict. Viewing the evidence in that light, the question is whether "fair-minded jurors could find the defendant guilty beyond a reasonable doubt."
Joseph v. State, 293 P.3d 488, 491 (Alaska App. 2012).
Wells v. State, 102 P.2d 972, 974 (Alaska App. 2004) (citing Dorman v. State, 622 P.2d 448, 453 (Alaska App. 1981)).
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Here, a fair-minded juror could reasonably conclude that B.C. was sexually assaulted and intentionally killed based on the forensic evidence presented at trial. A fair-minded juror could likewise conclude, based on his or her rejection of Dion's explanation for the presence of his sperm in her vagina, that Dion was the person who raped and killed her. We therefore reject Dion's claim that the evidence was legally insufficient to support his convictions.
Conclusion
We AFFIRM the superior court's judgment.