Opinion
Court of Appeals No. A-9856.
February 24, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Trial Court No. 3AN-06-1028 CR.
David E. George, Attorney at Law, Anchorage, for the Appellant, and Kenneth W. Harry, pro se, Eloy, Arizona. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Kenneth W. Harry makes several attacks on his conviction for sexual assault in the first degree. He argues that the sexual assault statute is unconstitutionally vague; that the trial judge gave improper and incomplete jury instructions; and that there was insufficient evidence to support his conviction. We conclude that the sexual assault statute gives adequate notice of the prohibited conduct when one considers the mental states required by law; that Harry was not entitled to a lesser-included offense instruction and the jury was correctly instructed on the elements of the offense, and that the evidence that Harry attacked the victim and then forced her to engage in sexual intercourse was sufficient to prove the offense of sexual assault. We decline to address Harry's remaining issues because they are either waived or procedurally improper.
AS 11.41.410(a)(1).
Background
Harry and D.H. were in a dating relationship from July through October of 2005. The relationship ended in October after Harry beat D.H. so severely that she temporarily lost the vision in her left eye. On the morning of January 29, 2006, Harry came to D.H.'s trailer, where she was entertaining three of her friends. D.H. told Harry that she was not in the mood for visitors, but Harry replied that he just needed to talk to her for a minute. D.H. followed Harry to the back bedroom, where Harry eventually asked D.H. for drugs. D.H. responded that she had only one rock of crack cocaine, which she was saving, but after arguing with Harry, she threw the cocaine at him and walked out of the bedroom.
Harry became angry, telling D.H. to "get [her] ass back" in the room and to sit down on the bed. Harry then came back into the living area, struck D.H. across her collarbone, and knocked her off of her feet. Harry tried to pull D.H. back to the bedroom by the hair and kicked her in the leg several times with his steel-toed boot. When D.H. stood up, Harry grabbed her arm and led her back to the bedroom.
Harry ordered D.H. to stand in front of him where he was sitting on the bed, and then he removed her underwear. D.H. testified that she was crying and in a lot of pain, and that she told Harry she was "really not in the mood for this." Harry told D.H. that he was not asking and then he guided her down on top of him. D.H. testified that she was crying and immobile and she said to Harry "is this really how you want this?"
D.H. testified that she told Harry "no" several times, and that he asked her at one point if she wanted him to stop, and she said "yeah." After completing the sexual encounter, Harry directed D.H. not to "screw up," which she interpreted as a warning against calling the police.
D.H. was eventually able to leave the trailer. D.H.'s mother picked her up at a nearby convenience store, and convinced her to report the incident to the police. The nurse who later examined D.H. reported "bruising throughout her body, on her neck, on her arms and on her legs," and that she had lacerations on her external genitals which the nurse found to be consistent with D.H.'s account of being sexually assaulted.
Harry was charged with one count of first-degree sexual assault and one count of fourth-degree assault. Following a trial before Superior Court Judge Eric A. Aarseth, a jury convicted Harry of both counts. This appeal followed.
Judge Aarseth Did Not Err When He Denied Harry's Motion for Acquittal
Harry argues that Judge Aarseth erred when he denied Harry's motion for a judgment of acquittal. A motion for judgment of acquittal should be granted only when fair-minded persons would have to agree that the State failed to carry its burden of proof beyond a reasonable doubt — otherwise, the motion should be denied.
Gipson v. State, 609 P.2d 1038, 1040 (Alaska 1980); see Pavlik v. State, 869 P.2d 496, 497 (Alaska App. 1994) (explaining that a motion for judgment of acquittal must be denied if "fair-minded jurors in the exercise of reasonable judgment could differ on the question of whether guilt had been established beyond a reasonable doubt").
The crime of sexual assault in the first degree consists of three elements: (1) the offender knowingly engaged in sexual penetration with another person; (2) the sexual penetration occurred without the consent of the other person; and (3) the defendant acted recklessly with regard to the other person's lack of consent.
See Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983).
At trial, D.H. testified that Harry and D.H.'s relationship had been marked by domestic violence. D.H. explained that she wanted Harry to leave her trailer that night, but she felt she only had the choice of "having the crap beat out of [her] or letting him stay." D.H. told Harry that she did not want to have sex with him, but he told her that he was not asking for her permission, and forced her to engage in sexual intercourse. D.H. testified that she cried throughout their encounter and told Harry "no" several times. This testimony, if believed, would establish that Harry engaged in sexual penetration of D.H. without her consent, and that he was at least reckless with regard to D.H.'s lack of consent. Viewed in the light most favorable to upholding the jury's verdict, this evidence was sufficient to support Harry's conviction for first-degree sexual assault.
See id. at 627 (discussing assault victim's testimony in the context of a sufficiency of the evidence challenge).
The Sexual Assault Statute is Not Unconstitutionally Vague
Harry argues that the Alaska first-degree sexual assault statute is unconstitutionally vague and therefore void. In Reynolds v. State, this court rejected a similar constitutional challenge. Reynolds argued, as does Harry, that the sexual assault statute was unconstitutionally vague because reasonable people could reach different conclusions about the required mens rea. We noted that the statute increased the risk of conviction in ambiguous circumstances by eliminating the requirement that the State prove resistance. But we concluded that the legislature sufficiently "counteracted this risk":
Id. at 623-25.
Id. at 623.
Id. at 624-25.
[T]o prove a violation of AS 11.41.410(a)(1), the state must prove that the defendant knowingly engaged in sexual intercourse and recklessly disregarded his victim's lack of consent. Construed in this way, the statute does not punish harmless conduct and is neither vague nor overbroad.
Id. at 625.
Harry has not convinced us to depart from our previous decision on this issue, and we therefore again hold that the first-degree sexual assault statute is not unconstitutionally vague.
Harry's Jury was Properly Instructed on the Elements of Sexual Assault
Harry also argues that the jury was not properly instructed on the elements of sexual assault in the first degree. Because Harry failed to object to the instruction at trial, he must now show plain error.
See Sergie v. State, 105 P.3d 1150, 1155 (Alaska App. 2005); Allen v. State, 51 P.3d 949, 958 (Alaska App. 2002).
Harry takes particular exception to the portion of the elements instruction that stated: "If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you shall find the defendant guilty." He cites a United States Supreme Court case where the Court reversed a conviction for vehicle theft based on instructions that commanded the jury to presume the intent to steal if they found that the defendant had failed to timely return a rental vehicle. In Harry's case, however, the challenged instruction did not command the jury to presume any element of the crime of sexual assault. The instruction required the jury to do no more than the Constitution allows — to return a guilty verdict if the State proved the charge beyond a reasonable doubt.
Carella v. California, 491 U.S. 263, 109 S. Ct. 2419, 105 L. Ed. 2d 218 (1989).
The record reflects that the jury was properly instructed as to the requisite elements of first-degree sexual assault in Harry's case, including the requirements that Harry had to have knowingly penetrated D.H. and recklessly disregarded her lack of consent. We find no plain error in this instruction.
Judge Aarseth Properly Denied Harry's Request for a Lesser-Included Offense Instruction
At trial, Harry sought an instruction on fourth-degree assault as a lesser-included offense of sexual assault in the first degree. A trial judge is required to give a lesser-included offense instruction "only in the event that there is a factual dispute as to an element of the greater offense so that the jury could rationally acquit on the greater offense and convict on the lesser offense."
Johnson v. State, 665 P.2d 566, 569 (Alaska App. 1983).
Harry relies on Nathaniel v. State in support of his argument that he was entitled to a lesser-included instruction. In Nathaniel, the State relied on evidence that the defendant had attacked and physically beaten the victim to prove the subsequent first-degree sexual assault. Considering the totality of the evidence, the court found that "fair-minded jurors could reasonably have concluded that a reasonable doubt existed as to whether Nathaniel did in fact have sexual intercourse with [the victim]," and therefore concluded that the defendant was entitled to a lesser-included offense instruction on assault in the fourth degree.
668 P.2d 851 (Alaska App. 1983).
Id. at 854.
Id. at 855-56 (emphasis added).
In Harry's case, however, there was no dispute that sexual intercourse occurred. The only dispute was whether the intercourse was consensual. There was nothing in the trial testimony suggesting the unlikely proposition that D.H. consented to sexual intercourse, but that she did not consent to the force that Harry used during the sexual assault. Under these circumstances, the judge was not required to instruct the jury on the lesser-included offense of assault in the fourth degree. Harry's Claims of Ineffective Assistance of Counsel Should be Litigated in Post-Conviction Relief Proceedings
See Dolchok v. State, 763 P.2d 977, 982 (Alaska App. 1988) (holding that where there is no dispute that sexual intercourse occurred, instruction on lesser-included fourth-degree assault not required).
After he was convicted but before sentencing, Harry filed a pro se motion for a new trial based on allegations of ineffective assistance of counsel. Judge Aarseth found that the performance of Harry's attorney "far exceeded the minimum standards required by law" and denied Harry's motion. On appeal, Harry argues that his attorney provided him with ineffective assistance because she "allowed" him to be convicted even though he argues there was "no rape and no nexus between the two charges" of sexual assault and fourth-degree assault.
In Barry v. State, we observed that the record on appeal will seldom establish incompetent representation because it will rarely provide the trial attorney's explanation for the conduct that is challenged as incompetent. We concluded that "henceforth we will not entertain claims of ineffective assistance of counsel on appeal unless the defendant has first moved for a new trial or sought post-conviction relief, supporting the claim with affidavits alleging facts which would establish a basis for relief."
675 P.2d 1292, 1295 (Alaska App. 1984).
Id. at 1296.
Harry's claim of ineffective assistance of counsel was not supported by the necessary affidavit and allegations. Judge Aarseth denied the motion, but he specifically noted that the claim could be renewed in a post-conviction action. We likewise conclude that Harry's ineffective assistance claim should be argued in a proceeding for post-conviction relief.
Other Points on Appeal
In his opening brief, Harry argues that the separate charges for sexual assault in the first degree and assault in the fourth degree violate the rule against duplicitous charges. In his reply brief, Harry states that he was "wrong" to make this argument, but then he raised the issue again during oral argument. We conclude that Harry's conduct could legally support these separate charges.
There may be some misunderstanding in the way that Harry describes this claim. A charge is "duplicitous" if it "charges two separate offenses in a single count." Drahosh v. State, 442 P.2d 44, 48 (Alaska 1968). It appears that Harry is instead asserting that a single offense is charged in these two separate counts. "An indictment or information in which a single offense is alleged in more than one count is multiplicitous." 42 C.J.S. Indictments and Informations § 213 (2009) (emphasis added).
Also in his opening brief, Harry argues that the separate convictions for sexual assault in the first degree and assault in the fourth degree violated double jeopardy. In his reply brief, Harry similarly retracted this issue. In response to appellate motions by Harry and his attorney, we previously ordered that Harry was allowed to withdraw the claim that the two counts should have merged and to withdraw any challenge to his fourth-degree assault conviction. We conclude that Harry has thus waived any conceivable double jeopardy claim.
Harry also summarily argues that Judge Aarseth failed to dismiss the case due to a violation of Criminal Rule 45. But this point is not accompanied by any substantive legal argument or analysis, and we therefore decline to consider it. We likewise decline to consider any of Harry's remaining arguments for the same reason.
See Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d 397, 402 n. 7 (Alaska 1995).
Conclusion
We therefore AFFIRM the superior court's judgment.