Opinion
A-13722 0323
05-10-2023
MARK JAMES KING, Appellant, v. STATE OF ALASKA, Appellee.
Michael Barber, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Trial Court No. 4FA-17-01489 CR Thomas I. Temple, Judge.
Appearances:
Michael Barber, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Wollenberg, Judge, and Bolger, Senior Supreme Court Justice.[*]
SUMMARY DISPOSITION
A jury found Mark James King guilty of four counts of sexual abuse of a minor and one count of incest based on evidence that he sexually abused his daughter multiple times over a number of months. The jury also found King guilty of sexual abuse of a minor for sexually abusing his daughter's friend on two occasions. King now appeals his convictions, raising two claims of plain error.
At trial, the prosecutor introduced evidence that King had sexually abused his daughter multiple times over a span of four to five months. Because the jury heard evidence of multiple incidents of sexual abuse for each charged count, the superior court instructed the jury on the need for factual unanimity on the incident that formed the basis for the jury's guilty verdict on each count. The factual unanimity instruction read as follows:
See Ramsey v. State, 355 P.3d 601, 602 (Alaska App. 2015); Jackson v. State, 342 P.3d 1254, 1257 (Alaska App. 2014).
Where there is evidence of multiple incidents that could each support a single count of Sexual Abuse of a Minor in the First or Second or Third Degree, the jury must be unanimous as to the specific incident that has been proven beyond a reasonable doubt, in order to return a verdict of guilty on that count.
On appeal, King argues that this instruction constituted plain error because (1) the instruction did not directly reference the incest count; and (2) the instruction did not define "incident" for the jury.
Although we agree with King that the instruction should have referenced the incest charge, the guilty verdict on the incest charge merged into the convictions for sexual abuse of a minor. Thus, any deficiency in the factual unanimity instruction with regard to the incest count is moot.
We also reject King's assertion that the word "incident" was ambiguous or otherwise misleading. To prove a claim of plain error on appeal, King is required to show, inter alia, that the error was "obvious." Other than the failure to mention the incest count, we find no obvious error in the instruction given here. (We note that the instruction given here is virtually identical to the pattern jury instruction on factual unanimity, except that the pattern instruction uses the terms "act" and "conduct" rather than "incident.") Accordingly, we find no merit to this claim on appeal.
Adams v. State, 261 P.3d 758, 773 (Alaska 2011).
See Alaska Criminal Pattern Jury Instruction 1.35F (2013) ("Where there is evidence of more than one act [or omission] that could support a single count of [name of crime], in order to return a verdict of guilty on that count, the jury must be unanimous as to the specific conduct that has been proven beyond a reasonable doubt.").
King's second plain error argument on appeal relates to the fact that his daughter testified to more incidents of sexual abuse than were charged. According to King, his daughter should only have been allowed to testify to four incidents of sexual abuse because there were only four counts charged. King argues that any additional testimony about the sexual abuse that occurred should have been excluded under Alaska Evidence Rule 404 or 403.
We find no merit to this plain error claim. As an initial matter, we note that the State was permitted to introduce evidence of more than one incident for each charged count, provided that an appropriate factual unanimity instruction was given.Moreover, to the extent that the daughter also testified regarding uncharged conduct, this testimony was admissible for non-propensity purposes to provide context for the daughter's description of the charged conduct; it was also potentially admissible for propensity purposes under Alaska Evidence Rule 404(b)(2). On appeal, King argues that the court should have sua sponte issued a limiting instruction regarding this uncharged conduct. But we find no plain error in the omission of such instruction or in the admission of the uncharged conduct.
See, e.g., Anderson v. State, 337 P.3d 534, 535 (Alaska App. 2014); Covington v. State, 703 P.2d 436, 440-41 (Alaska App. 1985), rev'd on other grounds on reh'g, 711 P.2d 1183 (Alaska App. 1985), abrogation on other grounds recognized by Anderson v. State, 337 P.3d 534, 537-38 (Alaska App. 2014).
See Alaska R. Evid. 404(b)(2) ("In 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.").
Douglas v. State, 151 P.3d 495, 503 (Alaska App. 2006).
The judgment of the superior court is AFFIRMED.
[*] Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).