Opinion
Court of Appeals No. A-11843 No. 6434
03-01-2017
JARED JOSEPH KOWALSKI, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Elizabeth D. Friedman, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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-11-13470 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge. Appearances: Elizabeth D. Friedman, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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).
Following a jury trial, Jared Joseph Kowalski was convicted of multiple counts of sexual abuse of a minor for engaging in sexual acts with his seven-year-old stepdaughter. He raises three claims on appeal. First, he argues that the superior court erred in denying his motion to dismiss the indictment based on alleged improper evidence that was presented to the grand jury. Second, he argues that the superior court erred in failing to specifically instruct the jury that it should distrust the testimony of a police informant. Lastly, he argues that his sentence was excessive and that the superior court erred in failing to refer his case to the statewide three-judge sentencing panel for a sentence below the applicable presumptive range.
For the reasons explained here, we reject these claims and affirm Kowalski's convictions and sentence.
Background facts and proceedings
Jared Kowalski was married to Gena Kowalski, who had a daughter, M.O., from a previous relationship. M.O. primarily lived with her biological father, but she spent most weekends and certain weeks during the summer with her mother and Kowalski.
In July 2011, seven-year-old M.O. told J., the eleven-year-old daughter of her father's girlfriend, that she was being sexually abused by her mother and Kowalski. The eleven-year-old immediately told M.O's father, who promptly reported the alleged abuse to the police.
Anchorage Police Detective Kimberly Trujillo interviewed M.O. about the alleged abuse. During the interview, M.O. told the detective that Kowalski tied her to a chair and made her watch pornography on his computer and forced her to watch Kowalski and her mother have sex. M.O. also reported that her mother had placed M.O.'s hand on Kowalski's penis and that her mother rubbed his penis with M.O.'s hand. M.O. further reported that Kowalski had, on many occasions, touched and penetrated her with his hands, penis, and mouth (often in the presence of her mother). Kowalski and Gena were subsequently arrested and charged with multiple counts of sexual abuse of a minor.
The grand jury proceedings
At the grand jury proceedings, the prosecutor presented testimony from Detective Trujillo, M.O., M.O.'s father, and J. (the eleven-year-old girl who first heard M.O.'s reports of abuse).
M.O. was initially hesitant to describe the sexual abuse to the grand jury and the prosecutor allowed her to answer questions in writing. When asked what Kowalski did that M.O. did not like, she wrote "sex" and "humping." When asked who Kowalski had sex with, M.O. wrote down, "me and my mommy." M.O. testified that Kowalski touched his "wiener" to her "pee pee" and tried to put it inside her, but "it didn't work." M.O. said that Kowalski also put it in her mouth and "milk" came out of it. She said she spit it out on his stomach and her mother wiped it off.
M.O. also testified to another incident in which her mother and Kowalski were on a bed with her and Kowalski put his mouth on her "pee pee." M.O. testified that Kowalski also touched her "butt" with his "wiener," his hand, and his mouth. She said that he put his hand "inside" her butt and it felt "weird."
M.O. additionally testified that there were instances where Kowalski had set up a video camera on the dresser while he "was doing it with my mom — me and my mommy." M.O. recalled seeing the camera while Kowalski performed oral sex on her and attempted to penetrate her vaginally. She also testified that Kowalski and her mother had sex while M.O. was in the room and the camera was running.
M.O. also testified about incidents where Kowalski tied her to a chair with a brown rope and made her watch "inappropriate movies" with naked people. Another time, Kowalski tied her to a chair and made her watch him have sex with her mother. When the prosecutor asked M.O. if she had ever seen Kowalski have sex with anyone besides her mother, she replied that she had seen him with another girl, E.G. She said that she had seen them "doing sex" in her mother's bedroom.
J., the eleven-year-old, testified that M.O. told her about the abuse during a sleep over. According to J., M.O. told her that Kowalski and her mother would tie M.O. up and would do things to her that she did not like. M.O. also reported that Kowalski and her mother would make naked videos of her and that Kowalski would make M.O. lick his "pee pee." J. testified that M.O. had told her not to tell anyone, but that she (J.) immediately told M.O.'s father.
M.O's father testified before the grand jury, stating that M.O's overall demeanor and behavior greatly improved after she reported the abuse.
After hearing testimony from these witnesses, some of the grand jurors had questions about the evidence they had heard. One grand juror asked whether a video camera or video recording had been recovered during the search of the house and questioned whether the jury should indict Kowalski on child pornography charges. In response to this question, Detective Trujillo testified that a video camera was seized from the Kowalski residence, but no footage of M.O. was found in the house or on the camera. Detective Trujillo also testified that the police recovered a single deleted image of child pornography on Kowalski's computer. The detective testified that Kowalski had informed the police before they found the deleted image that he had accidentally downloaded the image and had immediately deleted it upon realizing what it was. The detective also mentioned that the police found video recordings of Gena and Kowalski having sex.
A different grand juror inquired about E.G., the child that M.O. testified she had seen Kowalski having sex with. The grand juror asked whether the grand jury needed to consider additional charges with respect to that child. In response to this question, Detective Trujillo testified that M.O. had not mentioned the alleged abuse of E.G. prior to the grand jury hearing and that the police had not conducted any investigation of that allegation. The prosecutor similarly told the jury that the State did not have any evidence to corroborate M.O.'s testimony regarding E.G.
The grand jury subsequently indicted Kowalski on four counts of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor. The grand jury also indicted Gena on one count of second-degree sexual abuse of a minor.
AS 11.41.434(a)(1).
AS 11.41.436(a)(2).
Id.
Gena later entered into a plea agreement with the State, agreeing to testify against Kowalski in exchange for a guilty plea to one count of coercion. The plea agreement resulted in no additional jail time beyond the 28 days she had already served and Gena was not required to register as a sex offender.
AS 11.41.530(a)(1).
Kowalski was convicted at a jury trial of three counts of first-degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor.
At sentencing, the judge denied Kowalski's request for a referral to the statewide three-judge sentencing panel and sentenced Kowalski to a composite term of 42 years to serve, a sentence within the applicable presumptive range.
This appeal followed.
Kowalski's challenge to the grand jury indictment
Prior to trial, Kowalski filed a motion to dismiss the grand jury indictment, arguing that the grand jury proceedings were tainted by (1) M.O.'s unsubstantiated allegations that Kowalski had sex with another child, and (2) Detective Trujillo's testimony regarding the deleted child pornography image and the sex tape found in the Kowalski residence, and (3) that J.'s testimony regarding M.O.'s report was mostly inadmissible hearsay that did not fall under the "first complaint" doctrine.
The superior court denied the motion to dismiss, concluding that the evidence presented to the grand jury was sufficient to support the indictment even absent the challenged evidence. The superior court also concluded that the challenged evidence was not so unfairly prejudicial as to be the decisive factor in the grand jury's decision to indict. Kowalski challenges these rulings on appeal, asserting that the trial court erred in denying his motion to dismiss the indictment.
See Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992).
See id.
When a defendant proves that improper evidence was presented to a grand jury, the superior court must engage in the two-part analysis we articulated in Stern v. State. First, the court "subtracts the improper evidence from the total case heard by the grand jury and determines whether the remaining evidence would be legally sufficient to support the indictment." "If the remaining evidence is legally sufficient, the court then assesses the degree to which the improper evidence might have unfairly prejudiced the grand jury's consideration of the case." That is, the court asks "whether, even though the remaining evidence is legally sufficient to support an indictment, the probative force of that admissible evidence was so weak and the unfair prejudice engendered by the improper evidence so strong that it appears likely that the improper evidence was the decisive factor in the grand jury's decision to indict."
827 P.2d 442 (Alaska App. 1992).
Id. at 445-46.
Id.
Id.
Here, the superior court issued a detailed order denying Kowalski's motion under the proper Stern analysis. We have reviewed the trial court's order and the grand jury testimony in this case. We agree with the superior court that the testimony at trial was sufficient to support the indictment even absent the challenged evidence. We also agree with the court that the challenged evidence was not so unfairly prejudicial that it would have been a decisive factor in the grand jury's decision to indict, given the other evidence that the grand jury heard. We therefore reject this claim on appeal.
Kowalski's challenge to the jury instructions
Pursuant to her plea agreement with the State, Gena testified against Kowalski at his trial.
At the close of evidence, the defense attorney requested jury instructions on both accomplice testimony and informant testimony, arguing that Gena fit both categories. The trial court declined to give both of the requested instructions, concluding that two instructions would be redundant. The trial court therefore instructed the jury on accomplice testimony only. The accomplice testimony instruction that the jury received read as follows:
You have heard the testimony of Gena Kowalski. You must determine after considering the evidence whether it is more likely than not true that this witness was a participant in the crimes charged. If you determine that the witness was a
participant, then you must consider the testimony of this witness with distrust. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight you consider appropriate after examining it with care and caution and in light of all the evidence.
Mr. Kowalski cannot be convicted on the testimony of a witness who was a participant in the crimes charged unless the testimony is corroborated by other evidence which tends to connect Mr. Kowalski with the commission of the crime.
The requirement of corroboration is based on the assumption that such a witness might testify falsely about another person to benefit herself by avoiding further criminal liability or reducing punishment.
On appeal, Kowalski argues that the court erred in failing to supplement this instruction with a separate instruction on informant testimony. The additional instruction requested by Kowalski read as follows:
An informant is someone who provides evidence against someone else for money or to escape or reduce punishment for [her] own misdeeds or crimes. The testimony of an informant must be examined and weighed for the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informant's testimony has been affected by the agreement [she] has with the prosecution or [her] own interest in the outcome of this case or by prejudice against the defendant.
Alaska Criminal Pattern Jury Instruction 1.23 (Revised 2012).
Kowalski argues that the omission of this supplemental informant instruction meant that the jury was not specifically instructed to consider the effect that the plea agreement may have had on Gena's trial testimony.
We conclude that any error in failing to give this supplemental instruction was harmless. The accomplice instruction that was given to the jury specifically instructed the jury to view Gena's testimony with distrust. The jury was also well aware, through trial testimony and the arguments of the parties, that Gena was testifying pursuant to a plea agreement with the State. The details of Gena's plea agreement and the benefits she received from the plea agreement were extensively discussed throughout the trial. The jury was also repeatedly told by the defense attorney to weigh the significance of Gena's plea bargain when assessing her credibility.
Given these circumstances, we conclude that any error in failing to supplement the accomplice instruction with an additional informant instruction was harmless.
Kowalski's request for referral to the three-judge sentencing panel
Prior to sentencing, Kowalski requested that the court refer his case to the three-judge sentencing panel, asserting that a sentence within the presumptive range would be manifestly unjust. Specifically, Kowalski contended that the sentencing court should apply the non-statutory mitigating factors created by this Court's decision in Collins v. State. Kowalski also argued that the minimum sentence within the presumptive range (approximately 40 years) was, in effect, a life sentence for him, and therefore did not support the goal of rehabilitation. Kowalski did not submit a sex offender evaluation or any other affirmative evidence attesting to his prospects for rehabilitation.
287 P.3d 791 (Alaska App. 2012), superseded by statute, ch. 43, § 1, 22 SLA 2013.
The court denied Kowalski's request for a referral to the three-judge panel, finding that he had not shown manifest injustice or a non-statutory mitigating factor justifying the referral. The court found Kowalski "a typical offender" based on the totality of the circumstances in his case, the repeated nature of the offenses, and the type of conduct involved. Accordingly, the court sentenced Kowalski to a composite term of 42 years, just above the minimum sentence within the applicable presumptive ranges.
As an appellate court, we review a sentencing decision under the "clearly mistaken" standard of review, a deferential standard that "implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify." This standard is founded on two concepts: "first, that reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; [and] second, that society is willing to accept these sentencing discrepancies, so long as a judge's sentencing decision falls within a permissible range of reasonable sentences." Having independently reviewed the sentencing record in this case, we conclude that Kowalski's sentence is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997) (internal quotations omitted).
Kowalski additionally argues that any sentence within the presumptive range would be unconstitutional under Article I, Section 12, of the Alaska Constitution because, according to Kowalski, the presumptive range essentially precluded the court from considering the sentencing goal of rehabilitation. We have rejected similar claims of unconstitutionality in other cases and we similarly reject that argument here. We note that, in imposing the sentence in this case, the court analyzed all of the relevant Chaney criteria, including Kowalski's rehabilitation potential, and concluded that Kowalski had not shown any reason to depart from the presumptive ranges that otherwise applied to his case.
See, e.g., Dancer v. State, 715 P.2d 1174, 1182 (Alaska App. 1986); Nell v. State, 642 P.2d 1361, 1369-70 (Alaska App. 1982). --------
Conclusion
For the foregoing reasons, we AFFIRM the judgment of the superior court.