Opinion
A-13946
07-03-2024
TIMOTHY JOEL MCMANUS, Appellant, v. STATE OF ALASKA, Appellee.
Catherine Boruff, Attorney at Law, Saint Paul, Minnesota, under contract with the Public Defender Agency, and Terrence Haas, Public Defender, Anchorage, for the Appellant. Kayla H. Doyle, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
This is a summary disposition issued under Alaska Appellate Rule 214(a). Summary dispositions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d).
Appeal from the Superior Court, Fourth Judicial District Trial Court No. 4NE-19-00169 CR, Nenana, Earl A. Peterson, Judge.
Catherine Boruff, Attorney at Law, Saint Paul, Minnesota, under contract with the Public Defender Agency, and Terrence Haas, Public Defender, Anchorage, for the Appellant.
Kayla H. Doyle, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Timothy Joel McManus was convicted, following a jury trial, of one count of attempted second-degree sexual assault after he pushed his fingers down the inside of C.S.'s pants. McManus raises three issues on appeal.
Former AS 11.41.420(a)(1) (2019) & AS 11.31.100(a).
First, McManus argues that the evidence presented to the grand jury was insufficient to prove that McManus intended to use force or the threat of force to achieve the sexual contact with C.S. Evidence is sufficient to support an indictment if it is adequate to persuade a reasonably minded grand juror that, if unexplained or uncontradicted, it would warrant a conviction of the defendant. We view the evidence, and "every legitimate inference," "in the light most favorable to the indictment."
Milligan v. State, 286 P.3d 1065, 1070 (Alaska App. 2012) (quoting Cleveland v. State, 258 P.3d 878, 881 (Alaska App. 2011)); see also former Alaska R. Crim. P. 6(q) (2019) ("The grand jury shall find an indictment when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant.").
Milligan, 286 P.3d at 1070 (quoting Cleveland, 258 P.3d at 881).
C.S. testified before the grand jury that she had organized a celebration of life that took place at the Nenana Tribal Hall. McManus was the Tribal Chief at the time, and C.S. had met him once before. While C.S. was setting up in the kitchen, McManus approached her and asked her to give him a blow job; C.S. responded that her husband was nearby, and she walked away. She then asked a male friend to stay close to her during the ceremony. This friend testified at grand jury that McManus was "acting drunk," and that his breath may have smelled like alcohol.
After the celebration of life was over, while C.S. was cleaning up, McManus called her into the kitchen and again asked for a blow job, and she again walked away. At the end of the cleanup, McManus asked C.S. to clean the women's bathroom, which was connected to the gathering area by a narrow hallway with dim lighting. C.S. did so, and as she exited the bathroom, she found McManus alone in the hallway. She tried to walk past him, but he grabbed her and pushed his hand down the front of her pants. Before she could push his hand away, his fingertips touched her pubic line.
The grand jury indicted McManus for attempted second-degree sexual assault. In order to return a true bill for this offense, the grand jury was required to find, inter alia, that McManus intended to engage in sexual contact with C.S. and that he intended to use force or the threat of force, if necessary, to achieve the sexual contact.
State v. Mayfield, 442 P.3d 794, 802 (Alaska App. 2019); former AS 11.41.420(a)(1) (2019) & AS 11.31.100(a).
We agree with the superior court that the evidence presented to the grand jury established McManus's "willingness to use force to effectuate the intended sexual contact." As the court pointed out, the evidence established that "C.S. had repeatedly turned down McManus's sexual advances and attempted to have security around her in the form of her male friend," but McManus nonetheless continued to pursue C.S. McManus arranged for C.S. to work in a secluded area of the building and "awaited her arrival in [a] dimly lit hallway" and then "forced his hand into [her] pants." Given these facts, the evidence was sufficient to conclude that McManus intended to use force to achieve the sexual contact with C.S.
Second, McManus claims that his sentence is excessive. "[A] sentencing judge bears primary responsibility for determining the priority and relationship of the various sentencing goals in each case." Sentencing decisions are reviewed under the deferential clearly mistaken standard, which recognizes that a reviewing court should modify a sentence only if it falls outside of the "permissible range of reasonable sentences" that could be imposed.
Pickard v. State, 965 P.2d 755, 760 (Alaska App. 1998) (citing Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973)).
State v. Korkow, 314 P.3d 560, 562 (Alaska 2013); State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000); McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
Korkow, 314 P.3d at 562; McClain, 519 P.2d at 813.
Here, McManus was convicted of attempted second-degree sexual assault, a class C felony, and faced a presumptive sentencing range of 2 to 12 years, a minimum of 2 years of suspended time, and a minimum of 5 years of probation. No aggravating or mitigating factors applied to his offense. The superior court ultimately sentenced McManus to 7 years with 3 years suspended (4 years to serve) and 7 years of probation.
Former AS 11.41.420(a)(1), (b) (2019) & AS 11.31.100(a), (d)(4).
AS 12.55.125(i)(4)(A), (n), (q).
McManus was fifty-one years old at the time of the offense. His criminal history included three prior convictions: one conviction for burglary that was later set aside, and two convictions for fourth-degree assault. The burglary took place when McManus was in his early twenties and the fourth-degree assaults took place when he was in his thirties. The presentence report stated that C.S. obtained a protective order against McManus several days after the incident, and that McManus violated the protective order two months later.
In its sentencing remarks, the superior court considered each of the Chaney criteria. The court found that although McManus did not have an extensive criminal history, the history he did have was directly related to his alcohol consumption. The court also found that McManus had good prospects for rehabilitation, but it noted his long history with alcohol and the challenges this posed to his rehabilitation and in preventing future harm to the public.
State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970), codified in AS 12.55.005.
We have independently reviewed the record in this case, and have determined that the superior court's weighing and application of the sentencing criteria was not clearly mistaken. We accordingly reject McManus's challenge to his sentence.
Finally, McManus argues that the presentence report must be corrected to reflect three changes that the court ordered to the report at sentencing. We agree that the superior court neglected to enter an "approved version" of the presentence report reflecting these changes.
We accordingly REMAND this matter to the superior court with instructions to amend the presentence report to reflect the changes made at sentencing. In all other respects, the judgment of the superior court is AFFIRMED.