Opinion
Court of Appeals No. A-11101 No. 6099
10-15-2014
EDWARD LEE NEWMAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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-09-10106 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Warren W. Matthews, Judge. Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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).
Edward Lee Newman was convicted at a bench trial of kidnapping and attempted sexual assault in the first degree. Newman appeals his convictions, arguing that the evidence at trial was insufficient to identify him as the perpetrator. We conclude that the evidence was legally sufficient to support Newman's convictions.
Newman also argues that the superior court erred in imposing two special conditions of probation: Special Condition 8, prohibiting Newman from "frequent[ing] bookstores such as Barnes [&] Noble and Title Wave," and Special Condition 9, requiring Newman "to advise all members of the household in which he is residing of his criminal history, even when the residence is temporary."
For the reasons described in this decision, we vacate Special Condition 8 as insufficiently related to Newman's rehabilitation or the protection of the public, but we uphold Special Condition 9 as not unconstitutionally vague or overly broad given the State's common-sense reading of its terms.
Underlying facts
Because Newman contends that the evidence was insufficient to support his convictions, we summarize the evidence in the light most favorable to the verdicts.
See Helmer v. State, 608 P.2d 38, 39 (Alaska 1980).
In the early evening of October 2006, a man approached C.M. as she was getting into her car in a parking lot of the Alaska USA Federal Credit Union in downtown Anchorage. The man repeatedly told her to "suck my dick, I have a weapon." He then forced C.M. into the passenger seat of her car and grabbed C.M.'s shoulder to prevent her from getting out. A few blocks later, C.M. managed to swing the passenger door open and hit a van with it, which caused her assailant to slow the car down and allowed C.M. to escape. She ran back toward the Alaska USA Federal Credit Union and called 911.
C.M. described her assailant to the police as approximately 5' 5" tall, in his early twenties, slender, light skinned, with "Hispanic looking" features, and scruffy facial hair. The police took DNA samples from the steering wheel, driver's door handle, and gearshift of C.M.'s car. The DNA samples were entered into the Combined DNA Index System (CODIS), a national DNA database, but no DNA profiles were identified within the system. The case was suspended pending future leads.
In 2009, a CODIS analysis showed with practical certainty that the DNA from the car swabs was Edward Lee Newman's. Newman also fit the victim's physical description of her assailant.
The police interviewed Newman twice. During his first interview, Newman told the interviewing officer that he had been in Anchorage in 2006, that he did not recognize C.M. from the photograph he was shown, that his only work experience during 2006 and 2007 was in painting and construction, and that there was no reason for his DNA to be in C.M.'s car.
During Newman's second interview, the interviewing officer advised Newman that his DNA had been found in C.M.'s car. Newman then changed his story in several respects, telling the officer that he had worked at two car washes during 2006 and that he "didn't remember" having kidnapped C.M., but that he was "not saying" it was impossible that he was C.M.'s assailant — he just "wasn't going to admit to something that he didn't specifically remember."
Following a bench trial before pro tem Superior Court Judge Warren W. Matthews, Newman was convicted of kidnapping and attempted first-degree sexual assault. Specifically, the trial court found that Newman was C.M.'s assailant based on the DNA evidence linking Newman to the crime, the fact that Newman matched the description C.M. gave of her assailant, and Newman's statement to the police in which he effectively admitted the possibility that he had committed the crime.
The State presented sufficient evidence at trial of Newman's identity as the perpetrator
On appeal, Newman argues that the evidence was insufficient to support his convictions. He claims that none of the evidence was dispositive on the question of his guilt, that the DNA evidence could be explained by his prior work at car washes, and that many people likely fit C.M.'s description of her assailant.
Our role in reviewing a claim of legal insufficiency is limited to viewing the evidence in the light most favorable to the verdict and determining whether the record contains evidence that "is adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to appellant's guilt." Here, as the trial court's written findings reflect, there was substantial evidence from which the judge could conclude that the State had proved Newman's identity as C.M.'s assailant beyond a reasonable doubt.
Heimer, 608 P.2d at 39 (quoting Mckinney v. State, 566 P.2d 653, 662, modified on other grounds on reh'g, 570 P.2d 733 (Alaska 1977)); see Y.J. v. State, 130 P.3d 954, 957 (Alaska App. 2006).
Newman's challenges to Special Conditions 8 and 9 of his probation
At sentencing, the superior court imposed all of the probation conditions recommended in the presentence report, including the two special conditions that Newman now challenges on appeal:
• Special Condition 8: "[t]he defendant shall not frequent bookstores such as Barnes [&] Noble or Title Wave."Newman's counsel did not object to either of these proposed conditions.
• Special Condition 9: "[t]he defendant shall advise all members of the household in which he is residing of his criminal history, even when the residence is temporary. The probation officer may discuss the circumstances of the offender's criminal history with any household member."
We vacate Special Condition 8 because there is no evidence that barring Newman from certain bookstores is reasonably related to Newman's rehabilitation or the protection of the public
A defendant's conditions of probation must be "reasonably related to the rehabilitation of the offender and the protection of the public and must not be unduly restrictive of liberty."
Diorec v. State, 295 P.3d 409, 412 (Alaska App. 2013) (quoting Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977)).
On appeal, the State argues that Special Condition 8 is reasonably related to the protection of the public because Newman's criminal history includes a 2007 second-degree indecent exposure conviction involving a child in the children's section of a Barnes & Noble bookstore.
We note that Newman has a significant history of sexually based offenses. In addition to the 2007 indecent exposure conviction, Newman has multiple convictions from 2006 and 2008 for exposing himself in front of various businesses, in front of a victim's bedroom window, and in front of a woman and her child with whom he was acquainted. But there is no indication from this past criminal history that there is something particular about bookstores that triggers Newman's sexual crimes.
We conclude that the mere fact that Newman once committed a sexual offense in a Barnes & Noble bookstore, without more, is not enough to show that a condition barring Newman from "bookstores such as Barnes [&] Noble or Title Wave" is reasonably related to protection of the public or to Newman's rehabilitation, particularly given the lack of clarity over what this condition exactly meant. We therefore vacate Special Condition 8.
Special Condition 9, which requires Newman to "advise all members of the household in which he is residing of his criminal history, even when the residence is temporary," is not unconstitutionally vague or overly broad
On appeal, Newman challenges Special Condition 9 as unconstitutionally vague because he claims that the condition fails to give him notice of who qualifies as a "household member." Newman also argues that the condition is overly broad because it could be interpreted to require Newman to inform every person at a homeless shelter, halfway house, or hotel, of his criminal history, effectively precluding Newman from staying in these types of places.
The State asserts that, given Newman's history of exposing himself to women and children, Special Condition 9 is needed to protect the members of any household where Newman stays, even on a temporary basis. The State further contends that the condition gives Newman reasonable notice of who qualifies as a "household member" because a common-sense understanding of the term suggests a family or close-knit social unit and typically does not include occupants of a homeless shelter, a halfway house, or a hotel. The State also argues that, given Newman's history of exposing himself to women and children, Special Condition 9 is needed to protect anyone Newman lives with or stays with, even on a temporary basis.
See, e.g., Webster's Ninth New Collegiate Dictionary 584 (1990) (defining "household" as "those who dwell under the same roof and compose a family; also: a social unit comprised of those living together in the same dwelling").
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We agree with the State that Special Condition 9 is reasonably related to protection of the public and that it does not raise any constitutional concerns when read in the narrow manner the State suggests.
Conclusion
We AFFIRM the judgment of the superior court, with the exception of Special Condition 8, which is hereby VACATED.