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concluding that the least serious mitigating factor did not apply to an attempted sexual assault conviction because "the attempt did not go further because the victim fought back and because someone else was apparently nearby, not because Nyako had a change of heart"
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Court of Appeals No. A-10877 Trial Court No. 3AN-08-8097 CR No. 5977
11-06-2013
MICHAEL ANDREW NYAKO, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Josie W. Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge.
Appearances: Josie W. Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Smith, Superior Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
SMITH, Judge.
Michael Andrew Nyako was convicted of attempted sexual assault in the first and second degrees, and of second-degree assault for an attack on a woman jogging on the Coastal Trail. On appeal, he argues that there was insufficient evidence that he intended to sexually penetrate the victim. He also argues that the trial court erred when it rejected his proposed mitigator that his conduct constituting the attempted first-degree sexual assault was among the least serious. We affirm.
Factual and procedural background
P.S., the victim in this case, testified at trial that on July 17, 2008, she went for a run by herself near Westchester Lagoon. As she was running, P.S. was "jumped" from the back or the side by a person on a bike. She noticed a wheel come up on her side; it looked like the wheel of a child's bike. It was pretty close to her, but she assumed it was a child on the bike. The wheel dropped back, then came up again. As she was turning to look, she was pushed to the ground by the force of the rider's body. She did not see the rider until she had already been pushed. She landed on her side.
Within moments of being pushed, P.S. was on her back, pinned down by her assailant, whom she later identified as Michael Nyako. She realized she was being attacked, and she tried to fight back. Nyako pulled her up, looked around, then pushed her back down, further into the grass, further off the trail. P.S. testified that the grass was "pretty deep." A police officer testified about a photograph of the scene, and said that the grass was almost to the top of a four-foot tall fence, and in one spot was taller than the fence.
Nyako held P.S.'s arms and used the force of his lower body to hold her down. Their heads and feet were both pointed the same way. Nyako looked up a second time, then said "you bitch" and shoved P.S. further down into the grass. P.S. testified that after Nyako said "you bitch," he tried to kiss her and put his tongue in her mouth. She turned her head, and he kissed or licked her face. He also used one hand to cover her mouth because she was screaming and yelling, but when she started fighting and struggling, he used the hand to restrain her again. P.S. yelled for help and yelled that she was being attacked.
When Nyako then looked up for a third time, P.S. thought he must have seen somebody, because he took off on the bike. P.S. did not want to let Nyako get away, so she tried to follow him to see where he was going. She stopped when she met another person on the trail, told him she had been attacked, and asked for his cell phone to call 911. Police officers arrived soon thereafter and apprehended Nyako; P.S. identified him there at the scene.
The entire attack lasted only a few minutes. But P.S. suffered three broken ribs, a broken clavicle, and a punctured lung as a result of the attack.
Nyako said nothing to P.S. other than "you bitch." He did not demand money, and P.S. testified that it did not feel like he was reaching around trying to look for a wallet.
Discussion
There was sufficient evidence for the jury to conclude that Nyako intended to engage in sexual penetration of P.S.
To convict a defendant of attempted first-degree sexual assault, the State must show that "(1) [the defendant] had the specific intent to sexually penetrate [the victim] without her consent and (2) [the defendant] engaged in conduct that amounted to a substantial step toward the commission of first-degree sexual assault." Nyako argues only that there was insufficient evidence that he intended to sexually penetrate P.S.
Moore v. State, 262 P.3d 217, 220 (Alaska App. 2011).
Intent to sexually penetrate can be proved by circumstantial evidence. The jury heard extensive evidence from which it could readily have concluded that Nyako intended sexual penetration. He attacked a woman who was by herself. He knocked her to the ground and lay down on her, face to face. He dragged her away from the path into grass that was several feet high and offered concealment. He called her a bitch, tried to put his tongue in her mouth, and ended up licking her face. He looked up three times to check for others along the trail. He alternated between holding her arms with both of his hands, and covering her mouth with one hand because she was screaming for help. P.S. thought she was going to be raped. And she suffered significant physical injuries as a result of the attack.
Id.
Viewing the evidence in the light most favorable to upholding the verdict, we believe that a fair-minded juror could reasonably conclude "from the persistent and violent nature" of Nyako's attack, "that his sexual purpose encompassed, not just some preliminary form of sexual contact, but an act of sexual penetration." There accordingly was sufficient evidence for the jury to convict Nyako of attempted first-degree sexual assault.
See Hoekzema v. State, 193 P.3d 765, 767 (Alaska App. 2008).
Kingeekuk v. State, Mem. Op. & J. No. 5444, 1995 WL 17221282, at *3 (Alaska App. Sept. 20, 1995).
The trial judge did not err in finding that the (d)(9) mitigating factor (least serious conduct) had not been proved
Nyako argues that the trial court improperly failed to find mitigating factor AS 12.55.155(d)(9), that "the conduct constituting the offense was among the least serious conduct included in the definition of the offense." He relies on the fact that his actions occurred on a heavily traveled path during broad daylight, that he did not possess a weapon at the time, that he neither engaged in sexual contact nor tried to remove his or P.S.'s clothing, and that his was a crime of impulse that only lasted a brief period of time. Relying by analogy on Juneby v. State, he also argues that the court should have disregarded his assaultive conduct when sentencing him on the attempted first-degree sexual assault, because he was independently convicted of second-degree assault.
665 P.2d 30 (Alaska App. 1983).
The existence of a mitigating factor is a mixed question of fact and law. "The finding of a mitigator involves a two-step process: 1) the superior court assesses the nature of the defendant's conduct, which is a question of fact, reviewed for clear error; and 2) it determines whether a mitigating factor applies to the defendant's conduct, which is a question of law, reviewed de novo."
State v. Parker, 147 P.3d 690, 694 (Alaska 2006) (citing Michael v. State, 115 P.3d 517, 519 (Alaska 2005)).
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Contrary to Nyako's claim, the sentencing court was not precluded from considering the level of physical violence Nyoka employed in his attempted sexual assault in determining whether his conduct was among the least serious in the definition of the offense, since his level of violence was an element of the overall circumstances of the crime and was not being used to aggravate his sentence. Nor do the other factors cited by Nyako mitigate his crime to any real extent. An attempted sexual assault is no less serious if it occurs in the daylight on a bike trail. And as the trial court noted, Nyako's attempt did not go further because the victim fought back and because someone else was apparently nearby, not because Nyako had a change of heart or had finished what he intended.
Nyako dragged a stranger into the grass, lay on top of her, restrained her arms, covered her mouth when she screamed, and attempted to kiss her. He inflicted fairly severe physical injuries. This was not a "least serious" attempted first-degree sexual assault, and the trial judge accordingly did not err in declining to find that mitigator.
Conclusion
Nyako's conviction and sentence are AFFIRMED.