Opinion
Court of Appeals No. A-11643 No. 6445
04-05-2017
CLARENCE ELI PETER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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. 2BA-10-207 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Second Judicial District, Barrow, Michael I. Jeffery, Judge. Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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 SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Clarence Eli Peter appeals his two convictions for first-degree sexual assault of seventy-one-year-old L.A. He first challenges the judge's denial of his pretrial discovery request for records of prior police contacts with L.A. Second, he argues that the court erred in instructing the jury on the two alternative statutory definitions of the term "without consent" because the evidence only supported one of these alternatives. Third, Peter challenges the sufficiency of the evidence supporting one of his first-degree sexual assault convictions, arguing that the State presented insufficient evidence of anal penetration. And fourth, Peter argues that his convictions for vaginal and anal penetration should have merged at sentencing.
AS 11.47.470(8)(A) and (B).
For the reasons explained below, we reject Peter's arguments and affirm his convictions.
Factual background
On October 5, 2009, seventy-one-year-old L.A. called the North Slope Borough Police Department to report that she had been raped. L.A. had been drinking alcohol at her sister's home with her sister and brother when Peter, her great-nephew, arrived. At some point, the group ran out of alcohol, and Peter suggested that L.A. join him at a party at a nearby house.
But when L.A. and Peter arrived at the other house, no one was there. According to L.A.'s testimony, Peter pushed L.A. to the floor, forcibly removed her pants and underwear, and had intercourse with her. Peter then left the house. L.A. took a taxi home and called 911. She initially asked the dispatcher to do a welfare check on her sister. She then reported that she had been raped.
L.A. told the police that Peter had penetrated her vagina with his penis and that her "bottom" hurt after the incident. The police transported her to the hospital for an examination by a sexual assault response team (SART) nurse.
L.A. told the SART nurse that Peter had penetrated her vagina, but she did not report penetration of her anus. The nurse observed no visible injuries to either her vagina or anus. But when the nurse took swabs from the interior of L.A.'s vagina and anus, both swabs tested positive for Peter's semen.
The State then charged Peter with two counts of first-degree sexual assault for penetration of L.A.'s vagina and anus and one count of incest. (The State later dismissed the incest charge.)
AS 11.41.410(a)(1) and AS 11.41.450(a)(3), respectively.
Prior to trial, Peter filed a motion to compel discovery, asking the court to order the State to produce all records of contacts between L.A. and the police. Peter argued that the records would reveal that L.A. had made prior false reports of sexual assault — evidence that might cast doubt on L.A.'s credibility at trial. The superior court denied the motion, concluding that Peter had failed to demonstrate a factual predicate justifying the discovery request.
The case then proceeded to trial and the jury found Peter guilty of both counts of first-degree sexual assault. At sentencing, Peter argued that the two counts should merge. The judge denied the merger.
This appeal followed.
Why we affirm the judge's denial of Peter's pretrial discovery request
Prior to trial, Peter filed a motion requesting that the State produce a record of all prior contacts between L.A. and the North Slope Borough Police Department. Peter's motion stated that: "Based upon the investigation thus far, the defendant believes that the requested ... reports will reveal other instances when the police have been called by ... L.A. to report both similar allegations as well as reports later determined to be false."
Peter's motion pointed out that, after L.A. reported the assault during a 911 call, the dispatcher asked her: "Okay ma'am, do you need anything else?" According to Peter, the dispatcher's response implied that L.A. had made prior false reports of sexual assault to law enforcement. And Peter also argued that the prosecutor's almost eight-month delay in bringing charges suggested that the victim had made prior false allegations.
The judge denied the request, ruling that Peter had failed to provide a sufficient factual predicate justifying disclosure of the reports. The judge relied on Booth v. State, in which this Court explained that a defendant's discovery request must be supported by a factual predicate that contains "more than conclusory statements or unsupported assertions." This Court based this requirement on Alaska Criminal Rule 42(b)(2), which states that a motion must be supported by "a detailed statement of material facts which can be proved by a party."
251 P.3d 369, 376 (Alaska App. 2011).
Peter now challenges the superior court's ruling. Specifically, he argues that the Booth standard only applies to requests for confidential police officer personnel files and, therefore, that the judge erred in applying that standard to his request for disclosure of L.A.'s contacts with police.
The factual showing made by Peter to support his discovery request was based on speculation, and so failed to satisfy the Booth standard. But even if we assume that Peter is correct that the Booth standard does not apply to requests for police contacts, Peter was not harmed by the judge's ruling, given how the case was litigated.
Peter did not testify at trial. L.A. testified to what Peter had done to her, but she could not recall whether he had actually penetrated her, as opposed to merely touching her with his penis. During final argument, the defense attorney did not dispute L.A.'s account — that is, he did not dispute that she had been subjected to involuntary sexual contact. Instead, he argued that the presence of Peter's semen in L.A.'s vagina and rectum was explained by the fact that Peter had ejaculated on her, and that his semen could then have flowed into her vagina and rectum as she later moved around. Based on this possibility, he argued that the evidence was insufficient to prove vaginal and anal penetration.
Given these circumstances — the nonexistent factual showing of justification for the discovery requested by the defense, the defense concession that Peter forced himself on L.A. and ejaculated on her, and the narrow factual issue the defense attorney actually argued to the jury — Peter was not harmed by the judge's ruling denying him discovery.
See Love v. State, 457 P.2d 622, 633 (Alaska 1969).
Why we conclude that the superior court's instruction to the jury on first-degree sexual assault was not plain error
To convict Peter of first-degree sexual assault, the jury was required to find that Peter engaged in sexual penetration without consent. Consistent with the statutory definition, the superior court instructed the jury that "without consent" means that a person: "with or without resisting, is coerced by the use of force against a person or ... is incapacitated as a result of an act of the defendant."
AS 11.41.410(a)(1).
AS 11.41.470(8)(A) and (B).
Peter challenges his convictions for first-degree sexual assault, arguing that the court erred in instructing the jury on an "incapacitation" theory because the State presented no evidence supporting that theory. Peter raises this claim for the first time on appeal. His trial attorney did not object to the inclusion of the incapacitation theory in the instruction nor did the attorney ask the judge to grant Peter a partial judgment of acquittal on that theory. Thus, Peter must show that the instruction constituted plain error.
See Khan v. State, 204 P.3d 1036, 1040-41 (Alaska App. 2009).
To establish plain error, Peter must show a "high likelihood" that the jury followed an erroneous theory resulting in a miscarriage of justice. Here it was the defense, not the prosecution, that argued the significance of L.A.'s intoxication. The defense theory of the case was that Peter had not penetrated L.A.'s vagina or anus and that L.A.'s prior statements to the police were not credible — in part because she was intoxicated at the time of the incident.
Vann v. State, 229 P.3d 197, 212-13 (Alaska App. 2010); Khan, 204 P.3d at 1040-41.
But the State's theory of the case did not rely on intoxication at all. Rather, the State's theory of the case throughout trial was that Peter used physical force against L.A. in the course of the sexual assault. In its opening statement, the State described the assault as one where the defendant "threw [L.A.] to the floor [and] held her hands. ... [S]he tried to struggle but she was too weak." And in closing argument, although the prosecutor acknowledged that L.A. was intoxicated at the time of the assault, he told the jury: "This is not one of those cases where somebody does not remember what happened to them. She clearly remembers, not only from what she told the SART nurse and other people, but from what she sat here and told you." Finally, in explaining the "without consent" element of first-degree assault to the jury, the State focused exclusively on the "physical force" portion of the jury instruction.
Given the way the case was litigated, the State argues that there was no reasonable possibility that the jury relied on the incapacitation portion of the definition in reaching its verdict. We agree. Therefore, we conclude that, even if the judge should not have instructed the jury on the incapacitation portion of the definition of "without consent," this error did not appreciably affect the jury's verdict and so was not plain error.
Why we conclude that sufficient evidence supported Peter's conviction for anal penetration
Peter challenges his conviction for first-degree sexual assault based on penetration of L.A.'s anus, arguing that the State presented insufficient evidence to prove this charge beyond a reasonable doubt. As Peter points out, L.A. testified that Peter did not anally penetrate her, and she never reported to the police or the SART examiner that she had been anally penetrated. Further, the SART nurse testified that she observed no injuries to L.A.'s anus or rectum during her examination. Based on this evidence, Peter argues that no reasonable juror could have found him guilty of anal penetration.
But the SART nurse testified that a swab from the inside of L.A.'s anus tested positive for Peter's semen. The nurse explained that, while taking the swab sample from L.A.'s anus, she was careful to avoid contamination from the external parts of L.A.'s genitals. In addition, L.A. testified that her "bottom" hurt after the assault.
When we review an insufficiency of the evidence claim, we must view the evidence, and all reasonable inferences to be drawn therefrom, in the light most favorable to the jury's verdict. We then determine whether the evidence viewed in that light was sufficient to find each element of the crime proved beyond a reasonable doubt.
E.g., Rae v. State, 338 P.3d 961, 962 (Alaska App. 2014).
Id.
Here, we conclude that the evidence was sufficient. We accordingly reject Peter's claim that there was insufficient evidence to convict him for anal penetration.
Why we conclude that the trial court properly refused to merge Peter's sexual assault convictions
At sentencing, Peter argued that his two first-degree sexual assault convictions should merge. The judge denied his request. Then, after Peter's sentencing, the Alaska Supreme Court decided Johnson v. State. Peter now asks this Court to remand his case for reconsideration of whether his convictions should merge in light of Johnson.
328 P.3d 77 (Alaska 2014).
In Johnson, our supreme court discussed the rule for determining whether multiple punishments for a single course of conduct violated the Alaska Constitution's prohibition on double jeopardy:
Alaska Const. Art. I, § 9.
[I]n order to determine whether multiple punishment violates the Alaska Constitution, a court must first look to the intent, conduct, and societal interests at stake in the multiple offenses (or multiple counts of a single offense) that were defined by the legislature. A court must then independently determine whether the differences among these purposes underlying the multiple offenses or counts are great enough
that multiple punishments for the criminal conduct should lie.
Applying this test to the facts in Johnson, the court concluded that multiple convictions for first-degree sexual assault — based on distinctive types of penetration — did not offend double jeopardy, because the victim "experienced a difference in the nature, not just the degree, of the harm she had already suffered and the additional harm Johnson sought to inflict."
Johnson, 328 P.3d at 87 (internal citations omitted).
Johnson, 328 P.3d at 87 (internal citations omitted).
Id. at 89; see also Erickson v. State, 950 P.2d 580, 584 (Alaska App. 2013). --------
Peter contends that Johnson is distinguishable because in his case the evidence of separate acts of penetration was disputed. But as discussed above, we find sufficient evidence to support Peter's convictions for both vaginal and anal penetration. Peter's separate convictions do not violate double jeopardy.
Conclusion
We AFFIRM the judgment of the superior court.