Opinion
Court of Appeals No. A-10847 No. 6215
07-29-2015
JAMES R. PHILLIPS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Andrew Steiner, Bend, Oregon, 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. Trial Court Nos. 2KB-09-137 CR, 2KB-09-436 CR, & 2KB-09-501 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Second Judicial District, Kotzebue, Michael I. Jeffery, Judge. Appearances: Andrew Steiner, Bend, Oregon, 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 E. Smith, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
James R. Phillips appeals his convictions for seven sexual felonies and six counts of furnishing alcoholic beverages to minors in a local option community (i.e., a community that had enacted local restrictions on the sale of alcoholic beverages). Phillips raises two claims on appeal. First, Phillips argues that the trial court should not have allowed all of the charges to be tried jointly in a single trial. Second, Phillips argues that the trial judge violated his rights when the judge concluded that a portion of Phillips's trial testimony violated a protective order, and when the judge struck that testimony from the record.
For the reasons explained here, we conclude that neither of Phillips's claims has merit, and we therefore affirm his convictions.
Phillips's claim that the charges involving different victims should not have been joined in a single trial
Phillips was charged with seven sexual offenses, as well as several counts of furnishing alcoholic beverages to minors in a local option community, arising from four separate incidents. These four incidents occurred within eight months of each other. In each of the four incidents, Phillips (who was 53 years old) provided bootleg alcohol to young girls (ranging from 14 to 19 years old), and then, after they became intoxicated, he either had sex with them or attempted to have sex with them.
Over Phillips's objection, the superior court ruled that all of these charges were properly joined for trial under both Alaska Criminal Rule 8(a)(1) and Criminal Rule 8(a)(3).
Criminal Rule 8(a)(1) authorizes the joint trial of charges that "are of the same or similar character" if it can be determined before trial "that evidence of one charged offense would [likely] be admissible to prove another charged offense". Criminal Rule 8(a)(3) authorizes the joint trial of charges that "are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan".
In Phillips's case, the various sexual felonies were properly joined under Criminal Rule 8(a)(1). As the trial judge noted when he granted the State's request for a joint trial of these charges, Rule 8(a)(1) allows charges to be joined when the underlying incidents are interrelated and serve "to explain and render intelligible the others".
Maynard v. State, 652 P.2d 489, 491 (Alaska App. 1982).
Thus, in the unpublished decision in Lamb v. State, this Court upheld a trial court's decision to hold a joint trial of charges arising from separate incidents in which the defendant, a hunting guide, assaulted other guides and their clients (by aiming his airplane at them); the defendant's motive for the attacks was a concern that these people were interfering with his own business activities. And in another unpublished decision, Lampley v. State, we upheld a trial court's decision to jointly try a number of crimes of domestic violence. The various offenses demonstrated a "unifying motivation and pattern of behavior", in that they all involved "acts of confrontation and violence toward women with whom [the defendant] had been romantically involved".
2009 WL 103678 at *8-9 (Alaska App. 2009).
2009 WL 891008 at *4 (Alaska App. 2009).
Here, Phillips sexually targeted a series of teenage girls over a period of months. In each instance, Phillips employed the same strategy of providing the girls with bootleg liquor to either incapacitate them or at least render them compliant. The trial judge could properly conclude that all of the sex offense counts "[were] of the same or similar character", and that evidence of these offenses would likely be cross-admissible under Evidence Rules 404(b)(1), 404(b)(2), and 404(b)(3).
This Criminal Rule 8(a)(1) analysis does not apply to the seven counts of furnishing alcoholic beverages to minors in a local option community — because these charges are not "of the same or similar character" as the sex offense counts. But the furnishing alcohol counts were properly joined under Criminal Rule 8(a)(3), because the trial judge could properly conclude that these counts were based on "acts or transactions connected together or constituting parts of a common scheme or plan".
For these reasons, we uphold the trial court's decision to allow a joint trial.
Phillips's claim that the trial judge improperly limited his trial testimony
Phillips had two prior convictions for sexual felonies. (Actually, he had four prior felony convictions involving sexual conduct, but all of these convictions were from outside Alaska, and only two of them counted as sexual felonies under Alaska law.)
Under Alaska Evidence Rule 404(b)(3), these two prior convictions would be admissible against Phillips if he relied on a defense of consent to the sexual assault charges. In addition (again, under Evidence Rule 404(b)(3)), if Phillips raised a consent defense, evidence of his current sexual assault charges would be cross-admissible — thus providing the trial judge with another potential justification for denying Phillips's motion to require separate trials of these charges.
The Evidence Rule 404(b)(3) issue was raised before trial, and Phillips told the court and the State that he would not rely on a consent defense. Based on Phillips's declaration, the trial judge issued a protective order barring Phillips from raising a consent defense at trial. Accordingly, when the State presented its case-in-chief at Phillips's trial, the State did not try to introduce evidence of Phillips's prior sexual felony convictions.
But the situation altered when Phillips took the stand during the defense case. During direct examination, Phillips's attorney asked him whether he had engaged in sexual intercourse with B.K. during the episode in question. Phillips acknowledged that he had engaged in sex with B.K. Phillips then stated that B.K. was lucid and coherent at the time, and that she was the one who initiated the encounter — by kissing him and then asking him to have sex with her.
Just after Phillips gave this testimony, the prosecutor asked for a bench conference. The prosecutor asserted that Phillips's testimony violated the protective order because it amounted to a defense of consent. After giving the defense attorney repeated chances to respond to the prosecutor's objection, the trial judge concluded that Phillips's testimony did violate the protective order.
The judge then had to decide what to do. The judge and the parties discussed various options: (1) declare a mistrial; (2) allow the challenged testimony to stand, but allow the State to introduce Phillips's prior convictions; or (3) strike Phillips's testimony and instruct the jury to disregard it.
The prosecutor argued for this third option, and Phillips's attorney told the judge that he, too, favored this third option. Accordingly, the trial judge struck — and instructed the jurors to ignore — the portion of Phillips's testimony where he asserted that B.K. made a sexual advance toward him, and that B.K. willingly had sex with him.
Now, on appeal, Phillips (represented by a different attorney) contends that it was improper for the trial judge to strike his testimony. Phillips argues that his testimony did not violate the protective order, and that his testimony was relevant to prove that B.K. was not incapacitated when Phillips engaged in sexual penetration with her.
With regard to Phillips's contention that his testimony did not violate the trial judge's protective order, Phillips asserts that no testimony he could possibly have given would violate the protective order. According to Phillips, this conclusion follows from the fact that "consent" is not a legally recognized defense to a charge of sexual assault when the charge is based on the allegation that the victim was incapacitated. We disagree with this position.
Phillips was charged with sexual assault under AS 11.41.420(a)(3)(B), which required the State to prove that Phillips engaged in sexual penetration with B.K. when he knew that she was incapacitated. In this context, "incapacitated" means "temporarily incapable of appraising the nature of one's own conduct[,] or physically unable to express unwillingness to act".
AS 11.41.470(2).
Phillips testified that B.K. solicited him to have sex with her, and that she then willingly had sex with him. In practical terms, Phillips asserted that he had not taken advantage of B.K. when she was incapacitated — rather, B.K. was aware of what she was doing, she initiated the sexual encounter, and she engaged in consensual sex with Phillips.
As the prosecutor argued, and as the trial judge agreed, even though Phillips might not have used the word "consent" in his testimony, and even though Phillips's attorney disavowed any intention to argue a consent defense, Phillips's testimony clearly conveyed the idea that B.K. initiated and freely consented to the act of intercourse, and thus no crime was committed. Because of this, the trial judge properly concluded that Phillips's prior convictions were admissible under Evidence Rule 404(b)(3) to rebut these assertions.
The defense attorney then made a tactical decision: rather than have the jury hear about these prior convictions, the defense attorney concurred in the prosecutor's request to have the challenged portion of Phillips's testimony struck from the evidence, and to have the jurors instructed to disregard this testimony. The defense attorney's tactical choice is not facially incompetent, so Phillips is not entitled to attack his trial attorney's decision in this appeal.
Under Alaska law, a claim of ineffective assistance of counsel ordinarily can not be raised on direct appeal. See Sharp v. State, 837 P.2d 718, 722 (Alaska App. 1992); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984). --------
Conclusion
The judgement of the superior court is AFFIRMED.