Opinion
Court of Appeals No. A-8869.
December 13, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge, Trial Court No. 4FA-99-2233 Cr.
Robert S. Noreen, Office of Conflict Counsel, Fairbanks, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
A woman, K.C., reported (and later testified) that a man attacked her on a bike path in Tok. This man was identified as Edward F. Portalla Jr.. Based on this incident, Portalla was charged with both attempted first-degree sexual assault and fourth degree assault.
At Portalla's first trial, the jury convicted him of fourth-degree assault but was unable to reach a verdict on the more serious charge, attempted first-degree sexual assault. The State brought Portalla to trial a second time on the attempted sexual assault charge, but this time the jury acquitted Portalla.
This, however, was not the end of the matter. At the time of this incident, Portalla was on felony probation, having been convicted of first-degree assault in 2000. The State, in addition to indicting Portalla for his assault on K.C., also petitioned the superior court to revoke Portalla's felony probation based on this same incident.
Superior Court Judge Charles R. Pengilly delayed the adjudication of this petition to revoke probation until Portalla's criminal charges had been resolved.
Judge Pengilly presided over both of Portalla's jury trials. As just explained, the jury at the first trial convicted Portalla of fourth-degree assault but failed to resolve the attempted sexual assault charge. Later, at the second trial, the jury acquitted Portalla of the alleged sexual assault on K.C.. That is, the State failed to convince the jury that Portalla, when he assaulted K.C., was attempting to engage in sexual penetration with her.
Portalla's acquittal of the attempted sexual assault charge did not, however, resolve the petition to revoke his probation — because probation revocation proceedings are governed by the "preponderance of the evidence" standard of proof rather than the "beyond a reasonable doubt" standard that governs a criminal trial. At the probation revocation hearing, Judge Pengilly declared that, having listened to the evidence twice, he was convinced (by a preponderance of the evidence) that Portalla had committed an attempted first-degree sexual assault.
Andrew v. State, 835 P.2d 1251, 1254 (Alaska App. 1992); A.S. v. State, 761 P.2d 122, 124 (Alaska App. 1988). See also Brakes v. State, 796 P.2d 1368, 1371-73 (Alaska App. 1990) (holding that, because of the lesser standard of proof at sentencing, a sentencing judge can lawfully find that the defendant is factually guilty of criminal conduct even though, at trial, the jury acquitted the defendant of this conduct).
In this appeal, Portalla argues that the evidence presented at his trials was insufficient to prove that he committed attempted sexual assault, even by a preponderance of the evidence.
In assessing Portalla's claim, we must view the evidence in the light most favorable to Judge Pengilly's finding. Viewed in this light, the evidence is sufficient to support the judge's conclusion that Portalla attempted to sexually assault K.C..
See Edwards v. State, 34 P.3d 962, 966 (Alaska App. 2001) (stating that this standard applies when reviewing the sufficiency of the evidence to support a revocation of parole, and implying that this same standard applies when reviewing the sufficiency of the evidence to support a revocation of probation).
In particular, based on K.C.'s testimony, Judge Pengilly could reasonably conclude that Portalla approached K.C. from behind on the bike path; that Portalla struck her on the head several times before dragging her into the bushes; that Portalla held K.C. on her back and straddled her, pinning her with one arm and continuing to hit her with his other arm; that Portalla grabbed K.C.'s breast and exclaimed, "Now, that's what I'm talking about."; that Portalla then tried to remove K.C.'s shirt and pants; and that Portalla also told K.C. that no one would find her or discover what had happened to her.
This testimony is clearly sufficient to support Judge Pengilly's finding that Portalla violated his probation by attempting to sexually assault K.C.. Accordingly, the judgement of the superior court is AFFIRMED.