Opinion
Court of Appeals No. A-8899.
April 30, 2008.
Appeal from the Superior Court, First Judicial District, Ketchikan, Michael A. Thompson, Judge, Trial Court No. 1KE-00-166 Civ.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellant. Dan Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
In 1996, Daniel C. Nelson was convicted of two counts of first-degree sexual abuse of a minor (sexual penetration with a child under 13), two counts of second-degree sexual abuse of a minor (sexual contact with a child under 13), and one count of attempted second-degree sexual abuse of a minor (attempted sexual contact with a child under 13). In late 1999, this Court affirmed Nelson's convictions on direct appeal. See Nelson v. State, Alaska App. Memorandum Opinion No. 4147 (November 10, 1999), 1999 WL 33911988.
Following our decision, Nelson filed a petition for post-conviction relief in which he raised over two dozen claims of ineffective assistance by his trial attorney. Superior Court Judge Michael A. Thompson ultimately denied all but one of these claims. W e affirmed Judge Thompson's denial of these claims in Nelson v. State, Alaska App. Memorandum Opinion No. 5200 (April 11, 2007), 2007 WL 1098411.
The one claim of ineffective assistance of counsel that Judge Thompson found proved, and on which he granted relief, involved Nelson's conviction for attempted sexual abuse of a minor named C.P. .
With regard to this charge of attempted sexual abuse, the State apparently furnished Nelson a pre-trial bill of particulars specifying that this charge rested on one particular incident — an occasion on which (according to the State) Nelson changed C.P.'s underwear. But at Nelson's trial, the State introduced evidence tending to prove that Nelson had, on several different occasions, engaged in sexual impropriety or apparent sexual impropriety with C.P. . And, during the prosecutor's summation to the jury at the end of trial, he did not confine his arguments to the incident specified in the bill of particulars. Rather, he spoke to the jury about all of these various incidents of alleged sexual impropriety, and he suggested that these incidents, in combination, established the offense of attempted sexual abuse.
When Nelson's attorney responded to the prosecutor's argument, he did not point out that the State's charge rested on the single incident named in the bill of particulars. Rather, he attempted to rebut all of the prosecutor's allegations. And he never asked Judge Thompson (who was the trial judge) to instruct the jurors that, before they convicted Nelson of the attempted sexual abuse, they had to unanimously agree that Nelson had committed this one specific act of sexual misconduct.
In his petition for post-conviction relief, Nelson alleged that his attorney's failure to seek a jury instruction on this requirement of unanimity amounted to incompetence. Judge Thompson agreed, and he granted Nelson's request for post-conviction relief on the attempted sexual abuse charge. The State appealed this ruling.
When this case was previously before us, we concluded that Judge Thompson had failed to provide a sufficiently detailed explanation of his decision for us to meaningfully review that decision. Therefore, in our prior decision in this case, we remanded this one issue to Judge Thompson to allow him to more fully explain his reasoning.
Judge Thompson has now issued an "Order on Remand" in which he sets forth the facts recited above. In this order, Judge Thompson reiterates his conclusion that Nelson's trial attorney was incompetent for failing to have the jury instructed that, regardless of whatever else Nelson might have done, he could not be convicted of the attempted sexual abuse charge unless the jurors unanimously agreed that Nelson committed the specific conduct upon which the State based that charge.
Having reviewed the transcript of Nelson's trial, and having considered the supplemental briefs filed by the parties in response to Judge Thompson's order, we conclude that Judge Thompson could properly find that Nelson's trial attorney litigated this issue incompetently, and that there is a reasonable possibility that the jury's verdict on the attempted sexual abuse charge would have been different if the attorney had acted competently.
Accordingly, the superior court's decision to grant Nelson post-conviction relief on the attempted sexual abuse conviction is AFFIRMED.