Opinion
Court of Appeals No. A-12576 No. 6709
09-19-2018
JORDAN R. VONDA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. RuthAnne B. Bergt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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. 1KE-14-262 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Ketchikan, William B. Carey, Judge. Appearances: Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. RuthAnne B. Bergt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge ALLARD.
Jordan R. Vonda was convicted, following a jury trial, of one count of first-degree sexual assault and six counts of furnishing alcohol to a minor. These convictions arose from an incident in which Vonda provided alcohol to a group of minors and later sexually assaulted one of the minors.
AS 11.41.410(a)(1) and AS 04.16.051(a), respectively. At trial, the jury also found Vonda guilty of second-degree sexual assault and second-degree sexual abuse of a minor, but these counts merged with the conviction for first-degree sexual assault because they were based on the same conduct. The jury also found Vonda guilty of four counts of contributing to the delinquency of a minor, but these counts merged with the furnishing alcohol to a minor guilty convictions based on the same conduct.
On appeal, Vonda argues that there was insufficient evidence to support the sexual assault conviction. Vonda also argues that the trial court erred when it denied his motions for judgments of acquittal on three of the furnishing alcohol to a minor charges. For the reasons explained here, we find no merit to either of these claims.
Vonda also separately argues that the trial court erred when it imposed individual police training surcharges for each conviction. We agree with Vonda that this was error under our prior decision in Miller v. State.
See Miller v. State, 382 P.3d 1192, 1197 (Alaska App. 2016).
Accordingly, we affirm Vonda's convictions, but we direct the superior court to issue an amended judgment with a single felony police surcharge.
Background facts and prior proceedings
Because Vonda challenges the sufficiency of the evidence, we recount the evidence in the light most favorable to upholding the jury's verdicts. See Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
One Friday in May 2014, three teenage girls (K.T., L.W., and T.J.) made plans to meet friends after softball practice and have a party at Carlanna Lake in Ketchikan. At the time, K.T. was fourteen years old, and L.W. and T.J. were fifteen years old.
K.T. sent a Facebook message about the party plans to Vonda, listing suggested items for him to bring, including alcohol and marijuana. Vonda (who was twenty-two years old) asked if K.T. "need[ed] a buyer." K.T. said that she did, and Vonda agreed to purchase alcohol for the party. Vonda asked K.T. who was going to attend the party. K.T. said she was not sure; she listed five friends she believed would be there, and she also stated that "a lot of people" had said they were coming.
While K.T. and T.J. were at softball practice, L.W. met with Vonda and gave him the money. L.W. recognized Vonda as someone whose family used to be "really close" with her family. With the money the girls provided, Vonda bought two bottles of Fireball whiskey, a six-pack of Steel Reserve 211, and a twelve-pack of Pabst Blue Ribbon beer at a local liquor store. L.W. sent Vonda a Facebook message to confirm that he "got the stuff."
Later that evening, Vonda met up with the three girls near his trailer, which was at the base of the trail to Carlanna Lake. The girls were accompanied by three other teenagers, M.M. (seventeen years old); Donovan Weston (nineteen years old); and Joe Myall (nineteen years old). Vonda and the six teenagers hiked up to the party site with the alcohol Vonda had purchased. Weston also brought a bottle of spiced rum.
During the party, Vonda put his alcohol by the campfire for everyone to drink. Everyone drank the alcohol Vonda provided, and L.W. became very intoxicated. According to the other people at the party, L.W. was "blacked-out drunk," vomiting on the ground, and unable to walk or stand. Vonda told L.W.'s friends that he would look after her. The teenagers then left the lake, leaving L.W. alone with Vonda.
Vonda later assisted L.W. in walking down the trail, "sort of carrying" her because she could not walk or stand on her own. When they reached the end of the trail, L.W. told Vonda that she wanted to go home. Vonda told L.W. that she would get in trouble with her dad if she went home, and he convinced L.W. to spend the night at his trailer. L.W. then went into the trailer and "passed out" on his bed, fully clothed.
According to her trial testimony, L.W. later woke up naked from the waist down, with Vonda on top of her, penetrating her with his penis and fingers. L.W. told Vonda to stop, and she told him that he was hurting her. In response, Vonda pinned her hands down and covered her mouth, telling her that he "didn't care." L.W. continued to slip in and out of consciousness.
When L.W. woke up the next morning, she was partially naked and Vonda was sleeping next to her. She put on her clothes and ran home.
L.W. spent the rest of the day vomiting and sleeping. The next day (Sunday), she told her father and stepmother that she had been raped. L.W.'s step-mother accompanied L.W. to the police station and then to the hospital, where a SART (Sexual Assault Response Team) examination was done. The SART exam revealed an abrasion on the membrane at the opening of L.W.'s vagina, with discoloration, bruising, and a little blood. There was also an unexplained bruise on L.W.'s pelvis.
After the exam, L.W. went home and gave the police the clothing she was wearing on the night of the sexual assault. However, L.W. could not locate the underwear she had been wearing. L.W. later located solid teal underwear that she thought she might have been wearing. (At the SART examination, L.W. had reported wearing polka-dotted underwear).
Later DNA testing of L.W.'s clothing revealed the presence of Vonda's sperm on the inside of the crotch of L.W.'s pants. There was no sperm found on the underwear L.W. provided to the police.
As part of the investigation, Vonda was interviewed by the police. During this interview, Vonda denied having gone to the party at Carlanna Lake, denied having purchased alcohol for anyone, and said that he had not seen L.W. in a "couple of months."
Vonda was arrested and charged with two counts of first-degree sexual assault (for penetrating L.W. without her consent and for penetrating L.W. after she became incapacitated as a result of Vonda's actions); one count of second-degree sexual assault (for penetrating L.W. while she was incapacitated); one count of second-degree sexual abuse of a minor, six counts of furnishing alcohol to a minor (for providing alcohol to the six teenagers at the party), and four counts of contributing to the delinquency of a minor (for aiding the four teenagers who were under eighteen years old in breaking the law).
At the close of the State's case, Vonda pleaded guilty to the three counts of furnishing alcohol to a minor and the three counts of contributing to the delinquency of a minor that related to L.W., K.T., and T.J. Vonda then moved for judgments of acquittal on the three remaining furnishing alcohol to a minor counts and the one remaining contributing to the delinquency of a minor count related to the three other teenagers. Vonda's defense attorney argued that there was insufficient evidence that Vonda did anything "to actually encourage, use, or provide [those teenagers] with that alcohol; they just grabbed it of their own volition." The judge denied the motion for judgment of acquittal on these counts, and the jury later convicted Vonda of all the remaining charges.
At sentencing, the judge merged the sexual felonies counts into a single conviction for first-degree sexual assault and sentenced Vonda to 45 years with 5 years suspended on that conviction. (As a third felony offender, Vonda was subject to a presumptive range of 40 to 60 years). The judge also merged the four contributing to the delinquency of a minor convictions with the furnishing alcohol to a minor convictions based on the same conduct, imposing 30 days to serve on each of the four merged convictions. (The contributing to a delinquency of a minor convictions were related to L.W., K.T., T.J., and M.M., the teenagers who were under eighteen years old). The judge then sentenced Vonda to 10 days to serve for the two remaining furnishing alcohol to a minor convictions, which were based on furnishing alcohol to the two nineteen-year- olds. All of the misdemeanor sentences ran consecutively. Vonda's composite sentence for all of the convictions was therefore 45 years and 140 days with 5 years suspended (40 years and 140 days to serve).
AS 12.55.125(i)(1)(E).
Vonda's claim that there was insufficient evidence of sexual penetration
On appeal, Vonda argues that there was insufficient evidence that he sexually penetrated L.W. We find no merit to this claim.
When we review a claim of insufficiency on appeal, we are required to view the evidence presented at trial — and all reasonable inferences to be drawn from that evidence — in the light most favorable to upholding the jury's verdict. Here, L.W. testified that Vonda penetrated her vagina with his finger and his penis. L.W.'s testimony was further corroborated by the SART examination, which revealed internal injury to her cervix. The forensic testing also revealed the presence of Vonda's sperm on the inside crotch of her pants.
See Iyapana, 284 P.3d at 848-49.
On appeal, Vonda asserts that L.W.'s testimony was "contradicted by the forensic evidence" because Vonda's sperm was not found in L.W.'s vaginal tract or on the underwear L.W. provided to the police. But, as the State points out, there are reasonable explanations for the absence of Vonda's sperm in those areas. L.W. was not sure that the underwear she gave the police was the underwear she was wearing that night. Indeed, the underwear she provided to the police did not match the description of her underwear that she gave to the SART nurse. Similarly, the absence of sperm in L.W.'s vaginal tract could be explained by Vonda using a condom or by Vonda having pulled out prior to ejaculation.
Thus, viewing the evidence in the light most favorable to upholding the jury's verdict, we conclude that a fair-minded juror could find that the State had proved sexual penetration beyond a reasonable doubt. Accordingly, we reject Vonda's claim.
Vonda's claim that there was insufficient evidence to support some of the furnishing alcohol to a minor convictions
At the end of the State's case, Vonda moved for judgments of acquittal with regard to the furnishing alcohol to a minor charges that related to the teenagers who were not part of the original party planning. Vonda also moved for a judgment of acquittal with regard to the contributing to the delinquency of a minor charge related to the seventeen-year-old M.M. in that group of teenagers. Vonda argued that there was insufficient evidence that he had "knowingly" provided alcohol to the second group of teenagers because there was no evidence that he knew their identities until after he had purchased the alcohol. The trial court denied these motions, concluding that Vonda was on notice that there would be other teenagers at the party when he purchased the alcohol. The jury subsequently convicted Vonda of these charges.
On appeal, Vonda argues that the trial court erred in allowing these charges to go to the jury. The question is whether the State's evidence was legally sufficient to support these convictions.
See Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003); see also Adams v. State, 359 P.3d 990, 996 (Alaska App. 2015).
At trial, the State presented evidence that Vonda was aware that he was purchasing alcohol for a high school party that would include "a lot of people" — not just L.W., K.T., and T.J. The evidence also showed that Vonda hiked up to the party site with all six teenagers and that he put the alcohol he had purchased by the campfire for everyone to share. M.M., Weston, and Myall also testified at trial that they drank the alcohol that Vonda provided.
Viewing this evidence in the light most favorable to upholding the jury's verdicts, we conclude that a fair-minded juror could reasonably find that the State had proved beyond a reasonable doubt that Vonda "knowingly" furnished alcohol to all six of the teenagers at the party. Accordingly, we reject this claim on appeal.
The police training surcharges
Alaska Statute 12.55.039(a) requires the sentencing court to impose a police training surcharge in criminal cases. Subsection (a)(1) requires the court to impose a $100 surcharge on defendants convicted of a felony. Subsection (a)(3) requires the court to impose a $50 surcharge on defendants convicted of a misdemeanor that is not driving under the influence or refusal to submit to a breath test. (Subsection (a)(2) requires a $75 surcharge for defendants convicted of those misdemeanor charges.) The defendant is required to pay the surcharge within 10 days of the final judgment "or such shorter period of time as ordered by the court."
AS 12.55.039(c).
In Miller v. State, we clarified that only one surcharge should be imposed in any one criminal case. In other words, if a defendant is convicted of at least one felony, then the $100 felony surcharge applies to his case. But if the defendant's convictions are only for misdemeanors, then the applicable misdemeanor surcharge applies. In Miller, we rejected the State's claim that a separate surcharge should be assessed for each conviction, explaining that such an interpretation would lead to incongruous and unfair results. We also noted that there was no obvious connection "between the number of counts that any particular defendant was convicted of and any increased need for law enforcement training."
Miller v. State, 382 P.3d 1192, 1197 (Alaska App. 2016).
Id. at 1196-97 (citing Malutin v. State, 198 P.3d 1177, 1185 (Alaska App. 2009)).
Miller, 382 P.3d at 1197.
Our decision in Miller was issued in September 2016. The sentencing in Vonda's case took place five months earlier, in April 2016. The trial judge therefore did not have the benefit of our decision in Miller at the time he imposed the police surcharges in this case. At Vonda's sentencing, the judge imposed a separate police surcharge for each conviction rather than a single surcharge for the case. This was error under Miller.
We note that the trial judge appears to have imposed police surcharges even on the counts that were later merged at sentencing and therefore do not constitute separate convictions.
On appeal, the State acknowledges that the trial court erred in imposing separate police surcharges for each conviction. But the State asserts that Miller should not be applied retroactively to Vonda's case. We disagree.
In Charles v. State, the Alaska Supreme Court adopted the federal retroactivity standard under Griffith v. Kentucky. Under this standard, new constitutional rules will automatically apply to cases that are not yet final or are on direct review when the new rule is announced. The State disputes that Miller articulated a new constitutional rule. But a criminal defendant has a due process right not to be subjected to fines that the court has no statutory authority to impose. We therefore conclude (as we have in at least one other prior case) that the Charles/Griffith standard applies to our decision in Miller. Accordingly, we vacate the multiple police surcharges imposed in Vonda's case and remand Vonda's case to the superior court for imposition of a single $100 police surcharge.
Charles v. State, 326 P.3d 978, 985 (Alaska 2014) (adopting the standard for direct review retroactivity as stated in Griffith v. Kentucky, 479 U.S. 314 (1987)).
Charles, 326 P.3d at 986.
Johnson v. State, 2018 WL 798422, at *2 (Alaska App. Feb. 7, 2018) (unpublished).
Conclusion
The judgment of the superior court is AFFIRMED with the exception of the multiple police surcharges. We direct the superior court to impose a single felony police surcharge in accordance with our decision in Miller v. State.
382 P.3d 1192 (Alaska App. 2016). --------