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THE COURT OF APPEALS OF THE STATE OF ALASKA
JERRY W. MITCHELL, )
) Court of Appeals No. A-2954
Appellant, ) Trial Court No. 3KN-S87-1662CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1162 - September 27, 1991]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Charles K. Cranston, Judge.
Appearances: Susan Orlansky, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
Jerry W. Mitchell was convicted, following a jury
trial, of four counts of sexual abuse of a minor in the first
degree, three counts of sexual abuse of a minor in the second
degree, and one count of attempted sexual abuse of a minor in the
first degree. Mitchell was convicted of committing various acts
of sexual abuse on two minors: D.J., his six-year-old stepson,
and E.J., his eight-year-old stepdaughter. The state tried
Mitchell for these acts in two separate trials. At the first
trial, which was held in March 1988, the jury found Mitchell
guilty of one count of attempted sexual abuse of a minor in the
first degree, and two counts of sexual abuse of a minor in the
second degree. The jury acquitted Mitchell on several counts and
was unable to reach a verdict on several counts. In October of
1988, the state retried Mitchell on the charges on which the
first jury failed to return verdicts. This second jury convicted
Mitchell for four counts of sexual abuse of a minor in the first
degree, and one count of sexual abuse of a minor in the second
degree.
During both trials, the complaining witnesses testified
in closed courtrooms. In the first trial the defense attorney
sought closure. However, in the second trial the state moved for
closure, and the trial judge granted closure over the defense
attorney's objection. Mitchell now argues that the closure order
violated his right to a public trial. He claims that the
closure, which was allowed pursuant to former AS 12.45.048, was
unconstitutional because the judge did not make a
constitutionally required finding of necessity, or consider
alternatives to complete closure prior to allowing exclusion
during the children's testimony.
In Renkel v. State, 807 P.2d 1087 (Alaska App. 1991),
we addressed the constitutionality of closing the courtroom
during the testimony of children pursuant to AS 12.45.348. In
that case, the state agreed that AS 12.45.048 was
unconstitutional. Id. at 1092. We reversed Renkel's conviction,
finding that the trial court's closure of the courtroom denied
Renkel his right to a public trial under the United States and
Alaska Constitutions. U.S. Const. amend. XI and XIV; Alaska
Const. art. 1, 11. We noted that a trial court must make
particularized findings to support a closure order. See Renkel
at 1093. We find the circumstances of Mitchell's second trial to
be indistinguishable. In Mitchell's second trial, it seems clear
from the record that the trial judge granted the state's request
to close the courtroom. Nothing in the record suggests that the
courtroom was not closed pursuant to the judge's order.
Furthermore, the record does not include specific findings which
justify the trial judge's decision to close the courtroom. See
Renkel at 1091-94. We accordingly reverse the convictions which
resulted from Mitchell's second trial.
Mitchell next argues that the state presented insuffi-
cient evidence for the jury in the first trial to find him guilty
of attempted sexual abuse of a minor in the first degree as
charged in Count VIII of the indictment. The evidence supporting
this count is as follows.
E.J., Mitchell's eight-year-old stepdaughter, testified
that on October 9, 1987, she and Mitchell were in the bathroom of
her mother's trailer. Mitchell had brought a bottle of syrup
into the bathroom and said he was going to pour the syrup on his
penis, and that he wanted E.J. to lick it off. E.J. told
Mitchell that she did not want to do this, and Mitchell never
actually put the syrup on his penis. E.J.'s mother later
testified that she found a bottle of syrup in the bathroom and
asked Mitchell why it was there. Mitchell told E.J.'s mother
that he was going to make sandwiches with it. Later, however,
E.J.'s mother found a wet drop of syrup on the counter. This
made her suspicious, and she then asked E.J. if Mitchell had
touched her or made her "feel icky." E.J. responded that he had.
Alaska Statute 11.31.100(a) states the elements of
attempt:
A person is guilty of an attempt to
commit a crime if, with intent to commit a
crime, the person engages in conduct which
constitutes a substantial step toward the
commission of that crime.
In Sullivan v. State, 766 P.2d 51, 53 (Alaska App. 1988)
(citations omitted), we summarized the law of attempt as follows:
In order to constitute a "substantial
step," conduct must go beyond mere
preparation. Whether an act is merely
preparatory or is "sufficiently close to the
consummation of the crime to amount to
attempt, is a question of degree and depends
upon the facts and circum-stances of a
particular case."
Mitchell argues that Sullivan supports his position that there
was insufficient evidence to convict him of attempted sexual
abuse in the first degree.
In Sullivan, the defendant asked an eight-year-old girl
if she would be his girlfriend, and offered to pay her money.
The girl responded "no." Next Sullivan sent the girl a note
which asked her to be his girlfriend, to kiss him, to take off
her clothes, and to get him another girlfriend. The note
included a spaces for both "yes" and "no" answers. Id. at 52.
In analyzing the case, we distinguished the facts in Sullivan
from those in Braham v. State, 571 P.2d 631 (Alaska 1977), cert.
denied, 436 U.S. 910 (1978).
In Braham, the defendant solicited a friend to kill a
third person for $600. Braham instructed the friend, Koelzer, to
visit the intended victim, Peterson, in the hospital, and deliver
Peterson a message. Shortly after Koelzer delivered the message,
he abandoned the murder plan. The Alaska Supreme Court concluded
that Braham's purpose in having Koelzer visit Peterson in the
hospital was to have Koelzer establish a relationship of trust
and confidence with Peterson in order to facilitate the
commission of the murder. The court found that this was a
"direct and unequivocal" act toward the commission of the murder
and therefore the evidence was sufficient to sustain a conviction
for attempted murder. Id. at 638.
We explained in Sullivan that Braham's conduct was
distinguishable from Sullivan's conduct in two respects: Sullivan
did not make an agreement between himself and another person to
commit a crime; and Sullivan did not engage in any activity
toward completion of his crime after he solicited the child with
the notes. Sullivan, 766 P.2d at 54. Although Sullivan had a
plan to seduce the young girl, he took no substantial step toward
the actual commission of the crime. Id. On this basis, we
reversed Sullivan's conclusion for attempted sexual abuse of a
minor.
In Mitchell's case, he brought both E.J. and the syrup
into the bathroom, and asked E.J. if she would lick the syrup
from his penis. The fact that a wet drop of syrup was found on
the counter supports the conclusion that Mitchell actually opened
the syrup and poured some amount of it. We hold that a
reasonable jury could conclude that these actions by Mitchell
constituted a substantial step toward the commission of sexual
assault in the first degree. The jury could find that Mitchell
had maneuvered his intended victim into a place where he could
commit the crime, had brought the syrup into the bathroom in
order to commit the crime, and had actually done something with
the syrup which caused the syrup to spill. We conclude that
there was sufficient evidence for a jury to find Mitchell guilty
of attempted sexual assault in the first degree based upon this
evidence.
Mitchell next argues that the descriptions of sexual
abuse by D.J. and E.J. were not clear, and failed to demonstrate
that the various acts described occurred in separate incidents
and warranted multiple convictions. In his reply brief, Mitchell
concedes that his convictions are supportable under Yearty v.
State, 805 P.2d 987, 993 (Alaska App. 1991), which was decided
after Mitchell filed his opening brief. We have reviewed
Mitchell's convictions, and conclude that separate convictions
were proper.
The convictions are AFFIRMED in part, REVERSED in part.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
