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THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLES W. WILLIAMS, )
) Court of Appeals No. A-4558
Appellant, ) Trial Court No. 1JU-S92-123CR
)
v. ) O P
I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1315 - October 8, 1993]
________________________________)
Appeal from the Superior Court, First Judi
cial District, Juneau, Larry R. Weeks, Judge.
Appearances: Margaret W. Berck, Law Office
of Margaret W. Berck, Juneau, for Appellant.
Richard A. Svobodny, District Attorney, and
Charles Cole, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Charles W. Williams entered a plea of no contest to a
single count of sexual assault in the first degree. AS 11.41.-
410(a)(1). Pursuant to the terms of a plea bargain, the state
dismissed thirteen additional first-degree sexual assault counts,
as well as two counts of sexual abuse of a minor in the first
degree. AS 11.41.434(a)(2). Williams' plea agreement called for
him to receive no more than eight years of unsuspended
incarceration for his offense -- the presumptive term for a first
felony offender convicted of first-degree sexual assault. AS
11.41.410(b); AS 12.55.125(i). The agreement further provided
that the court would retain discretion to reduce the amount of
unsuspended time Williams was to serve, within legal limits, if
Williams established any mitigating factors; if the state
established any aggravating factors, the court would be free to
impose time exceeding the eight-year presumptive term, but only
if the time was suspended.
After finding four aggravating factors and no
mitigating factors applicable to Williams' case, Superior Court
Judge Larry R. Weeks sentenced Williams to a term of twenty years
with twelve years suspended. Williams appeals, contending that
Judge Weeks erred in finding two aggravating factors and in
rejecting two mitigating factors. Williams also contends that
his sentence is excessive. We affirm.
Williams was convicted of first-degree sexual assault
for raping his nineteen-year-old step daughter in her college
dormitory room in Juneau. This incident was the last in a series
of sexual assaults that began when the victim was six or seven
years of age and continued regularly thereafter. Even before
Williams began sexually abusing his step daughter, he had
physically abused her; the physical abuse also continued to occur
until the time of Williams' arrest. The sentencing record
establishes that Williams had also physically abused his wife and
thirteen-year-old son on numerous occasions and that he had been
physically and sexually abusive toward former spouses and their
children. In addition, Williams appears to have been involved in
sexually assaultive conduct toward other women on two prior
occasions: once in 1962 and once in 1967.
Of the four aggravating factors Judge Weeks found
applicable to Williams' case, Williams challenges two: that the
victim was "particularly vulnerable or incapable of resistance
due to advanced age, disability, ill health, or extreme youth or
was for any other reason substantially incapable of exercising
normal physical or mental powers of resistance," AS
12.55.155(c)(5), and that the victim was "a member of the social
unit comprised of those living together in the same dwelling as
the defendant," AS 12.55.155(c)(18).
Williams contends that Judge Weeks erred in finding
aggravating factor (c)(5) applicable, since Williams' step
daughter was nineteen years old at the time of the assault. But,
as Judge Weeks properly observed, the assault for which Williams
was convicted culminated a long history of sexual and physical
abuse that began when Williams' victim was a young child and was
particularly vulnerable to his assaultive conduct; through his
prolonged pattern of abuse, Williams rendered his victim
incapable of exercising the type of resistance that could be
expected from a typical nineteen-year-old.
Contrary to Williams' assertions on appeal, these are
not the type of "environmental factors" whose consideration is
precluded under Braaten v. State, 705 P.2d 1311, 1321-22 (Alaska
App. 1985).
Rather, Williams' background of abuse toward his victim bears an
intrinsic relationship to his assault and to his victim's
response to that assault. This is a factor Judge Weeks could
properly consider:
[A]ge is not the sole determinant of
vulnerability under AS 12.55.155(c)(5). In
deciding whether this aggravating factor
applied, the judge was entitled to consider
the totality of the circumstances surrounding
[the defendant's] abusive conduct. Cf. Gant
v. State, 712 P.2d 906, 908-09 (Alaska App.
1986); Martin v. State, 704 P.2d 1341, 1342
(Alaska App. 1985).
Curl v. State, 843 P.2d 1244, 1245 (Alaska App. 1992). See also
Wentz v. State, 777 P.2d 213, 215 (Alaska App. 1989), overruled
on other grounds, 805 P.2d 962 (Alaska 1991); Allen v. State, 759
P.2d 541, 550-51 (Alaska App. 1988); cf. Hartley v. State, 653
P.2d 1052, 1054 (Alaska App. 1982).
The superior court was not clearly erroneous in finding
this factor applicable. Lepley v. State, 807 P.2d 1095, 1099
(Alaska App. 1991)(clearly erroneous standard of review applies
to findings concerning existence of aggravating and mitigating
factors).
Williams contends that Judge Weeks erred in finding
aggravating factor (c)(18) applicable, since the assault that he
was convicted of occurred in the dormitory room where his step
daughter resided while at college. Williams reasons that, since
the victim was living outside her family residence while
attending school, she was no longer "living together in the same
dwelling as the defendant" for purposes of factor (c)(18).
Although factor (c)(18) does require the victim to live
in the same dwelling as the defendant, it does not require the
offense to occur in the home; nor does the aggravating factor
expressly require either the defendant's or the victim's physical
presence in the home at any particular time in relation to the
time of the offense, provided both are shown to be "living
together" there. What constitutes "living together" is not
defined. The purpose of the residency requirement, however, is
to circumscribe the relevant scope of the "social unit" whose
"members" are included in factor (c)(18).
The factor's focus on domicile reflects the heightened
seriousness of criminal violence occurring among persons whose
primary relationship is domestic. For this reason, even if the
defendant and the victim are not physically residing in the same
dwelling at the time of an offense, the factor will continue to
apply if both regard the same dwelling as their primary domicile,
and if their physical absence therefrom is temporary.
Here, the evidence before the sentencing court
established that Williams' victim, who grew up in Williams' home,
was temporarily away from the home while attending college. The
record supports the conclusion that both Williams and his victim
retained their domicile in the family home and remained members
of the same social unit for purposes of factor (c)(18). Judge
Weeks was not clearly erroneous in finding this factor
applicable.
Williams next contends that Judge Weeks erred in
rejecting both of Williams' proposed mitigating factors: that
Williams' conduct was among the least serious within the
definition of the offense, AS 12.55.155(d)(9), and that Williams
was an aged defendant whose conduct was substantially a product
of physical or mental infirmities resulting from his age, AS
12.55.155(d)(5).
With respect to mitigating factor (d)(9), Williams
maintains that his conduct was among the least serious of rapes
because he did not use force or a weapon and did not physically
injure his victim.
In rejecting this proposed mitigating factor, however,
Judge Weeks was entitled to consider that the assault Williams
committed was part of a years-long pattern of sexually and
physically abusive conduct during which Williams repeatedly
resorted to threats and physical violence to force his step
daughter's compliance. Cf. Curl v. State, 843 P.2d at 1246 (in
finding defendant's conduct among the most serious included in
the definition of the offense, sentencing court properly
considered that the incident for which defendant was convicted
was one of a series of twenty to twenty-five similar episodes
occurring over approximately four months).
With respect to mitigating factor (d)(5), Williams
contends that his age and physical condition contributed to his
commission of the offense. This argument is frivolous. For this
factor to apply, Williams was required to establish both that he
was an "aged defendant" and that his conduct was "substantially a
product of physical or mental infirmities resulting from [his]
age." At the time of this offense, Williams was only fifty-three
years of age, and he had already been engaged for years in the
type of sexually abusive conduct for which he was convicted.
Although Williams did present some evidence of various physical
disabilities and psychological problems, there is virtually no
credible evidence in the record establishing that these problems
resulted from his age or were causally linked to his crime. The
sentencing court did not err in rejecting this proposed
mitigating factor.
Williams lastly argues that his total sentence of
twenty years with twelve years suspended is excessive. The
sentence, however, exceeds the applicable presumptive term of
eight years only insofar as it imposes suspended incarceration.
Given the totality of the sentencing record, Judge Weeks could
properly conclude that Williams' offense was aggravated and that
a substantial period of suspended incarceration was called for to
serve as a deterrent in the event that Williams' efforts toward
rehabilitation proved unsuccessful. In terms of unsuspended
time, Williams' sentence is well within the benchmark range
established in State v. Andrews, 707 P.2d 900 (Alaska App. 1985),
affirmed, 723 P.2d 85 (Alaska 1986).
Having independently reviewed the entire sentencing
record, we conclude that the sentence imposed below is not
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
The sentence is AFFIRMED.
