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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
EDWARD TURPIN, )
) Court of Appeals No. A-4862
Appellant, ) Trial Court No. 3AN-92-3584
Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1395 - March 3, 1995]
________________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Milton M.
Souter, Judge.
Appearances: Rex Lamont Butler,
Anchorage, for Appellant. James L. Hanley,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Edward Turpin appeals his conviction and sentence for
second-degree sexual abuse of a minor, AS 11.41.436(a)(2). We
affirm.
The events underlying this appeal occurred in the
summer and fall of 1991. Turpin periodically lived with his
adult daughter. Turpin's daughter had a thirteen-year-old foster
child named D.P., and one of D.P.'s closest friends was twelve-
year-old K.B.. On November 15, 1991, the Anchorage Police
Department received a report that K.B. had been sexually abused
by Turpin. A few days later, Investigator Linda Branchflower
contacted K.B.. K.B. acknowledged that she had been abused by
Turpin.
According to K.B.'s subsequent testimony at Turpin's
trial, she had been sexually abused while spending the night at
D.P.'s house in the summer of 1991. Turpin, who was then forty-
five years old, joined K.B. and D.P. on the hide-a-bed in the
living room. K.B. testified that Turpin began to rub the legs of
both girls. Despite K.B.'s requests that he stop, Turpin moved
his hand up K.B.'s leg and, through her pajamas, grabbed and
rubbed her genitals. K.B. removed Turpin's hand from her body,
then got up from the bed and began walking around. K.B.
explained that she did not call her mother because she thought
her mother was out for the evening, and she did not call a cab
because she had no money. After several minutes, K.B. lay back
on the bed in a fetal position. She did not sleep that night.
Turpin's attack on his conviction centers upon remarks
that the prosecuting attorney made during opening statement. In
his opening statement, the prosecutor summarized K.B.'s expected
testimony of sexual abuse by Turpin: that K.B. would testify that
Turpin "sat down on the bed", "began to rub [D.P.'s] legs", then
"began to rub [K.B.'s] legs". The prosecutor spoke of K.B.'s
fear and surprise at Turpin's conduct, "not only because she had
no reason to believe he would do that, but in addition because
[D.P.] was right there". The prosecutor then explained that
D.P., who apparently witnessed the sexual abuse, might not
testify at Turpin's trial:
PROSECUTOR: [S]uffice it to say that
[K.B.] never returned ... to spend another
night with [D.P.]. And unfortunate, too, the
relationship between the two girls faded, not
only because of this incident, but also
because D.P. for some period of time has been
institutionalized in A.P.I. where she is, and
despite treatment remains, a very deeply dis
turbed young girl. Because of this, we're
not sure whether or not [D.P.] is going to
testify in this trial at all.
The prosecutor's statements about D.P. were supported
by testimony presented during the State's case-in-chief.
Investigator Branchflower testified that D.P. had been
institutionalized at the Alaska Psychiatric Institute (A.P.I.)
since the previous April and that she was a "deeply disturbed
young girl". D.P. was in fact brought to the courthouse to
testify, but the State rested its case without calling her, and
Turpin did not call her either.
Turpin did not object to the prosecutor's opening
remarks either at the time they were made or at any later point
in the trial. However, these remarks became a point of dispute
after the jury returned its verdict.
Following the return of the verdict, counsel for both
the State and the defense met with a number of jurors who wanted
to discuss the case. During this post-trial discussion, two
jurors apparently asked the prosecutor if Turpin was "known to
have sexually abused other minors, and specifically D.P.".
According to the defense attorney's account of the conversation,
these two jurors then indicated that they believed D.P.'s
hospitalization at A.P.I. was probably not "caused by just normal
family problems, but more probably by her having been abused by
Mr. Turpin".
On the basis of this conversation, Turpin moved for a
mistrial. He asserted that the jury had convicted him based on
speculation about other crimes, and he further asserted that this
speculation had been fueled by the prosecutor's remarks during
opening statement, which Turpin now claimed were improper.
Superior Court Judge Milton Souter denied Turpin's motion, and
Turpin raises these claims again on appeal.
Under Alaska law, if a party believes that an
occurrence at trial requires the court to declare a mistrial, the
party must raise this issue before the jury returns its verdict.
Owens v. State, 613 P.2d 259 (Alaska 1980). As the supreme court
noted in Owens:
An accused may not withhold an objection to
[an event] occurring during a trial until an
adverse verdict has been returned. This
procedure would permit him to take a
gambler's risk and complain only if the cards
fell the wrong way.
Owens, 613 P.2d at 261, quoting Mares v. United States, 383 F.2d
805, 808 (10th Cir. 1967). We apply the same rule here: by
failing to seek a mistrial until he heard the jury's verdict,
Turpin waived his claim.
We recognize that when plain error occurs - when the
fundamental fairness of the trial has been compromised - courts
will overlook the tardiness of a mistrial motion. Owens, 613
P.2d at 261. However, there was no plain error in Turpin's case.
The central witness for the prosecution was K.B., who testified
that her friend D.P. was present when Turpin sexually abused her.
Had there been a question raised as to why D.P. was not
testifying (when she had apparently witnessed the sexual assault
on K.B.), the prosecution would have been able to introduce
testimony to explain D.P.'s absence, testimony similar to that of
Investigator Branchflower. Perhaps the trial judge would have
exercised his authority under Alaska Evidence Rule 403 to exclude
some of the details described by Inv. Branchflower, but Turpin's
attorney did not object to Branchflower's testimony on this
basis.1 We note that the prosecutor did not state or suggest
that D.P.'s hospitalization was attributable to Turpin. We do
not find plain error.
The question then becomes whether Turpin is entitled to
a new trial if the jury used the prosecutor's proper remarks as
the fuel for improper speculation about Turpin's possible other
crimes. The answer is found in Alaska Evidence Rule 606(b),
which strictly prohibits post-trial inquiry into the mental
operations and the emotional reactions of jurors during the
deliberative process:
Inquiry Into Validity of Verdict or
Indictment. Upon an inquiry into the validity
of a verdict or indictment, a juror may not
be questioned as to any matter or statement
occurring during the course of the jury's
deliberations or to the effect of any matter
or statement upon that or any other juror's
mind or emotions as influencing the juror to
assent to or dissent from the verdict or
indictment or concerning the juror's mental
processes in connection therewith, except
that a juror may testify on the question
whether extraneous prejudicial information
was improperly brought to the jury's
attention or whether any outside influence
was improperly brought to bear upon any
juror. Nor may a juror's affidavit or
evidence of any statement by the juror
concerning a matter about which the juror
would be precluded from testifying be
received for these purposes.
Turpin attempts to avoid this rule by arguing that the
prosecutor's opening statement was improper and that it therefore
constituted "extraneous prejudicial information [that] was
improperly brought to the jury's attention". We reject Turpin's
argument for two reasons. First, the prosecutor's opening
statement was proper. Second, "extraneous" information refers to
information that reaches the jury other than through the normal
trial process; it does not refer to objectionable statements of
counsel made during trial or objectionable testimony given at
trial. See Stephen A. Saltzburg, Michael M. Martin, & Daniel J.
Capra, Federal Rules of Evidence Manual (6th ed. 1994), Vol. 2,
p. 777: "[A]fter [the United States Supreme Court's decision in
Tanner v. United States, 483 U.S. 107, 116-127; 107 S.Ct. 2739,
2745-2751; 97 L.Ed.2d 90 (1987)], inquiry under [Federal
Evidence] Rule 606(b) must be limited to influences outside the
evidence presented at trial, such as prejudicial publicity,
pressure placed on jurors from outside sources, use of
extrajudicial information, and the like." (Footnote omitted.)
Turpin's interpretation of "extraneous" information
would essentially gut Rule 606(b), since it would allow
impeachment of a verdict whenever the jurors heard improper
arguments of counsel, improperly admitted evidence, or any
questions or answers to which objections were sustained. Because
claims of such errors arise at practically every trial, virtually
any jury verdict would be subject to inquiry under Turpin's
suggested reading of Rule 606(b). We reject this reading of the
rule.
We turn now to Turpin's sentencing arguments. Turpin
was a first-felony offender convicted of a class B felony. See
AS 11.41.436(b). Under this court's decision in Austin v. State,
627 P.2d 657, 657-58 (Alaska App. 1981), Turpin was entitled to
receive a sentence more favorable than the 4-year presumptive
term enacted by the legislature for second-felony offenders
convicted of the same offense, see AS 12.55.125(d)(1), unless the
State proved that his case was exceptional. To justify a
sentence exceeding the normal Austin ceiling, the State sought to
prove two of the aggravating factors listed in AS 12.55.155(c):
(c)(21), that Turpin had "a criminal history of repeated
instances of conduct violative of criminal laws, whether
punishable as felonies or misdemeanors, similar in nature to the
offense for which [he was] being sentenced", and (c)(18)(B), that
Turpin "had engaged in the same or similar conduct involving ...
another victim who was a minor".
Turpin first argues that aggravator (c)(21) can not
apply to him because, as a first offender, he has no "criminal
history". However, when AS 12.55.155(c)(21) speaks of a
defendant's criminal history, this term includes acts that could
have been charged as crimes, regardless of whether the defendant
was ever prosecuted and convicted for those acts. Fagan v.
State, 779 P.2d 1258, 1260 (Alaska App. 1989).
Turpin next argues that Judge Souter should not have
believed the allegations of sexual abuse made by D.P. at the
sentencing hearing, as well as older allegations of sexual abuse
made by Turpin's daughter L.H.. Turpin points out that D.P.
admitted making false accusations of sexual abuse against other
adults, and he argues that D.P.'s allegations were "totally
lacking in credibility". Turpin also points out that L.H.'s
allegations of sexual abuse were made ten years before, and that
L.H. (now an adult) recanted those allegations when she took the
stand at Turpin's sentencing hearing.
However, Judge Souter was the finder of fact at
Turpin's sentencing, and he was entitled to form his own
conclusions concerning the credibility of the witnesses at that
hearing. Judge Souter concluded that L.H. had been sexually
abused by Turpin when she was a child and that L.H. had committed
perjury at the sentencing hearing when she recanted her earlier
allegations against Turpin. Judge Souter further concluded,
after observing D.P.'s cross-examination and having reviewed two
electronically-monitored telephone conversations in which Turpin
indicated that he had engaged in sexual improprieties with D.P.,
that D.P.'s allegations of sexual abuse were truthful. The judge
therefore found that the State had proved the two aggravating
factors by clear and convincing evidence.
We are to reverse Judge Souter's conclusions only if we
find them to be clearly erroneous. Lepley v. State, 807 P.2d
1095, 1099 n.1 (Alaska App. 1991). On this record, we do not
find Judge Souter's conclusions to be clearly erroneous.
Finally, we turn to Turpin's contention that his
sentence is excessive. As noted above, Turpin was a first-felony
offender convicted of a class B felony. In State v. Jackson, 776
P.2d 320 (Alaska App. 1989), this court conducted an extensive
survey of sentencing decisions involving first-felony offenders
convicted of class B felonies, concluding that these cases fell
into four distinct sentencing ranges. For a typical offender
committing a typical or moderately aggravated offense, Jackson
established a benchmark sentencing range of 1-4 years to serve.
For an exceptionally aggravated offense, one involving
significant statutory aggravating factors or other unusual
aggravating circumstances, Jackson established a benchmark
sentencing range of 4-6 years to serve. Jackson, 776 P.2d at 326-
27.
Judge Souter sentenced Turpin to 9 years' imprisonment
with 3 years suspended (6 years to serve). This sentence falls
at the upper end of Jackson's benchmark range for exceptionally
aggravated offenses. Judge Souter's sentencing remarks show that
he was aware of the Jackson benchmark ranges and that he
consciously chose not to impose more than 6 years to serve.
Nevertheless, such a sentence should not be imposed unless there
is good reason to categorize Turpin's background and/or conduct
as among the most aggravated within the group of first-offender
class B felons.
As described above, Judge Souter found that Turpin had
sexually abused not only K.B. but also his own daughter (a decade
before) and, more recently, his daughter's foster child, D.P..
Judge Souter also found that Turpin's exculpatory testimony at
the sentencing hearing was "totally unbelievable" and "con
trived". The judge concluded that Turpin was "in a state of
total denial" and that Turpin's conduct was "predatory". Judge
Souter found that Turpin's prospects for rehabilitation were poor
but cognizable; he rated them "5" on a scale of 0 to 10.
Moreover, Judge Souter found that Turpin's crime against K.B. was
not among the worst instances of second-degree sexual abuse of a
minor. Nevertheless, the judge found that Turpin was among the
worst offenders. See State v. Wortham, 537 P.2d 1117, 1120
(Alaska 1975); Collins v. State, 778 P.2d 1171, 1175 (Alaska App.
1989).
Given the record in this case and given Judge Souter's
findings, it is clear that a substantial term of imprisonment was
warranted. Judge Souter found that Turpin had a lengthy history
of sexually abusing children, that Turpin's prior, uncharged
sexual abuse was even more serious than his present offense, and
that Turpin was adamantly unwilling to acknowledge that he had
committed any wrongdoing.
This court has upheld sentences of 6 years to serve
plus additional suspended time for first-felony offenders
convicted of class B felonies. See Skrepich v. State, 740 P.2d
950 (Alaska App. 1987) (approving a sentence of up to 10 years'
imprisonment with 4 years suspended for a 37-year-old karate
instructor convicted of second-degree sexual abuse of a minor for
engaging in a sexual relationship with a 15-year-old student),
and Kirlin v. State, 779 P.2d 1251 (Alaska App. 1989) (approving
a composite sentence of 20 years' imprisonment with 8 years
suspended (two consecutive sentences of 10 years with 4 years
suspended) for a 41-year-old convicted of having sexual contact
with two girls, ages six and seven). Skrepich and Kirlin both
involved middle-aged defendants who, even though they were first-
felony offenders, nevertheless had deep-seated patterns of
sexually abusing children, demonstrated by their prior histories.
In both Skrepich and Kirlin, this court relied heavily on the
fact that the defendants had previously been charged with or
investigated for sexual abuse of children, or had otherwise been
confronted with their behavior in the past. Skrepich, 740 P.2d
at 953 (the defendant was a fugitive from Ohio, where charges
relating to past sexual abuse of children were pending against
him); Kirlin, 779 P.2d at 1252-53 (fourteen years before, the
defendant had been convicted of "indecent liberties", a
misdemeanor; later, the defendant's wife divorced him when she
discovered that he had been abusing her children from a previous
marriage; and the defendant was fired from his job at a movie
theater for molesting two young girls).
As was true of the defendants in Skrepich and Kirlin,
Turpin had previously been confronted with his behavior. The
first instance involved Turpin's daughter, L.H.. In March 1981,
the police were called to investigate L.H.'s report that Turpin
had sexually abused her by sleeping with her and engaging in
various acts of sexual penetration and sexual contact. L.H. was
thirteen years old at the time; she was taken from Turpin's
custody and placed in foster care pending the investigation.
L.H. later recanted her accusations; she was sent to live with
her mother, and the criminal investigation was dropped. Eight
years later, in July 1989, Turpin was again investigated for
sexual abuse of a minor. This investigation involved Turpin's
sexual relations with D.P. (before D.P. moved in with L.H. as a
foster child). At that time, D.P. reported to her mother that
Turpin had forced her to masturbate him and to masturbate herself
when she spent the night at L.H.'s house. The police were called
and an investigation commenced, but the investigation was dropped
after Turpin delivered a letter (written by D.P.) to the Division
of Family and Youth Services. In this letter, D.P. recanted her
allegations of sexual abuse.
Neither of these prior investigations led to criminal
charges, but they were sufficient to put Turpin on notice that
his conduct was illegal and that sexual abuse of children was
taken seriously by the authorities. Turpin nevertheless
continued to sexually abuse children; the jury found that Turpin
abused K.B., and Judge Souter found that Turpin had continued to
abuse D.P. after the 1989 episode. By the time of his sentencing
in this case, Turpin was a 46-year-old man. Judge Souter found
that Turpin had sexually abused children for over a decade, that
the "predatory nature of [Turpin's] conduct" was "deeply
ingrained", that Turpin adamantly and falsely denied any and all
misconduct, and that Turpin's prospects for rehabilitation were
poor.
Based on these findings, Judge Souter sentenced Turpin
to 9 years' imprisonment with 3 years suspended - a sentence
slightly less than the one imposed in Skrepich. Given the record
in this case, and given this court's decisions in Skrepich and
Kirlin, Judge Souter's sentencing decision is not clearly
mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgement of the superior court is AFFIRMED.
_______________________________
1 Turpin's attorney did object when Branchflower began to
relate what D.P.'s treating physician had said about her condi
tion, and Turpin's objections were sustained.
