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THE COURT OF APPEALS OF THE STATE OF ALASKA
TEDDY M. WASSILLIE, SR., )
) Court of Appeals No. A-5684
Appellant, ) Trial Court No. 4BE-S94-236CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1462 - February 23, 1996]
Appellee. )
______________________________)
Appeal from the Superior Court, Fourth
Judicial District, Bethel, Mark I. Wood,
Judge.
Appearances: John McConnaughy, III,
Assistant Public Defender, Bethel, and John
B. Salemi, Public Defender, Anchorage, for
Appellant. Bruce Ward, Assistant District
Attorney, James K. Metcalfe, District
Attorney, Bethel, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Teddy M. Wassillie, Sr., pled no contest to and was
convicted of one count of sexual abuse of a minor in the second
degree, in violation of AS 11.41.436(a)(3). The offense is a
class B felony, punishable by a maximum term of ten years'
imprisonment. AS 11.41.436(b); AS 12.55.125(d). As a second
felony offender, Wassillie was subject to a presumptive term of
four years. AS 12.55.125(d). Acting Superior Court Judge Mark
I. Wood found three aggravating factors and sentenced Wassillie
to a term of ten years with four years suspended. Wassillie
appeals, arguing that the sentencing court committed legal error
as to the existence of one of the aggravating factors and factual
error as to the circumstances underlying a second aggravating
factor. Wassillie also argues that his sentence is excessive.
We affirm.
Wassillie's conviction stems from an incident that
occurred in the village of Napakiak during the summer of 1991.
Wassillie entered a bedroom where his eleven-year-old daughter,
A.W., lay sleeping. He placed his hand on her panties and began
moving his hand up and down on her vagina. The abuse continued
for approximately ten minutes. The incident was witnessed by
A.W.'s cousin, A.B., who was also in the bedroom.
A.W. reported the incident in 1994; according to A.W.,
it was one of a series of sexual touchings that Wassillie
committed against her over a three-year period: the touchings
began when she was in the fourth grade and continued to occur
approximately once a month until some time during her seventh-
grade year.
Upon pleading no contest to a second-degree sexual
abuse of a minor charge for sexually abusing A.W., Wassillie was
subject to presumptive sentencing as a second felony offender by
virtue of a 1977 incident for which he had previously been
convicted of rape, assault with intent to commit rape, and
assault with a dangerous weapon. Prior to sentencing on the
sexual abuse of a minor charge, Judge Wood found three
aggravating factors applicable to Wassillie's case: 1) that A.W.
was a particularly vulnerable victim because she was asleep when
Wassillie molested her; 2) that A.W. was a member of Wassillie's
household and that Wassillie had engaged in similar conduct with
her and another minor on other occasions; and 3) that Wassillie's
prior felony conviction was for a more serious class of offense.
See AS 12.55.155(c)(5), (7), (18).
Wassillie first contends Judge Wood erred in finding
that the aggravating factor spelled out in AS 12.55.155(c)(5) was
applicable to Wassillie's case. Subsection (c)(5) provides for
an aggravating factor when "the defendant knew or reasonably
should have known that the victim of the offense 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[.]" In Braaten v. State, 705 P.2d
1311, 1321-22 (Alaska App. 1985), this court interpreted factor
(c)(5) to exclude situational or "environmental" vulnerabilities.
There, the sentencing court had found that a sexual assault
victim was particularly vulnerable because she was assaulted in
her own home. We reversed the finding. Here, Judge Wood ruled
that A.W. was particularly vulnerable because she was asleep when
Wassillie molested her.1 Relying on Braaten, Wassillie urges us
to find that "sleep is situational. Everybody sleeps, and is
capable . . . of resisting when they awake. Resistance upon
wakening is part of the normal capacity of human beings."
We find this argument unpersuasive. Braaten was not
intended, as Wassillie suggests, to limit aggravating factor
(c)(5) to vulnerabilities arising from a victim's long-term
physical condition. Such an interpretation of Braaten would put
it in conflict with the express language of AS 12.55.155(c)(5),
which encompasses proof that the victim was peculiarly vulnerable
due to age, disability, ill health, or "for any other reason."
"Environmental" vulnerabilities of an assault victim under
Braaten are those external to the victim, as distinguished from
those that "bear[] an intrinsic relationship to [the defendant's]
assault and to his victim's response to that assault." Williams
v. State, 859 P.2d 720, 722 (Alaska App. 1993). Contrary to
Wassillie's argument on appeal, sleep is not the type of
extrinsic, "situational" or "environmental" factor whose
consideration Braaten precludes. Rather, sleep is a factor
integrally related to one's physical and mental condition -- an
intrinsic aspect of a person's state of mind.
Moreover, while Wassillie may be correct in observing
that normal powers of resistance are quickly restored upon
wakening, this observation, in the context of the present case,
simply begs the point. The offense for which Wassillie was
convicted, second-degree sexual abuse of a minor, consists of a
knowing act of sexual touching between an adult and a child. See
AS 11.41.436(a)(3). By its very nature, the offense involves
conduct that can readily be completed before a sleeping victim
awakens.
In determining whether A.W.'s sleep rendered her
particularly vulnerable for purposes of aggravating factor
(c)(5), Judge Wood was entitled to consider the totality of the
circumstances surrounding Wassillie's conduct. Williams, 859
P.2d at 722 (citing Gant v. State, 712 P.2d 906, 908-09 (Alaska
App. 1986), and Martin v. State, 704 P.2d 1341, 1342 (Alaska App.
1985)). The record in this case established that A.W. was asleep
until awakened by Wassillie's sexual touchings. Regardless of
A.W.'s theoretical ability to resist once awakened, she was
obviously incapable of resisting until she was awakened. By that
time, Wassillie had already committed the sexual touching for
which he was convicted. Given these circumstances, Judge Wood
properly concluded that, because she was asleep, A.W. was
particularly vulnerable to Wassillie's sexual abuse.
Wassillie next contends that the sentencing court erred
in interpreting the evidence relied on by the state to establish
aggravating factor (c)(18)(B). Alaska Statutes
12.55.155(c)(18)(B) provides for an aggravating factor when a
defendant who is convicted of sexually abusing or assaulting a
victim "has engaged in the same or [similar] conduct involving
the same or another victim[.]" In the present case, the state's
presentencing notice of intent to rely on aggravating factors
alleged the existence of this aggravating factor by virtue of
Wassillie's repeated abuse of A.W. while she was in the fourth
through seventh grades.
Judge Wood, however, evidently interpreted the
presentence report in Wassillie's case to indicate, not only that
Wassillie had engaged in repeated episodes of sexual touching
with A.W., but also that, during the incident specifically
covered by the charge in this case, Wassillie had sexually abused
or attempted to abuse A.W.'s cousin, A.B. Judge Wood thus
concluded that aggravating factor (c)(18)(B) was applicable based
on Wassillie's conduct toward both A.W. and A.B. In addressing
the significance of this aggravating factor during his sentencing
comments, Judge Wood expressly stated, "The fact that there's
another victim out there, [A.B.], I put great weight on that part
of it."
Wassillie now argues that Judge Wood misinterpreted the
presentence report. According to Wassillie, the presentence
report does not support the conclusion that A.B. was a victim of
abuse or attempted abuse by Wassillie, but establishes only that
she was a witness to Wassillie's abuse of A.W.
The presentence report, however, is ambiguous on this
point. It indicates that upon being interviewed by the troopers
concerning A.W.'s report of sexual abuse, A.B. "confirmed that
approximately three years ago, she slept at [A.W.'s] home and
recalled that [A.W.'s] father was intoxicated. During the night,
Mr. Wassillie touched her on her leg. He then began touching
[A.W.] her [sic] on her vagina with his hand. [A.W.] was asleep
during the incident." The report's description of Wassillie's
touching "her on her leg" could plausibly be construed as a
reference to a touching of either A.B. or A.W. In context, this
touching might be interpreted as an attempt at sexual contact
with A.B.
Under ordinary circumstances, this type of ambiguity
might preclude a finding by clear and convincing evidence that
Wassillie engaged or attempted to engage in sexual contact with
A.B. In the present case, however, Wassillie filed a written
notice prior to sentencing conceding that the existence of
aggravating factor (c)(18). At the outset of the sentencing
hearing, referring to this concession, Judge Wood asked
Wassillie's counsel, "And then [aggravating factor] 18, regarding
occurring against a member of the household and also against
another member of the family. I assume you're referring to
[A.B.] with respect to that? That's also conceded." Wassillie's
counsel replied, "Yes." Defense counsel thereafter failed to
voice any objection when Judge Wood indicated in his sentencing
comments that he would put "great weight" on factor (c)(18)(B)
because "there's another victim out there, [A.B.]"
In light of his express concession on this issue at the
sentencing hearing, Wassillie cannot properly argue on appeal
that Judge Wood misunderstood the presentence report.2 We find
no error as to the sentencing court's findings concerning
Wassillie's conduct toward A.B.
Wassillie lastly argues that the sentence he received,
ten years with four years suspended, is excessive. He contends
that, with suspended time included, his sentence is equivalent to
the ten-year maximum for the offense. This contention lacks
merit. Although the entirety of a sentence must be considered in
determining whether it is excessive, it is unrealistic to
consider suspended time as the equivalent of unsuspended time.
See Jimmy v. State, 689 P.2d 504, 505 (Alaska App. 1984).
Wassillie's sentence of ten years with four years suspended is
substantially more favorable than a ten-year unsuspended term.
Wassillie nevertheless points out that the six-year
unsuspended portion of his sentence is equivalent to the
presumptive term for a third class B felony. See AS
12.55.125(d)(2). This is two years more than the four-year
presumptive term that applied to Wassillie by virtue of his prior
felony conviction. See AS 12.55.125(d)(1). Wassillie also notes
that, after being convicted of his first felony and serving the
unsuspended portion of his sentence for that offense, he
successfully completed a five-year period of probation and went
on to lead a crime-free life for many years before the current
case. In view of this information, Wassillie argues that the
sentencing court should have given greater weight to his
prospects for rehabilitation and should have imposed no more than
four years of unsuspended incarceration.
But the weight and priority to be given to the various
sentencing goals was a matter for the sentencing court's
discretion. In imposing Wassillie's sentence, Judge Wood found
three aggravating factors and no mitigating factors. In the
present case, although Wassillie was convicted of a single crime,
his conviction reflects a pattern of sexual abuse that occurred
on a monthly basis over a period of approximately three years.
Judge Wood emphasized that Wassillie's original felony
conviction, which triggered presumptive sentencing in the present
case, involved an extremely violent sexual assault for which
Wassillie was treated quite leniently. Wassillie's current case,
like his original felony, involves sexual misconduct. Despite
the absence of violence in Wassillie's current offense, Judge
Wood found it particularly significant that both the current and
past felonies involved sexual misconduct: "[T]hey are really
similar offenses to me. It's just that you used a different type
of force. One is the direct [use of] force and the other is an
implicit force of your own authority -- adult authority." Judge
Wood also found that Wassillie appeared to have little insight
into the nature of his problem and seemed to be "minimizing" his
offense.
Considering the totality of the circumstances, the
judge found that, although Wassillie had "some potential to
rehabilitate," the need to protect society required that this
potential play a subordinate role in sentencing: "I believe that
the only way to protect society for a long period of time is to
give you a substantial jail time with substantial suspended time
. . . . I think that because of the nature of this offense and
its similarity with the prior offense, that you are a danger to
the public[.]" In imposing sentence, Judge Wood recommended that
Wassillie be provided substance abuse and sexual offender
treatment while incarcerated; the judge ordered Wassillie to
pursue sexual offender treatment if it is offered to him.
Having independently reviewed the entire sentencing
record, we conclude that Judge Wood was not clearly mistaken in
failing to give more weight to the sentencing goal of
rehabilitation. We likewise 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.
_______________________________
1. Judge Wood found, in relevant part:
A person is not capable of normal physical or mental powers of resistance
while asleep. In fact, they are substantial[ly] incapable of
exercising those powers and this court finds that sleep is a --
fits the categories of this statute and based upon the
allegations contained in the presentence report, that basically
the defendant knew or reasonably should have known that she
couldn't resist and that's why he tried to touch her while she
was sleeping.
2. If Wassillie's concession of this point at the sentencing hearing was
mistaken or ill-advised, he would not be barred from raising the issue by
filing a timely motion for reduction of his sentence pursuant to Alaska
Criminal Rule 35(a).
