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THE COURT OF APPEALS OF THE STATE OF ALASKA
RALPH ADAMS, )
)
Appellant, ) Court of Appeals No. A-5631
) Trial Court No. 4BE-93-0006CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1497 - November 15, 1996]
______________________________)
Appeal from the Superior Court, Fourth
Judicial District, Bethel, Dale O. Curda,
Judge.
Appearances: Linda K. Wilson, Assistant Public
Defender, and John B. Salemi, Public Defender,
Anchorage, for Appellant. Eric A. Johnson,
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.
BRYNER, Chief Judge.
Ralph Adams was convicted by a jury of first-degree
sexual assault, AS 11.41.410(a)(1), and kidnapping, AS 11.41.300-
(a)(1)(C). Superior Court Judge Dale O. Curda sentenced Adams to
a composite term of eighty years in prison with twenty years
suspended. Adams appeals, contending that the trial court erred in
denying a challenge for cause Adams asserted against a member of
his jury. Adams also contends that his conviction should be
reversed due to improper final argument by the prosecution.
Finally, Adams argues that his sentence is excessive. We affirm.
On December 31, 1992, sixteen-year-old I.B., a Hooper Bay
resident, celebrated New Year's Eve in Bethel, attending a dance,
a local disco called the Brass Buckle, and then a party at a
friend's house. At the Brass Buckle, I.B. began drinking alcohol.
Before leaving, she noticed that Adams was at the disco; I.B.
recognized Adams because he was the boyfriend of Roberta G., an
acquaintance of I.B. Later, at the party, I.B. smoked some
marijuana and continued to drink; she became intoxicated. Soon
after leaving the party in search of a cab, I.B. blacked out.
When I.B. came to, she found herself on a mattress in a
vacant apartment; Ralph Adams lay next to her, urging her to have
intercourse with him. I.B. refused. Undeterred, Adams began
touching her stomach and her legs, and then touched and inserted
his finger into I.B.'s vagina. When I.B. resisted the assault,
Adams began beating her on the face and body, calling her names,
telling her, "You're a whore like your mom," and saying that he
wanted to kill her. I.B. implored Adams to stop, saying, "[W]hat
about Roberta?" In response, Adams pulled off I.B.'s spandex
tights and used them to choke her and bind her hands. The assault
evidently lasted for several hours. I.B. eventually lost
consciousness.
When I.B. regained consciousness, it was morning; the sun
had risen. She was alone in the apartment. Her hands were still
bound and her eyes were swollen from Adams' blows, making it
difficult for her to see. The mattress was covered with blood,
evidently from a one-inch gash on the back of I.B.'s scalp.
I.B. managed to untie herself and leave the apartment.
She walked out to the street and summoned a taxi. I.B. told the
driver she had been raped and beaten and that "she knew the man's
girlfriend." The driver took her to the Bethel police station,
where I.B. reported the rape to Officer Roger Vercelline. I.B.
told Vercelline that her attacker was named Ralph and was the
boyfriend of Roberta G. I.B. also provided Vercelline with a
description of her assailant that eventually proved accurate.
Vercelline took I.B. to the hospital, where the examining
physician found her eyes to be "half swollen shut." Further
examination revealed extensive bruising on nearly every part of
I.B.'s body and face, a lump and one-inch laceration on the back of
her head that had probably bled "a fair amount," and bite marks on
her buttocks.
After I.B. was released from the hospital later that day,
Vercelline conducted another interview, during which I.B. said she
did not know who raped her. Upon further questioning, however, she
recalled having told Vercelline that her assailant was a man named
Ralph who was Roberta G.'s boyfriend. Upon completing his
interview with I.B., Vercelline took her to the Bethel Emergency
Shelter for Children. There, I.B. told a shelter employee that she
had been raped by a man named Ralph who was Roberta G.'s boyfriend.
Investigation of I.B.'s report led Vercelline to a vacant
apartment that contained only a blood soaked mattress and a chest
of drawers. Vercelline separately determined that Roberta G.'s
boyfriend was Ralph Adams, that Adams lived near the empty
apartment, and that he had been hired by the apartment building's
owner to clean out the apartment.
Vercelline contacted Adams, who appeared to have fresh
scratches on his face and body. Adams acknowledged the scratches
but could not explain their origin. Adams' clothing appeared to be
stained with blood. At first Adams denied that the stains were
from blood; then he claimed that they were his own blood -- that he
had had a nosebleed.
The following day, Vercelline showed I.B. a photographic
lineup. I.B. identified Adams. Subsequent testing revealed that
the blood on Adams' clothing was not his own but was a type similar
to I.B.'s. A thorough search of the mattress in the empty
apartment also yielded a pubic hair that appeared to match a hair
sample taken from Adams.
Based on this evidence, the state charged Adams with
kidnapping and first-degree sexual assault. Adams was brought to
trial before a Bethel jury, which convicted him of the charges.
Adams then filed this appeal.
On appeal, Adams first contends that the trial court
erred in denying his mid-trial motion to disqualify a juror.
During the jury selection process, prospective juror Tad Miller
disclosed that he was the director of the Bethel Emergency Shelter
for Children. Both parties accepted Miller as a juror. In the
course of trial, the jury heard evidence that, after the sexual
assault, I.B. was taken to the Bethel Emergency Shelter for
Children, where she told a shelter worker that she had been raped
by a man named Ralph, who was the boyfriend of an acquaintance.
Subsequently, when I.B. took the stand, juror Miller recognized
her. Miller sent Judge Curda a note, saying:
Upon viewing [I.B.] it occurs to me that I did
meet her while she stayed at the receiving
home. I never discussed her case with her,
however. Does this matter[?]
After disclosing this note to trial counsel, Judge Curda
convened a hearing at which Miller was questioned out of the
presence of other jurors. Miller told the court that he had not
recognized I.B.'s name during the jury selection process; he
realized that she had been at the shelter only after seeing her
when she took the stand. Miller said that his position as the
director of the shelter primarily involved management and
administration; he supervised the shelter staff, who in turn
provided direct care.
Miller recalled that after I.B. came to the shelter, a
staff member telephoned him at home and told him that a new child
had been admitted in "physically rough shape." When Miller next
went to work, he met I.B. briefly, introduced himself, and welcomed
her to the shelter. Miller observed I.B.'s injuries, noticed that
she was "very shy," but did not talk to her about the assault.
Miller characterized his involvement with I.B. at the shelter as
"very minimal" and estimated that I.B. had remained there only "a
day or two."
Judge Curda asked Miller whether there was "anything
about that contact . . . that would make you judge her testimony
any differently from anybody else's[?]" Miller answered no. Judge
Curda also asked if Miller's contact with I.B. would cause him
"[a]ny problems with following th[e] instruction [about evaluating
witness testimony]." Again, Miller answered no.
In follow-up questioning, the prosecutor asked Miller if
there was any reason he could not be fair. Miller answered: "No.
I think I can be fairly objective, but I -- I did want to state for
the record I had met her . . . while she was in my care and I don't
know if you feel that's grounds for -- for my dismissal, or
whatever, but . . . "
Defense counsel, for his part, asked if anything about
Miller's contact with I.B. at the shelter might "influence you one
way or the other?" Miller answered no. Defense counsel also asked
if Miller acted in the capacity of guardian for children living at
the shelter. Miller said that for "purposes of school enrollment
and that kind of thing I [serve as guardian]." He indicated that
all residents of the home are in state custody. However, Miller
did not think of himself a custodian, but as a "caregiver."
Based on Miller's responses, Adams' counsel moved to have
Miller excused from the jury. Counsel asserted two grounds: that
the guardian/ward relationship arising from I.B.'s stay at the
children's shelter disqualified Miller from service under Criminal
Rule 24(c)(10); and that Miller's personal knowledge of facts
involved in the case might preclude him from being fair. Judge
Curda denied Adams' motion. Miller went on to become the foreman
of Adams' jury.
On appeal, Adams argues that Miller should have been
disqualified. Adams asserts the same two grounds he raised below.
Neither ground is persuasive.
We consider first Adams' argument under Alaska Criminal
Rule 24(c)(10). This rule provides, in pertinent part, that any
party may challenge a juror for cause on the ground
[t]hat the person is the guardian, ward,
landlord, tenant, employer, employee, partner,
client, principal, agent, debtor, creditor, or
a member of the family of the defendant [or]
. . . of the person alleged to be injured by
the crime charged in the indictment[.]
Adams argues that Miller, as the director of the children's shelter
that had custody and control of I.B., was I.B.'s guardian and was
thereby disqualified from jury service under Rule 24(c)(10).
Rule 24(c)(10), however, is worded in the present tense;
it applies only when a person called as a prospective juror "is" a
guardian of the victim. When read in accordance with its plain
meaning, this rule has no application to past guardian/ward
relationships.
Adams provides no legislative history, case law, or
persuasive reasons to support the conclusion that Criminal Rule
24(c)(10) should be interpreted to extend beyond its apparent plain
meaning. Moreover, at least one decision of the Alaska Supreme
Court interpreting the use of the words "debtor" and "creditor" in
the civil counterpart of Criminal Rule 24(c)(10) -- Civil Rule
47(c)(10) -- strongly suggests that the criminal rule's present-
tense phrasing should be read literally. Malvo v. J.C. Penney Co.,
512 P.2d 575, 579 (Alaska 1973) (requiring dismissal under the
"debtor-creditor" wording of Civil Rule 47(c)(10) only of jurors
with "outstanding" balances on their accounts at appellee's
stores).
We conclude that Adams' case must be governed by the
plain meaning of Criminal Rule 24(c)(10): Adams was entitled to
challenge Miller for cause only if Miller was I.B.'s guardian at
the time of trial. Even though Miller had arguably acted as I.B.'s
guardian while she stayed at the shelter, it is undisputed that
I.B. was not at the shelter when Adams' case was tried. Because
there was no basis for the trial court to find a guardian/ward
relationship in existence at the time of Miller's selection as a
juror, it follows that there was no cause for Miller's
disqualification under Rule 24(c)(10).
Adams alternatively argues that Miller should have been
excused for cause because he had personal knowledge of facts
relating to Adams' case. Under the standard articulated in
Dalkovski v. Glad, 774 P.2d 202, 205 (Alaska 1989), a juror's
personal knowledge of the facts of a case will give rise to a valid
challenge for cause when it
prevents the juror from rendering an impartial
verdict based solely on the evidence presented
at trial. "Knowledge by a juror of incidental
or collateral facts . . . will not render him
incompetent to sit in the trial of a case."
Id. (quoting Wells v. Autry, 235 So.2d 706, 708 (Miss. 1970)).
Once it is established that a juror is personally aware of facts
that are material, that is, not merely "incidental or collateral,"
a strict rule applies:
A juror with any material knowledge of the
facts in the case on trial should be excused
for cause unless it is beyond question that
such juror can try the case and return a
verdict only on the evidence introduced in the
courtroom.
Dalkovsky, 774 P.2d at 206 (quoting Walter E. Jordan, Jury
Selection  5.15, at 83 (1980)).
In the present case, virtually the only facts Miller
learned by virtue of his prior contact with I.B. related to I.B.'s
physical and emotional condition upon her arrival at the children's
shelter. While these facts might be material in some contexts,
they were plainly collateral in the context of Adams' case: Adams'
defense was based on mistaken identity; he acknowledged that I.B.
had been sexually attacked by someone, claiming only that I.B. had
misidentified her assailant.
Adams nonetheless argues that Miller's encounter with
I.B. might have influenced Miller's perception of her
credibility -- a key issue in his case. This argument, however,
mistakenly assumes that all facts are material to credibility when
credibility is in issue. Almost anything a juror knows about a
case could conceivably influence that juror's perceptions of a
witness' credibility. But this does not mean that any juror with
knowledge -- however insignificant -- about a case must be
disqualified when credibility is in dispute. Rather, Dalkovsky's
stringent standard of dismissal comes into play only when the juror
is aware of facts that have a direct bearing on credibility; facts
collaterally or incidentally related to credibility are not
material to that issue.
Here, none of the facts known to Miller had any direct
bearing on the issue of I.B.'s credibility. If the facts known to
Miller by virtue of his contact with I.B. had any bearing at all on
I.B.'s credibility as a witness, that bearing was at most
collateral or incidental. The record fails to establish that
Miller's personal contacts with I.B. resulted in any "material
knowledge of the facts in the case on trial." Dalkovsky, 774 P.2d
at 206. Hence, there was no basis for his automatic dismissal.
(EN1)
Adams next claims that he is entitled to a reversal of
his conviction because the prosecutor's final argument dealt with
facts not in evidence. Since Adams failed to object to the
prosecution's final argument, reversal will be justified only if
the final argument rises to the level of plain error. Garroutte v.
State, 508 P.2d 1190, 1191 (Alaska 1973); Potts v. State, 712 P.2d
385, 390 (Alaska App. 1985). "A plain error is one that is (1) so
obvious that it must have been apparent to a competent judge and a
competent lawyer even without an objection and (2) so substantially
prejudicial that failing to correct it on appeal would perpetuate
a miscarriage of justice." Potts, 712 P.2d at 390. On appeal, we
must consider whether the impropriety was so flagrant as to
"undermine the fundamental fairness of the trial." United States
v. Young, 470 U.S. 1, 16 (1985). A finding of plain error is
rarely appropriate unless the record rules out the possibility that
trial counsel's failure to object to an improper argument was
tactically motivated. Massey v. State, 771 P.2d 448, 453 (Alaska
App. 1989).
Here, Adams points to three factual matters discussed by
the prosecutor but not supported by the evidence. The first
unsupported factual reference involves the prosecutor's mention of
AIDS on two occasions in his final argument. In the opening
portion of his final argument, the prosecutor sought to depict
Adams' assault on I.B. as the act of a "predator." To this end,
the prosecutor described the various acts of gratuitous violence
Adams inflicted on his victim:
He gets her in there, he beats the holy hell
out of her, sticks his fingers in her vagina,
calls her names, calls her a whore, tells her
that he hopes he gives her AIDS, and then ties
her up, chokes her. Beats her about the face,
leaves her with two black eyes[.]
In the rebuttal portion of his final argument, the prosecutor,
responding to Adams' assertion that I.B.'s ability to identify her
assailant might be impaired by her intoxication at the time of the
assault, emphasized I.B.'s detailed memory of events:
You heard from [I.B.] that she looked up and
she saw Ralph Adams on top of her and the
first thing she said was, no, no, what about
Roberta, what about Roberta? And she
describes with detail the fact that he called
her a whore, that he told her he hoped she got
AIDS, that he wanted to kill her.
These two prosecutorial references to Adams' statement
that he hoped I.B. got AIDS were unsupported by the evidence at
trial. In her testimony before the grand jury, I.B. had described
such a statement; however, the prosecution neglected to cover the
issue when I.B. testified at trial.
Citing Chismar v. Mackie, 896 P.2d 196, 205 (Alaska
1995), for the proposition that "[t]he significance of a false
imputation of AIDS is unquestionable," Adams contends that the
prosecutor's unsubstantiated mention of AIDS is plainly prejudicial
and amounts to reversible error. However, Adams' reliance on
Chismar is misplaced. In that case, the court addressed only the
question whether the plaintiff could recover damages for emotional
distress caused by a physician's misdiagnosis of AIDS; Chismar's
discussion of the effects of a medical misdiagnosis on a patient
has little bearing on the plain error issue here.
In the present case there is no indication of an
intentional misstatement by the prosecution. On both occasions
when the prosecutor referred to Adams' comment that he hoped he
gave I.B. AIDS, the comment was mentioned as one among many acts of
gratuitous physical and psychological cruelty that Adams inflicted
on his victim; no attempt was made to give Adams' comment about
AIDS prominence over any of Adams' other acts. Nor did the
prosecutor say anything to indicate to the jury that Adams actually
had AIDS or that I.B. had been exposed to the AIDS virus. In
context, the jury was likely to give no more credence to the
possibility that Adams actually had AIDS than it was apt to give to
the underlying assertion of Adams' statement calling I.B. "a whore
just like your mother."
Even more significant on the issue of prejudice is that
the prosecutor's unsupported references to AIDS, while attributed
to Adams as the purported assailant, had no tendency to establish
that Adams was the assailant. Had Adams' defense been based on a
claim of consent, for example, the potential prejudice of the
unsubstantiated references might indeed have been significant. But
Adams' defense was based on a claim of mistaken identity; Adams did
not dispute I.B.'s account of the manner in which the sexual
assault occurred. For this reason the prosecutor's improper
mention of AIDS risked prejudicing the jury if, but only if, the
jury waty of being the assailant.
Conversely, Adams' trial counsel had no particular reason
to dispute the prosecutor's infusion of additional, untestified-to
details into I.B.'s version of sexual assault, provided that the
additional details were not calculated to focus suspicion on Adams
or to dilute his claim of mistaken identity. Because the
prosecutor's misstatements concerning AIDS were offender neutral
and had no tendency to erode Adams' claim of mistaken identity,
Adams' counsel may well have made a tactical decision to forgo any
objection to the impropriety.
These circumstances fail to establish obvious prejudice
warranting a plain error finding.
The second unsupported factual reference pointed out by
Adams involves the prosecutor's statement that I.B. was kicked by
her assailant:
Now Ralph Adams wanted the police to believe
that that was his blood. He told the police
he got a nosebleed and that's why he had blood
on his pants. . . . Ralph Adams borrowed the
nosebleed because he knew that after he beat
up [I.B.] she had a nosebleed, and that
nosebleed was seen by the cab driver that
picked her up, and it was also noticed by the
doctor who examined her. Now that's the
blood, that nosebleed is the blood on his
pants and the blood on the sleeve. It's the
blood that got on his sleeve from when he
punched her in the nose. . . . His clothed
arm comes in contact with her blood and that's
where it ends up. He also kicks her. [I.B.]
talked to you about being kicked. That's how
the pants -- the blood gets on the pants. . .
.
Though unsupported by I.B.'s trial testimony, the
prosecutor's assertion that Adams kicked his victim added nothing
particularly significant to the prosecutor's case. Given the
undisputed evidence that I.B. bled profusely during the assault,
the unsupported assertion of direct contact between Adams' leg and
I.B. was not even remotely necessary to explain the presence of
I.B.'s blood on Adams' pant leg. Indeed, in the same breath as the
prosecutor mentioned the unsubstantiated kicking, he also proposed
a proper, equally plausible explanation for the presence of blood:
that I.B.'s nose bled directly onto Adams' pant leg. We fail to
see how this misstatement could have resulted in substantial
prejudice.
The third unsupported factual reference pointed to by
Adams involves the prosecutor's claim, in the opening segment of
his final argument, that I.B. identified her assailant to the
physician who examined her in the emergency room and to the grand
jury; (EN2) on rebuttal, the prosecutor repeated the assertion that
I.B. had identified Adams to the grand jury. (EN3)
These misstatements, however, are clearly immaterial.
The evidence at trial established that, apart from the post-
emergency room interview with Officer Vercelline when I.B. was
unable to say who her attacker was, I.B. had consistently
identified Adams. Immediately after the rape, I.B. told the taxi
driver that "she knew [her attacker's] girlfriend." A short time
later, I.B. told the investigating officer that "the person that
had . . . beaten . . . and had sexually assaulted her was --
Robert[a] [G.]'s boyfriend and that his first name was Ralph."
Later that day (after she was seen by the emergency room doctor to
whom she confided that she had been raped but did not disclose the
identity of her attacker), I.B. told a shelter worker that her
assailant was a man named "Ralph" who was Roberta G.'s boyfriend.
The next day, I.B. picked Adams out of a photo lineup. Finally,
she testified at trial that Adams was the man who assaulted her.
Furthermore, the prosecutor's misstatements do not appear
to have been intentional. I.B. did in fact testify to the grand
jury that Ralph Adams was her assailant; at trial, she affirmed
that she had told the grand jury her "story," a statement arguably
supporting the inference that she had identified Adams as her
assailant. And while the prosecutor mistakenly told the jury in
the opening portion of his final argument that I.B. had identified
Adams to the physician at the emergency room, he did not repeat
this mistake on rebuttal. On rebuttal, the prosecutor accurately
informed the jury that I.B. told the emergency room physician that
she had been raped.
Finally, it is worthy of mention that, at the outset of
his rebuttal argument, the prosecutor expressly reminded the jury
that statements by counsel were not evidence and that the jury
should rely on its own recollection.
In sum, the three areas in which the prosecutor's final
argument was unsupported by the evidence at trial are not
"particularly egregious errors." United States v. Young, 470 U.S.
at 15 (quoting United States v. Frady, 456 U.S. 152, 163 (1982)).
These misstatements do not appear to have involved intentional
misstatements; (EN4) and whether considered individually or in
conjunction with one another, they did not result in substantial
prejudice to Adams. Under these circumstances, in the absence of
a timely objection, we decline to find plain error. (EN5)
Adams lastly claims that his sentence is excessive.
Kidnapping, an unclassified felony, is punishable by a maximum term
of ninety-nine years and by a minimum term of five years.
AS 12.55.125(b). Sexual assault in the first degree, also an
unclassified felony, is punishable by a maximum term of thirty
years; because Adams was a third felony offender, he was subject to
a presumptive sentence of twenty-five years. AS 12.55.125(i)(4).
Adams was 30 years old at the time of the offense. His
criminal history began in 1980, when, at 17 years of age, he was
declared a delinquent child after physically assaulting one woman
and attempting to sexually assault another. Adams remained in
state custody until his 18th birthday. Seven months later, in May
1981, he was convicted of attempted third-degree sexual assault and
was sentenced to serve 270 days with 180 suspended.
In September 1981, four months after the attempted sexual
assault conviction and while he was still on probation in that
case, Adams broke into a Sheldon Point residence that was occupied
by a man and a woman. He confronted the man with a handgun and
threatened to shoot him if he did not leave. After forcing the man
out, Adams proceeded to rape the woman. As he left the residence,
Adams told his victim, "See you again sometime."
While awaiting trial for that sexual assault, Adams
escaped from the Bethel jail, broke into a home, and committed a
felony theft. When finally apprehended, he was armed with a knife.
Based on the foregoing misconduct, Adams was convicted in
July of 1982 of first-degree sexual assault, second-degree theft,
and escape. With respect to Adams' sexual assault, the presentence
report noted that four Sheldon Point women other than the victim
whom Adams was convicted of assaulting had complained of recent
sexual assaults or attempted sexual assaults by Adams. Some of the
complainants, including an aunt of Adams, reported being assaulted
repeatedly; the assaults often involved threats of death and
significant physical violence. (EN6)
As a result of his 1982 convictions, Adams ultimately
received a composite sentence requiring him to serve eight and one-
half years of unsuspended time. Soon after completing his
incarceration, in June of 1989, Adams was convicted of a new
offense: criminal trespass. He was ordered to serve an additional
year in jail. Adams committed his present offenses against I.B.
approximately a year and a half after the expiration of the
criminal trespass sentence.
In sentencing Adams for his current offenses, Judge Curda
found nine statutory aggravating factors. (EN7) Based on Adams'
background and the seriousness of his current offenses, Judge Curda
found Adams to be a worst offender. Judge Curda also pointed out
that Adams' criminal history revealed a "consistent pattern,"
starting when he was a juvenile, of "physical force, brutality,
physical beatings, threats with a dangerous weapon, verbal threats
of imminent death, and threats and intimidation designed to
discourage reporting of crimes[.]" Finally, Judge Curda noted that
Adams had consistently denied any wrongdoing, "not only in this
case but in prior cases."
Based on these considerations, Judge Curda found that
Adams' potential for rehabilitation was "practically nil" and that
"he does need to be isolated to protect the community." The judge
remarked that his "primary goal here in sentencing is to isolate
Mr. Adams from the community."
After giving express consideration to the benchmark
sentences for kidnap/rape cases discussed by this court in
Williams v. State, 800 P.2d 955, 958-60 (Alaska App. 1990),
modified on reconsideration, 809 P.2d 931 (Alaska App. 1991), Judge
Curda concluded that Adams belonged in the third benchmark category
-- the category reserved for a "handful" of "persistent violent
criminals" for whom composite terms in excess of thirty years of
unsuspended time are necessary.
For Adams' sexual assault, Judge Curda imposed the
maximum sentence of 30 years' imprisonment. For the kidnapping,
the judge imposed a consecutive sentence of 50 years with 20 years
suspended (30 years to serve). Adams' composite sentence is thus
80 years with 20 suspended.
On appeal, Adams does not dispute any of the individual
aggravating factors relied on by Judge Curda; nor does he contend
that the sentencing court erred in placing him in Williams' third
benchmark category. Rather, Adams argues that his composite
sentence is too long when compared with other similarly situated
offenders. Adams attempts to distinguish his case from Contreras
v. State, 767 P.2d 1169 (Alaska App. 1989), the case Judge Curda
found comparable to Adams'. Adams points out that Contreras'
composite term of sixty-five years of unsuspended incarceration,
which this court upheld, was imposed for six separate criminal
episodes. In relying on this factor to suggest that his case is
less serious than Contreras', however, Adams disregards the
peculiar significance of his own history of persistent violent
sexual criminality -- a factor not present in Contreras that more
than offsets Contreras' multiple convictions. (EN8)
In Ross v. State, 877 P.2d 777 (Alaska App. 1994), we
approved a virtual lifetime sentence -- eighty-four years of
unsuspended incarceration without eligibility for parole -- for a
second felony offender whose previous conviction was for sexual
assault and who stood convicted of two new incidents of sexual
assault, one of which involved a kidnapping. We noted in Ross that
"[o]ur approval of virtual lifetime sentences for offenders in this
category has typically been based on our finding of an 'ingrained,
compulsive criminal pattern.'" Id. at 782 (quoting Schuenemann v.
State, 781 P.2d 1005, 1009 (Alaska App. 1989)). We went on to
observe that "the nature of the past and current crimes can be as
telling an indicator of an 'ingrained, compulsive criminal pattern'
as a lengthy history of prior convictions." Id. We concluded that
"even a relatively limited criminal history can justify a worst-
offender finding . . . when a defendant's past and current crimes
consist of repeated acts of serious sexual assault that are
separated by a substantial period of incarceration but, apart from
incarceration, occur in close proximity." Id. (citing Coleman v.
State, 621 P.2d 869, 885 (Alaska 1980)).
The nature and seriousness of Adams' past and current
offenses clearly place him in the same exceptional class of
ingrained, persistent sexual offenders that we found suitable for
Ross. Although Adams' current offenses stem from a single criminal
episode involving one victim and are thus arguably less egregious
than the two separate incidents of sexual assault for which Ross
was sentenced, Adams' history of predatory sexual misconduct is
more extensive than Ross', and Adams' composite sentence of eighty
years with twenty suspended, with no parole restriction, is
certainly less stringent than the unsuspended eighty-four-year
parole-restricted term we approved for Ross.
The record in the present case fully supports Judge
Curda's finding that Adams is a worst offender whose prospects for
rehabilitation are virtually nil and who must therefore be isolated
from the community to ensure public safety. Having independently
reviewed the entire sentencing record, we cannot say that the
sentence imposed below is clearly mistaken. McClain v. State, 519
P.2d 811, 813-14 (Alaska 1974).
Accordingly, Adams' conviction and sentence are AFFIRMED.
ENDNOTES:
1. Adams also argues that Miller's assertions of impartiality
were at some points ambiguous; relying on Dalkovsky, he contends
that dismissal was required unless his answers established his
ability to be fair "beyond question." When read in their entirety,
however, Miller's responses seem to constitute a reasonably
unequivocal assertion of impartiality. In any event, as we point
out in the text of this decision, Dalkovsky's stringent standard of
automatic dismissal absent proof "beyond question" of a juror's
ability to be impartial is triggered only upon a threshold showing
that the juror is aware of material facts in the case.
2. In the opening segment of his final argument, the prosecutor
stated:
[L]et's look at the identity evidence that
we've had here today. . . . You heard [I.B.]
come in here and sit up here . . . and ID Mr.
Adams. . . . She said that to you and there
was evidence that she said that to the grand
jury and there was evidence that she said that
to Roger Vercelline [the investigating
officer] when he first talked to her. . . .
[T]hat's hearsay, because Roger heard her say
that, but it's such good hearsay that the
court allows that in, and it's the same when
she goes up to the hospital and she tells the
doctor what happened to her. That evidence
comes in because at the time she says it she's
under the stress and excitement of what
happened to her and the law finds that when
someone says that sort of thing under the
stress and excitement of an event that it's
good evidence.
She's [sic] ID's Ralph . . . to Roger and the
doctor. . . . She ID's Mr. Adams so much she
describes he was wearing tinted glasses. . . .
The next day . . . she picks him [out of a
photo lineup].
3. The prosecutor stated on rebuttal:
She tells the cab driver she's been raped, she
tells Officer Vercelline she's been raped by
Ralph. She goes up to the hospital[,] tells
the doctor she's been raped, she comes back
. . . . The next day they go out and talk to
her, she says it was Ralph Adams, and she
picks his picture out of that lineup. She
comes to the grand jury. Who did it to you?
Ralph Adams. She comes to the jury trial.
Who did it to you? Ralph Adams[.]
4. In this regard, Adams' reliance on I ABA Standards for
Criminal Justice 3-5.8 and 3-5.9 (2d ed. 1980) is misplaced for
this standard refers to intentional misstatements of the evidence,
providing that "[it is] unprofessional conduct for the prosecutor
intentionally to refer or to argue on the basis of facts outside
the record[.]"
5. Adams mistakenly cites Pritchard v. State, 673 P.2d 291
(Alaska App. 1983), as a case analogous to his. In contrast to
Adams' case, however, Pritchard involved a final argument in which
the prosecutor intentionally stated facts outside the evidence,
whereupon Pritchard's trial counsel interposed a timely objection.
6. One woman reported that Adams had attempted to rape her on two
occasions: in 1979, he beat her up, tore her clothing, and
attempted to rape her; in 1981, he attempted to gain entry into her
home in the middle of the night, but she dissuaded him by firing a
gun out the window. Another woman reported that she had been raped
by Adams four times during the preceding four years; she stated
that on one occasion, Adams had beaten and raped her in front of
her five children. She indicated she had not reported the
incidents due to Adams' threats to kill her if she did. A third
woman reported that Adams had come into her house when she was
intoxicated and attempted to remove her clothes. Finally, a fourth
woman, Adams' aunt, reported that Adams had sexually assaulted her
three years before by climbing into bed with her, removing her
clothes and raping her. She reported that Adams had assaulted her
on another occasion as well.
7. Judge Curda found that Adams had previously been adjudicated
a delinquent for conduct that would have been a felony if committed
by an adult. AS 12.55.155(c)(19). The judge concluded that this
factor deserved independent weight. The judge found eight other
factors that he merged into two categories. In the first category,
Judge Curda placed four factors that went to the seriousness of
Adams' conduct: a person sustained physical injury as a result of
the defendant's conduct; the defendant's conduct during the offense
manifested deliberate cruelty to another person; the defendant
knew, or reasonably should have known, that the victim was
particularly vulnerable or incapable of resistance; and the conduct
constituting the offense was among the most serious conduct
included in the definition of the offense. AS 12.55.155 (c)(1),
(2), (5), (10). In the second category, Judge Curda placed four
factors involving aspects of Adams' adult criminal history: the
defendant's prior criminal history included conduct involving
aggravated or repeated instances of violent behavior; the defendant
had three or more prior felonies; the defendant had committed prior
sexual assaults; and the defendant's prior criminal history
included criminal offenses similar to the charged offense. AS
12.55.155(c)(8), (15), (21), and former AS 12.55.155(c)(18)(C).
8. Adams also cites Massey v. State, 771 P.2d 448 (Alaska App.
1989), and Wortham v. State, 689 P.2d 1133 (Alaska App. 1984), as
cases comparable to his own. In both decisions we approved shorter
sentences than Adams' for repeat offenders convicted of
kidnap/robbery offenses. Adams' proposed comparison is not
compelling because those cases did not involve kidnap/rape
situations. Moreover, we have frequently noted that an affirmance
of a sentence on appeal means only that the sentence is not
excessive; it does not set a ceiling on sentences in other similar
cases or mean that a lengthier sentence would not have been
approved. See, e.g., Hurn v. State, 872 P.2d 189, 199-200 (Alaska
App. 1994).
