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Schumacher v. State (10/27/00) ap-1697
Schumacher v. State (10/27/00) ap-1697
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JONATHAN JAY SCHUMACHER, )
) Court of Appeals No. A-6843
Appellant, ) Trial Court No. 3KO-S96-159 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1697 October 27, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Kodiak, Larry D. Card, Judge.
Appearances: G. Blair McCune, Deputy Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. W. H. Hawley, Jr., Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
A jury convicted Jonathan Jay Schumacher on six felony
charges for sexually abusing three of his children over a two-year
span. First, Schumacher claims that the superior court should have
dismissed his indictment sua sponte. But this claim is waived
because it was never raised below. Second, Schumacher contends that
the superior court should have declared that the victims were
incompetent to testify or conducted a "taint hearing," sua sponte,
to decide if the young victims were competent to testify. But
whether a taint hearing is required is a debatable question of law.
Because reasonable judges could disagree over the need for a taint
hearing, the court's failure to order one was not plain error.
Third, Schumacher claims that a detective should not have been
permitted to testify that he observed Schumacher reach into his
groin area with his hands. Schumacher was obese and claimed at
trial that it was physically impossible for him to reach his groin.
Therefore, Schumacher's ability to reach his groin was relevant and
it was not an abuse of discretion to permit the detective to testify
to his personal observations. Next, Scumacher contends that the
superior court should have allowed him to show the jury that,
contrary to the detective's testimony, Schumacher could not reach
his groin. We agree with the superior court that Schumacher would
have to be under oath and subject to cross-examination to be allowed
to conduct such a demonstration. Finally, Schumacher claims that
his composite 15-year term to serve is excessive. But we conclude
Schumacher's sentence is not clearly mistaken. Therefore, we affirm
his convictions and sentence.
Facts and proceedings
Between January 1, 1994, and January 25, 1996, Schumacher
and his three sons, A.S., C.S., and L.S., lived together in Kodiak.
On January 25, 1996, the Division of Family and Youth Services
removed the three boys from Schumacher's home. DFYS acted because
of reports made by the children's mother, Kaylynn Nielson, and aunt,
Cheryl Ann Schumacher (Schumacher's sister), to Kodiak Police
Detective David DeCoeur and DFYS social worker Mary Gray.
Apparently, the boys asked their mother and aunt for help to get
away from what their father "was doing to them."
Following the State's investigation, the grand jury
returned an indictment against Schumacher for sexually abusing his
sons. The eight-count indictment charged that in the period from
January 1, 1994, to January 25, 1996, Schumacher abused his three
sons by engaging in acts of sexual contact and sexual penetration,
including fellatio, digital anal penetration, and penile anal
penetration.
At trial, the jury convicted Schumacher on four counts of
first-degree sexual abuse of a minor [Fn. 1] and one count of
second-degree sexual abuse of a minor. [Fn. 2] Superior Court Judge
Larry D. Card imposed a composite term of 19 years with 4 years
suspended, a net 15-year term to serve.
Discussion
Should the trial court have dismissed Schumacher's
indictment sua sponte?
Schumacher argues that Judge Card should have dismissed
the grand jury indictment sua sponte. Schumacher argues that his
sons' testimony was not reliable and that the State did not present
exculpatory evidence. Schumacher did not move for this relief in
the superior court. The State argues that the claim has been waived
because it was not asserted in the trial court. We agree.
Alaska Criminal Rule 12 (b) provides in part:
Pre-Trial Motions. Any defense,
objection, or request which is capable of determination without the
trial of the general issue may be raised before trial by motion.
Any or all of the following shall be raised prior to trial:
. . . .
(2) Defenses and objections based on defects
in the indictment[.]
Schumacher's attack on the indictment was not made before trial.
Alaska Criminal Rule 12(e) provides in part:
Failure by the defendant to raise ...
objections ... which must be made prior to trial ... shall
constitute waiver thereof[.]
Because Schumacher did not move to dismiss the indictment before
trial, his objection is waived. [Fn. 3]
Should the superior court have declared a mistrial, sua
sponte, or conducted a "taint hearing"?
Before trial, Schumacher's attorney filed a motion to
interview the children or, alternatively, for an expert psychiatric
examination of the children. Schumacher claimed that the children's
grand jury testimony was unreliable because of inconsistencies
contained in two statements to the authorities and in their grand
jury testimony. Schumacher then withdrew his motion, apparently
because the guardian ad litem had agreed to permit his attorney to
interview the victims. The parties subsequently stipulated that the
transcripts and tapes containing the statements would be admitted
at trial. The court admitted the transcripts and tapes and agreed
to instruct the jury that they could listen to the tapes if they
wished.
Schumacher argues that the boys' testimony was so
obviously unreliable that it was plain error for Judge Card not to
have sua sponte declared a mistrial or at least conducted a "taint
hearing" to determine whether the children's testimony was
sufficiently reliable to be admitted to trial. Although Schumacher
made no motion for a "taint hearing" or for a mistrial in the trial
court, he argues that Judge Card should have declared a mistrial or
ordered a "taint hearing" based on the boys' trial testimony and the
arguments in Schumacher's motion requesting a psychological
examination. Schumacher concedes that he has to show plain error.
Schumacher cites one case from another jurisdiction that
ruled that a "taint hearing" should precede a child's testimony
where a defendant can establish that the investigation undermined
the reliability of the child's testimony. [Fn. 4] With this limited
out-of-state authority, it is debatable whether a "taint hearing"
is required. Schumacher has not convinced us that due process
requires a "taint hearing." Because reasonable judges could differ
on the propriety of a "taint hearing," Judge Card's failure to order
one was not plain error. [Fn. 5]
Was it error for Detective DeCoeur to demonstrate how
Schumacher wiped his groin?
Detective DeCoeur testified during the State's rebuttal
case. During the execution of a search warrant at Schumacher's
home, Schumacher claimed that a blood stain on a blanket was not
from someone else, but resulted from sores he had in his groin area.
Detective DeCoeur testified that he went with Schumacher into the
utility room, where Schumacher lowered his pants, and wiped his
right groin area with his right hand and his left groin area with
his left hand. Schumacher objected to Detective DeCoeur's
demonstration, arguing that it would be more prejudicial than
probative, and a violation of his constitutional rights. The trial
court overruled the objection and allowed Detective DeCoeur to
demonstrate what Schumacher had done.
Schumacher argues that this evidence was more prejudicial
than probative and should have been excluded under Alaska Rule of
Evidence 403.
But Schumacher's defense raised the question of whether
he had the physical capacity to reach his groin. Considering this
defense, evidence that Schumacher was able to reach his groin in
DeCouer's presence was relevant. We also reject Schumacher's claim
that this evidence was "grotesque" and obviously prejudicial.
Therefore, permitting Detective DeCouer to testify about his
personal observations and demonstrate what he saw was not an abuse
of discretion. [Fn. 6]
Was it error for the trial court to bar Schumacher from
conducting a demonstration of his own unless he took the stand?
On cross-examination of Detective DeCouer in the State's
rebuttal case, Schumacher's attorney asked Judge Card at a side-bar
conference to use Schumacher's body as a demonstrative aid while
cross-examining DeCoeur. Judge Card ruled that Schumacher would not
be allowed to perform his own demonstration unless he took the
stand. Judge Card excused the jury, and gave Schumacher time to
consider whether he wanted to present this testimonial evidence.
Schumacher's attorney asked for a short break to consult with his
client. After the break, Schumacher's attorney announced that
Schumacher would not take the stand.
Schumacher argues that Judge Card's classification of his
demonstration as testimonial was wrong. Schumacher points to Alaska
Criminal Rule 16(c) to support his claim. Rule 16(c) provides that
the State may require a person to participate in non-testimonial
identification procedures, such as providing fingerprints, trying
on clothing, speaking words or phrases, and permitting photographs
without violating the person's right against self-incrimination.
[Fn. 7] Schumacher also relies on two out-of-state cases, State v.
Suddeth [Fn. 8] and State v. Norris, [Fn. 9] which both hold that
a defendant does not have to testify and waive his right against
self-incrimination to try on shoes to see if they fit. [Fn. 10]
But Schumacher was trying to demonstrate something more
than the size of a body part. One of the themes Schumacher advanced
in his defense was that he could not touch his genitals with his
hands. Assuming relatively normal physiology and range of motion,
touching one's genitals with one's hand results from voluntary
muscular control. On the other hand, one's physical
characteristics, such as one's fingerprint or physical size or
appearance are characteristics, unlike voluntary movement, that are
not readily subject to willful control.
Even though Schumacher's obesity may have hampered his
mobility and degraded his range of motion, we conclude that Judge
Card did not err by ruling that Schumacher's offered use of his body
as a demonstrative aid was testimonial in character. Schumacher's
offered demonstration would not display a simple physical
characteristic, such as whether a shoe fit or whether he had a
tattoo on his body [Fn. 11] or whether his height matched a
witness's description. [Fn. 12] Instead, Schmacher's demonstration
would attempt to show that the range of his voluntary hand movement
stopped short of his penis, an ability of Schumacher's that Judge
Card could reasonably conclude was subject to manipulation. We
conclude that Judge Card did not err by barring Schumacher from
using his body as a demonstrative aid unless he took the stand.
Was Schumacher's composite 15-year term to serve
excessive?
Schumacher was sentenced to a composite term of 19 years
with 4 years suspended. On the first two counts of first-degree
sexual abuse of a minor, Judge Card sentenced Schumacher to 10 years
with 2 years suspended with 1 year of the imposed term on the second
count concurrent with the first count and the remainder of the
sentence consecutive to the first count. Judge Card imposed 8-year
concurrent terms on the remaining three counts of first-degree
sexual abuse of a minor, and a concurrent 5-year term on the single
count of second-degree sexual abuse of a minor.
In State v. Andrews, [Fn. 13] this court outlined a
benchmark sentencing range of 10 to 15 years for first offenders
convicted of aggravated instances of child sexual abuse. [Fn. 14]
We indicated that an offense could be aggravated for any one of the
following three reasons: (1) the defendant abused multiple victims;
(2) the defendant committed multiple assaults on a single victim;
or (3) the defendant caused serious injury to one or more victims.
[Fn. 15]
Schumacher was convicted of offenses against his three
sons, so he abused multiple victims. Each victim reported multiple
instances of abuse. As a result of the offenses, the victims
experienced significant emotional impact that would likely require
long term therapy.
Schumacher argues that even though his imposed sentence
does not exceed the high end of the Andrews 10- to 15-year benchmark
for aggravated offenses, Judge Card did not support the sentence
with sufficient findings.
Judge Card found that several statutory aggravating
factors from AS 12.55.155(c) were proven by clear and convincing
evidence: (c)(1) (a person other than an accomplice sustained
physical injury as a result of Schumacher's conduct); (c)(5)
(Schumacher knew or reasonably should have known that the victims
were young children and therefore were particularly vulnerable); and
(c)(18)(A) (Schumacher and the victims were living together in one
social unit).
Judge Card also found that he needed to emphasize
community condemnation and reaffirmation of societal norms out of
the Chaney sentencing factors. [Fn. 16] Judge Card fashioned the
sentence to deter Schumacher and others and to isolate Schumacher
from his children until they grew into young adulthood. Judge Card
additionally found that though Schumacher genuinely cared for his
children, sex offender treatment was unlikely to be successful (and
therefore rehabilitation was questionable) because Schumacher
continued to deny committing any sexual abuse.
Schumacher's 15-year term falls at the upper end of the
bench mark for a first offender convicted of aggravated conduct.
Schumacher's offenses were aggravated because he sexually abused
each of his multiple victims multiple times over a prolonged period.
From our examination of the record, we conclude that Judge Card's
findings supported the net 15-year term to serve. Schumacher's
sentence is not clearly mistaken. [Fn. 17]
Conclusion
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.434(a)(2).
Footnote 2:
AS 11.41.436(a)(3).
Footnote 3:
See Harmon v. State, 908 P.2d 434, 436 (Alaska App. 1995),
abrogated on other grounds in State v. Cook, 974 P.2d 386 (Alaska
1999); Gaona v. State, 630 P.2d 534, 537 (Alaska App. 1981).
Footnote 4:
See State v. Michaels, 642 A.2d 1372, 1382-83 (N.J. 1994).
Footnote 5:
Cf. Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982).
Footnote 6:
See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980) (a trial
court's rulings on the admissibility of evidence will not be
overturned absent an abuse of discretion).
Footnote 7:
See Alaska R. Crim. P. 16(c)(1)-(2); Fathke v. State, 951 P.2d
1226, 1229 (Alaska App. 1998).
Footnote 8:
306 N.W.2d 786 (Iowa 1981).
Footnote 9:
577 S.W.2d 941 (Mo. App. 1979).
Footnote 10:
See Suddeth, 306 N.W.2d at 787-88; Norris, 577 S.W.2d at 948-
49.
Footnote 11:
See United States v. By, 762 F.2d 1314, 1316-17 (9th Cir. 1984)
(error for trial judge to refuse to allow defendant to display
tattoos on his hands without testifying where presence of tattoos
was relevant to identification).
Footnote 12:
See State v. Sanders, 691 S.W.2d 566, 569 (Tenn. Crim. App.
1984) (error for trial judge to refuse defendant's request to stand
before the jury to show his height without testifying).
Footnote 13:
707 P.2d 900 (Alaska App. 1985).
Footnote 14:
Id. at 913; see also Haire v. State, 877 P.2d 1302, 1305
(Alaska App. 1994).
Footnote 15:
See Andrews, 707 P.2d at 913.
Footnote 16:
See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
Footnote 17:
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an
appellate court is to affirm a sentencing decision unless the
decision is clearly mistaken).
