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Copeland v. State (5/30/2003) ap-1879
Copeland v. State (5/30/2003) ap-1879
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
MARK E. COPELAND, )
) Court of Appeals No.
A-7400
Appellant, )
Trial Court No. 4FA-97-3002 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1879 May 30, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Sigurd E. Murphy,
Judge.
Appearances: Bill D. Murphree, Fairbanks,
for Appellant. Rosamund M. Lockwood,
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.
MANNHEIMER, Judge.
In the summer of 1996, Mark E. Copeland began a sexual
relationship with a thirteen-year-old girl, J.S.. Copeland was
thirty-nine years old at the time. Sometime that fall, J.S.s
parents began to suspect that something was amiss. When they
searched J.S.s room and read her diary, their fears were
confirmed. They then forbade J.S. to see Copeland.
J.S. secretly continued her relationship with Copeland,
skipping classes and leaving school to engage in trysts with him.
In December 1996, frustrated by the restrictions that her parents
were placing on her, J.S. ran away from home. Copeland arranged
for J.S. to stay at a series of residences, all owned by
acquaintances of his. Then, in March, Copeland (using an assumed
name) rented an apartment for J.S.. J.S. lived in this apartment
for six months (and continued her sexual relationship with
Copeland when he visited her). Finally, in September 1997, the
apartment manager contacted the police.
Copeland was indicted for kidnapping and eleven counts
of second-degree sexual abuse of a minor (i.e., engaging in
sexual penetration with a child between the age of thirteen and
sixteen).1 Copelands first trial ended in a hung jury on all
counts except one count of sexual abuse of a minor. (Copeland
was acquitted of this count.) At his second trial, Copeland was
acquitted of kidnapping but convicted of the lesser offense of
contributing to the delinquency of a minor.2 Of the ten
remaining counts of second-degree sexual abuse of a minor,
Copeland was convicted of nine and acquitted of one. For these
crimes, Copeland received a composite sentence of 11 years
imprisonment with 3 years suspended 8 years to serve.
In this appeal, Copeland challenges five different
evidentiary rulings made at his trial. He also contends that his
sentence is excessive. For the reasons explained here, we affirm
Copelands convictions and his sentence.
The partial disclosure of J.S.s diary to the defense
When J.S.s parents read her diary and
discovered that it contained evidence that their
daughter was engaging in sexual relations with
Copeland, they turned the diary over to the police.
The police perused the diary, identified what they
believed to be the relevant portions, and turned those
portions over to the district attorneys office.
Following Copelands indictment, the district attorneys
office provided Copelands defense attorney with a copy
of what they had.
Suspecting that other portions of the diary
might contain exculpatory or explanatory material,
Copelands attorney asked the superior court to compel
production of the entire diary. Before Copelands first
trial, Superior Court Judge Niesje J. Steinkruger
examined a photocopy of the complete diary. Based on
her in camera examination, Judge Steinkruger ordered
additional pages of the diary to be produced to the
defense, but she declined to order production of the
diary in its entirety.
During Copelands second trial, his attorney
renewed his request for production of the complete
diary. This issue arose because J.S. testified that
she had altered certain portions of the diary at
Copelands instruction. Copelands attorney asserted
that, if a document expert examined the diary, the
examination would prove that J.S. was lying about
altering the diary. Superior Court Judge pro tem
Sigurd E. Murphy ruled that a document examiner would
be allowed to examine the diary for physical alteration
(or lack of physical alteration), but the expert would
be ordered not to disclose the contents of any pages
that the court had not released. (The record contains
no indication that Copelands attorney ever pursued this
opportunity to have a document expert examine the
diary.)
Copelands attorney also asked the court to
compel production of anything in the diary relating to
J.S.s dissatisfaction with her life at home; the
defense attorney argued that these passages might be
relevant to the kidnapping charge. Judge Murphy
subsequently ordered production of several other pages,
but still not the entire diary.
On appeal, Copeland argues that more of the
diary should have been disclosed to him. He notes
that, on one of the diary pages he received, J.S.
wrote: I keep telling people that things happened with
him and me when I was down there, but nothing did
happen. I need to stop lying. Copeland suggests that
there must be other pages that contain similar
statements relevant to J.S.s credibility. However, we
have examined the diary and we agree with Judges
Steinkruger and Murphy that there are no other portions
that bear on this issue.
Copeland also argues that Judges Steinkruger
and Murphy had no authority to bar him from seeing any
portion of the diary because J.S. (the author of the
diary) never personally asserted a right to privacy in
the diary. Rather, it was the district attorneys
office that invoked J.S.s right to privacy. Copeland
contends that, absent a personal request for privacy
from J.S. herself, the superior court had no authority
to prevent Copeland from obtaining the diary.
But this argument works both ways. It was
obvious that J.S. could claim a right of privacy in her
diary, and Copelands attorney never asserted that J.S.
was willing to waive that right of privacy, nor did he
ask the superior court to pose this question to J.S..
In any event, we conclude that this issue is
moot. In Spencer v. State, 642 P.2d 1371 (Alaska App.
1982), this Court confronted this same argument: that
a trial judge committed error by invoking a victims
right to privacy when the victim had not personally
asserted that right. In Spencer, we concluded that any
arguable error was harmless, since the trial judge had
correctly concluded that the excluded information was
not relevant. Id. at 1376.
We reach the same conclusion in Copelands
case. When the superior court declined to give
Copeland access to the complete diary, the court did
not rely on the theory that, even though the excluded
portions were relevant, they were protected by an
overriding right of privacy. Rather, the superior
court concluded that these portions were not relevant.
Having examined these portions of J.S.s diary, we
agree.
Next, Copeland argues that, given J.S.s
testimony that she altered certain portions of the
diary, both the defense attorney and the jury were
entitled to inspect the entire physical document to see
if there was evidence of physical tampering. But as we
explained above, when this issue surfaced at Copelands
trial, Judge Murphy offered to let a document examiner
(chosen by the defense) examine the entire diary. This
was a reasonable way of reconciling the competing
interests allowing the defense to investigate the
possibility of physical alteration while at the same
time preserving J.S.s privacy in the content of the
diary, to the extent that this content was irrelevant.
Copeland chose not to pursue Judge Murphys offer.
We therefore conclude that Judge Murphy
committed no error when he revealed only parts of J.S.s
diary to the defense.
Finally, Copeland argues that he was
prejudiced because, even though Judge Murphy released
additional pages of the diary to the defense during
Copelands second trial, the defense should have had
access to those same pages during Copelands first
trial. Copeland suggests that if Judge Steinkruger had
released those extra pages to him during the first
trial, the result of that first trial might have been
different.
Copelands argument is completely speculative.
Without knowledge of these additional pages, Copelands
attorney was able to fight the State to a draw at the
first trial: a hung jury on all but one count, and an
acquittal on that one count. At the second trial, when
the defense attorney had access to the extra pages of
the diary, Copeland was convicted of nine counts of
sexual abuse and also of contributing to the
delinquency of a minor. We therefore conclude that
Copeland has failed to show that he was prejudiced by
Judge Steinkrugers narrower disclosure of the diary at
the first trial.
In a related argument, Copeland contends that
Judge Murphy committed error by testifying about the
diary. In his opening brief to this Court, Copeland
asserts that, rather than allow[ing] the jury and the
defendant to examine the diary pages, the [trial] judge
described from the bench ... what pages were missing
from the diary, and on what pages mark-outs and
erasures seemed to exist. Copeland argues that, by
telling the jury these things, Judge Murphy became a
witness in the case he was judging.
But as the State pointed out in its
responding brief, Copelands appellate attorney failed
to provide any transcript citations to support this
claim of judicial misconduct. The State further
asserted that, [a]fter a thorough review of the record,
the State was unable to identify any portion of the
trial where the court simply described evidence for the
jury.
The event that most closely approximates
Copelands claim of misconduct occurred when photocopied
pages of J.S.s diary were admitted into evidence.
These pages had been redacted when they were
photocopied; they did not include portions of the diary
that Judge Murphy had ruled were irrelevant. For this
reason, when these pages were introduced into evidence,
Judge Murphy pointed out to the jurors that certain
parts of these pages were missing, and he instructed
the jurors not to speculate about the contents of the
missing portions.
Copelands reply brief omits any mention of
this issue. We take this as a concession by Copelands
appellate attorney that his claim of judicial
misconduct is not supported by the record.
We take this opportunity to remind Copelands
appellate attorney (and all attorneys) that under
Alaska Civil Rule 11, an attorneys signature on a
document filed with a court constitutes the attorneys
certificate that the assertions of fact contained in
the document are well-grounded to the best of the
signers knowledge, information, and belief formed after
reasonable inquiry.3 An attorneys good faith belief
concerning the facts of the case is not enough to
satisfy Civil Rule 11. Rather, an attorney is obliged
to make objectively reasonable efforts to ascertain the
facts of the case before making assertions of fact in
court documents.4
Copelands argument that this Court should overrule or
limit our decision in Covington v. State
Copeland was convicted of nine counts of
sexual abuse of a minor, each count alleging an act of
sexual penetration with J.S. (who was under the age of
16). One of these counts alleged that the act of
sexual penetration occurred on a specific day (on or
about September 12, 1996), but the other counts alleged
that the act of sexual penetration occurred during a
particular month or, in the case of one count, during
a particular two months.
On appeal, Copeland argues that this lack of
specificity in a charging document should not be
allowed because it effectively precludes a defendant
from asserting the defense of alibi. Copeland concedes
that, in Covington v. State, 703 P.2d 436, 438-40
(Alaska App. 1985), we addressed and rejected a similar
contention. Nevertheless, Copeland argues that
Covington was wrongly decided and fatally flawed. He
urges us to overrule Covington outright, or at least
declare that Covington will not apply when a defendant
wishes to claim alibi.
Copelands brief neglects to mention that he
did not raise this claim in the superior court. More
precisely, Copelands attorney never told the trial
judge that Copeland wished to pursue a defense of alibi
and that, because of this, Copeland would arguably be
prejudiced by the indictments lack of specificity
regarding the dates on which the acts of unlawful
sexual penetration occurred.
Copelands failure to raise this claim in the
superior court means that he must demonstrate plain
error to prevail on appeal. And Copelands failure to
offer evidence of alibi (or even make an offer of proof
concerning a contemplated alibi defense) means that he
can not show plain error.
Because the trial court record does not show
that Copeland had an alibi defense to assert, Copeland
is asking us to reverse his convictions based on
speculation that (1) he might have pursued an alibi
defense and that, had Copeland brought this problem to
the attention of Judge Murphy, (2) the judge would have
done nothing to require the State to describe the
counts with more specificity either by narrowing the
dates of the various offenses, or by supplying other
descriptive information that would have helped to
identify those offenses with greater particularity.
In Sam v. State, 842 P.2d 596, 599 (Alaska
App. 1992), this Court declared that we will not engage
in the exercise of trying to ascertain potential
prejudice to a defendant in a purely hypothetical or
abstract context. Here, Copeland never relied on a
defense of alibi, nor did he even make an offer of
proof concerning a contemplated defense of alibi, nor
did he seek relief from the trial judge. Thus, there
is no indication in the record that Copeland was
prejudiced by the arguable lack of specificity in the
indictment. As we said in Sam, [a]ny attempt to divine
the likely effect of the alleged error in these
circumstances would amount to pure speculation.5
For this reason, we decline Copelands
invitation to re-examine Covington, and we find no
plain error in the wording of the sexual abuse counts
of the indictment.
Copelands argument that the jurys verdicts are not
supported by sufficient evidence
In a related argument, Copeland asserts that
the nine counts of sexual abuse of a minor are worded
with so little specificity that, even if the jury
believed that Copeland engaged in sexual penetration
with J.S. on one or more occasions, the jury could not
possibly have determined that any particular count was
proved beyond a reasonable doubt. Again, because
Copeland did not raise this issue in the superior
court, he must show plain error. We find none.
Count 4, which alleged an act of sexual abuse
during December 1996, was supported by testimony that
J.S. had sexual relations with Copeland close to
Christmas when her roommates were out of town, and she
and Copeland were able to borrow a bedroom.
Count 5, which alleged an act of sexual abuse
during January 1997, was supported by testimony that
J.S. stayed at the residence of Allen Funderburk for
approximately a week in January 1997 and that she had
sexual relations with Copeland more than once while she
was staying with Funderburk.
Count 6, which alleged an act of sexual abuse
during March 1997, was supported by testimony that J.S.
had sexual relations with Copeland before and on Easter
Sunday of that year (March 30, 1997).
Count 7, which alleged an act of sexual abuse
during April 1997, was supported by testimony that,
during April, Copeland brought pornographic videos to
the apartment where J.S. was staying and that, after
watching those videos, J.S. and Copeland engaged in
sexual relations.
Count 8, which alleged an act of sexual abuse
during May 1997, was supported by testimony that,
during May, J.S. and Copeland had several arguments
because J.S. wanted to go outside the apartment despite
Copelands concerns that J.S. would be recognized and
that after some of these arguments, J.S. and Copeland
would reconcile by having sexual relations.
Count 9, which alleged an act of sexual abuse
during June 1997, was supported by testimony that J.S.
had sexual relations with an individual referred to as
Billy on one occasion during June and that, sometime
before and after this event, she engaged in sexual
relations with Copeland.
Count 10, which alleged an act of sexual
abuse during July 1997, was supported by testimony that
J.S. and Copeland took a trip to Anchorage in July and
that they engaged in sexual relations before and after
this trip.
Count 11, which alleged an act of sexual
abuse during August 1997, was supported by testimony
that Copeland and J.S. drove to the State Fair and
engaged in sexual relations after that trip.
Regarding these counts in which more than one
act of sexual penetration might conceivably have been
proved within the relevant time frame, Copelands jurors
were instructed that it was necessary for all twelve
jurors to find that Copeland committed at least one act
of sexual penetration with J.S. during the time period
in question, and that it was further necessary for all
twelve jurors to agree on the same act of sexual
penetration.
Given the testimony and the jury
instructions, we conclude that Copeland was accorded
his right to a unanimous verdict on each count. There
was no error, much less plain error.
Copelands claim that the trial judge improperly
prevented him from introducing evidence that J.S. had
falsely accused Copelands son of engaging in sexual
intercourse with her
At Copelands first trial, J.S. testified that
she engaged in sexual relations with both Copeland and
his son Joe during a trip from Fairbanks to Anchorage.
Later in the trial, Joe testified that he had not had
sex with J.S.. Copeland was ultimately acquitted of
the charge relating to this incident the one verdict
that emerged from that first trial.
At Copelands second trial, Copelands attorney
wanted to have Joe testify that J.S. had falsely
accused him of having sexual relations with her. Judge
Murphy found that this testimony was barred both by
Alaskas rape shield law, AS 12.45.045, and by Alaska
Evidence Rule 608, which allows attacks on a witnesss
character for truthfulness but limits these attacks to
reputation or opinion evidence, prohibiting testimony
relating to specific instances of untruthfulness.
At the time of Copelands trial, the governing
law on this issue was found in Covington v. State, 703
P.2d 436 (Alaska App. 1985). In Covington, we held
that evidence of a victims false accusations of sexual
misconduct would be admissible only if the proponent of
the evidence first met a threshold burden of
establishing the falsity of the past accusations as,
for example, where the charges somehow had been
disproved or where the witness had conceded their
falsity. Id. at 442.
Since that time, we issued our decision in
Morgan v. State, 54 P.3d 332 (Alaska App. 2002), where
we clarified the Covington rule. Morgan holds that,
before evidence of a prior false accusation of sexual
misconduct can be admitted, the proponent of this
evidence must convince the trial judge by a
preponderance of the evidence that the prior accusation
was both actually and knowingly false. Id. at 339.
Here, based on their testimony at Copelands
first trial, J.S. would assumedly have testified (if
she was asked) that Joe Copeland had engaged in sexual
relations with her, and Joe would have denied this.
But this sort of he said / she said testimonial
conflict does not satisfy the Morgan requirement that
the prior accusation be proved false. Under Morgan,
the proponent of the false accusation evidence must
present more than simply the accused persons assertion
of innocence for as Judge Coats pointed out in his
concurring opinion in Morgan, [w]e would expect someone
who is accused of sexual assault to deny that the
sexual assault occurred.6
As Judge Coats further noted in Morgan,
[e]ven if the prior sexual assault went to trial and
the defendant was acquitted, all this proves is that
the jury had a reasonable doubt that the sexual assault
occurred.7 In Copelands case, there was not even a
jury verdict on this issue because Joe Copeland was
never charged with sexually abusing J.S.. It is true
that the jury acquitted Mark Copeland of having sex
with J.S. during the trip from Fairbanks to Anchorage,
but the jury could have returned this verdict even if
they were convinced that J.S. had indeed engaged in
sexual relations with Joe Copeland during that same
trip. That is, the assertion that Joe had engaged in
sex with J.S. was collateral to the question the jury
was asked to resolve.
In sum, Copelands offer of proof on this
issue his assertion that Joe Copeland would testify
that J.S. accused him of having sex with her during the
trip from Fairbanks to Anchorage, and that this
accusation was false was insufficient to trigger the
need for a hearing under Morgan.
In his reply brief, Copeland asserts that
Joes denial of sexual relations was supported by the
testimony of Joes younger sister. According to
Copeland, the younger sister likewise testified that
Joe never engaged in sex with J.S.. But Copelands
attorney did not mention the sisters testimony when he
asked Judge Murphy to allow him to introduce Joe
Copelands testimony. Moreover, Copelands
characterization of the sisters testimony is not
accurate. The sister testified that she never observed
her brother having sex with J.S. in the vehicle, but
she did not deny that it had happened. (The sister
testified that she was asleep for several hours.)
For these reasons, we uphold Judge Murphys
decision to preclude Copeland from introducing the
proposed testimony of his son Joe.
Copelands claim that the trial judge improperly allowed
a witness to give testimony suggesting that Copeland
was involved in the sale of illegal drugs
Copeland points out that, at his first trial,
one of the witnesses gave testimony suggesting that
Copeland was involved in the drug trade. But Copelands
first trial ended in a hung jury on all counts but one,
and Copeland was acquitted of that one count. Copeland
does not contend that this challenged testimony was
repeated at his second trial. Therefore, Copelands
claim of error is moot.
Copelands claim that the prosecutor improperly called a
witness to the stand when the prosecutor knew that the
witness would claim the Fifth Amendment rather than
answer the questions
At Copelands second trial, the prosecutor
called Eddie Gray to the stand. The prosecutor was
interested in Gray because, in March 1997, Gray rented
an apartment in Fairbanks on behalf of Ray Enoch an
alias that Copeland used. Posing as Ray Enoch,
Copeland paid the rent on this apartment, and he
installed J.S. there. (J.S. likewise used an assumed
name while she lived there.)
During Grays direct examination, the
prosecutor asked him whether Copeland had access to the
apartment. The following colloquy occurred:
Prosecutor: Do you know Mark Copeland?
Gray: Yes.
Prosecutor: Did you give [a key to the
apartment] to Mark Copeland?
. . .
Gray: I dont recall who we all gave the
keys to.
Prosecutor: Okay. How many people do
you think you gave keys to?
Gray: Several.
Prosecutor: Okay. Why were you giving
so many keys around?
Gray: Thats personal.
Prosecutor: Please answer my question.
Why were you passing so many keys out?
Gray: Ill stand on the Fifth on that
one.
Prosecutor: Im sorry?
Gray: Ill stand on the Fifth on that
one.
At this point, Judge Murphy dismissed the jury; he also appointed
an attorney to advise Gray.
It is improper for an attorney to present a witness to
the jury if the attorney knows that this witness will assert a
valid privilege to refuse to answer questions.8 In the present
case, the prosecutor asserted that she had not known that Gray
would claim the privilege against self-incrimination. Copelands
attorney told Judge Murphy that he wished to reserve the right to
request a mistrial if a subsequent investigation revealed that
the prosecutor had not been acting in good faith.
During the discussion of this point, the defense
attorney contended that certain pre-trial police interviews
contained sufficient information to alert the prosecutor that
Gray was likely to invoke the Fifth Amendment. The defense
attorney also asserted that, during Copelands first trial, there
was testimony suggesting that Gray was involved in a drug cartel.
However, following this discussion, Copelands attorney never
again asked Judge Murphy to address this issue, and the defense
attorney never requested a mistrial.
The defense attorney did, however, ask Judge Murphy to
give a curative instruction to the jury. In response, the judge
gave the following instruction:
[Y]ou are to totally disregard, for any
purpose of this trial, the response that the
witness gave [when] he said that he invoked
the Fifth. ... [Y]ou may not consider that
statement by that witness, whatever he meant
by it, to indicate in any way any criminality
or accusation against either Mr. Copeland or
Mr. Gabayan [Copelands co-defendant]. That
was merely this witnesss statement. And,
again, you are not to consider it for any
purpose of this case, and it has nothing
whatsoever to do with any accusations in this
case or charges against either of the
defendants. ...
[P]eople [watch] movies on TV, and they
[hear] people say, I invoke the Fifth, and
often times they dont even know what theyre
saying. And, quite frankly, people do that
when they havent done anything wrong
themselves. Its just a phrase they pick up.
So, please, totally disregard it in its
entirety.
Copeland never objected to the wording of this instruction.
Later, Judge Murphy reviewed tape recordings of the
police interviews of Gray. Following this review, the
judge informed the parties that Gray in fact did have a
reasonable concern that he would incriminate himself if
he answered the prosecutors question. Judge Murphy
also concluded that, even though the prosecutor may
have hoped that Gray would not invoke the Fifth
Amendment, the prosecutor should have instructed Gray
that, if Fifth Amendment concerns arose during the
examination, Gray should not expressly invoke the Fifth
Amendment in front of the jury.
Nevertheless, Judge Murphy held that there had been no
prosecutorial misconduct of sufficient severity to
merit a mistrial that any prejudice to the defendants
had been corrected by the curative instruction already
given to the jury. As noted above, Copeland never
actually asked for a mistrial, nor did he seek an
additional curative instruction or any other relief.
On appeal, Copeland contends that Judge Murphy should
not have believed the prosecutors protestation of good
faith. He argues that if Judge Murphy could listen to
the tapes of the pre-trial interviews and discern that
there was a Fifth Amendment problem, the prosecutor
must have been able to see this problem too.
This claim is not preserved for appeal. As already
explained, as soon as this issue surfaced, Copelands attorney
told Judge Murphy that he wished to reserve the right to request
a mistrial if a subsequent investigation revealed that the
prosecutor had not been acting in good faith. But the defense
attorney never returned to this issue. He never actually argued
that the prosecutor had acted in bad faith, nor did he object or
ask for reconsideration when Judge Murphy found that the
prosecutor had acted in good faith.
In the alternative, Copeland contends that given the
highly prejudicial nature of [Grays] invocation of [the] Fifth
Amendment privilege, a curative instruction was insufficient to
solve the problem and the proper [course was] to declare an
immediate mistrial.
Again, this claim is not preserved for appeal.
Copelands attorney never asked for a mistrial. Instead, he asked
for a curative instruction. Judge Murphy gave the requested
instruction, and Copelands attorney never objected to the wording
of this instruction. Copeland can not shift course now.
That being said, Copeland can still raise this issue as
a claim of plain error. But to prevail on a claim of plain
error, Copeland would have to show that no competent judge could
have believed that the problem could be solved by steps short of
a mistrial. Copeland has failed to adequately brief this claim.
His sole argument on the issue of prejudice consists of the
single conclusory sentence that we quoted two paragraphs above.9
Moreover, an appellate court will normally defer to a
trial judges decision concerning whether a particular reference
to improper information can be cured with a clarifying or
cautionary instruction or whether, instead, a mistrial is
needed.10 We defer to the trial judge because the judge has the
opportunity to hear the tainted evidence as it is presented and
to observe the impact it has on the jury.11
Finally, we have repeatedly warned trial judges to be
extremely cautious about granting a mistrial when the defendant
has not sought one because, under the double jeopardy clause, if
a judge declares a mistrial sua sponte when there is no manifest
necessity for it, the charges against the defendant must be
dismissed.12
In light of this governing law, even if Copeland had
adequately briefed the issue of prejudice, we would find no plain
error. Copeland never disputed that he knew Gray, or that Gray
had given him a key to the apartment rented on behalf of Ray
Enoch, or that he (Copeland) was the one paying the rent on the
apartment. Thus, the question that Gray refused to answer did
not concern a contested subject. Not only did this reduce the
danger of prejudice from Grays assertion of the Fifth Amendment,
but it also made it more likely that the jury would follow Judge
Murphys cautionary instruction and disregard Grays assertion of
privilege.
In sum, there was no manifest necessity for a mistrial.
Copelands claim that his sentence is excessive
Copeland was convicted of contributing to the
delinquency of a minor (a class A misdemeanor)13 and
nine counts of second-degree sexual abuse of a minor (a
class B felony).14 Because Copeland was a first felony
offender convicted of class B felonies, his sentencing
was governed by the benchmark ranges set forth in State
v. Jackson, 776 P.2d 320, 326-27 (Alaska App. 1989).
Under Jackson, a typical offender who has
committed a typical to moderately aggravated offense
should receive an unsuspended term of 1 year or more.15
The upper limit in this category is 4 years
imprisonment, reflecting our decision in Austin v.
State, 627 P.2d 657, 657-58 (Alaska App. 1981).16 For
an offense that is exceptionally aggravated i.e., one
that involves the existence of significant statutorily
specified aggravating factors or other extraordinarily
aggravated circumstances a judge may impose up to 6
years to serve.17
For the nine counts of sexual abuse, Judge
Murphy sentenced Copeland to a composite sentence of 10
years imprisonment with 3 years suspended i.e., 7
years to serve. For the additional offense of
contributing to the delinquency of a minor (i.e.,
aiding, inducing, or encouraging J.S. to leave the
custody of her parents without their knowledge or
consent), Judge Murphy sentenced Copeland to serve a
consecutive term of 1 years imprisonment. Thus,
Copelands composite sentence is 11 years with 3 years
suspended i.e., 8 years to serve.
Obviously, this sentence exceeds the Jackson
benchmark range of sentences for exceptionally
aggravated offenses. However, as we have pointed out
in the past, a benchmark range is not a hard-and-fast
limit on a judges sentencing authority. Rather, a
benchmark range can be exceeded if there is a sound
reason to differentiate the defendants case from the
typical cases encompassed in that benchmark range.18
For example, in Davis v. State, 793 P.2d 1064
(Alaska App. 1990), we approved a sentence of 10 years
to serve for a first felony offender convicted of
multiple counts of second-degree sexual abuse of a
minor. We noted that Daviss offenses would qualify as
exceptionally aggravated under the Jackson guidelines
for several independent [reasons].19 Because [a]ny of
these factors taken alone would have placed Daviss case
within Jacksons exceptionally aggravated category, we
concluded that Davis could properly receive a sentence
greater than the 4- to 6-year range set forth in
Jackson for exceptionally aggravated cases.20
When Judge Murphy sentenced Copeland, he
expressly acknowledged the Austin decision and the
Jackson benchmarks. The judge concluded that he should
exceed these benchmarks because Copeland was a worst
offender.
Judge Murphy concluded that Copeland was a
worst offender based on (1) the number of Copelands
acts of intercourse with J.S.; (2) the length of time
during which Copeland carried on his illicit
relationship with the teenager; (3) the emotional harm
that Copeland inflicted on both J.S. and her family;
(4) Copelands deviousness in driv[ing] a wedge between
J.S. and her family so that he could obtain sexual
gratification; culminating in (5) Copelands scheme to
hide J.S. from her family and, at the same time,
control her. In addition, Judge Murphy noted that
Copeland continued to insist that he never engaged in
sex with J.S., but only tried to help the girl.
Accordingly, based on the totality of the
circumstances, Judge Murphy concluded that Copelands
prospects for rehabilitation were guarded or poor.
We note that even though Judge Murphy found
that Copeland was a worst offender, the judge did not
impose a composite sentence equal to the 10-year
maximum term that Copeland might have received for
second-degree sexual abuse of a minor. Rather, Judge
Murphy sentenced Copeland to a composite term of
8 years to serve, encompassing the nine counts of
second-degree sexual abuse and the count of
contributing to the delinquency of a minor.
We acknowledge that Copelands sentence is
among the most severe reported sentences for defendants
convicted of second-degree sexual abuse of a minor.
But within this category, Copelands offense is
unusually serious. Judge Murphy explained why he
believed that Copelands sentence should exceed the
normal benchmark ranges, and the record supports the
judges explanation. For this reason, we can not say
that Copelands composite 8 years to serve is clearly
mistaken. Accordingly, we affirm the sentence.21
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 11.41.300(a)(1)(F) and AS 11.41.436(a)(1),
respectively.
2 AS 11.51.130(a).
3 Tyler v. State, 47 P.3d 1095, 1100 (Alaska App. 2001)
(emphasis in the original).
4 Id., citing Keen v. Ruddy, 784 P.2d 653, 658 (Alaska
1989).
5 Sam, 842 P.2d at 599.
6 Morgan, 54 P.3d at 340 (Coats, C.J., concurring).
7 Id.
8 See Williams v. State, 600 P.2d 1092, 1093 (Alaska 1979).
9 See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d
406, 410 (Alaska 1990) (when a claim of error is supported by no
more than a cursory statement in the argument portion of the
litigants brief, the point will not be considered on appeal).
10 Allen v. State, 51 P.3d 949, 955 (Alaska App. 2002).
11 Brown v. State, 693 P.2d 324, 327 (Alaska App. 1984).
12 Cook v. State, 36 P.3d 710, 729 (Alaska App. 2001).
13 AS 11.51.130(b).
14 AS 11.41.436(b).
15 Jackson, 776 P.2d at 326.
16 Jackson, 776 P.2d at 326.
17 Id.
18 See Brown v. State, 973 P.2d 1158, 1162 (Alaska App.
1999); Williams v. State, 809 P.2d 931, 934 (Alaska App.
1991).
19 Davis, 793 P.2d at 1066.
20 Id.
21 See McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974) (an appellate court is to uphold a sentencing decision
unless the sentence is clearly mistaken).
