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Ritter v. State (08/20/2004) ap-1946
Ritter v. State (08/20/2004) ap-1946
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
ANDY N. RITTER, )
) Court of Appeals No.
A-8386
Appellant, )
Trial Court No. 2BA-97-171 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1946 August 20, 2004]
)
Appeal from the Superior Court, Second Judi
cial District, Barrow, Michael I. Jeffery,
Judge.
Appearances: Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Andy N. Ritter, a massage therapist working in Barrow,
was convicted of second-degree sexual assault for engaging in
sexual contact with four female clients.1 Ritter appeals his
convictions, arguing that the State failed to present sufficient
evidence that the sexual contact occurred without [the clients]
consent as that phrase is defined in AS 11.41.470(8). Ritter
also challenges various aspects of the superior courts sentencing
decision.
For the reasons explained here, we conclude that the
evidence was sufficient to support Ritters convictions (except
for one alternate count). However, a legal error was committed
at Ritters sentencing, so he must be resentenced.
Underlying procedural facts
Ritter was initially charged with second-
degree sexual assault for inappropriately touching
three of his clients: N.W., L.S., and M.R.. After
Ritter was indicted and released on bail, he assaulted
a fourth client, L.F.. (Another woman, A.M., may have
been assaulted in a similar manner, but she did not
wish to press charges.)
With respect to each victim, the State
charged Ritter under two alternate subsections of AS
11.41.420(a). The State alleged that Ritter engaged in
sexual contact with the women without their consent
(subsection (a)(1)), and also that Ritter engaged in
sexual contact with the women under the guise of
providing professional health care, knowing that the
women were unaware that a sexual act was being
committed (subsection (a)(4)).
Following Ritters initial indictment (the one
charging him with assaulting the first three women),
Ritter and the State entered into a plea bargain.
Under this plea bargain, Ritter pleaded no contest to a
single count of second-degree sexual assault, and he
received a sentence of 6 years imprisonment with 3
years suspended. But after he was sentenced, Ritter
successfully challenged his plea. The plea bargain was
set aside, and all of the original charges were
reinstated. In addition, the State now indicted Ritter
for the sexual assault of the fourth woman (the assault
he committed while he was on bail release).
Ritter went to trial, and he was convicted of
sexually assaulting each of the four victims. The jury
found him guilty under the without consent theory with
respect to all four victims, and the jury found him
guilty under the guise of health care theory with
respect to victims N.W. and M.R..
Ritter received a composite sentence of
10 years imprisonment with 5 years suspended.
The sufficiency of the evidence to support the four
without consent verdicts
When an appellate court assesses the
sufficiency of the evidence to support a criminal
conviction, the court views the evidence (and the
inferences that could reasonably be drawn from that
evidence) in the light most favorable to supporting the
verdict.2 We therefore discuss the States evidence
against Ritter in that light.
(a) Evidence pertinent to the charge involving
N.W.
N.W. went to Ritter for massage therapy
because she was experiencing neck and back pain. She
had four appointments with Ritter. The first three
occurred without incident. On the day of her fourth
appointment, the weather was cold in Barrow, with
temperatures below zero. At this fourth appointment,
while Ritter was massaging N.W.s neck and back, she
felt Ritters erect penis pressing against the top of
her head. N.W. testified that she was in shock and
that she felt panicky. She stated that she did not get
up and leave the room because she thought that she
would not win any physical confrontation with Ritter,
because she was naked and her clothes were on the other
side of the room, and because it was so cold that
running outside naked was not a viable option.
Later in the massage, Ritter removed the
sheet that was covering the upper half of N.W.s body.
Again, N.W. felt panicky and scared. Ritter began
massaging N.W.s breasts, including her nipples, and
N.W. again felt Ritters erection against her head.
N.W. testified that Ritters touching of her breasts did
not feel like a therapeutic massage, but rather like a
massage one would get from a husband or lover.
Ritter then climbed onto the table and
straddled N.W.. He continued to massage her breasts,
and N.W. felt Ritters erection pressing against her
stomach. N.W. testified that she did not want Ritter
to massage her breasts, but she froze; she figured it
[would] be over soon, and she intended to get out ...
just as quick as [she could] afterwards.
Ritter then got off the table and began to
massage N.W.s stomach. During this portion of the
massage, Ritter took N.W.s hand and held it against his
penis for a couple of seconds.
When the massage was over, and after N.W. got
dressed, Ritter asked her if she wanted a hug. N.W.
told Ritter that this would be inappropriate, and she
left. Later, N.W. went to the police. Based on N.W.s
account of Ritters behavior during the massage, the
police obtained a Glass warrant to record a telephone
conversation between N.W. and Ritter.3 During this
conversation, N.W. confronted Ritter about his
behavior, and he did not deny it.
(b) Evidence pertinent to the charge involving
M.R.
M.R. went to Ritter for a massage because she
was experiencing stress. During the massage, M.R. felt
uncomfortable with the positioning of the sheets
covering her body, because her torso was left exposed.
During the session, Ritter massaged M.R.s breasts and
he touched her nipples. Although M.R. thought that
this touching was strange, she initially assumed that
it was part of the massage therapy. However, after a
time, M.R. began to think that Ritters conduct was
something other than massage therapy, and she became
afraid.
While Ritter was standing at her head and
leaning over her, M.R. felt his erect penis being
pressed against her head. M.R. testified that she felt
uncomfortable, but she was afraid to try to leave
because she was alone in the room with Ritter, because
it was cold outside, and because the stairs outside
were steep and icy.
(c) Evidence pertinent to the charge involving
L.S.
L.S. went to Ritter for massage therapy
because of a back injury. Her first massage with
Ritter did not help her condition; indeed, the massage
caused her severe pain. Nevertheless, following her
doctors advice, L.S. scheduled another massage with
Ritter (after telling him about her dissatisfaction
with the first massage).
During this second massage, while L.S. was
lying on her stomach, Ritter brushed her leg with his
erect penis several times. L.S. testified that she was
in shock at this occurrence. Later, while L.S. was
lying on her back and Ritter was massaging her inner
thigh, Ritter repeatedly brushed his hand against her
genitals. The first time that this occurred, L.S.
assumed that the touching was accidental. When the
touching occurred again, she suspected that it was
intentional, but she did not protest because she just
want[ed] to get through this. L.S. testified that she
did not take more aggressive action to end the massage
because she was undressed, and because she was in shock
and in fear, not knowing how far [Ritter] would go.
Later, while Ritter was massaging L.S.s head, he
pressed his erect penis against her head.
L.S. testified that she did not consent to
any of this sexual touching. Moreover, she testified
that Ritter knew that she was uncomfortable with the
touching. L.S. described how, when Ritter touched her
inappropriately, she would tighten up, and Ritter would
then get defensive and tell her not to be inhibited.
(d) Evidence pertinent to the charge involving
L.F.
L.F. went to Ritter for massage therapy
because of chronic hip pain. She scheduled an
appointment in November 1997, after Ritter had been
charged with sexually assaulting N.W., M.R., and L.S..
L.F. knew about the pending criminal charges, but she
decided to give Ritter the benefit of the doubt because
he had never behaved inappropriately with her during
any of her previous massages.
When L.F. arrived for the massage, Ritter
showed her a newspaper article about the pending
charges, and then he asked her to sign a form stating
that she knew about the charges and still consented to
the massage.
The massage lasted an hour, and nothing amiss
occurred. But then L.F. asked for an additional hour
of massage, because she did not think that Ritter would
be back in the area soon. During the second hour,
Ritter moved his hand to L.F.s groin and left his hand
there. L.F. testified that she initially felt
confused, then afraid and vulnerable. Rather than
confront Ritter directly, she asked him to begin
massaging her shoulders.
Ritter then began talking about the pending
criminal charges. He told L.F. that he was being
charged for touching a womans nipples, and then he
brushed his hand across L.F.s nipples. L.F. could also
feel Ritters erect penis pressed against her arm. L.F.
was now in shock; she felt violated and vulnerable.
L.F. did not try to get up and run away because she was
wearing only a sheet, and because she was unsure where
she could go.
(e) The legal definition of without consent
It is clear from the above-described
testimony that Ritters sexual contact with the four
women occurred without their consent, as these words
are used in everyday speech. But our criminal code
employs a specialized definition of without consent.
For purposes of Alaskas sexual assault statutes, sexual
penetration or sexual contact occurs without consent if
the person (1) is coerced by the use of force against
[any] person ... or by the express or implied threat of
death, imminent physical injury, or kidnapping to be
inflicted on anyone, or if the person (2) is
incapacitated as a result of an act of the defendant.4
In Ritters case, the State relied on the
first part of this definition. The States theory of
prosecution was that Ritters conduct, coupled with the
circumstances of the massages, amounted to coercion
because it constituted an implicit threat of force if
the women did not submit to the sexual touching.
Ritter contends that there was no evidence that he ever
threatened the women, either expressly or implicitly.
(f) Why we conclude that the evidence was
sufficient to establish that the sexual contact
occurred without consent
Two prior decisions of this Court provide the
reference points for our analysis of this question:
Nicholson v. State, 656 P.2d 1209 (Alaska App. 1982),
and Brower v. State, 728 P.2d 645 (Alaska App. 1986).
In Nicholson, a teenage girl woke up one
night to find the defendant in bed with her, fondling
her breasts. The girl hesitated, then jumped out of
bed; she fled downstairs, armed herself with a butcher
knife, and telephoned a neighbor for help.5
The girl later testified that she hesitated
because she was temporarily in shock, and because she
feared that the defendant might hurt her.6 We held
that, viewed in the light most favorable to upholding
the verdict, this was sufficient evidence of coercion
to make the sexual contact without consent under the
definition contained in our criminal code:
Nicholson ... argues ... that he did not
coerce [the girl] to engage in sexual
contact. We disagree. The evidence supports
a finding that Nicholson could reasonably
foresee that [the girl] would be momentarily
stunned by fear caused by Nicholsons
unexpected and uninvited entry into her bed,
in the early morning hours, enabling him to
continue to caress her after she awoke. [The
girl] testified [that] she was temporarily in
shock, and that she was afraid [that] he
would hurt her. Under these circumstances,
we believe that a jury could find that [the
girls] momentary acquiescence in Nicholsons
fondling her breast was coerced by an
implicit threat of imminent physical injury
and thus constituted second-degree sexual
assault.
Nicholson, 656 P.2d at 1213.
In Brower, on the other hand, the
victim of the allegedly unconsented-to sexual
activity was a sixteen-year-old boy who lived
with the defendant. Viewing the evidence in
the light most favorable to the State, Brower
made sexual advances to the boy and attempted
to engage in sexual contact with him.7
However, the State conceded and we agreed
that the evidence was insufficient to
establish that Brower had acted recklessly
with respect to the possibility that the boy
did not consent to his advances. We declared
that
Nicholson [was] readily distinguishable.
Given the close relationship between Brower
and [the boy], Browers actions cannot be
found to have been in reckless disregard of
[the boys] lack of consent.
Brower, 728 P.2d at 647.
The situation in Ritters case
appears to fall in between the facts of
Nicholson and the facts of Brower. This is
not a case like Nicholson, where the victim
and the defendant were strangers to each
other. The victims in this case were Ritters
patients; each of them had come to Ritter for
massage therapy on several occasions. In
addition, the women knew that the massage
therapy would involve being alone with
Ritter, undressed, and that Ritter would
touch their bodies.
However, Ritters case is like
Nicholson in one crucial aspect: Ritter
could have reasonably foreseen that the women
would be surprised and alarmed by his
actions. All of the victims testified that
they had never experienced anything like
Ritters sexual touching in other massages,
and they all testified that this touching
left them in shock or afraid. In addition,
like the defendant in Nicholson, Ritter could
reasonably have foreseen that the
circumstances of the massage therapy would
make his victims afraid to protest or resist:
they were alone with him, they were
undressed, and it was not feasible to run
outside into the cold. All of the women
testified that these circumstances made them
decide to endure the touching.
For these reasons, we conclude that
the evidence presented at Ritters trial
reasonably supports a finding that the women
were coerced by an implicit threat of
imminent physical injury or kidnapping
which, in this context, means restraining
another person with intent to sexually
assault them. See AS 11.41.300(a)(1)(C).
Thus, the evidence is sufficient to support
the jurys decision that the sexual contact
was without consent.
In a related argument, Ritter
contends that even if the sexual contact took
place without consent, there was insufficient
evidence that he recklessly disregarded his
victims lack of consent. Ritter points out
that none of the women verbalized their lack
of consent to the touching. This is
apparently true although we note that,
according to L.S.s testimony, Ritter was
aware that L.S. was uncomfortable with the
touching, and he chided her for being
inhibited.
But be this as it may, the question
is not whether Ritters victims protested or
physically resisted, but rather whether
Ritter was aware of, and consciously
disregarded, a substantial and unjustifiable
possibility that his sexual contact with the
women was being conducted without their
consent.8 Based on the evidence we have
already described, a jury could reasonably
conclude that Ritter acted at least
recklessly with regard to this possibility.
The sufficiency of the evidence to support the guise of
health care verdict on the charge involving N.W.
As explained above, Ritter was also convicted
of two alternate counts of second-degree sexual assault
on the theory that he engaged in sexual contact under
the guise of health care, a violation of
AS 11.41.420(a)(4). Ritter challenges one of these
verdicts the one involving N.W..
Under the guise of health care theory, the
State was obliged to prove that Ritter engaged in
sexual contact with N.W. during the course of his
professional treatment of her, and that Ritter knew
that N.W. was unaware that a sexual act was being
committed on her.
N.W. was conscious during the entire massage
session. From N.W.s testimony, it is obvious that she
was aware when Ritter touched her breasts, when Ritter
pressed his penis against her head, and when Ritter
held her hand against his penis. But this does not
resolve the issue of whether N.W. was aware or unaware
that Ritter was engaging in sexual activity with her.
We have interpreted AS 11.41.420(a)(4) to
apply to two distinct situations: (1) instances where
a patient is unconscious or otherwise fails to perceive
that they are being touched on the genitals, anus, or
female breast; and (2) instances where a patient
mistakenly believes that this touching is part of
legitimate treatment.9 Thus, the State could
conceivably prove its guise of health care charge even
though N.W. was aware of the sexual touching if the
State proved that N.W. mistakenly believed that the
touching was a legitimate part of the massage therapy,
and that Ritter knew that N.W. was laboring under this
misapprehension.
But N.W. testified that Ritters touching of
her breasts did not feel like a therapeutic massage.
She further testified that it did not cross [her] mind
that there might be a legitimate purpose for this
touching. (Afterwards, N.W. apparently did research to
find out whether there could be a legitimate purpose
for Ritters actions. But there is no evidence that she
misunderstood or doubted the nature of the touching
during the massage session.)
We further note that, during the States
closing argument to the jury, the prosecutor never
argued that N.W. mistakenly thought that there was a
legitimate reason for Ritters actions. In fact, the
prosecutor contrasted N.W. to two of the other victims
who, apparently, had thought (at least initially) that
the sexual contact might be a proper part of the
professional treatment.
In short, we conclude that the guise of
health care verdict involving N.W. is not supported by
sufficient evidence. Ritter is entitled to a judgement
of acquittal on this alternate count.
Ritters claim that his right to due process of law was
violated when the superior court sentenced him to a
greater term of imprisonment than the one he initially
received when he pleaded no contest to a single count
of sexual assault
As described earlier, Ritter and the State
initially agreed to resolve Ritters case short of
trial, by having Ritter plead no contest to a single
count of second-degree sexual assault. Ritter actually
entered this plea, and he received a sentence of 6
years imprisonment with 3 years suspended. But, later,
Ritter was successful in withdrawing his plea and
having this conviction set aside.
At that point, all of the original charges
were reinstated. Moreover, the State now indicted
Ritter for his assault of the fourth victim, the
assault he committed while he was released on bail.
Following a jury trial, Ritter was convicted of four
counts of second-degree sexual assault, one for each of
his victims.
(With respect to two of these victims, the
jury actually found Ritter guilty of two counts each
count representing an alternate theory of how Ritters
conduct constituted second-degree sexual assault.
These alternate counts were merged for purposes of
judgement and sentencing. Thus, even though the jury
returned guilty verdicts on six counts, Ritter was
convicted of, and sentenced on, only four counts.)
For these four counts of second-degree sexual
assault, Superior Court Judge Michael I. Jeffery
sentenced Ritter to a composite term of 10 years
imprisonment with 5 years suspended. On appeal, Ritter
claims that it was illegal for Judge Jeffery to
sentence him to a term of imprisonment greater than the
term of imprisonment Ritter initially received under
the now-rescinded plea bargain.
Ritter points out that, even though he was
originally sentenced on only one count of second-degree
sexual assault, Judge Jeffery knew about Ritters
assaults on all four women at the time of that original
sentencing, and the judge took those assaults into
account when he fashioned Ritters sentence on that one
count. For this reason, Ritter contends that it was
improper for Judge Jeffery to increase Ritters sentence
following the trial, even though Ritter was then being
sentenced for four counts of sexual assault instead of
one.
Ritter relies on this Courts decision in
Morgan v. State, 673 P.2d 897 (Alaska App. 1983). In
Morgan, the defendant was charged with four crimes
rape, assault with a dangerous weapon, assault with
intent to commit rape, and assault and battery. Just
before trial, Morgan offered guilty pleas to three of
these charges all of them except the rape charge.
Based on Morgans pleas, the State dropped the rape
charge to spare the victim the ordeal of trial. Morgan
was then sentenced for the three lesser crimes. But on
appeal to the Alaska Supreme Court, Morgan successfully
argued that he should be allowed to withdraw his pleas.
The case went back to the superior court, Morgan went
to trial on all four charges, and he was convicted.
This time, Morgan received a greater sentence than the
one he had originally received when he pleaded guilty
to the three lesser charges.10
In his second appeal (his appeal to this
Court), Morgan argued that the due process and double
jeopardy clauses of the constitution protected him
against an increased sentence. One aspect of Morgans
argument was based on the fact that the sentencing
judge had mentioned the rape when he originally
sentenced Morgan for the three lesser crimes:
Morgan [argues] that a sentence in
excess of [his original sentence] was not
justified because Judge Cooke took Morgans
rape into account in sentencing Morgan on his
pleas of guilty to the [three lesser] charges
... . This argument is unpersuasive. In
sentencing Morgan for those three charges,
Judge Cooke did indicate that he would take
into account all relevant circumstances,
including the injuries suffered by [the
victim]. However, Judge Cooke made it clear
that he did not intend to make any finding as
to whether Morgan actually committed the
offense of rape and that he did not intend to
sentence Morgan for any crimes other than
those to which he had pled guilty.
Morgan, 673 P.2d at 903 n. 8.
Ritter interprets this footnote to
mean that it would have been constitutionally
improper for Morgan to receive a greater
sentence the second time around if the
sentencing judge had considered all four
charges when he imposed Morgans original
sentence. And Ritter argues that this same
rule should apply to his case as well.
We do not read the Morgan footnote
this way. Rather, the footnote indicates
that the Morgan court did not reach the issue
that Ritter poses. It was unnecessary to
reach this issue because Morgans sentencing
judge expressly declared that he was making
no finding as to whether Morgan had committed
the fourth crime (the rape).
Ritters case does, however, pose
the problem that the Morgan court did not
have to resolve. At Ritters original
sentencing when Ritter, pursuant to the plea
bargain, was being sentenced for a single
count of second-degree sexual assault Judge
Jeffery was not only aware of Ritters
assaults on all three victims mentioned in
the original indictment, but the judge was
also aware of Ritters assault on a fourth
victim while he was free on bail. Judge
Jeffery took all of these assaults into
account when he assessed Ritters degree of
dangerousness and prospects for
rehabilitation.
Ritter argues that because Judge
Jefferys original sentencing decision was
influenced by the fact that Ritter had
assaulted all four victims, Ritter thereby
acquired a constitutional protection against
any greater sentence for any of this conduct.
That is, Ritter claims that even though his
original sentence was for a single negotiated
count of sexual assault, the court was
thereafter barred from sentencing Ritter to a
greater composite sentence for any offenses
based on the same underlying conduct, even
after Ritter repudiated the plea bargain,
went to trial, and was convicted of multiple
counts of sexual assault.
Ritters proposition, in its
broadest reading, is that a criminal
defendant becomes constitutionally insulated
from any later conviction or sentence for
criminal conduct if that conduct has
previously been considered by a court in
fashioning the defendants sentence for
another crime. This argument has been
rejected by the United States Supreme Court.
In Witte v. United States, 515 U.S. 389, 115
S.Ct. 2199, 132 L.Ed.2d 351 (1995), the Court
held that the double jeopardy clause does not
bar a defendants conviction and sentence for
criminal conduct that was earlier considered
by another court when the defendant was
sentenced for another crime. See the Ninth
Circuits decision in Salemo v. United States,
81 F.3d 1453, 1461-62 (9th Cir. 1996), where
the court applied the Witte decision to a
case whose facts are similar to the facts of
Ritters case.
We need not decide whether to
endorse the Witte rule as a matter of Alaska
constitutional law because Ritters case
actually presents a narrower issue. The
issue is narrower because this appeal arises
out of Ritters repudiation of a plea bargain.
Ritter was originally indicted for
sexually assaulting three women. He agreed
to plead no contest to a single count of
sexual assault, with the understanding that
the other charges would be dismissed. Ritter
entered his plea and was sentenced on the
single count. Then he repudiated his plea
and chose to go to trial on all of the counts
in the indictment (supplemented by a new
indictment charging him with sexually
assaulting a fourth victim).
Under these circumstances, Ritter
is not entitled to reject [his] plea bargain
and then erect the shield of double jeopardy
to the revived counts.11 [I]t is
well-settled that [the guarantee against]
double jeopardy does not apply to the
original counts [of] an indictment when a
defendant has withdrawn or successfully
challenged his plea of guilty to lesser
charges.12 This rule applies even after the
defendant has been sentenced on the lesser
charges.13
For these reasons, we conclude that
when Ritter was sentenced for the multiple
counts of sexual assault following his trial,
his term of imprisonment was not limited to
the sentence he originally received for one
count of sexual assault under the now-
repudiated plea bargain.
Ritters contention that he should not have received a
sentence greater than the 4-year presumptive term
that applies to a second felony offender convicted
of a single count of second-degree sexual assault
Ritter was a first felony offender, and his
offense second-degree sexual assault is a class
B felony.14 There is no presumptive term of
imprisonment for first felony offenders convicted
of this crime, but the legislature has set a 4-
year presumptive term for second felony
offenders.15
Ritter, who was convicted of four counts of
second-degree sexual assault, received a composite
term of 10 years with 5 years suspended. Citing
our decision in Austin v. State, 627 P.2d 657
(Alaska App. 1981), Ritter argues that this
sentence is excessive that it should not have
exceeded the 4-year presumptive term for second
felony offenders.
In Austin, we held that first felony
offenders should ordinarily receive a more favorable
sentence than the presumptive term of imprisonment
established for second felony offenders convicted of
the same crime and that this ceiling could be exceeded
only if the State proved aggravating factors under
AS 12.55.155(c) or extraordinary circumstances under AS
12.55.165. But in Farmer v. State, 746 P.2d 1300
(Alaska App. 1987), we clarified that the rule is
different when a defendant is being sentenced for two
or more counts. In those circumstances, although the
presumptive term for a second felony offender remains
an important benchmark, a first felony offender can be
sentenced to a greater term of imprisonment for any
good reason.16
Here, Ritters four counts of sexual assault
involved four different victims and four different
occasions. Moreover, one of these assaults occurred
after Ritter had already been indicted for his earlier
crimes and was free on bail. Given all of this, Judge
Jeffery had good reason for exceeding the 4-year
ceiling that would apply to any single count of second-
degree sexual assault.
The superior court erred in finding that Ritters
conduct was aggravated under AS 12.55.155(c)(21)
because of his repeated sexual assaults
At Ritters sentencing, Judge Jeffery found
that the State had proved that Ritters conduct was
aggravated under AS 12.55.155(c)(21), which applies
when a defendant has a history of repeated instances of
[criminal] conduct ... similar in nature to the offense
for which the defendant is being sentenced. In finding
aggravator (c)(21), Judge Jeffery relied on the fact
that Ritter had sexually assaulted four women. The
judge also stated that he thought Ritter had sexually
assaulted A.M., the fifth woman who did not wish to
press charges.
To the extent that Judge Jeffery relied on
Ritters assaults on the four women named in the
indictment, he committed error. In Juneby v. State,
641 P.2d 823 (Alaska App. 1982), we held that a
sentencing court should not find an aggravating factor
based on conduct for which the defendant is being
separately sentenced:
A ... problem [arises from the fact that
the sentencing court found] that Junebys
conduct was among the most serious included
in the definition of the offense [based] on
the fact that Junebys rape was committed in
[the victims] home. The [sentencing] judge
placed considerable weight on the fact that
Juneby had invaded the sanctity of his
victims home to commit his crime. Had Juneby
been charged only with the crime of sexual
assault in the first degree, his decision to
commit the sexual assault within the privacy
of his victims home might properly be
considered a significant factor bearing on
the seriousness of the conduct included in
the sexual assault. However, in this case,
it is essential to recognize that Juneby was
separately charged with and convicted of
burglary in the first degree for unlawfully
remaining in [the victims] home with the
intent to commit the sexual assault; the
court imposed a separate sentence for the
burglary. Juneby had thus been separately
punished for his act of violating [the
victims] privacy by entering her home.
The judges finding that Junebys sexual
assault was the most serious within the
definition of the offense, because it was
based in significant part on consideration of
conduct for which Juneby had been separately
convicted and sentenced, amounted to
punishing Juneby twice for the same conduct:
first, by imposing the sentence for burglary;
second, by aggravating his presumptive term
for sexual assault.
Juneby, 641 P.2d at 842.
After the State sought rehearing of
this point, this Court re-affirmed its
holding that a presumptive term should not be
aggravated based on another offense for which
the defendant was separately convicted:
The state [suggests] that our original
decision should be altered insofar as it
prohibits consideration as an aggravating
factor of conduct by the defendant for which
a separate conviction has been entered and a
separate sentence imposed. In reaching our
decision, we applied by analogy the policy
underlying AS 12.55.155(e), which prohibits
consideration of conduct as an aggravating
factor if the conduct is an essential element
of the offense for which the accused was
convicted. The state argues on rehearing
that the policy underlying AS 12.55.155(e)
is inapplicable as to elements of another
offense for which a conviction has separately
been entered. However, the states argument
is based almost entirely on the fact that
Junebys sentence for burglary and his
sentence for sexual assault were imposed
concurrently. In our view, this argument
simply disregards the fact that, even though
it was concurrent, Junebys sentence for
burglary constituted a separate and distinct
punishment from his sentence for sexual
assault. Moreover, the states argument on
rehearing presupposes that, in cases
involving multiple offenses, concurrent
sentencing will be the rule; this assumption
is factually unsupported, especially in light
of recent legislative amendments. See AS
12.55.025(e) and (g).
Furthermore, the position advocated by
the state would apparently allow
consideration of an aggravating factor
involving conduct upon which a separate
conviction was based even when the separate
conviction resulted in a consecutive
sentence. Under such circumstances, the
results would be anomalous. In a case where
double jeopardy did not prohibit separate
convictions and sentences for multiple
offenses, each of two convictions entered
against the defendant could be deemed
aggravated in light of the other conviction,
and, in addition, the two sentences could be
consecutively imposed. We think a rule
permitting such a result would be
intolerable, especially in light of the
legislatures goal, in adopting presumptive
sentencing, of achieving uniformity and
eliminating unjustified disparity in
sentencing.
Juneby v. State (on rehearing), 665 P.2d 30,
38 (Alaska App. 1983).
Ritter was separately convicted and
sentenced for his sexual assaults upon the
four women mentioned in the indictment. It
was therefore improper for the superior court
to rely on these four sexual assaults when
determining whether aggravator (c)(21) was
proved.
This leaves Ritters assault on
A.M., the woman who did not wish to press
charges. While Judge Jeffery could
justifiably rely on this assault, it does not
constitute repeated conduct. We therefore
reverse the superior courts finding with
regard to aggravator (c)(21).
The superior court could properly conclude that Ritters
conduct was aggravated under AS 12.55.155(c)(5)
because his victims were particularly vulnerable
Judge Jeffery also found that Ritters conduct
was aggravated under AS 12.55.155(c)(5), which
applies to cases in which the defendant knew or
reasonably should have known that the victim of
the offense was particularly vulnerable or
incapable of resistance. Relying on our decision
in Braaten v. State, 705 P.2d 1311 (Alaska App.
1985), Ritter challenges this aggravating factor.
In Braaten, the sentencing judge found that
the victim of a sexual assault was particularly
vulnerable because the assault occurred in the victims
apartment, and because the judge concluded that people
could reasonably expect heightened privacy and security
in their dwelling places.17 This Court reversed the
sentencing judge, holding that aggravator (c)(5) could
not be proved based solely on environmental factors
such as the one presented [in Braatens case].18 We
held instead that aggravator (c)(5) requires a finding
that the victim was substantially incapable of
exercising normal physical or mental powers of
resistance ... .19
In retrospect, this Court might have chosen a
better phrase than environmental factor to describe the
problem in Braaten. The rationale of our decision in
Braaten was that, even though a person might be
entitled to a heightened expectation of privacy and
security in their dwelling place, the fact that a crime
occurs in a dwelling does not really speak to whether
the victim was particularly vulnerable. But our choice
of words engendered litigation because environmental
suggested that no factor other than the victims long-
term physical condition could constitute a proper basis
for aggravator (c)(5).
So, in Wassillie v. State, 911 P.2d 1071
(Alaska App. 1996), and Williams v. State, 859 P.2d 720
(Alaska App. 1993), we clarified that aggravator (c)(5)
could be based on vulnerabilities [other than those]
arising from a victims long-term physical condition
and that the environmental factors mentioned in Braaten
were those factors external to the victim, as
distinguished from those that bear an intrinsic
relationship to the defendants assault and to [the]
victims response to that assault.20
One might argue that the Wassillie - Williams
formulation of the test did not clarify things as much
as it might have. But the facts of Wassillie and
Williams are instructive. In Wassillie, we upheld a
finding of aggravator (c)(5) based on the fact that the
victim was asleep when the assault commenced. And in
Williams, we upheld a finding of aggravator (c)(5)
based on the fact that the defendant, who was the
victims stepfather, had engaged in a long history of
sexual and physical abuse that began when [the victim]
was a young child, a prolonged pattern of abuse [that]
rendered [the] victim incapable of exercising the type
of resistance that could be expected from a typical
nineteen-year-old.21
We conclude that the facts of Ritters case
are analogous. His victims came to him for massage
therapy. In preparation for this therapy, the victims
entered a confined space with Ritter and disrobed; they
were alone with Ritter so that he might have physical
access to their bodies. The victims expected Ritter to
touch them, and this created an ambiguity that hindered
their mental and physical readiness to resist when that
touching began to exceed the bounds of professional
massage.
It is true that Ritter betrayed his patients
trust, but Judge Jeffery did not commit the error we
found in Braaten: he did not find aggravator (c)(5)
based on the fact that the victims had a right to trust
Ritter, or that they had a right to expect that Ritter
would honor their bodily integrity. Rather, Judge
Jeffery found aggravator (c)(5) because, given the
nature of the victims therapist-patient relationship
with Ritter, and given the circumstances of how the
massages were administered, Ritters victims were not
capable of exercising normal powers of resistance.
There was no error.
Conclusion
We affirm Ritters convictions, with the
exception of the alternate guise of health care count
involving N.W..
We reject all of Ritters challenges to his
sentence, with one exception: we conclude that the
superior court erred in finding aggravator (c)(21).
The superior court must reconsider Ritters sentence
without this aggravator.
_______________________________
1 AS 11.41.420(a)(1) & (a)(4). The definition of sexual
contact is codified in AS 11.81.900(b)(57).
2 See, e.g., Shafer v. State, 456 P.2d 466, 469 (Alaska
1969); Tipikin v. Anchorage, 65 P.3d 899, 901 (Alaska App.
2003).
3 See State v. Glass, 583 P.2d 872 (Alaska 1978).
4 AS 11.41.470(8).
5 Nicholson, 656 P.2d at 1210.
6 Id. at 1213.
7 Brower, 728 P.2d at 646.
8 See AS 11.81.900(a)(3) (the definition of recklessly).
9 Ritter v. State, 16 P.3d 191, 198 (Alaska App. 2001).
10 Morgan, 673 P.2d at 899.
11Fransaw v. Lynaugh, 810 F.2d 518, 526 (5th Cir. 1987).
12United States v. Podde, 105 F.3d 813, 817 (2nd Cir.
1997).
13Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97
L.Ed.2d 1 (1987); People v. Mulcahey, 617 N.E.2d 1176,
1178-1181 (Ill.1993).
14AS 11.41.420(b).
15See AS 12.55.125(d)(1).
16 Farmer, 746 P.2d at 1301-02.
17 Braaten, 705 P.2d at 1321.
18 Id. at 1322.
19 Id., quoting AS 12.55.155(c)(5).
20 Wassillie, 911 P.2d at 1073, quoting Williams, 859 P.2d
at 722.
21 Williams, 859 P.2d at 722.
