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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| LANCE D. HINSON, | ) |
| ) Court of Appeals No. A-9725 | |
| Appellant, | ) Trial Court No. 3AN-02-5463 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2196 November 28, 2008 | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Stephanie E. Joannides, Judge.
Appearances: Marjorie Allard, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
A jury convicted Lance D. Hinson of extreme-
indifference second-degree murder1 for strangling Tina Shangin.
The superior court imposed a net 70-year term to serve and
restricted Hinsons eligibility for discretionary parole until he
served 40 years imprisonment.
Hinson appeals, arguing that the superior court
wrongly denied his motion for judgment of acquittal. We reject
this argument because reasonable jurors could find that the State
proved the charge beyond a reasonable doubt.
Hinson also contends that his sentence is excessive.
We affirm Hinsons 70-year term because the sentence is not
clearly mistaken. However, we vacate the 40-year parole
restriction imposed by the superior court because the courts
sentencing findings do not justify the restriction. We also
vacate a challenged probation condition because the record and
the courts sentencing comments do not show that the condition is
reasonably related to Hinsons rehabilitation or the protection of
the public.
Facts and proceedings
On August 6, 2000, three men found a decomposing body
in a wooded area near the intersection of Bragaw Street and the
Glenn Highway. When the police responded, they found Shangins
body, naked and face up, with her legs spread. Shangin was fifty-
nine years old and frequented the area where her body was found.
Hinson was one of the last people seen with Shangin before she
disappeared.
Chief Medical Examiner Frank G. Fallico testified that
Shangin died of asphyxiation due to neck compression. Dr.
Fallico testified that the condition of Shangins body was
consistent with a body that had been deceased and lying in the
same place for up to ten days.
Dr. Fallico also found defensive wounds on Shangins
body, specifically noting that Shangins broken fingernails showed
signs of a struggle. He testified that a hair caught in one of
the broken fingernails could be evidence of another person who
was present at Shangins death. Dr. Fallico explained that when a
person is strangled, there is a strong instinct to grasp at the
person doing the strangling.
The police collected evidence from the crime scene and
from Shangins body. Various hairs found on Shangins body were
tested. Testing by the state crime lab found the hair from her
broken fingernail was microscopically consistent with Shangins,
as were hairs from Shangins shoulder. Another hair found on
Shangins shoulder was tested for DNA, and Hinson could not be
excluded as the source of that hair.
Vaginal swabs of Shangins body contained sperm
components with DNA from two men. Hinson could not be excluded
as the source of the major component of the sperm. The source of
the minor component was not identified.
The police interviewed Hinson several times over the
course of the next two years. Hinson changed his story
repeatedly over the course of the interviews, and he identified
other people who may have been responsible for Shangins death.
During his first interview with police, Hinson said
that he had been drinking with Shangin and a group of friends
about ten days before her body was discovered. During a
subsequent interview, he stated that he last saw Shangin about a
month before her body was found.
Hinson also admitted that he had a sexual relationship
with Shangin. At first, he claimed that he had sex with her
about a month before she disappeared, across the highway from
where she was found. Later, he stated that he had sex with her
the last time he saw her, about ten days to two weeks before her
body was found. Eventually, he stated that he had sex with
Shangin about a week before her body was found.
During the interviews, the detectives asked Hinson
whether he knew about Shangins dead body. At first, Hinson
claimed that he had heard rumors that there was a dead body, but
did not know whose it was. Later, Hinson told the police that he
told Shangins son that Shangins body had been found. Eventually,
Hinson admitted that he discovered Shangins body three or four
days after he had sex with Shangin. Hinson stated that Shangins
body was stiff and he did not call the police because he was
afraid he would become a suspect.
During the interviews, Hinson speculated as to who
killed Shangin. He identified a person he described as Shangins
boyfriend. He later claimed that a man by the name of Darryl or
D.J. may have murdered Shangin. Hinson said that when he was
drinking with his friends, he heard Shangins scream in the
distance. Hinson claimed that D.J. then came out of the woods
with a solemn look on his face and that D.J.s hands looked weird.
Hinson eventually stated that on the night that
Shangin went missing, he had sex with her near the area where her
body was found. Hinson said that he left Shangin a few minutes
after they had sex. He said that when he left, Shangin was lying
naked on the ground, silent, and not moving except for heavy
breathing. Hinson told detectives he felt something was wrong
when he left Shangin. He returned days later to check on her,
only to find her dead.
The grand jury indicted Hinson on charges of first-
and second-degree murder and manslaughter.2
After the State presented its case, Hinson moved for a
judgment of acquittal. Hinson argued that when a case is based
on circumstantial evidence, the evidence must be of sufficient
weight to exclude every reasonable hypothesis that the defendant
is innocent. Hinson maintained that there was no direct evidence
linking him to the homicide, no evidence that he had a motive to
kill Shangin, and that the State had failed to exclude every
other reasonable hypothesis. Superior Court Judge Stephanie E.
Joannides took the motion under advisement and allowed the trial
to proceed.
The jury acquitted Hinson of first-degree murder but
convicted him of second-degree murder. Hinson renewed his motion
for judgment of acquittal after the jury verdicts, and Judge
Joannides later issued a written decision denying his motion.
Judge Joannides found three statutory aggravating
factors from AS 12.55.155: (c)(2) (Hinsons conduct during the
commission of the offense manifested deliberate cruelty to
another person); (c)(8) (Hinsons criminal history includes
conduct involving aggravated or repeated instances of assaultive
behavior); and (c)(10) (Hinsons conduct was among the most
serious within the definition of the offense). Judge Joannides
also found that Hinson was a worst offender. The judge sentenced
Hinson to 99 years imprisonment with 29 years suspended and
imposed a 40-year parole restriction.
Sufficient evidence supported Hinsons conviction
When we review the denial of a motion for judgment of
acquittal, we view the evidence presented at trial and the
reasonable inferences from that evidence in the light most
favorable to the jurys verdict.3 The evidence is sufficient if a
fair-minded juror exercising reasonable judgment could conclude
that the State had met its burden of proving [the defendants]
guilt beyond a reasonable doubt.4
Hinson argues that no fair-minded juror exercising
reasonable judgment could have concluded that the State had met
its burden of proof. He maintains that the case was weak and
built exclusively on circumstantial evidence. But as Hinson
acknowledges, Alaska law does not distinguish between a case
built on direct evidence and a case built on circumstantial
evidence.5
In each of his successive statements to investigators,
Hinson admitted to being incrementally closer to Shangins body
and being with her closer to the time of her death. Hinson
argues that his initial hesitance to reveal the truth arose from
his concern that he would become a suspect. He argues that this
fear of becoming a suspect led him to lie to the police about
having sex with Shangin the last time he saw her alive. However,
as the State points out, the jury could, and did, infer that
Hinson was lying to protect himself from being accused of
Shangins murder.
Hinson also argues that the superior court erroneously
found it significant that Hinsons DNA was found in the major
component of sperm taken from Shangin. Hinson points out that
there was a second, minor component of sperm found that belonged
to another unidentified man, and argues that the trial court made
the inference that because Hinson was identified as the source of
the major component, it was most likely that he had sexual
relations with Shangin after the other man. Hinson contends that
this is an incorrect inference as the forensics expert at trial
stated that there was no correlation between major/minor
component sperm and the ordering in which it was deposited.
Hinson notes that the minor component of sperm could not be
identified, even though police tested Shangins acquaintances and
boyfriend. Hinson contends that this creates a strong inference
that sex with the unidentified man may not have been consensual
and it was a stranger who was the cause of Shangins death. But
the superior court did not make that inference. In fact, when
Hinson was arguing the motion during trial, the court recognized
that no specific testimony linked the condition of the DNA to the
time of Shangins death.
The State points out that Kevin Peterson, an
acquaintance of Shangins, saw Hinson with Shangin on July 28,
2000, the day Shangin disappeared. Peterson testified that
Shangin told him that she and Hinson were going to the liquor
store and then to the trails (the location where Shangin was
found) to drink.
Shangin was last seen on July 28, 2000, with Hinson,
and was found 9 days later on August 6, 2000. The DNA evidence
established that Hinson had sex with Shangin. And Hinsons
statements placed him at the scene of Shangins death. This,
coupled with Petersons testimony that he last saw Shangin with
Hinson on the day she disappeared, could lead the jury to find
that Hinson was the last person with Shangin before she died.
Hinson also argues that the trial courts
characterization that the hair evidence was of particular
significance is incorrect. The superior court reasoned that
because two of the three hairs found on Shangins bruised right
shoulder exhibited the same microscopic features as Hinsons, it
would support the theory that he saw her very close to the time
of her death because it would have been unlikely that if he had
had sex with her a number of days before that the hair would have
remained on her bruised right shoulder.
Hinson asserts that this is not a reasonable inference
to make based on the hair evidence. Hinson asserts that the hair
evidence actually tends to support his claim of innocence. He
notes that, even though one of the hairs found on Shangins
shoulder matched his, two other hairs on her shoulder hairs that
still had their roots attached did not match his hair. These
two hairs were consistent with Shangins own hair.
Hinson argues that the hair with the roots attached
was most likely forcibly removed from the head of Shangins
attacker during a struggle, and the hair without its root (the
hair that matched Hinsons hair) likely fell onto Shangins body
when Hinson purportedly discovered the body a day or two after he
had sex with her. But as the State points out, a reasonable
juror could infer that the hair fell from Hinson while he was
strangling Shangin. More importantly, an inference could be made
that it was unlikely that Shangin moved after the hair fell on
her, which would support the States theory that Shangin was
strangled by Hinson while they had sex and that Shangin never got
up after Hinson left her.
Hinson also argues that the hair evidence is more
exculpatory than inculpatory. He notes that the rooted hairs
especially the hair found wedged in Shangins fingernail were not
DNA tested. Hinson argues that the States assertion that these
hairs belonged to Shangin was based on a less-reliable
microscopic comparison. Hinson argues that the State
never conducted any DNA tests on those hairs and did not try to
match the DNA sperm sample to any of the DNA from them. Hinson
asserts that DNA testing done by the defense suggested that the
hair in the fingernail did not belong to the victim.
While the defense expert stated that the hair had
surface DNA from a female, he also explained that he did not know
where the DNA came from. He stated that it could have come from
the hair shaft, from blood or saliva, or another bodily fluid
that had contact with the hair. Therefore, the jury could infer
based on the States expert that the hair found in Shangins
fingernail was microscopically consistent with Shangins hair, and
that the DNA found on the surface of the hair could have been
transferred when Shangin came in contact with another person.
Hinson argues that there was insufficient evidence to
convict him based on the inconclusive nature of the forensic
evidence and the largely exculpatory nature of Hinsons statements
to the police. But, taking the facts in the light most favorable
to the jurys verdict, the jury could have made reasonable
inferences from the evidence admitted at trial and found that
Hinson was guilty of murder beyond a reasonable doubt.
Accordingly, we conclude that sufficient evidence supported
Hinsons conviction.
Hinsons sentence is not excessive
During sentencing, Judge Joannides reviewed Hinsons
criminal history. Hinson was convicted in 1986 for first-degree
burglary and fourth-degree theft. That court initially suspended
imposition of sentence, but later imposed sentence when Hinson
was convicted in 1987 on two counts of second-degree theft.
Hinson also had a 1992 conviction for shoplifting and a 1995
conviction for larceny. The judge noted that Hinson was
convicted for misdemeanor assault in 1994 and 1995, and that he
also had a 1998 conviction for indecent exposure. She also found
Hinson had committed two uncharged incidents of indecent exposure
in June and July of 2000. In addition, the presentence report
indicates a conviction in 1994 for driving with his license
revoked.
Judge Joannides found that all efforts at
rehabilitating Hinson had been unsuccessful. The presentence
report indicates that Hinson did not perform well on probation
supervision. During the time Hinson was on probation for
felonies, he failed to appear on numerous occasions for
urinalysis and absconded from supervision. As a result of these
violations, Hinsons parole was revoked. Judge Joannides said
that she was concerned with Hinsons prospects for rehabilitation,
noting that Hinson had been released to a halfway house which is
a very structured setting where he was allowed to go into the
community and ... come back, or he was able to walk away, and in
fact, [Hinson] did. During one time that Hinson absconded, he
was charged and convicted for shoplifting cigarettes.
Judge Joannides also noted Hinsons history of alcohol
abuse, his almost non-existent work history, and his lack of
familial support. Judge Joannides found that isolation was the
primary concern in Hinsons case and community condemnation and
rehabilitation were secondary.
Judge Joannides found that several statutory
aggravating factors from AS 12.55.155 applied in Hinsons case:
(c)(2) (Hinsons conduct during the commission of the offense
manifested deliberate cruelty to another person); (c)(8) (Hinsons
criminal history includes conduct involving aggravated and
repeated instances of assaultive behavior); and (c)(10) (Hinsons
conduct was among the most serious within the definition of the
offense). Hinson challenges Judge Joannidess finding that (c)(2)
and (c)(10) were applicable.
We have some doubt that the (c)(2) finding is
supported by the record. We analyzed the (c)(2) aggravating
factor in Juneby v. State 6:
The word cruelty ... denotes the infliction
of pain or suffering for its own sake, or
for the gratification derived therefrom. We
think that, in accordance with this common
definition, the term deliberate cruelty, as
used in AS 12.55.155(c)(2) must be
restricted to instances in which pain
whether physical, psychological, or
emotional is inflicted gratuitously or as
an end in itself. Conversely, when the
infliction of pain or injury is merely a
direct means to accomplish the crime
charged, the test for establishing the
aggravating factor of deliberate cruelty
will not be met.[7]
Although it is reasonable to conclude that Shangin experienced
pain when she was strangled, we find little evidence in the
record that Hinson inflicted that pain as an end in itself or
gratuitously as opposed to inflicting the pain as a consequence
of his conduct in committing extreme indifference second-degree
murder. But second-degree murder is an unclassified felony to
which presumptive sentencing does not apply; aggravating factors
apply only by analogy.8 Therefore, the issue of whether the
trial court properly found aggravating factors is moot.
Judge Joannides also found that Hinson was a worst
offender based on his prior criminal history, his substance
abuse, his failure to benefit from past probation, and the facts
of Shangins murder.
Judge Joannides compared Hinsons crime to the second-
degree murder in Faulkenberry v. State.9 Faulkenberry set fire
to an apartment, leaving a woman that was passed out on the couch
to die.10 At the time of the murder, Faulkenberry was nineteen
years old and had no prior adult criminal history.11 He did have
severe emotional and behavioral problems and had been adjudicated
as a delinquent when he was a child.12 Faulkenberry abused drugs
and alcohol at an early age and continued until the time of his
arrest.13 The superior court found that Faulkenberrys conduct
involved a reckless and dispassionate disregard for the victims
life and safety.14 Even though the superior court classified
Faulkenberry as a worst offender, we ruled that that
classification did not require the superior court to impose the
maximum sentence.15 We therefore upheld the 60-year term
imposed.16
Judge Joannides found that Hinsons crime showed a
reckless or callous disregard for Shangins life. She based this
finding partly on the statements Hinson made that he left Shangin
alone in the woods and in a vulnerable condition while she was
having trouble breathing. Judge Joannides decided that a
sentence greater than Faulkenberrys 60-year term was appropriate
because Hinson was an older offender with an extensive criminal
record, and Hinson made no effort at substance abuse treatment.
From our review of the sentencing record, we conclude
that Hinsons 70-year term to serve is not clearly mistaken.17
Judge Joannides also imposed a 40-year restriction on
Hinsons eligibility for discretionary parole. In Stern v.
State,18 we held that a sentencing judge exercising the authority
conferred by AS 12.55.115 to restrict a defendants eligibility
for discretionary parole must specifically address the issue of
parole restriction [and must set] forth with particularity his or
her reasons for concluding that the [normal] parole eligibility
prescribed by AS 33.16.090 and AS 33.16.100(c) (d) is
insufficient to protect the public and [e]nsure the defendants
reformation.19 Hinson would normally be eligible for
discretionary parole after serving one third of his 70-year term.
The superior court did not explain why the normal parole
restriction was inadequate to protect the public or ensure
Hinsons rehabilitation. Accordingly, we must vacate that
restriction.
Next, we address Hinsons contention that Judge
Joannides should have deleted several references to uncharged
incidents of indecent exposure that occurred in Juneau in 1993
and 1994 from the presentence report. Hinson objects to
allegations by A.L., Hinsons ex-girlfriend, that A.L.s mother saw
Hinson masturbating in front of A.L.s apartment window. A.L.
also alleged that a friend had seen Hinson exposing himself to
others in the neighborhood. Hinson claims that because he denied
those incidents under oath, the State could not rely on hearsay
to prove that the incidents occurred.
In Charliaga v. State,20 we held that at sentencing,
the State can rely on hearsay allegations of a defendants
misconduct, unless the defendant takes the stand, denies the
allegations, and submits to cross-examination regarding the
matter.21 If the defendant does testify and deny the allegation,
the State must support the allegation with testimony or prove
that the hearsay declarant is not available to testify before the
sentencing court can rely on the allegation.22 The State must
also furnish information supporting the hearsay declarants
credibility.23
Here, when Hinson testified, he did not deny the
incidents of indecent exposure reported by A.L. Contrary to what
he claims in his brief, Hinson expressly chose not to testify
about the uncharged acts of indecent exposure. The trial
attorney told the court that Hinson made a strategic decision not
to address any indecent exposure charges.
Absent Hinsons testimonial denial, Judge Joannides was
authorized to rely on verified information supporting these
allegations. Verified information includes information that is
corroborated or substantiated by supporting data or
information.24 In Nukapigak v. State, the sentencing judge relied
on a presentence report that included statements from friends,
relatives, and village members where the defendant lived.25 On
appeal, the supreme court explained that a sentencing judge may
rely on these statements, even though they were hearsay, and in
some instances, hearsay within hearsay, because the evidence
appeared to be trustworthy.26 The court explained that the
identity of the people giving statements were made known to
Nukapigak and his attorney, and that they had the opportunity to
examine them regarding the basis for their statements and to
contradict, explain, or rebut their assertions. In the absence
of an indication that the information might have been inaccurate,
the sentencing judge was entitled to consider it if the
information appeared trustworthy.27
In this case, A.L. testified that Hinson exposed
himself to A.L.s mother. A.L.s report about this incident was
made available to Hinson, and the identity of A.L.s mother was
also known to Hinson. Because Hinson did not testimonially deny
the uncharged acts of indecent exposure, and the testimony of
A.L. regarding the uncharged incidents of indecent exposure was
supported by information from both A.L. and in police reports,
this information was properly included in the presentence report.
Finally, we address Hinsons challenge to the probation
condition that requires Hinson to arrange all contact with his
children through their mother, A.L., until the dependents reach
eighteen years of age. The State requested that Judge Joannides
limit contact between Hinson and his children unless it was
arranged through their mother based on an allegation that Hinson
had sexually abused one of his daughters. Judge Joannides found
that the allegations were unsubstantiated but imposed a probation
condition that Hinson arrange contact with his children through
A.L. since she was the primary custodian of the children and
Hinson would be incarcerated.
A sentencing court has broad authority to fashion
conditions of probation so long as the conditions are reasonably
related to the probationers rehabilitation or the protection of
the public.28 Hinson asserts that the probation condition
regulating Hinsons access to his dependents is not reasonably
related to his rehabilitation and violates his constitutional
rights of privacy, liberty, and freedom of association.
The State argues that such a restriction was justified
and points to the fact that Judge Joannides found that Hinson had
exposed himself to women on more than one occasion.
A persons right to the care and custody of their own
child is a fundamental right recognized by both the federal and
state constitutions.29 The right is one of the most basic civil
liberties and clearly falls within the protections of the [D]ue
[P]rocess [C]lause and should be accorded significant weight.30
Probation conditions that restrict constitutional rights are
subject to special scrutiny.
As this Court stated in Thomas v. State:
A sentencing judge has broad authority to
fashion special conditions of probation.
However, conditions of probation must be
reasonably related to the rehabilitation of
the offender and the protection of the
public and ... not unduly restrictive of
liberty. Conditions which restrict
constitutional rights are subject to special
scrutiny to determine whether the
restriction serves the goals of
rehabilitation of the offender and
protection of the public. [31]
In this case, it does not appear that the condition of
probation limiting Hinsons contact with his children through
their custodial parent was reasonably related to Hinsons
rehabilitation or the protection of the public. Hinson was
convicted of murdering Shangin, and it is not clear how
regulating his contact with his children will protect the public
or ensure Hinsons rehabilitation. The practical reality is that
Hinson will be in custody long after his children turn eighteen,
and any contact Hinson may have with them will require their
mothers cooperation. By the time Hinson is eligible for release
on parole or probation, his children will be adults.
Because the record does not support a conclusion that
the probation condition protects the public or ensures Hinsons
rehabilitation, we direct the superior court to vacate the
condition.
Conclusion
We AFFIRM Hinsons conviction and 70-year term to
serve. We VACATE the 40-year parole restriction and the
probation condition regulating Hinsons contact with his
dependents.
_______________________________
1 AS 11.41.110(a)(2).
2 AS 11.41.100(a)(1)(A), AS 11.41.110(a)(2), and AS
11.41.120(a)(1), respectively.
3 See Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).
4 Id. at 898.
5 Stern v. State, 827 P.2d 442, 447 (Alaska App. 1992).
6 641 P.2d 823 (Alaska App. 1982).
7 Id. at 840.
8 See Gregory v. State, 689 P.2d 508, 509 (Alaska App.
1984).
9 649 P.2d 951 (Alaska App. 1982).
10 Id. at 952-53.
11 Id. at 953.
12 Id.
13 Id.
14 Id. at 955.
15 Id. at 956; see also State v. Wortham, 537 P.2d 1117,
1120-21 (Alaska 1975).
16 Faulkenberry, 649 P.2d at 957.
17 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).
18 827 P.2d 442 (Alaska App. 1992).
19 Id. at 450.
20 157 P.3d 1053 (Alaska App. 2007).
21 Id. at 1054.
22 Id.
23 Id.
24 Nukapigak v. State, 562 P.2d 697, 701 n.2 (Alaska
1977), affd on rehg, 576 P.2d 982 (Alaska 1978).
25 Nukapigak, 576 P.2d at 983.
26 Id.
27 Id.
28 Thomas v. State, 710 P.2d 1017, 1019 (Alaska App.
1985); see also Edison v. State, 709 P.2d 510, 511 (Alaska App.
1985).
29 Seth D. v. State Dept. of Health and Soc. Servs.,
Office of Children Servs., 175 P.3d 1222, 1227 (Alaska 2008).
30 Id. at 1227-28.
31 Thomas, 710 P.2d at 1019 (quoting Roman v. State, 570
P.2d 1235, 1240 (Alaska 1977)) (citing Edison, 709 P.2d at 511).
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