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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TY S. DOUGLAS,
Appellant, Court of Appeals No. A-
8799
v. Trial Court No. 1KE-
02-990 Cr
STATE OF ALASKA,
Appellee. O P I N I
End of Caption O N
No. 2231 September 4,
2009
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Larry R. Weeks,
Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. Eric
A. Ringsmuth, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
Ty S. Douglas was convicted of two counts of first-
degree sexual assault and two counts of fourth-degree assault for
separate attacks that he committed upon his girlfriend, K.I., on
June 26 and 27, 2002. A detailed description of these crimes is
| contained in Douglas v. State, 151 P.3d 495, 497-98 (Alaska App. 2006 | ), the opinion in which we affirmed Douglass convictions on appeal. | |||||
| Although we affirmed Douglass convictions in our earlier decision, we remanded Douglass case to the superior court for further sentencing proceedings because, at sentencing, the superior court violated Douglass Sixth Amendment rights as construed in Blakely v. Washington1 by relying on aggravating factors that were not tried to a jury. Douglas, 151 P.3d at 506- 07. | ||||||
| (The decision in Blakely governs Douglass case because Douglass direct appeal of his convictions was pending when Blakely was decided. | ) | |||||
| When Douglass case returned to the superior court, the court held a jury trial on the States proposed aggravating factors. With regard to the assault that was committed on June 26, 2002, the jury found no aggravators. However, with regard to the assault that was committed on June 27, 2002, the jury found three aggravators under AS 12.55.155: (c | )(1 | ) that Douglas inflicted physical injury on K.I. during the sexual assault; (c | )(2 | ) that Douglas acted with deliberate cruelty toward K.I. during the assault; and (c | )(5 | ) that Douglas knew or should have known that K.I. was a particularly vulnerable victim. |
| Because no aggravating factors applied to the June 26th sexual assault, the superior court sentenced Douglas to the unadjusted presumptive term of 8 years imprisonment. (The court also imposed a consecutive term of 1 years imprisonment for the fourth-degree assault committed on June 26th. | ) | |||||
| With regard to the June 27th sexual assault, based on the aggravating factors found by the jury, the superior court exceeded the 8-year presumptive term and sentenced Douglas to 30 years imprisonment with 15 years suspended. For reasons that we explain in this opinion, the superior court declined to sentence Douglas for the fourth-degree assault committed on June 27th. | ||||||
| The superior court imposed the sentence for the June 27th sexual assault consecutively to the sentences for Douglass June 26th crimes. Thus, Douglass composite sentence was 24 years to serve and another 15 years suspended. | ||||||
| Douglas now appeals. In this appeal, Douglas contends that the superior court lacked the legal authority to hold a jury trial on the States proposed aggravating factors. Douglas also contends that the jury was misinstructed concerning the scope of its decision-making authority, and that the evidence fails to support the jurys verdict on aggravator (c | )(5 | ) (i.e., that K.I. was a particularly vulnerable victim | ). In addition, Douglas argues that when the superior court re- sentenced him (based on the jurys verdicts | ), the court violated the rule announced in Juneby v. State2 the rule that a sentencing judge should not rely on an aggravating factor when that factor is premised on conduct for which the defendant has been separately convicted and sentenced. Finally, Douglas argues that his composite sentence is excessive. | ||
| For the reasons explained here, we reject Douglass contentions, and we therefore affirm the judgement of the superior court. | ||||||
Douglass argument that the
superior court had no legal authority to hold a jury
trial to decide the States proposed aggravating factors
Alaskas original presumptive sentencing
statutes (which were enacted in 1978, and which took
effect on January 1, 1980),3 did not comport with the
United States Supreme Courts later decision in Blakely
v. Washington. These statutes called for aggravating
factors to be tried to the sentencing judge rather than
to a jury, and the statutes specified that the burden
of proof applicable to aggravating factors was clear
and convincing evidence rather than proof beyond a
reasonable doubt.
Both of these aspects of the presumptive
sentencing laws violated the holding in Blakely the
holding that, under the Sixth Amendment to the United
States Constitution, criminal defendants have a right
to demand a jury trial, and to demand proof beyond a
reasonable doubt, on any factual issue that, if
resolved against them, will increase the maximum
punishment for their crime.4
In March 2005, the Alaska Legislature amended
the presumptive sentencing statutes for the purpose of
bringing them into conformity with Blakely.5 Under the
revised presumptive sentencing law, many aggravating
factors must now be tried to a jury.6 But Douglass
case is governed by the pre-March 2005 version of the
law, which had no provision for jury trials of
aggravating factors.
Douglas argues that, because his case is
governed by the pre-March 2005 version of the law, and
because that version of the law contained no provision
for jury trials of aggravating factors, the superior
court had no authority to convene a jury trial to
decide the aggravating factors in his case and it was
improper for this Court to remand Douglass case to the
superior court for this purpose. Douglas contends
that, under the circumstances of his case, the superior
court was obliged to ignore the States proposed
aggravating factors, and to sentence Douglas to the
unadjusted 8-year presumptive term on each of the two
first-degree sexual assault convictions.
To support these contentions, Douglas relies
on the state law of Washington. The Washington Supreme
Court has held that, because Washingtons pre-Blakely
sentencing laws made no provision for jury trials of
aggravating factors, the Washington courts have no
authority to cure Blakely errors by convening juries to
reconsider the aggravating factors that were earlier
decided (improperly) by sentencing judges.7
But in State v. Moreno, 151 P.3d 480 (Alaska
App. 2006), this Court considered this same issue, and
we reached a different conclusion.
In Moreno, we acknowledged that Alaskas pre-
March 2005 presumptive sentencing laws violated Blakely
because they did not provide for jury trials of
aggravating factors, and because they specified that
aggravating factors could be established by clear and
convincing evidence (rather than requiring proof beyond
a reasonable doubt).8 The problem presented in Moreno
was that, based on the fact that the presumptive
sentencing statutes violated Blakely, the superior
court concluded that the presumptive sentencing laws as
a whole were unconstitutional.
The superior court concluded that the
statutory procedures for adjudicating aggravating
factors (procedures that were invalid under Blakely)
were so crucial to the overall functioning of
presumptive sentencing that they could not be severed
or amended by judicial decision, and thus the entire
presumptive sentencing structure had to be struck down.
Moreno, 151 P.3d at 481. We disagreed, and we held
that the constitutionally flawed procedures specified
in the pre-March 2005 statutes could be replaced by
jury trial procedures conforming to the requirements of
Blakely. Id.
Moreno, like Douglas, argued that it was
beyond the proper scope of judicial authority for a
court to amend the statutory procedures for litigating
aggravating factors. Id. at 482. But based on the
Alaska Supreme Courts decision in R.L.R. v. State,9 we
concluded that it was within our judicial authority to
alter [the] litigation procedures [pertaining to
aggravating factors] to ensure that they conform to
constitutional guarantees[, and] to order that
defendants receive a jury trial on proposed aggravating
factors that are not Blakely-compliant. Moreno, 151
P.3d at 482. Accordingly, we upheld the pre-2005
version of the presumptive sentencing law with the
proviso that defendants must receive a jury trial on
aggravating factors if mandated by Blakely. Id. at
483.
Based on our holding in Moreno, and for the
reasons articulated in that decision, we reject
Douglass argument that the superior court had no
authority to convene a jury to decide the aggravating
factors in Douglass case. It was both proper and
necessary for the superior court to hold a jury trial
on those aggravating factors.
Douglass argument that the superior court committed
error by giving an instruction to the jury which
(according to Douglas) told the jurors that they had no
authority to re-evaluate whether Douglas was guilty of
the underlying sexual assaults
During an early stage of the proceedings on
remand (i.e., when the parties began their renewed
litigation of the aggravating factors), Douglas
contended that he should be allowed to argue to the
sentencing jury that he was not guilty of the two
underlying sexual assaults, even though the first jury
had found him guilty of these offenses.
(Douglas did not contend that the second jury
should be allowed to re-evaluate his guilt of the
sexual assaults in the sense of re-evaluating whether
he should be convicted of those offenses. Rather,
Douglas argued that the second jury should be allowed
to reject the States proposed aggravating factors if
the jurors believed that Douglas was not guilty of the
underlying sexual assaults.)
Superior Court Judge Larry R. Weeks, the
judge who presided over the renewed sentencing
proceedings, agreed with Douglas: the judge ruled
that, despite Douglass conviction of the sexual
assaults (and this Courts affirmance of those
convictions on appeal), Douglas remained free to argue
to the second jury [that] he didnt do it.
Judge Weeks adhered to this position when,
during the jurys deliberations, the jury sent a note
asking:
Do we have to assume [that] the rape
happened because of [Douglass] previous
conviction? If we doubt [that] there was a
sexual assault, does that negate all of the
new charges? Are we allowed to have that
doubt?
In response to this note, Judge Weeks
instructed the jury: You must find that any
aggravating factors occurred during the
course of a sexual assault[, and therefore,]
if you have reasonable doubts about whether a
sexual assault occurred[,] you may not find
that aggravating factors apply.
But the following day, the jury
sent a second question on this issue. This
time, the jurys note asked: [M]ust this jury
agree whether a sexual assault occurred
beyond a reasonable doubt?
Douglas argued that the correct
answer to this question was yes; in other
words, Douglas argued that the jury had to be
convinced beyond a reasonable doubt that he
was guilty of the underlying sexual assaults.
The State argued that the answer was no that
the sentencing jury was not authorized to set
aside the findings of guilt made by the first
jury and affirmed on appeal.
Judge Weeks gave the following
response to the jurys question:
The defendant was convicted by an
earlier jury [which found] beyond a
reasonable doubt that he had penetrated the
victim without her consent. In order for you
to find aggravating factors[,] you must find
that [the proposed aggravators] were
committed during the commission of sexual
assault in the first degree.
The jury sent no further
communications to the court concerning this
issue. As we noted earlier, the jury found
no aggravators with respect to the June 26th
sexual assault, but they found three of the
States five proposed aggravators with respect
to the June 27th sexual assault.
On appeal, Douglas argues that
Judge Weekss final instruction to the jury
was erroneous because (according to Douglas)
it directed the jurors to acquiesce in the
earlier jurys determination that Douglas was
guilty of the two underlying sexual assaults.
Douglas points to the clause of the
instruction which reads, you must find that
[the proposed aggravators] were committed
during the commission of sexual assault in
the first degree. In his brief, Douglas
italicizes the word must, and he argues that
the jurors would have taken this word as a
command to set aside whatever doubts they had
on this issue, and to acquiesce in the trial
jurys earlier verdicts. In other words,
Douglas construes this instruction to mean
that, when the jurors deliberated on the
aggravators, they were obliged to follow the
earlier jurys verdicts and to presume that
Douglas was committing sexual assault at the
time of the alleged aggravating conduct.
We reject Douglass suggested
interpretation of Judge Weekss instruction
because it rests on taking one phrase of the
instruction you must find out of context.
Contrary to Douglass position, this phrase
was not a command to the jurors that they
were required to presume that Douglas was
engaged in sexual assault at the time of the
aggravating conduct. Rather, it was a
reminder to the jurors that they could not
lawfully return a verdict in the States favor
on these aggravating factors unless they
found that Douglas was engaged in sexual
assault at the time of the aggravating
conduct.
It is true that Judge Weekss
instruction reminded the jurors that Douglass
trial jury had found him guilty of the two
sexual assaults beyond a reasonable doubt.
But the jurors had already been informed of
this. The real question is whether this
second instruction negated or contradicted
Judge Weekss earlier instruction to the
jurors on this issue the instruction which
told the jurors that they were free to re-
evaluate the trial jurys conclusion, and that
if [they had] reasonable doubts about whether
a sexual assault occurred[, they could] not
find ... aggravating factors.
Contrary to Douglass proposed
reading of the second instruction, we do not
believe that this second instruction can
reasonably be interpreted to negate or
contradict what Judge Weeks told the jurors
earlier. Thus, viewing the instructions on
this issue as a whole (which we are obliged
to do),10 we conclude that Judge Weekss
instructions allowed the jurors to re-
evaluate the decision earlier reached by
Douglass trial jury.
This is not to say that we
necessarily agree with Judge Weekss
resolution of this issue. That is, we do not
necessarily agree that Douglass sentencing
jury was entitled to re-evaluate whether
Douglas was factually guilty of the two
underlying sexual assaults.
The earlier jury found, beyond a
reasonable doubt, that Douglas had committed
the two sexual assaults, and we affirmed
those verdicts on appeal. When we remanded
Douglass case to the superior court, it was
purely to cure the Blakely error.
The Alaska Supreme Court recently
decided an analogous issue in L.D.G., Inc. v.
Brown, 211 P.3d 1110 (July 10, 2009). L.D.G.
arose from a lawsuit brought by the estate of
a woman who had been shot and killed. The
estate alleged that a bar operated by L.D.G.,
Inc. should be held liable for damages
stemming from the womans death, under the
theory that the bar allowed the womans
assailant to consume alcoholic beverages in
the bar just before the shooting, even though
he was visibly intoxicated.11
When this lawsuit was first tried,
the jury found that the bar was criminally
negligent in allowing the womans assailant to
consume alcoholic beverages, and the jury
also concluded that the womans assailant
would not have shot her but for his
intoxication. Nevertheless, and
paradoxically, the jury concluded that the
bars negligent action was not a contributing
factor in the womans death; the jury returned
a verdict in favor of the bar on the issue of
liability.12 (Because of this verdict, the
jury did not reach the issue of damages.)
The womans estate immediately filed
a motion asking the superior court to set
aside the verdict, to enter judgement (on the
issue of liability) in favor of the estate,
and to set a new trial on the issue of
damages. The superior court granted this
motion: the superior court concluded that,
given the jurys findings that the bar was
negligent when it served the womans
assailant, and that the shooting would not
have occurred but for the assailants
intoxication, then (as a legal matter) the
bars negligent action had to be a
contributing factor in the womans death.13
At the beginning of the new trial
on damages, the superior court ruled over
the bars objection that the new trial would
be limited to the question of damages, that
the issue of liability was irrelevant
(because that issue had already been
decided), and that the bar therefore would
not be allowed to introduce evidence at the
new trial regarding the circumstances
surrounding the womans death.14
On appeal, the bar challenged the
superior courts ruling, but the supreme court
upheld the superior courts decision to limit
the litigation to the issue of damages, and
to exclude the bars proposed evidence
regarding the circumstances surrounding the
womans death:
[The bar] appears to have sought
introduction of the evidence in order to
relitigate questions of causation, including
the degree to which the actions of [the bars
employee] ... contributed to [the womans]
death. Because the jury and the trial
[judge] had already determined [the] legal
cause [of the womans death] and established
[the bars] liability [for that death] in the
original trial, ... the superior court did
not err in excluding evidence pertaining to
the circumstances of [the womans] death from
the trial on damages.
L.D.G., 211 P.3d at 1123.
Given the supreme courts ruling in
L.D.G., it appears that Douglas may not have
been entitled to ask the second jury to re-
evaluate whether he was factually guilty of
the two sexual assaults. However, we are not
required to resolve this issue. Regardless
of whether Douglas was entitled to ask the
second jury to re-assess his factual guilt of
the sexual assaults, Judge Weeks in fact
allowed Douglas to make this argument to the
jury, and the jury instructions authorized
the jurors to refuse to find aggravating
factors if they believed that Douglas was not
factually guilty of the underlying sexual
assaults. Thus, any error ran in Douglass
favor.
The relationship between the jurys verdict on
aggravating factor (c)(1) the jurys finding that
Douglas inflicted physical injury on K.I. during
the June 27th sexual assault and Douglass
conviction for fourth-degree assault on K.I. based
on that same June 27th incident
Under AS 12.55.155(c)(1), a felony offense is
aggravated for presumptive sentencing purposes if
a person, other than an accomplice, sustained
physical injury as a direct result of the
defendants conduct. In the Blakely jury trial
that was held following our remand of Douglass
case, the jury concluded that the State had proved
this aggravator with respect to the June 27th
sexual assault.
(Under AS 12.55.155(e), a sentencing court is
prohibited from relying on an aggravating factor
that is based on a necessary element of the
defendants underlying felony. But in State v.
Woods, 667 P.2d 184, 187-88 (Alaska 1983), the
supreme court held that the infliction of physical
injury is not a necessary element of the crime of
first-degree sexual assault, and thus a sentencing
court can properly rely on aggravator (c)(1) when
sentencing a defendant for that crime.)
In addition to this sexual assault, Douglas
was convicted of the misdemeanor offense of fourth-
degree assault, AS 11.41.230(a)(1), stemming from
the same June 27th attack on K.I.. This
subsection of the fourth-degree assault statute
defines the offense as recklessly caus[ing]
physical injury to another person.
Given the facts of Douglass case (in
particular, the fact that the sexual assault and the
fourth-degree assault were simply different components
of the same attack, and the fact that Douglas was the
sole assailant and K.I. the sole victim), essentially
the same conduct formed the basis for both aggravator
(c)(1) and the fourth-degree assault conviction. (The
primary difference is that, for the fourth-degree
assault conviction, the State had to prove that Douglas
acted recklessly with respect to the possibility that
his conduct would cause physical injury.)
In Juneby v. State,641 P.2d 823, 842-43
(Alaska App. 1982), modified on rehearing, 665 P.3d 30,
38 (Alaska App. 1983), this Court held that a
sentencing court should not rely on an aggravating
factor to increase a presumptive term of imprisonment
if that aggravating factor is based on conduct for
which the defendant is being separately punished. In
our earlier decision in Douglass case, we noted that it
would apparently violate the rule announced in Juneby
if the superior court increased Douglass sentence for
the sexual assault based on aggravator (c)(1) and, at
the same time, imposed a separate sentence for the
fourth-degree assault. Douglas, 151 P.3d at 505.
However, we did not have to resolve this issue, because
we vacated the superior courts sentencing decision for
other reasons. Id.
On remand, Judge Weeks submitted aggravator
(c)(1) to the jury. This is the procedure called for
in AS 12.55.155(f)(2) although, under the facts of
Douglass case, an argument could be made that Judge
Weeks might properly have found aggravator (c)(1)
without submitting this aggravator to a jury, since the
factual basis for this aggravator was seemingly
encompassed by the original trial jurys guilty verdict
on the fourth-degree assault charge. See Cleveland v.
State, 143 P.3d 977, 982 (Alaska App. 2006).
The jury found that the State had proved
aggravator (c)(1) with respect to the June 27th sexual
assault, and thus Judge Weeks was forced to confront
the Juneby issue. It is true that, at Douglass
original sentencing, he received a concurrent 1-year
sentence of imprisonment for the June 27th fourth-
degree assault;15 in other words, this fourth-degree
assault sentence did not increase Douglass composite
sentence for his crimes. But this fact did not solve
the Juneby problem because the Juneby rule applies
even when the separate punishment is a completely
concurrent sentence.16
Judge Weeks decided to resolve the Juneby
problem by completely vacating Douglass conviction for
the June 27th fourth-degree assault, so that he could
then rely on aggravator (c)(1) to enhance Douglass
sentence for the June 27th sexual assault. The State
did not ask the judge to do this, but the State did not
object to the judges action.
On appeal, Douglas argues that Judge Weekss
action violated the constitutional doctrine of
separation of powers. Douglas relies on the fact that
the executive branch of government has sole discretion
regarding charging decisions in criminal cases.17 He
points out that the State made the decision to file
separate charges of sexual assault and fourth-degree
assault based on the June 27th attack, and he argues
that the superior court had no authority to alter the
States decision.
Given our supreme courts holding in State v.
Woods that the infliction of physical injury is not a
necessary element of the crime of first-degree sexual
assault,18 the State had an obvious interest in
prosecuting Douglas for both first-degree sexual
assault (based on the act of sexual penetration) and
fourth-degree assault (based on the infliction of
physical injury). But Judge Weeks did not attempt to
impede the States prosecution of these separate
charges. Rather, the judicial action that Douglas
challenges in this appeal took place after the State
prosecuted these charges and obtained guilty verdicts
on both of them.
In important respects, the Juneby problem
confronting Judge Weeks was analogous to the problem
that confronts sentencing judges under the Whitton rule
the Alaska rule that defines when separate offenses
should be deemed the same crime for purposes of our
states double jeopardy clause.19
Under Alaska law, the State is allowed to
pursue an indictment which separately charges different
theories of the same crime, or which charges separate
crimes that clearly will be treated as the same crime
for sentencing purposes under Whitton if the defendant
is convicted of each.20 In other words, the State is
allowed to litigate, and obtain jury verdicts on,
separate crimes or separate theories of a crime even
though it is known beforehand that, if the defendant is
convicted of these various counts, the law will
preclude the sentencing judge from imposing separate
convictions on each verdict.
In these situations, when a sentencing judge
follows Whitton and declines to enter a separate
conviction on each jury verdict, the judges action does
not infringe the executive branchs prosecutorial
discretion. The judge has not prevented the State from
choosing the appropriate charges, or from litigating
those charges and obtaining jury verdicts on them.
Rather, the sentencing judges authority under the
double jeopardy clause comes into operation after the
jury returns its verdicts, when the judge is asked to
enter judgement on those verdicts. At that time, the
judge is authorized to merge one or more of the
verdicts so that the defendant receives only the number
of convictions and sentences allowed by the double
jeopardy clause.
Often, when a sentencing judge complies with
Whitton and enters a single judgement based on two or
more verdicts, there will be no dispute as to the
offense for which judgement should be entered either
because the various verdicts simply represent different
theories of the same offense, or because one of the
verdicts is for an offense that is clearly of a more
serious category than the others. But in situations
where it is not clear which offense the defendant
should stand convicted of, Alaska case law suggests
that the State should be able to choose the offense for
which the court enters judgement and sentences the
defendant.21
On this point, it is possible that the Juneby
rule should operate differently from the Whitton rule.
In Juneby situations, the problem lies in the overlap
between one offense and an aggravating factor that
applies to another offense. Because of this, both the
prosecuting agency and the sentencing court arguably
have authority to choose the outcome.
As Douglas notes in his brief, the State
decided to charge him with fourth-degree assault in
addition to first-degree sexual assault. Because the
executive branch has the authority to choose which
charges to file and litigate, one can argue that the
State should be able to insist that judgement be
entered on the fourth-degree assault charge, in
accordance with the trial jurys verdict even though
this means that the sentencing judge will be forbidden
from relying on aggravating factor (c)(1) when the
judge sentences Douglas for the first-degree sexual
assault.
But under Alaska law, a sentencing court has
an independent obligation to make sure that all
applicable aggravating and mitigating factors are
considered at a felony sentencing, regardless of the
wishes of the parties. In Hartley v. State, 653 P.2d
1052, 1056 (Alaska App. 1982), and again in Love v.
State, 799 P.2d 1343, 1346 (Alaska App. 1990), this
Court held that, despite the willingness of the parties
to ignore the existence of applicable aggravating and
mitigating factors, a sentencing court must
independently evaluate the aggravators and mitigators
revealed by the evidence. Conceivably, in Juneby
situations, this doctrine might give a sentencing judge
overriding authority to decline to enter judgement on
another, overlapping offense if the judge concludes
that it is necessary to consider the corresponding
aggravating factor in order to achieve a fair felony
sentence.
We need not resolve this issue in Douglass
case because, when Judge Weeks announced that he
intended to vacate the judgement on the fourth-degree
assault charge so that he could consider aggravating
factor (c)(1) when he sentenced Douglas for the first-
degree sexual assault charge, the prosecutor did not
object, and the State has not cross-appealed the judges
decision.
Based on the States inaction, we conclude
that the State acquiesced in Judge Weekss resolution of
the Juneby issue. For this reason, we need not decide
whether, in Juneby cases where the State insists on a
judgement for the separate offense and announces a
willingness to relinquish any reliance on the
corresponding aggravating factor, a judge would violate
the doctrine of separation of powers if the judge
followed the same course as Judge Weeks did in this
case.
In his reply brief, Douglas asserts for the
first time that Judge Weeks violated the double
jeopardy clause when he vacated the previously entered
judgement for the June 27th fourth-degree assault. (We
say for the first time even though we acknowledge that
Douglas referred to double jeopardy in the section
heading of his opening brief that introduces Douglass
discussion of the Juneby problem. Even though the
section heading mentions double jeopardy, the text that
follows this section heading contains no argument based
on the double jeopardy clause; instead, Douglas relies
entirely on the doctrine of separation of powers and
this Courts decision in Juneby.)
Douglas also asserts for the first time in
his reply brief that there was an overlap (for Juneby
purposes) between the fourth-degree assault charge and
aggravating factor (c)(2) the deliberate cruelty
aggravator.
Because both of these contentions are raised
for the first time in Douglass reply brief, they are
waived, and we do not address them further.22
Douglass argument that there was insufficient evidence
to sustain the jurys verdict on aggravating factor
(c)(5) (particularly vulnerable victim) or, in the
alternative, that it was improper for Judge Weeks to
rely on this aggravator
Under the pre-2008 version of AS
12.55.155(c)(5), the version that applies to Douglass
case, a felony offense is aggravated for presumptive
sentencing purposes if the defendant knew or should
have known that the victim of the offense was
particularly vulnerable or incapable of resistance due
to advanced age, disability, ill health, or extreme
youth[,] or was for any other reason substantially
incapable of exercising normal physical or mental
powers of resistance.23
In Douglass case, the jury found aggravator
(c)(5) with respect to the June 27th sexual assault
under the theory that Douglass victim, K.I., was
substantially incapacitated by ... emotional,
psychiatric[,] or psychological condition[s] when
Douglas sexually assaulted her.
On appeal, Douglas argues that the State
failed to present evidence of any specific emotional,
psychiatric, or psychological condition that rendered
K.I. particularly vulnerable.
Although the State may not have pointed to a
specific psychiatric diagnosis or defined mental
condition, the record contains evidence that Douglas
repeatedly engaged in manipulative, controlling, and
violent behavior toward K.I. during their relationship.
He subjected her to frequent beatings and sexual
assaults. Following one episode of physical abuse (in
March 2002), K.I. obtained a domestic violence
protective order against Douglas, but Douglas prevailed
on her to dissolve this protective order.
Their relationship continued to be volatile,
and, at one point, K.I. even moved out of her own house
and went to stay in a hotel for a while to get away
from Douglas, after Douglas refused to leave the house.
After the sexual assaults in the present case (June
2002), Douglas continued to contact K.I. from jail, and
he asked K.I. to recant her allegations of sexual
assault which she did.
Based on the tenor of Douglass and K.I.s long-
term relationship, a jury might be justified in
concluding that Douglas exerted control over K.I. to
such an extent that she suffered emotional or
psychological vulnerability.
This Court addressed an analogous situation
in Williams v. State, 859 P.2d 720 (Alaska App. 1993).
Like Douglass appeal, the Williams case involved a
challenge to the States evidentiary basis for
aggravator (c)(5). The defendant in Williams committed
sexual assault on his nineteen-year-old stepdaughter,
but this assault was not an isolated incident.
Williams began sexually assaulting his stepdaughter
when she was six or seven years old, and he continued
to assault her on a regular basis, both physically and
sexually, for the next twelve years, until he was
finally charged.24
In his appeal, Williams argued that his
stepdaughter should not be considered particularly
vulnerable because, by the time of the charged sexual
assault, she was nineteen years old.25 This Court
ruled, however, that a reasonable fact-finder could
properly find aggravator (c)(5) i.e., could find that
Williamss stepdaughter was particularly vulnerable
based on the long-term abuse she had suffered at
Williamss hands. We declared that Williams background
of abuse toward his victim [bore] an intrinsic
relationship to his assault and to his victims response
to that assault. Id., 859 P.2d at 722.
Our decision in Williams supports the
conclusion that Douglass long-term physical and sexual
abuse of K.I. could properly form the evidentiary basis
for the jurys verdict on aggravator (c)(5). We
therefore hold that a jury could reasonably find
aggravator (c)(5) in Douglass case.
Douglas points out that, although the jury
found aggravator (c)(5) with respect to the second
sexual assault (the one committed on June 27th), the
jury did not find this aggravator with respect to the
first sexual assault (the one committed on June 26th).
Based on this discrepancy in the jurys verdicts,
Douglas argues that the jury must have concluded that
the June 26th sexual assault was, itself, a primary
factor in rendering K.I. particularly vulnerable on
June 27th. And based on this premise, Douglas then
argues that Judge Weeks violated the Juneby rule when
he relied on aggravator (c)(5) in sentencing Douglas
since Douglas was being separately punished for the
June 26th sexual assault.
Even if Douglass premise were correct that
is, even if the jury believed that the June 26th sexual
assault was a primary reason why K.I. was a
particularly vulnerable victim on June 27th there
would be no violation of Juneby if Judge Weeks took
this aggravator into account when he sentenced Douglas
for the June 27th sexual assault.
Even under Douglass view of the evidence and
the jurys verdicts, aggravator (c)(5) was not proved by
the fact that Douglas sexually assaulted K.I. on June
26th. Rather, aggravator (c)(5) was based on the
result of that June 26th sexual assault the fact that
K.I. was in a heightened state of psychological or
emotional vulnerability on June 27th (the date of the
second sexual assault).
The physical or emotional aftermath of a
sexual assault is not an element of the offense itself.
Compare State v. Woods, 667 P.2d at 187-88, where our
supreme court held that the infliction of physical
injury is not a necessary element of the crime of first-
degree sexual assault. Thus, Douglass premise that
K.I.s heightened vulnerability stemmed from the fact
that Douglas had sexually assaulted her the day before
does not lead to the conclusion that he suffered double
punishment for that earlier sexual assault when Judge
Weeks relied on aggravator (c)(5).
Under Juneby, the fact that a defendant has
already been punished for an earlier crime does not bar
a sentencing judge from considering aggravating factors
that flow from the defendants commission of the earlier
crime. Thus, for example, Juneby does not bar a
sentencing judge from considering aggravator (c)(7)
(prior conviction for a felony of a more serious class
than the present offense), or aggravator (c)(8) (prior
commission of aggravated assault or repeated acts of
assault), or aggravator (c)(15) (three or more prior
felony convictions).
Similarly, there are times when a defendants
commission of an earlier crime will result in a
persisting physical or emotional injury that leaves the
victim in a heightened state of vulnerability. If, on
a later occasion, the defendant takes advantage of that
heightened vulnerability to commit another crime upon
the same victim, a sentencing judges consideration of
this fact i.e., the judges consideration of aggravator
(c)(5) does not violate the Juneby rule, even though
the defendant has been, or is being, punished for that
earlier crime as well.
We therefore hold that, even if the jurys
verdicts are construed as Douglas suggests (that is,
even if we assume that K.I.s heightened psychological
or emotional vulnerability on June 27th was the result
of Douglass previous sexual assault on her the day
before), Judge Weeks did not violate the Juneby rule
when he considered aggravator (c)(5) when formulating
Douglass sentence for the June 27th sexual assault.
Whether Douglass composite sentence is excessive
Douglas was sentenced for three offenses:
the first-degree sexual assault committed on June 26th,
the fourth-degree assault committed that same day, and
the first-degree sexual assault committed on June 27th.
At the time of Douglass offenses (June 2002),
the maximum sentence for first-degree sexual assault
was 30 years imprisonment and, as a first felony
offender, Douglas faced a presumptive term of 8 years
imprisonment on each of the two counts.26 Fourth-
degree assault is a class A misdemeanor, with a maximum
penalty of 1 years imprisonment.27
Because the jury found no aggravators with
respect to the June 26th sexual assault, and because
there were no mitigators, Judge Weeks was obliged to
sentence Douglas to the 8-year presumptive term of
imprisonment for this offense. However, because the
jury found aggravators with respect to the June 27th
sexual assault, Judge Weeks was empowered to impose any
term of imprisonment up to the 30-year maximum sentence
for this offense.28
As we have already noted, Judge Weeks found
Douglas to be a worst offender for sentencing purposes.
This finding authorized Judge Weeks to impose a
composite sentence of imprisonment of up to 30 years to
serve the maximum sentence for Douglass single most
serious offense (i.e., the aggravated sexual assault
committed on June 27th).29
Nevertheless, Judge Weeks did not exercise
the full extent of this authority. Instead, he
sentenced Douglas to a composite 24 years to serve: 8
years to serve for the June 26th sexual assault, a
consecutive 1 year to serve for the fourth-degree
assault committed that same day, and a consecutive
sentence of 30 years with 15 years suspended (i.e., 15
years to serve) for the June 27th sexual assault.
On appeal, Douglas argues that this 24-year
composite sentence is excessive. But when Judge Weeks
originally sentenced Douglas in 2004, the judge imposed
a more severe composite sentence 30 years to serve
and, in Douglass first appeal, we upheld this sentence,
concluding that it was not clearly mistaken. Douglas
v. State, 151 P.3d at 505. Seemingly, then, it follows
that Douglass new, lesser sentence is not clearly
mistaken.
Douglas argues that Judge Weeks did not
sufficiently consider the testimony of Dr. Fred Wise, a
neuropsychologist who testified at Douglass second
sentencing hearing and who suggested that Douglass
criminal behavior was attributable to a combination of
alcoholism and treatable psychiatric conditions. But
in his sentencing remarks, Judge Weeks specifically
referred to Dr. Wises testimony and recommendations.
Judge Weeks did not disregard the psychologists
testimony. Rather, the judge weighed that testimony,
and Douglass potential for rehabilitation, against the
other sentencing criteria. In particular, Judge Weeks
weighed the potential for Douglass rehabilitation
against the danger that Douglas would pose until he was
successfully treated.
Having reviewed the record of Douglass 2007
sentencing, and having reviewed again the record of
Douglass original sentencing in 2004, we conclude that
Judge Weeks was not clearly mistaken when he sentenced
Douglas to a composite term of 24 years to serve.
Accordingly, we uphold this sentence.30
Conclusion
For the reasons explained here, the judgement
of the superior court is AFFIRMED.
_______________________________
1 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
2 641 P.2d 823, 842-43 (Alaska App. 1982), modified on
rehearing 665 P.2d 30 (Alaska App. 1983).
3 SLA 1978, ch. 166, 12 (the presumptive sentencing statutes
themselves) and 25 (declaring that the new criminal code
and sentencing statutes would govern offenses committed on
or after January 1, 1980).
4 Blakely, 542 U.S. at 303-04, 124 S.Ct. at 2537.
5 See SLA 2005, ch. 2. Pursuant to 33 of that session law,
the revised presumptive sentencing statutes took effect on
March 23, 2005.
6 See AS 12.55.155(f)(2).
7 See State v. Womac, 160 P.3d 40, 50 (Wash. 2007); State v.
Pillatos, 150 P.3d 1130, 1134-35 (Wash. 2007); State v.
Hughes, 110 P.3d 192, 208 (Wash. 2005).
8 Moreno, 151 P.3d at 481.
9 487 P.2d 27, 32-33 (Alaska 1971).
10 See Edwards v. State, 158 P.3d 847, 857 (Alaska App.
2007); Brown v. Anchorage, 915 P.2d 654, 660 (Alaska
App. 1996).
11 L.D.G., 211 P.3d at 1116.
12 Id.
13 Id. at 1116-17.
14 Id. at 1117, 1121.
15Douglas, 151 P.3d at 504.
16Ritter v. State, 97 P.3d 73, 82 (Alaska App. 2004); Juneby
(on rehearing), 665 P.2d at 38.
17See State v. District Court, 53 P.3d 629, 631 (Alaska App.
2002) (Both the Alaska Supreme Court and this Court have
declared that charging decisions are committed to the
discretion of the executive branch; so long as these
decisions are exercised within constitutional bounds, they
are not subject to judicial control or review.).
18667 P.2d at 187-88.
19Whitton v. State, 479 P.2d 302, 312-13 (Alaska 1970).
20Garhart v. State, 147 P.3d 746, 752-53 (Alaska App. 2006).
21See Dunn v. Alaska, 653 P.2d 1071, 1089 (Alaska App. 1982),
where this Court stated: On appeal, the state has confessed
error [on the Whitton] issue and has requested that the
judgment ... entered [on] the lesser offense of theft be
vacated[.] ... Remand of this case to permit the superior
court to vacate the judgment entered for the offense of
theft ... appears to be the appropriate remedy. See
Tuckfield v. State, 621 P.2d 1350, 1352-53 (Alaska 1981);
Robinson v. State, 484 P.2d 686 (Alaska 1971). Accordingly,
the case will be remanded for this purpose.
22See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d
406, 411 (Alaska 1990); Hitt v. J.B. Coghill, Inc., 641
P.2d 211, 213 n. 4 (Alaska 1982); Charliaga v. State, 157
P.3d 1053, 1055-56 (Alaska App. 2007).
23The legislature amended aggravator (c)(5) in 2008 by adding
homelessness to the list of circumstances that may render a
victim particularly vulnerable. See SLA 2008, ch. 58, 1.
24Williams, 859 P.2d at 721-22.
25Id. at 722.
26See AS 12.55.125(i)(1) (2002).
27See AS 11.41.230(b) (declaring that fourth-degree assault is
a class A misdemeanor) and AS 12.55.135(a) (providing a
maximum penalty of 1 years imprisonment for class A
misdemeanors).
28See AS 12.55.155(a)(2) (2002).
29See State v. Wortham, 537 P.2d 1117, 1120-21 (Alaska 1975).
30See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an
appellate court is to affirm a sentencing decision unless
the decision is clearly mistaken).
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