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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN LEOPOLD, )
) Court of Appeals No. A-10556
Appellant, ) Trial Court No. 4EM-08-108 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2350 - April 13, 2012
Appeal from the Superior Court, Fourth Judicial District,
Bethel, Leonard Devaney III, Judge.
Appearances: Andrew Steiner, Attorney at Law, Bend, Oregon,
for the Appellant. Eric A. Ringsmuth, Assistant Attorney
General, Office of Special Prosecutions and Appeals,
Anchorage, and John J. Burns, Attorney General, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
BOLGER, Judge.
John Leopold was convicted of first-degree sexual assault, second-degree
sexual assault, and incest for the sexual assault of his sister, J.L. On appeal, Leopold
challenges the court's decision to admit several hearsay statements and to admit evidence
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of a prior sexual assault conviction. We conclude that the superior court's evidentiary
rulings were generally reasonable and that any errors were harmless. Leopold also asserts
that his sentence is excessive, but we conclude that the superior court's sentencing
decision was not clearly mistaken.
Background
On February 26, 2008, John Leopold invited his sister, J.L., to a party at his
house in Alakanuk. Other guests at the party included another of Leopold's sisters, J.L.'s
two children, and J.L.'s boyfriend, James Ayunerak. The guests at the party consumed
home brew. Everyone ultimately left the house except for Leopold, J.L., and her children.
At some point, J.L. fell asleep. The next thing J.L. remembered was waking
up with Leopold on top of her. J.L. told Leopold to stop and unsuccessfully attempted
to push him off with her hands and feet. When J.L. woke up again, it was around eight
in the morning. J.L. found her underwear on the floor, but could not recall how her
underwear was removed.
Around nine o'clock, J.L. went next door to the house of her sister. J.L.
informed her sister that Leopold had raped her. J.L. called James Ayunerak, who took
her to the local health aide. On the way to the clinic, J.L. informed Ayunerak that
Leopold raped her.
At the clinic, J.L. was examined by health aide Marlene Ayunerak. J.L. told
Marlene that "she got beat up and raped" by Leopold that morning. Shortly after J.L.'s
visit to the clinic, she was flown to Bethel for treatment.
Alaska State Trooper John Williamson spoke with J.L. over the phone
before she flew to Bethel. When Williamson asked J.L. whether Leopold penetrated her,
she said yes and that she tried to defend herself.
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At the hospital in Bethel, J.L. was examined by Colleen Palacios, a sexual
assault nurse examiner. J.L. told Palacios that her body was "achy" all over and that her
genitalia were sore. J.L. had vaginal bruising that Palacios indicated was consistent with
blunt force contact to that area.
Palacios also took a vaginal sample from J.L. DNA testing of the sample
revealed DNA consistent with both J.L. and Leopold.
Leopold was indicted on charges of first-degree sexual assault, second-
degree sexual assault, and incest. The jury ultimately convicted Leopold of all three
counts. Superior Court Judge Leonard Devaney III sentenced Leopold to a composite
sentence of 109 years with ten years suspended. Leopold now appeals.
Discussion
The court did not err when it admitted evidence of Leopold's
prior sexual assault.
Prior to trial, the State gave notice of its intent to offer evidence of
Leopold's prior bad acts pursuant to Alaska Evidence Rule 404(b). One of the acts the
State offered was an incident that occurred in November 1987. Leopold's aunt, R.R., was
sleeping on the floor when Leopold entered her residence and began to rape her. R.R.
indicated she struggled and screamed, but Leopold held her arms and covered her mouth.
When village police arrived at R.R.'s residence, they observed Leopold still lying on top
of R.R. Leopold ultimately pleaded no contest to a charge of second-degree sexual
assault.
The prosecutor argued that Leopold opened the door to the admission of
this prior sexual assault because the defense took the position that the sexual encounter
with J.L. was consensual. Leopold argued that the prior act evidence should be excluded
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as more prejudicial than probative. In the event that the court decided to admit the prior
act evidence, Leopold requested that the court limit the State's proof to the documents
related to the prior case and exclude R.R.'s testimony.
Judge Devaney concluded that the probative value of the evidence
outweighed any risk of unfair prejudice; however, he agreed to exclude the testimony of
R.R. and to limit the State to the documentary record of the prior crime. Judge Devaney
also excluded evidence of Leopold's assaults against several other victims.
During the trial, the court admitted redacted versions of the 1987 complaint,
information, and judgment of conviction. Judge Devaney informed the jury that Leopold
was convicted in 1987 of committing a second-degree sexual assault against R.R., and
then read the information and complaint to the jury. The court also provided two jury
instructions explaining the limited purpose for which the jury could consider the incident
related to R.R.
Leopold argues on appeal that Judge Devaney abused his discretion in
admitting the evidence of his sexual assault of R.R. Leopold asserts that the court failed
to consider his youth at the time of the offense, the age of the offense, and the
dissimilarity of the prior offense to the present case.
Alaska Rule of Evidence 404(b)(3) provides that, in a prosecution for
sexual assault, "evidence of other sexual assaults or attempted sexual assaults by the
defendant against the same or another person is admissible if the defendant relies on a
defense of consent." Under this provision, evidence of a defendant's character can be
used as "circumstantial evidence of the defendant's likely conduct during the episode
being litigated." 1 But the admission of evidence related to prior acts of sexual assault "is
1 Bingaman v. State , 76 P.3d 398, 415 (Alaska App. 2003).
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still limited by ... Evidence Rule 403, which requires courts to exclude evidence if its
probative value is outweighed by the danger that it will engender unfair prejudice,
confuse the issues, or mislead the jury."2
The factors that a trial judge must examine when deciding whether to admit
evidence of a defendant's other acts are the following: (1) the strength of the
government's evidence that the defendant actually committed the other acts; (2) the
character trait the other acts tend to prove; (3) whether this character trait is relevant to
any material issue in the case; (4) how seriously this issue is disputed; (5) whether
litigation of the defendant's other acts will require an inordinate amount of time; and (6)
whether the evidence of the defendant's other acts will lead the jury to decide the case
on improper grounds.3 We review the trial court's decision under Evidence Rule 403 for
abuse of discretion.4
Leopold does not challenge the court's conclusion that he raised a consent
defense, so the next step is to analyze whether the court abused its discretion in weighing
these factors. On the first factor, the State introduced strong evidence that Leopold had
sexually assaulted R.R. Outside the presence of the jury, the State offered the personal
testimony of R.R. and the court documents that showed Leopold had been convicted of
this offense. In response, Leopold did not offer any evidence disputing R.R.'s testimony
that he had sexually assaulted her.
Leopold now argues that this proof was insufficient because the only
information submitted to the jury was redacted versions of the complaint, information,
2 Bennett v. Anchorage , 205 P.3d 1113, 1117 (Alaska App. 2009) (considering the
admission of prior acts of domestic violence in an assault prosecution).
3 Bingaman , 76 P.3d at 415-16.
4 See Bennett, 205 P.3d at 1118.
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and judgment of conviction. But Judge Devaney limited the evidence that could be
presented to the jury based on Leopold's argument that R.R.'s personal testimony would
be more prejudicial than these documents. Regardless of this limitation, the judge could
reasonably conclude that there was strong evidence that Leopold had sexually assaulted
R.R.
On the second and third factors, this evidence was related to a relevant
character trait. Leopold acknowledges that his defense at trial was that J.L. fabricated her
account of what happened that evening and that her sexual encounter with Leopold was
consensual. The evidence that Leopold had sexually assaulted R.R. tended to show that
he was willing to sexually assault an incapacitated female relative and to continue with
his assault even after the woman resisted. This character trait thus involves the same type
of situational behavior at issue in this case.5 The court could properly conclude that the
similarity of these incidents was sufficient to outweigh any issue with the age of the prior
offense.6
On the fourth factor, it also appears that the issue of J.L.'s consent was
seriously disputed and that there was a need for this evidence. Leopold continues to
argue that J.L. was unable "to recall even basic events within the relevant time period
and ... had a strong motive to falsely allege that the sex was non-consensual." J.L. and
Leopold were the only witnesses to the crime and a significant portion of the case turned
on whether the jury believed J.L.'s statements, despite the gap in her memory. The
5 See Bingaman , 76 P.3d at 415 (indicating the court should analyze whether the prior
act demonstrates the same type of situational behavior at issue in the later case).
6 See Mooney v. State, 105 P.3d 149, 154 (Alaska App. 2005) (concluding that a
twenty-year-old conviction was admissible because of the similarity of the offense).
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evidence of Leopold's prior rape of R.R. was relevant to show that Leopold would
sexually assault a family member.7
On the fifth factor, the parties agree that admission of this evidence did not
take an inordinate amount of time.
On the sixth factor, Leopold argues that, because the testimony from J.L.
was weak, the jury was unfairly swayed by the prior act evidence. But this court has
previously held that "it is not fundamentally unfair to use character evidence for the
limited purpose of circumstantially suggesting the likelihood that the defendant acted
true to character during the episode being litigated."8 The evidence was not overly
inflammatory since it did not involve extremely violent or grotesque acts (outside of the
sexual assault itself). And the court also instructed the jury that they could not rely on
the evidence of Leopold's prior act, standing alone, to justify his conviction.
We conclude that Judge Devaney did not abuse his discretion in admitting
the evidence of Leopold's prior sexual assault of R.R.
The evidence of J.L.'s out-of-court statements was properly
admitted or harmless error.
Leopold challenges the admission of J.L.'s statements to James Ayunerak,
Marlene Ayunerak, and Trooper Williamson. Leopold concedes that the court did not err
in admitting the statements J.L. made to her sister or to Colleen Palacios, and Leopold
does not challenge any hearsay statements contained in J.L.'s trial testimony.
7 Id .
8 Bingaman , 76 P.3d at 416.
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J.L.'s statements to James Ayunerak
J.L. testified at trial that when James Ayunerak was driving her to the clinic,
she informed Ayunerak that her brother raped her. Leopold did not object to this
testimony. Ayunerak later testified that J.L. told him Leopold raped her. Leopold
objected on the basis that the statement was hearsay. The court allowed the State to
introduce this hearsay account of J.L.'s statement for the limited purpose of showing why
Ayunerak took J.L. to the clinic.
Leopold argues on appeal that the court should not have admitted the
statement because the reason why Ayunerak took J.L. to the clinic was irrelevant and
undisputed. If hearsay testimony is admitted in error, the error is harmless when there is
no reasonable likelihood that the admitted evidence had an appreciable effect on the
jury's decision. 9 Even if the court erred in admitting Ayunerak's testimony about the
statement, any error was harmless because J.L.'s statements to Ayunerak were already
properly before the jury.
J.L.'s statements to Marlene Ayunerak
As noted above, on direct examination, J.L. testified that she woke up with
Leopold on top of her. J.L. told Leopold to stop and unsuccessfully attempted to push
him off with her hands and feet. On cross-examination, she admitted that the only things
she remembered about the incident were that her brother was on top of her and that she
was trying to push him off. She did not even remember if they had their clothes on or off.
J.L. also testified that she could not remember anything about her statements to Marlene
Ayunerak at the clinic.
9 Jones v. State , 215 P.3d 1091, 1101 & n.24 (Alaska App. 2009) (citing Love v. State ,
457 P.2d 622, 632 (Alaska 1969)).
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Marlene Ayunerak later testified that, at the clinic, J.L. informed her that
"she got beat up and raped" by Leopold earlier that morning. Leopold's attorney
objected on hearsay grounds, but Judge Devaney ruled that this evidence was admissible
as a prior inconsistent statement. On appeal, Leopold argues that this ruling was
improper because J.L.'s statement was not inconsistent with her testimony.
Alaska Rule of Evidence 801(d)(1) allows the court to admit a prior
statement by a witness if the "declarant testifies at the trial or hearing and the statement
is ... inconsistent with the declarant's testimony." Inconsistency "does not necessarily
require textual conflict; other circumstances, including lack of memory at trial, may
suffice."10 In other words, a statement is inconsistent when the witness testifies that he
or she cannot remember the event that the statement describes.11 The offering party must
show that the prior statement is inconsistent with the declarant's testimony and give the
declarant an opportunity to explain or deny the statement.12
In this case, Leopold's cross-examination established that J.L. could not
remember anything about this incident, except that her brother was on top of her and that
she was trying to push him off. In particular, J.L. apparently could not testify that
Leopold had raped her and beat her up. The prosecutor confronted her with her
statements to Marlene Ayunerak, but J.L. could not remember making those statements.
10 Vaska v. State, 135 P.3d 1011, 1015 (Alaska 2006).
11 See Richards v. State , 616 P.2d 870, 871 (Alaska 1980); Wassilie v. State, 57 P.3d
719, 722-23 (Alaska App. 2002); Brandon v. State , 839 P.2d 400, 411-12 (Alaska App.
1992); Van Hatten v. State, 666 P.2d 1047, 1051 (Alaska App. 1983), abrogated on other
grounds by Adams v. State , 261 P.3d 758 (Alaska 2011).
12 Vaska, 135 P.3d at 1015-16.
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Under these circumstances, the court properly allowed the State to introduce J.L.'s
statements to Ayunerak as prior inconsistent statements.
J.L.'s statements to Trooper Williamson
J.L. testified that she did not recall speaking with Trooper Williamson while
she was at the clinic. J.L. also testified that she did not remember that Williamson asked
her whether Leopold penetrated her. At that point, Leopold's attorney said, "I have a
continuing objection to the lack of foundation, the hearsay, and the leading." The court
replied, "Objection noted. Thank you."
The following day, Williamson testified and the prosecutor asked
Williamson about the same conversation with J.L. Williamson testified that J.L. informed
him that Leopold penetrated her, that his penis went inside her, and that she attempted
to defend herself. Leopold's attorney did not object.
On appeal, Leopold challenges the admission of J.L.'s statements to
Trooper Williamson. Leopold argues that the "defense did not make a new objection, but
instead apparently relied on the continuing objection made during J.L.'s testimony."
Leopold asserts that the "continuing objection" during J.L.'s testimony was sufficient to
preserve his challenge to Williamson's testimony.
Under Alaska Criminal Rule 46, in order to preserve a claim, a party must
"at the time the ruling or order of the court is made or sought, make[] known to the court
the action which the party desires the court to take or the party's objection to the action
of the court and the grounds therefor." "[T]he ground of an objection must be clearly
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stated so that the [lower] court may intelligently rule upon the objection."13 If there is no
"comprehensible objection, the point [is] not properly preserved for appeal."14
We conclude that Leopold failed to make it clear to the court that he wanted
the objection he made to J.L.'s testimony to apply to Williamson's testimony the
following day. Leopold made no effort to either object to the hearsay the following day
or to ensure that the court interpreted his prior objection as applying to Williamson's
testimony, as well as J.L.'s testimony. Although the court could have been clearer about
the scope of its ruling the previous day, Leopold still had the burden to seek clarification
of the court's ruling, if necessary, and to clearly state his request. Leopold failed to
properly preserve this hearsay challenge because he did not make it clear that his
objection extended to Williamson's testimony.
It was not obvious that Leopold's objection to J.L.'s testimony would also
apply to Williamson's testimony. As noted above, in order to introduce J.L.'s statement
to Williamson as a prior inconsistent statement, the prosecutor was required to give J.L.
the opportunity "to explain or to deny the statement." 15 Leading questions may be
employed to establish this foundation.16 The trial judge properly overruled Leopold's
objection during J.L.'s testimony because the prosecutor's questions were not leading
nor was J.L.'s elicited testimony hearsay - it was merely foundational.
13 Williams v. State, 629 P.2d 54, 62 (Alaska 1981) (alterations in original) (quoting
State v. Miller, 440 P.2d 792, 795 (N.M. 1968)).
14 Pierce v. State , 261 P.3d 428, 432 (Alaska App. 2011) (alteration in original) (quoting
Williams, 629 P.2d at 62).
15 See Alaska Evid. R. 801(d)(1)(a)(i).
16 See Alaska Evid. R. 611(c)(1).
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Williamson's testimony, on the other hand, was the permissible product of
this foundation. J.L.'s statement to Williamson that she had been penetrated by Leopold
was inconsistent with her testimony that she could not remember anything except trying
to push Leopold off of her. J.L. was properly confronted with this statement and she
could not remember making it. So, even if Leopold had renewed his hearsay objection,
it would have been properly overruled because J.L.'s statement to Williamson was
admissible as a prior inconsistent statement.
Leopold's sentence was not excessive .
The presentence report indicated that Leopold had a long history of criminal
misconduct. Leopold committed second-degree burglary in 1984, when he was fourteen
years old. Two years later, Leopold forcibly dragged his female cousin under a building
and committed first-degree sexual assault while she "screamed" and "cried." Leopold
was adjudicated a delinquent and placed at McLaughlin Youth Center. Thirty days after
being released, when Leopold was eighteen years old, he "held his aunt down and
penetrated her vaginally with his penis, 'while she was yelling and screaming.'" Leopold
was sentenced to seven years with five years suspended for this offense. Within thirty
days of being released on parole for the sexual assault of his aunt, he amassed four
incident reports, including an assault. Leopold failed to attend counseling, and his parole
was revoked.
When Leopold was twenty-one, he sexually assaulted a fifteen-year-old girl
at a school dance. In response, the court imposed three years of the suspended time from
his previous conviction. During that investigation, a probation officer spoke with
Leopold's girlfriend, who stated that Leopold also sexually assaulted her. The probation
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officer described Leopold as a "predatory rapist" and stated that "Leopold is sexually
maladjusted and at high risk to rape again."
In 1998, Leopold was convicted of fourth-degree domestic violence assault,
sixth-degree misconduct involving a controlled substance, and failure to register as a sex
offender. In 1999, Leopold was convicted of another assault.
About this time, the authorities found out that Leopold had a fifteen-year
old girlfriend; in 2001, he was convicted of third-degree attempted sexual abuse of a
minor. In 2002, Leopold committed fourth-degree assault and violated the conditions of
his release when he assaulted his seventeen-year-old girlfriend and her eleven-year-old
sister. In 2004, Leopold was convicted of third-degree assault and fourth-degree
misconduct involving weapons for threatening to kill a village public safety officer and
for discharging a shotgun.
Based on this prior history and the circumstances of this offense, the
presentence report recommended that the court sentence Leopold to the maximum term
of ninety-nine years' imprisonment.
As a third felony offender, Leopold was subject to a presumptive range of
forty to sixty years' imprisonment and a maximum term of ninety-nine years with five
years suspended for the first-degree sexual assault conviction.17 At the sentencing
hearing, Judge Devaney found four aggravating factors: that Leopold had repeated
instances of assaultive behavior,18 that Leopold had an adjudication as a delinquent for
conduct that would have been a felony if committed by an adult (the sexual assault
17 AS 12.55.125(i)(1)(E), (o).
18 AS 12.55.155(c)(8).
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committed against his cousin),19 that Leopold had a history of committing repeated
crimes similar in nature to the underlying offenses (based on his convictions for third-
degree attempted abuse of a minor and second-degree sexual assault)20 and that he had
five or more convictions for class A misdemeanors.21
Judge Devaney found that Leopold had "a very serious juvenile history"
including the sexual assault against his cousin. The judge noted that the sexual assault
of his aunt was especially frightening because it was committed in revenge or in
retaliation for the adjudication of his sexual assault of her daughter. He noted Leopold
also had a sexual abuse of a minor conviction in 2001. The judge found Leopold had
been unable to succeed at any of the treatment offered to him. The judge found that
Leopold "presents a clear risk to the public" because of his "consistent criminal history
over the years." Based on Leopold's background and criminal history, the judge
concluded that Leopold was a worst offender.
Judge Devaney also concluded that no sentence of imprisonment would
likely deter Leopold because his numerous prior attempts at rehabilitation had been
unsuccessful. He also noted the importance of community condemnation and
reaffirmation of societal norms in view of the length of Leopold's criminal history and
the circumstances of the present offense.
Judge Devaney merged the first- and second-degree sexual assault
convictions. He sentenced Leopold to ninety-nine years' imprisonment with five years
suspended for the first-degree sexual assault conviction. He also imposed twenty years
19 AS 12.55.155(c)(19).
20 AS 12.55.155(c)(21).
21 AS 12.55.155(c)(31).
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with five years suspended for the incest conviction, and made ten years of the incest
sentence concurrent. Leopold's composite sentence was 109 years with ten years
suspended or ninety-nine years to serve.
Leopold argues on appeal that the judge should not have found that he was
a worst offender. In determining whether a defendant is a worst offender, a sentencing
judge may examine several factors, including the defendant's "prior criminal
convictions, age, military records, employment history, drug or alcohol addiction,
presentence report evaluations and recommendations, and behavior which has been
considered to demonstrate an antisocial nature or dangerous propensities which pose a
clear risk to the public."22 A worst offender finding can be based either on the
defendant's current offense or the defendant's criminal history or both."23
In this case, the record supports the worst offender finding. Leopold had
multiple prior criminal convictions, including second-degree sexual assault, attempted
sexual abuse of a minor, assault, failure to register as a sex offender, and several
probation revocations. And as a juvenile, Leopold committed sexual assault and second-
degree burglary. Leopold was thirty-nine years old; his current offense is not related to
immaturity. Leopold did not graduate from high school, had no military service, and
appears to have been previously employed only by correctional facilities. Leopold's
alcohol addiction appears to have had a strong influence on many of his prior
convictions.
The presentence report evaluations and recommendations also support the
conclusion that Leopold was a worst offender. Leopold's probation officers concluded
22 State v. Wortham , 537 P.2d 1117, 1120 (Alaska 1975).
23 See id.
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that he is a predatory rapist; he is "sexually maladjusted and at high risk to rape again";
he is "an extreme danger to the public"; he should be "considered a very serious, violent,
and worst offender"; rehabilitation is not a "viable option"; and he "continues to be a
danger to society." Leopold had multiple, prior opportunities to participate in treatment
and rehabilitation, as well as a history of similar offenses. There is ample support to
conclude that Leopold has dangerous propensities that pose a clear risk to the public.
Leopold relies on several cases where individuals were treated as worst
offenders to demonstrate why he is not a worst offender. But those cases do not
necessarily establish a ceiling or benchmark.24 There was ample support in this case for
the court's conclusion that Leopold is a worst offender.
Leopold also argues that his composite sentence should not have exceeded
the maximum sentence of imprisonment for first-degree sexual assault. He relies on Neal
v. State, where the Alaska Supreme Court adopted a rule that a sentencing judge should
not impose consecutive sentences that total more than the maximum sentence for a
defendant's most serious offense, unless the judge expressly finds that the total sentence
is necessary to protect the public.25 But the lack of "an express finding of necessity may
be excused where the need to isolate the defendant is apparent from the record."26 And
this court recently recognized that this rule is only "a starting point or guide for
24 See Hurn v. State, 872 P.2d 189, 199-200 (Alaska App. 1994) (concluding that our
affirmance of a sentence on appeal "means only that we conclude the sentence is not
excessive" and "does not set a ceiling on sentences in similar cases, nor does it necessarily
mean that we would not have affirmed a greater sentence in the appeal being litigated").
25 628 P.2d 19, 21 (Alaska 1981); see also Mutschler v. State , 560 P.2d 377, 380 (Alaska
1977).
26 Peruski v. State , 711 P.2d 573, 574 (Alaska App. 1985) (citing Neal , 628 P.2d at 21).
16 2350
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analyzing the proper severity of a defendant's composite sentence - and that a
composite sentence greater than [this] ceiling can sometimes be justified by sentencing
goals other than the particular goal of protecting the public."27
In Leopold's case, the court did state that the sentence was necessary
because Leopold presented "a clear risk to the public." It also appears from the record
that Leopold had a criminal history of assaulting and sexually assaulting members of his
community, and that he was unresponsive to treatment. This record supports Judge
Delaney's implicit conclusion that a five-year consecutive sentence to serve was
necessary to protect the public.
Leopold also asserts that his sentence is excessive because his sentence is
"the longest sentence in the history of Alaska appellate cases for a non-homicide
conviction." Leopold compares his case to other Alaska cases where the defendants
committed multiple or particularly egregious sexual assaults.
Leopold's reliance on previous sentencing decisions by this court is of
limited value. As discussed earlier, when we affirm a sentence on appeal, that holding
"does not set a ceiling on sentences in similar cases, nor does it necessarily mean that we
would not have affirmed a greater sentence in the appeal being litigated."28 Several of the
cases relied on by Leopold were also decided prior to the legislature's 2006 revisions to
the sentencing scheme for sexual offenses.29
In Sikeo v. State, this court recently reviewed a case where the defendant
was subject to a presumptive ninety-nine year sentence for first-degree sexual abuse of
27 Phelps v. State , 236 P.3d 381, 393 (Alaska App. 2010).
28 Hurn , 872 P.2d at 199-200.
29 See AS 12.55.125(i); Ch. 14, § 4, SLA 2006.
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a minor because he had two prior convictions for sexual felonies.30 We ultimately
concluded that the ninety-nine year presumptive term did not constitute cruel and
unusual punishment.31
In Leopold's case, he was subject to a forty- to sixty-year presumptive
range for first-degree sexual assault because he had two prior felonies: one conviction
for second-degree sexual assault and one conviction for third-degree assault. If Leopold
had been convicted as an adult for the sexual assault of his cousin in 1986, or if he had
been convicted of sexually assaulting his girlfriend, or the girl at the school dance, then
he would have been subject to a presumptive term of ninety-nine years - the same
sentence we reviewed in Sikeo .32 Although Sikeo is not directly on point, the case
illustrates why Leopold's sentence was not clearly mistaken.
As noted above, we conclude that the sentencing judge could reasonably
decide that Leopold was a worst offender who deserved a maximum sentence for first-
degree sexual assault, and that a five-year consecutive sentence to serve was necessary
to protect the public. We accordingly conclude that Leopold's composite sentence of 109
years' imprisonment with ten years suspended was not clearly mistaken.
Conclusion
We AFFIRM the superior court's judgment and sentence.
30 258 P.3d 906, 908 (Alaska App. 2011).
31 Id. at 912.
32 See AS 12.55.125(i)(1)(F).
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