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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ANGELO JOSEPH, )
) Court of Appeals No. A-10795
Appellant, ) Trial Court No. 3AN-09-6658 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2383 - December 14, 2012
Appeal from the Superior Court, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: David D. Reineke, 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 Michael C.
Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
BOLGER, Judge.
Angelo Joseph raises several issues related to his convictions for sexual
assaults committed against his wife, R.C. He argues that there was insufficient evidence
to support his convictions because R.C. was reluctant to testify and she believed that a
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husband should not be punished for sexually assaulting his wife. But we conclude that
the evidence that Joseph forced his wife to engage in sexual penetration and sexual
contact was sufficient to support his convictions.
Joseph also argues that his multiple convictions for sexual assault should
be merged to avoid double jeopardy. He urges us to overturn the cases holding that
distinct types of sexual penetration will support separate convictions for first-degree
sexual assault. We conclude that we should follow our recent cases declining to
reexamine this rule. On the other hand, we conclude that Joseph's convictions for
second-degree sexual assault, related to this same incident, must merge with his
convictions for first-degree sexual assault.
Background
Because Joseph contends that the evidence was insufficient to support his
convictions, we summarize this trial testimony in the light most favorable to the
verdicts.1 Joseph picked up R.C. and her two sons at the Anchorage airport late at night
when they returned from a trip to New York. When they got home, the boys (who were
nine and five at the time) went to bed, and R.C. began to check her computer to see what
work orders she had for later that day.
Joseph said he wanted to have sexual intercourse, but R.C. told him she did
not want to. Joseph picked her up and carried her to the bedroom. R.C. testified that
Joseph removed her underwear and began to perform cunnilingus on her, even though
she told him she did not want to have sex.
1 See Silvera v. State, 244 P.3d 1138, 1143-44 (Alaska App. 2010).
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When R.C. began to struggle, Joseph hit her on the left side of her face. She
continued to struggle, and Joseph choked her with his hands. Joseph did not stop choking
her until the boys came into the bedroom. The older son yelled something, and Joseph
stopped choking R.C. Joseph then left the room and put the boys back to bed.
When Joseph returned to the bedroom, R.C. again told him that she didn't
want to have sex, but he began having sex with her anyway. R.C. decided not to struggle
because she "didn't want anything else to happen." Joseph made R.C. engage in genital
intercourse, he performed cunnilingus on her, he touched her breasts, and he touched her
genitals. Afterward, Joseph talked to her for a couple of hours until he fell asleep. R.C.
took the boys to her aunt's house, then went to the police station.
A grand jury indicted Joseph on seven counts that were later presented to
the trial jury: first-degree sexual assault for cunnilingus before the children interrupted;
first-degree sexual assault for cunnilingus after the interruption; first-degree sexual
assault for genital intercourse; second-degree sexual assault for placing his hand on
R.C.'s breast; second-degree sexual assault for placing his hand on R.C.'s genitals;
second-degree assault for strangling R.C.; and fourth-degree assault for recklessly
causing physical injury to R.C.
Despite R.C.'s description of this assault, she testified that she did not agree
with the charges against Joseph because they were married and because the incident
happened in their bedroom. When Joseph's defense attorney asked R.C. if she believed
that Joseph raped her, she said no. But the jury eventually convicted Joseph of all seven
counts.
At sentencing, Joseph's attorney argued that the sexual assault charges
should merge for sentencing purposes because they all offended the same societal
interests. Judge Volland ruled that separate sentences were warranted because the sexual
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assaults were distinct in their nature and addressed different societal interests. Joseph
now appeals, arguing that there was insufficient evidence to convict him of sexual assault
and that his sexual assault convictions should be merged.
Discussion
There was sufficient evidence to support Joseph's sexual
assault convictions.
Joseph first argues that there was insufficient evidence to support his sexual
assault convictions. When we review a claim of insufficient evidence, we ask whether
a reasonable juror could conclude that the State had proven the defendant's guilt beyond
a reasonable doubt.2
Joseph does not argue that the State failed to meet its burden of proof on
any element of these offenses. Instead, he argues that there were problems with the
State's case: R.C. testified that she did not believe that Joseph had raped her; R.C. was
reluctant to testify; and there was no medical evidence to corroborate R.C.'s testimony.
But when we rule on a claim of insufficient evidence, we do not weigh the evidence; we
view the evidence in the light most favorable to the jury's verdicts.3
Viewed in this light, the evidence established that Joseph used force when
he carried R.C. to the bedroom, removed her underwear, and engaged in sexual
penetration. Then Joseph attacked R.C. when she began to struggle. After the boys
interrupted, Joseph again forced R.C. to engage in sexual penetration. From this
2 Cleveland v. State, 258 P.3d 878, 885 (Alaska App. 2011).
3 Silvera , 244 P.3d at1143-44.
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evidence, a reasonable juror could conclude that Joseph coerced R.C. to engage in sexual
penetration and sexual contact.4
It is true that R.C. testified that she did not believe that Joseph had raped
her. But she also stated that it would have been rape if another man had done it and that
the fact that she was married to Joseph made a difference to her.
R.C.'s testimony reflects a legal attitude that is long outdated. Historically,
a man could not be convicted of rape for forcing his wife to engage in sexual
intercourse.5 6
But marriage is no longer a defense to sexual assault. In this case, R.C.
testified that Joseph engaged in sexual relations with her without her consent, and this
testimony was sufficient to sustain his convictions.
Joseph's convictions for first-degree sexual assault do not
merge.
Joseph also argues that the double jeopardy clause of the Alaska
constitution required the sentencing judge to merge his three convictions for first-degree
sexual assault. Joseph urges us to overrule our decisions in Yearty v. State7 and Erickson
v. State,8 which held that distinct types of sexual penetration that occur as part of a single
criminal incident will support separate convictions for sexual assault.9 On this issue,
4 See AS 11.41.410(a)(1); AS 11.41.470(8).
5 See 2 Wayne R. LaFave, Substantive Criminal Law , § 17.4(d) (2d ed. 2003).
6 See 11.41.432(b).
7 805 P.2d 987 (Alaska App. 1991).
8 950 P.2d 580 (Alaska App. 1997).
9 Yearty, 805 P.2d at 990, 995; Erickson , 950 P.2d at 583-84.
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Joseph bears a heavy burden to overcome the doctrine of stare decisis . We will overrule
a prior decision only if we are "clearly convinced that the [precedent] was originally
erroneous or is no longer sound because of changed conditions" and that "more good
than harm would result from a departure from precedent."10
This court recently considered similar arguments in Lincecum v. State 11 and
Iyapana v. State .12 In those cases, we declined to overrule our prior decisions, and we
remain convinced that we should not do so today.
The changed conditions that Joseph relies on are the increased penalties for
first-degree sexual assault. He notes that, under the 1997 version of AS 12.55.125, a
first-time felon was subject to a presumptive term of eight years. Under the current
version of AS 12.55.125, a first-time felon is subject to a presumptive term of 20 to 30
years. Also, under the current framework, the trial court must impose at least one-fourth
of the presumptive term consecutively for each additional conviction of first-degree
sexual assault.13
However, the legislature is presumed to be aware of pertinent court
decisions when it amends a statute.14 Yearty and Erickson both involved multiple
convictions imposed for a single incident. So when the legislature increased the penalties
for sexual assault, the legislature was on notice that, under these decisions, a defendant
10 Wilson v. State , 207 P.3d 565, 570 (Alaska App. 2009) (Stewart, J., concurring)
(quotation and alterations in original omitted).
11 Mem. Op. & J. No. 5877, 2012 WL 4039820 (Alaska App. Sept. 12, 2012).
12 284 P.3d 841 (Alaska App. 2012).
13 See AS 12.55.127(c)(2)(E).
14 Shea v. State, Dept. of Admin ., 267 P.3d 624, 633 n.33 (Alaska 2011).
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could be convicted of multiple offenses committed during a single incident. The
legislature did nothing to mitigate this rule. We thus conclude that the legislature's
decisions to increase the penalties for sexual assault do not require us to overrule the
cases that define when multiple convictions violate double jeopardy.
Moreover, sexual assault convictions need not merge if there is a sufficient
break between the offenses. 15 Here, Joseph first performed cunnilingus on R.C. - the
misconduct that formed the basis for Count 1. Joseph then physically assaulted R.C.
when she began to struggle, but he stopped when the two boys came into the room. After
Joseph put the boys back to bed, he forced R.C. to engage in genital intercourse and
performed cunnilingus on her again - the misconduct that formed the basis for Counts
2 and 3.
Even if these events took place relatively quickly, Joseph clearly stopped
the first sexual assault when he began beating R.C. Joseph was interrupted by the
children, talked to them in the bedroom for a short time, and left the bedroom to put the
children to bed. These circumstances provide a sufficient break to support separate
convictions for Joseph's misconduct before and after the children's interruption.
On the other hand, Counts 2 and 3 were part of the same incident after the
children's interruption, with no significant break between them. But these two counts
involved different types of sexual penetration - cunnilingus and genital intercourse.16
Under the rule discussed above, these different types of sexual penetration will support
15 See Oswald v. State, 715 P.2d 276, 281 (Alaska App. 1986), overruled on other
grounds as recognized in Iyapana v. State , 284 P.3d 841, 852 (Alaska App. 2012).
16 See AS 11.81.900(b)(59).
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separate convictions.17 We thus conclude that the sentencing judge correctly decided to
enter separate convictions for all three counts of first-degree sexual assault.
Joseph's convictions for second-degree sexual assault merge
with his convictions for first-degree sexual assault.
Joseph also argues that his convictions for second-degree sexual assault (for
forcible sexual contact with R.C.) should merge with his convictions for first-degree
sexual assault (for forcible sexual penetration). On this issue, Joseph has the advantage
of more favorable precedent. In Johnson v. State , we stated that "two acts of sexual
contact performed as part of a single transaction with a single incident of sexual
penetration permit but one conviction for the most serious contact, in this case the sexual
penetration." 18 Likewise, in Harvey v. State , we stated that "It is a well-settled rule that
an act of sexual touching and an act of sexual penetration will not constitute separate
crimes if they occur on a single occasion and the touching is merely preliminary to the
penetration ... ." 19
In this case, most of the testimony at trial described the first-degree sexual
assault misconduct, not the second-degree sexual assaults. During R.C.'s direct
examination, the prosecutor questioned her very briefly with respect to these charges:
Q. I need to talk to you about the specific acts that occurred when he came
back [into the bedroom after putting the boys to bed]. Did he put his penis inside
your vagina?
A. Yes.
17 See Iyapana, 284 P.3d at 852.
18 762 P.2d 493, 495 (Alaska App. 1988).
19 Mem. Op & J. 3489 1996 WL 658501 at *7 (Alaska App. Nov. 13, 1996) (citing
Johnson , 762 P.2d at 495).
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Q. Did he again have oral sex with you?
A. Yes.
Q. Did he touch your breasts?
A. Yes.
Q. Did he touch your genitals?
A. Yes.
From this testimony, it appears that Joseph touched R.C.'s breasts and
genitals during a single incident, which also involved sexual penetration. Based on the
rule we stated in Johnson and Harvey , we conclude that Joseph's convictions for second-
degree sexual assault must merge with his convictions for sexual assault in the first
degree.
Conclusion
We VACATE Joseph's separate convictions and sentences for second-
degree sexual assault on Counts 4 and 5. The superior court shall amend its judgment to
reflect a single conviction for first-degree sexual assault based on the jury's verdicts on
Counts 3, 4, and 5, and the superior court shall resentence Joseph.20
In all other respects, the judgment of the superior court is AFFIRMED.
20 See Allain v. State, 810 P.2d 1019, 1021-22 (Alaska App. 1991).
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