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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. George v. State (12/18/2015) sp-7072
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KELSEY P. GEORGE, )
) Supreme Court No. S-15618
Petitioner, ) Court of Appeals No. A-11028
)
v. ) Superior Court No. 3GL-09-00231 CR
)
STATE OF ALASKA,
) O P I N I O N
)
)
Respondent. No. 7072 - December 18, 2015
_______________________________ )
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Glenallen, Eric Smith, Judge.
Appearances: Dan S. Bair, Assistant Public Advocate, and
Richard Allen, Alaska Public Advocate, Anchorage, for
Appellant. Timothy W. Terrell, Assistant Attorney General,
Anchorage, and Craig W. Richards, Attorney General,
Juneau, for Appellee.
Before: Stowers, Chief Justice, Fabe, Maassen, and Bolger,
Justices. [Winfree, Justice, not participating.]
STOWERS, Chief Justice.
I. INTRODUCTION
Kelsey P. George was convicted of four counts of sexual abuse of a minor
in the first degree, three counts of sexual abuse of a minor in the second degree, and one
count of attempted sexual abuse of a minor in the first degree. George appealed,
challenging one of the first-degree sexual abuse counts (Count Ten) and the attempted
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sexual abuse count (Count One). The court of appeals affirmed his convictions on both
1
counts,
and George filed a petition for hearing regarding the sufficiency of the evidence
2
supporting the conviction on Count Ten, which we granted.
We conclude that the evidence was insufficient to convict George on Count
Ten. Therefore, we reverse the court of appeals' decision in part, and we remand this
matter to the superior court for entry of a judgment of acquittal on Count Ten.
II. FACTS AND PROCEEDINGS
A. Facts
George was indicted in December 2009 on one count of attempted sexual
3 and three counts of sexual abuse of a minor in the
abuse of a minor in the first degree
second degree.4 These charges involved two victims, T.E. and M.G. In November 2010
the grand jury indicted George on five new counts of sexual abuse of a minor in the first
degree.5 These new counts all involved one victim, A.M. George's petition only
involves the allegations related to A.M.
The State charged George with three different types of sexual abuse of
A.M. occurring during two different time periods. The charges were as follows:
* Count Five: Sexual penetration, fellatio, between
September 2005 and May 2006;
1 George v. State , No. A-11028, 2014 WL 2937874 (Alaska App. June 25,
2014).
2 George v. State, No. S-15618 (Alaska Supreme Court Order, Oct. 1, 2014).
3 AS 11.41.434(a)(1).
4 AS 11.41.436(a)(1).
5 AS 11.41.434(a)(1).
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* Count Six: Sexual penetration, penis to vagina,
between September 2005 and May 2006;
* Count Seven: Sexual penetration, penis to vagina,
between September 2005 and May 2006;
* Count Eight: Sexual penetration, digital penetration,
between September 2005 and May 2006; and
6 Sexual penetration, digital penetration,
* Count Ten:
between September 2004 and May 2005.
The only count at issue in this appeal is Count Ten, which charged George with digitally
penetrating A.M. during her third-grade year when she was between eight and nine years
old. Supporting George's indictment on Count Ten was A.M.'s testimony before the
grand jury that George had abused her by digital penetration when she was in third
grade.
B. George's Trial
The State introduced three main pieces of evidence at trial regarding
George's abuse of A.M.: A.M.'s live testimony, A.M.'s forensic interview,7 and
George's interview.
A.M. testified that she frequently stayed with her aunt, Marina, when
A.M.'s grandparents (with whom A.M. lived) went out of town. George lived with
Marina. A.M. stated that she last stayed with Marina when A.M. was in fourth grade or
6 The indictment did not contain a ninth count. However, the jury
instructions, judgment, and parts of the trial refer to Count Nine. These references to
Count Nine correspond to Count Ten in the indictment and this opinion.
7 The forensic interviewer also testified that A.M. had stated in the interview
that the abuse "started when she was in Head Start, and . . . ended when she moved to
Anchorage [in the fourth grade], except for that one incident in Anchorage which was
fourth grade." Because the interviewer was merely recounting what A.M. stated in the
interview, we rely only on A.M.'s interview itself and not on the interviewer's
recollection of what A.M. said during the interview.
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when A.M. was nine or ten years old. A.M. testified that she could not recall if she had
stayed with Marina during the third grade.
A.M. indicated that George would come into her room when she stayed
with Marina and that when George came into her room "[h]e would touch [her]." She
stated that he first touched her when she was four. The prosecutor then asked her, "Do
you remember him touching you when you were in the fourth grade?" A.M. stated that
she did, and she proceeded to describe George abusing her by engaging in digital
penetration. The prosecutor then changed focus, asking if George had touched her with
anything other than his hands. A.M. testified that George had also made her engage in
fellatio. She stated,
A: (Pause) He would make me put it in my mouth.
Q: He'd put his - he'd make you put it in your mouth?
A: (Pause)
Q: Okay. And was that in the third grade?
A: (Pause) (Indiscernable).
Q: Or was that the fourth grade?
A: Third grade, I think.
Q: Third grade. Did that also - did that happen in the
fourth grade as well?
A: (Pause) Hmmm.
Q: Yeah?
A: (Pause)
Q: Was that a yes?
A: No.
Q: No, okay. Just the third grade?
A: (Pause)
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After the prosecutor attempted to refresh A.M.'s recollection by showing her the grand
jury transcript, the following exchange took place:
Q: And so did that happen in the fourth grade as well?
A: (Pause) It was the fourth grade but like - it wasn't
quite the year didn't quite start yet.
A.M. then testified that George had engaged in penis-to-vagina penetration with her
during her fourth-grade year.
The State also introduced portions of A.M.'s forensic interview. During
this interview A.M. stated that George would touch her "every night" when she was
"little," clarifying later that she meant when she was five or six years old. She also
indicated that "every night" she was at Marina's, George would make her engage in
fellatio and penis-to-vagina penetration. Although A.M. initially stated that the abuse
stopped when she moved to Anchorage in or right after the fourth grade, she later
recalled an incident that occurred after the move to Anchorage. But she stated that she
could not "remember . . . well" if George "[did] anything with his fingers when he
touche[d] [her] crotch." She also testified regarding one incident where George was
found "holding [her] crotch and [her] boobs," and she stated he was told "not to do it
again but he still did it."
The jury also heard an edited version of George's police interview. During
George's interview he claimed that A.M. had him engage in digital penetration with her.
George claimed that this contact occurred when A.M. was ten and in Anchorage. He
also admitted to an incident when A.M. was four. George claimed that A.M. was "the
one that actually did everything to [him]," and that the sexual abuse of A.M. occurred
"when [he] was living with Marina."
The State also introduced a December 2009 interview with T.E. T.E. stated
that George attempted to put his hands down her underwear and that there was skin-to-
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----------------------- Page 6-----------------------
skin contact but that George did not touch her "private parts." At trial, T.E. confirmed
that George put his fingers under her clothing, and she marked on a diagram indicating
that she felt George touch her groin.
Relevant to George's abuse of A.M., T.E. was asked in her 2009 interview
if she believed that anyone else had been abused. T.E. indicated that she believed
George had also abused A.M. in 2007 or possibly earlier.
The jury found George guilty on all but one count, and Superior Court
Judge Eric Smith sentenced George to a total of 56 years' imprisonment with 22 years
suspended. On Count Ten, George received a sentence of eight years with two years to
8 and the remainder to be served concurrently.
be served consecutively to Count One
C. George's Appeal To The Court Of Appeals
9 arguing in part that the evidence
George appealed to the court of appeals,
was insufficient to support a conviction for digital penetration during A.M.'s third-grade
10
year. The court of appeals reviewed the record and concluded that "it appears (1) that
the prosecutor was under a misimpression about the timing of the offense, and (2) that
A.M.'sensuing testimony was actually aboutevents thatoccurred during her third-grade
year."11
The court of appeals summarized the facts as follows:
8 Count One was attempted sexual abuse of a minor in the first degree.
George received a sentence of thirty years with ten years suspended.
9 George v. State, No. A-11028, 2014 WL 2937874, at *1 (Alaska App.
June 25, 2014).
10 Id. at *4.
11 Id. (emphasis in original).
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George was living with A.M.'s aunt. A.M. testified that her
aunt used to babysit her . . . from the time she was quite
young until her fourth[-]grade year . . . .
A.M. further testified that, on the nights when she would stay
at her aunt's house, George would come into her bedroom
and touch her. According to A.M., this touching started
when she was four years old and continued until she reached
the fourth grade . . . . A.M. testified that, when George
touched her, he would sometimes reach inside her vagina.
The prosecutor's mistake about the time frame of this sexual
activity was clarified later in A.M.'s testimony, when she
described how George would make her engage in fellatio.
The prosecutor asked A.M. if this had happened when she
was in the fourth grade, but A.M. repeatedly told the
prosecutor that it happened when she was in the third
grade.[12]
The court of appeals then quoted the same testimony we have quoted above13 and held
that
A.M. declared that the sexual abuse occurred when she was
in the third grade . . . . Thus, viewing A.M.'s testimony as a
whole, and in the light most favorable to the verdict, the
jurors could reasonably conclude that George engaged in
digital penetration of A.M. during . . . (September 2004 to
May 2005).[14]
The court of appeals thus affirmed George's conviction on Count Ten.15
George petitioned for hearing, and we granted the petition.
12 Id. at *4-5.
13
See § II.B, supra.
14
George, 2014 WL 2937874, at *5.
15 Id.
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----------------------- Page 8-----------------------
III. STANDARD OF REVIEW
"When we review the sufficiency of the evidence to support these
convictions, we view the evidence in the light most favorable to the verdict and ask
whether a reasonable juror could have concluded that the defendant was guilty beyond
16
a reasonable doubt."
"The question . . . is whether the finding of guilt is supported by
substantial evidence, that is, such relevant evidence which is adequate to support a
conclusion by a reasonable mind that there was no reasonable doubt as to appellant's
guilt."17
IV. DISCUSSION
Georgecontendsthat theevidencepresentedwasinsufficient to convicthim
of digitally penetrating A.M. during her third-grade year. The court of appeals
nevertheless affirmed George's conviction on this count. The State concedes that the
court of appeals' reasoning is problematic, but the State argues that George's conviction
can be sustained on a continuing course of conduct theory. We consider both the court
18
of appeals' decision and the State's continuing course of conduct theory. We find
neither rationale persuasive.
16 Iyapana v. State , 284 P.3d 841, 848-49 (Alaska App. 2012).
17 Walker v. State, 652 P.2d 88, 97 (Alaska 1982) (quoting Beck v. State, 408
P.2d 996, 997 (Alaska 1965)).
18 The State's decision not to rely on the court of appeals' opinion does not
relieve this court of our duty to consider the court of appeals' reasoning. See Marks v.
State, 496 P.2d 66, 67 (Alaska 1972) ("Although a confession of error by the Attorney
General is entitled to great weight, it does not relieve this court of the obligation to
perform [its] judicial function.").
-8- 7072
----------------------- Page 9-----------------------
A. The Evidence On Which The Court Of Appeals Relied Is Insufficient
To Support George's Conviction On Count Ten.
The court of appeals advanced two reasons supporting its conclusion that
the evidence was sufficient to support George's conviction on Count Ten: the
19
prosecutor's "misimpression about the timing of the offense"
and the belief that A.M.'s
testimony regarding digital penetration "was actually about events that occurred during
20
her third-grade year." We have carefully reviewed all of the evidence that could
support George's conviction on Count Ten in conjunction with the court of appeals'
analysis, and we conclude that the evidence does not support George's conviction on that
count.
First, we conclude that the court's characterization of the prosecutor's
misimpression regarding when the offense occurred has little bearing on our analysis.
Moreover, we are not convinced that the prosecutor was confused. The State needed to
elicit testimony regarding digital penetration during A.M.'s fourth-grade year to support
a conviction on Count Eight. The State's initial question regarding the fourth-grade year
appears intended to bring out exactly that information. But the State failed to ask any
follow-up questions about digital penetration during A.M.'s third-grade year. In either
case, the prosecutor's misunderstanding of the timing of events does not matter. Instead,
what matters is "whether a reasonable juror could have concluded that the defendant was
21
guilty beyond a reasonable doubt."
Turning to the court of appeals' characterization of A.M.'s testimony
regarding digital penetration as being about events that occurred during her third-grade
19 George, 2014 WL 2937874, at *4.
20 Id. (emphasis in original).
21 Iyapana, 284 P.3d at 848-49.
-9- 7072
----------------------- Page 10-----------------------
year, we find that the structure of the questions and responses in A.M.'s testimony does
not support the court of appeals' interpretation.
The State began eliciting testimony regarding the individual acts of abuse
by asking A.M. if she remembered how old she was the first time George touched her.
A.M. testified that she was four at the time. The prosecutor then asked "Four, okay. Do
you remember himtouching you when you were in the fourth grade ?" (Emphasis added.)
In response, A.M. described George digitally penetrating her.
The State next asked if George "use[d] anything else to touch [A.M.'s]
body with." A.M. described George forcing her to engage in fellatio. The State then
addressed the question of timing, asking, "Okay. And was that in the third grade? . . .
Or was that in the fourth grade?" A.M. responded that this conduct happened in the third
grade.
The central question in interpreting A.M.'s testimony is what the word
"that" refers to in the State's question. We read the court of appeals' decision as
interpreting "that" as referring to both digital penetration and fellatio. 22
The State concedes that the court of appeals' interpretation was erroneous.
In its brief, the State agreed with George that "the court of appeals' interpretation of the
jury's verdict on Count [Ten] suffers from . . . flaws" and "that the court's interpretation
of the record was based on a strained and unnatural reading of the trial testimony." Thus,
the State does not rely on the court of appeals' interpretation of A.M.'s testimony in its
argument that this court should uphold George's conviction on Count Ten.
We also cannot agree with the court of appeals' interpretation. A.M.'s
testimony differentiated between time periods and types of abuse. She was initially
asked about touching in the fourth grade, and she described digital penetration. She was
22
George, 2014 WL 2937874, at *4-5.
-10- 7072
----------------------- Page 11-----------------------
then asked about other acts, and she described fellatio. After describing George forcing
her to perform fellatio, she was asked when "that" had occurred, and she replied that it
occurred in third grade. We cannot endorse reading "that" as a reference to both digital
penetration and fellatio. It is clear from A.M.'s testimony that she was digitally
penetrated in the fourth grade. Immediately following A.M.'s testimony regarding
fellatio, the prosecutor asked her when "that" happened, and she indicated that this
conduct happened in third grade.
T.E.'s testimony regarding George's abuseof A.M. is similarly insufficient
to support George's conviction on Count Ten. T.E. was asked if she knew of anyone
else "that this happened to." Presumably "this" referred to the type of abuse T.E. had
described - inappropriate touching under T.E.'s clothes that did not involve digital
penetration. But even if the testimony is interpreted more broadly as indicating that T.E.
believed George had sexually abused A.M. in other ways, such vague language is
insufficient when multiple types of sexual abuse have been charged and the specific type
of abuse the testimony refers to is unclear.
Viewing all of this evidence together in the light most favorable to the
verdict, we conclude that the State's concession of error is well taken, and we hold that
it was error for the court of appeals to affirm George's conviction on Count Ten.
B. The Evidence Is Insufficient To Support George's Conviction On
Count Ten Under The State's Continuing Course Of Conduct Theory.
Though the State concedes that the court of appeals' analysis is erroneous,
it offers an alternative ground upon which the conviction for Court Ten may be affirmed:
The State argues that "the jury could . . . conclude that George [digitally penetrated A.M.
during her third-grade year] based on A.M.'s description of a continuing course of
conduct that started before she was in third grade and continued until after she got out
of fourth grade." The State points to various pieces of evidence to argue that the jury
-11- 7072
----------------------- Page 12-----------------------
could have reasonably concluded that George digitally penetrated A.M. during her third-
grade year. And the State notes that other courts have upheld convictions when the
victim testified to a pattern of abuse.
George responds that this is not a continuing course of conduct case.
George argues that a sexual abuse course of conduct case requires "evidence
showing . . . a particular type of sexual conduct occurred within a time frame." George
notes that "there was no testimony or statements that A.M. was digitally penetrated at all
during the relevant time frame for Count [Ten]." George also argues that while A.M.
testified to inappropriate touching, she "did not testify that any of that consisted of digital
penetration." George argues that the State is trying to convict him "based solely on
propensity" evidence.
When reviewing a conviction based on an alleged continuing course of
conduct theory, we agree with the California Supreme Court that the evidence before the
jury
must describe the kind of act or acts committed with
sufficient specificity, both to assure that unlawful conduct
indeed has occurred and to differentiate between the various
types of proscribed conduct (e.g.[,] lewd conduct,
intercourse, oral copulation or sodomy). Moreover, the
victim must describe the number of acts committed with
sufficient certainty to support each of the counts alleged in
the . . . indictment (e.g., "twice a month" or "every time we
went camping"). Finally, the victim must be able to describe
the general time period in which these acts occurred (e.g.,
"the summer before [] fourth grade," or "during each Sunday
morning after he came to live with us") to assure the acts
were committed within the applicable limitation period. [23]
23 People v. Jones , 792 P.2d 643, 655-56 (Cal. 1990) (en banc) (emphasis in
original). Jones indicated that the victim must testify to these facts, but we believe this
(continued...)
-12- 7072
----------------------- Page 13-----------------------
Here, A.M. sufficiently described digital penetration and differentiated it
from the other acts of sexual abuse George committed. But the State failed to provide
sufficient evidence regarding the frequency and timing of the digital penetration such
that a reasonable jury could conclude beyond a reasonable doubt that George had
digitally penetrated A.M. during her third-grade year (the time period relevant to Count
Ten) as opposed to her fourth-grade year (the time period relevant to Count Eight).
A.M.'s statement that George "touched [her]" between the ages of four and
six is insufficiently specific to conclude or even reasonably infer that George continued
digitally penetrating her through her third-grade year. T.E.'s statements regarding
George's abuse of A.M. are similarly vague because, even if they indicate that George
was abusing A.M. during A.M.'s third-grade year, they do not reference, directly or
indirectly, the specific type of abuse involved. And George's statements during his
interview do not provide any additional specificity regarding the frequency of his abuse
of A.M. by digital penetration.
In A.M.'s forensic interview, she was asked to think of one time when she
was abused and to "tell . . . everything you know about that or everything you can
remember about that." In response A.M. described penis-to-vagina penetration and
fellatio. A.M. then testified that George "would do that every night." A.M. stated that
the abuse stopped "[w]hen [she] moved to Anchorage." A.M. was later asked if she
could remember if George touched her any other time or at any other place. Only then
did A.M. disclose that abuse occurred after the move to Anchorage (after she completed
23(...continued)
to be too strict a rule. If another witness is able to testify to the necessary facts, we see
no reason to deem that testimony insufficient to support a conviction.
-13- 7072
----------------------- Page 14-----------------------
third grade) and describe acts that preceded the digital penetration to which she testified
before the jury. 24
In sum, we conclude that there is nothing in the record that would allow a
reasonable juror to find that George engaged in a continuing course of conduct that
involved digital penetration with the requisite level of frequency to support Count Ten.25
The State argues that other courts have relied on a theory similar to the continuing course
of conduct theory it advances in this case. But the cases it cites are distinguishable
because in those cases there was evidence from which the jury could reasonably infer
that the specified conduct occurred during the relevant period.26
24 During her interview, A.M. could not recall if George had engaged in
digital penetration. Before the jury, she clearly testified to digital penetration during her
fourth-grade year.
25 The State notes that Alaska law does not make the date of an offense an
element of the crime that need be proven beyond a reasonable doubt. This is generally
accurate, though when an offense occurred may be important in a sexual abuse case to
establish the victim's and the defendant's ages. See AS 11.41.434. But the problemhere
is thatGeorge was charged with engaging in digital penetration during both A.M.'s third-
grade year and fourth-grade year. The dates were necessary to distinguish between the
different counts with which George was charged. A.M.'s testimony clearly supported
the count related to digital penetration in the fourth grade. It is the evidence regarding
digital penetration during the third grade that is lacking.
26 Jones, 792 P.2d at 659 (affirming conviction on certain counts where the
victim testified to specific acts of abuse and the frequency with which they were
committed, which encompassed the relevant time period); Young v. State, 106 So. 3d
811, 814, 821-22 (Miss. App. 2012) (affirming a conviction where an expert testified
to evidence of three different types of penetration and the victim stated she was abused
"a lot at [her] house" during the relevant time period); State v. Sexton, 929 S.W.2d 909,
917 (Mo. App. 1996) (affirming a jury's conviction because the victim testified that a
specific act of abuse occurred "continually over a number of years" including the years
relevant to the charge). The State also cites Anderson v. State , 289 P.3d 1
(continued...)
-14- 7072
----------------------- Page 15-----------------------
The State failed to provide this type of evidence with respect to Count Ten.
The State introduced ample evidence that George digitally penetrated A.M. during her
fourth-grade year, but it provided neither evidence demonstrating a specific instance of
digital penetration during A.M.'s third-grade year nor evidence demonstrating that
George engaged in a course of sexual abuse encompassing A.M.'s third-grade year that
regularly involved digital penetration. Without evidence of the frequency of the specific
act charged, the State's continuing course of conduct theory cannot support George's
conviction on Count Ten.
V. CONCLUSION
For the reasons stated above, we REVERSE George's conviction on Count
Ten and REMAND this matter to the superior court for its entry of a judgment of
acquittal on Count Ten.
26(...continued)
(Alaska App. 2012) modified on reh'g Anderson v. State, 337 P.3d 534 (Alaska App.
2014). We recognize that the court of appeals endorsed a continuing course of conduct
theory in that case. But its decision is not binding on this court because in Anderson
there was testimony that Anderson abused one of his victims "often during his visits to
her mother's house" and the visits began and continued through the relevant time period.
Id . at 9. In addition, the counts on which Anderson was convicted involved the same type
of abuse, unlike this case, which involves at least three different types of abuse. Id.
-15- 7072
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