Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Leopold v. State (4/13/2012) ap-2350

Leopold v. State (4/13/2012) ap-2350

                                               NOTICE 



        The text of this opinion can be corrected before the opinion is published in the 

        Pacific Reporter.   Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts. 



                               303 K Street, Anchorage, Alaska  99501
 

                                        Fax:   (907) 264-0878
 

                         E-mail:  corrections @ appellate.courts.state.ak.us
 



               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 


----------------------- Page 2-----------------------

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. 



                                                    2                                              2350
 


----------------------- Page 3-----------------------

                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 



                                                    3                                              2350
 


----------------------- Page 4-----------------------

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). 



                                                    4                                                 2350 


----------------------- Page 5-----------------------

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. 



                                                      5                                                2350
 


----------------------- Page 6-----------------------

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). 



                                                    6                                                 2350 


----------------------- Page 7-----------------------

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. 



                                                    7                                                 2350 


----------------------- Page 8-----------------------

                         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)). 



                                                     8                                                2350 


----------------------- Page 9-----------------------

                 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. 



                                                      9                                                 2350
 


----------------------- Page 10-----------------------

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 



                                                    10                                              2350
 


----------------------- Page 11-----------------------

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). 



                                                     11                                                2350
 


----------------------- Page 12-----------------------

                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 



                                                    12                                              2350
 


----------------------- Page 13-----------------------

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). 



                                                    13                                                2350 


----------------------- Page 14-----------------------

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). 



                                                   14                                                2350 


----------------------- Page 15-----------------------

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. 



                                                     15                                                 2350 


----------------------- Page 16-----------------------

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
 


----------------------- Page 17-----------------------

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. 



                                                     17                                                 2350 


----------------------- Page 18-----------------------

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). 



                                                   18                                                2350 

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC