Opinion
A-13433
12-08-2021
ROGER ALEXANDER FAWCETT, Appellant, v. STATE OF ALASKA, Appellee.
Sharon Barr, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court No. 1KE-17-00533 CR, First Judicial District, Ketchikan, William B. Carey, Judge.
Sharon Barr, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Following a jury trial, Roger Alexander Fawcett was convicted in 2019 of one count of sexual assault in the second degree (sexual penetration with an incapacitated person). He was sentenced to 15 years in jail with 6 years suspended (9 years to serve) and 7 years' probation. On appeal, Fawcett argues that there was insufficient evidence to support his conviction. He also argues that the superior court erred in rejecting the statutory mitigator he proposed and that his sentence is excessive. For the reasons 1 provided here, we conclude the superior court did not err, and we affirm Fawcett's conviction and sentence.
Former AS 11.41.420(a)(3) (2017).
To prove Fawcett guilty of second-degree sexual assault, the State was required to prove beyond a reasonable doubt that Fawcett knowingly engaged in sexual penetration with a person who was incapacitated or unaware that a sexual act was being committed. On appeal, Fawcett argues that there was insufficient evidence that he knew that the victim was incapacitated.
Id.
When we review a claim of legal insufficiency, we are required to view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the jury's verdict.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Here, the eighteen-year-old victim testified that she consumed four or five shots of alcohol throughout the night of the incident, and that she blacked out after taking the last shot. She further testified that she regained consciousness in the middle of thirty-four-year old Fawcett having sex with her, and she immediately told him to stop once she realized what was happening. She also responded by kicking him out of the apartment, while screaming and throwing things. The victim had only met Fawcett a few hours prior, and she had made clear before she blacked out that he could not sleep at her apartment that night.
Evidence was also presented that Fawcett had been drinking with the victim and was in a position to know that she was intoxicated. The victim was lying on her stomach on a futon in the living room alone when Fawcett initiated the sexual encounter. Fawcett also admitted to the police that the victim never verbally consented to having sex. 2
Viewing this evidence in the light most favorable to the jury's verdict, we conclude that a fair-minded juror could find proof beyond a reasonable doubt that Fawcett knew the victim was incapacitated (or that he would have known that the victim was incapacitated but for his own voluntary intoxication). We therefore reject Fawcett's insufficiency claim on appeal.
See Williams v. State, 486 P.3d 1134, 1138 (Alaska App. 2021) (rejecting insufficiency claim in a case with similar facts); see also Dorsey v. State, 480 P.3d 1211, 1221-22 (Alaska App. 2021) (explaining that voluntary intoxication does not negate the "knowingly" mens rea element in Alaska (citing AS 11.81.630)).
Second, Fawcett argues that the superior court erred when it denied his proposed mitigator that his conduct was among the least serious conduct included within the definition of second-degree sexual assault. The superior court denied the proposed mitigator, finding that "this young lady awoke, ... 18 years old, to find a 34-year-old man penetrating her from behind, without her consent" and concluding that there was nothing mitigating about Fawcett's conduct. We have reviewed the record and we find no error in the superior court's rejection of the proposed mitigator.
AS 12.55.155(d)(9).
See Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
Lastly, Fawcett argues that his sentence of incarceration (15 years with 6 years suspended) was excessive. As a first-time felony offender, Fawcett was subject to a presumptive sentencing range of 5 to 15 years for the Class B felony offense of sexual assault in the second degree. At sentencing, however, the superior court found 3 three statutory aggravating factors, which authorized the superior court to impose a sentence of up to 99 years.
AS 12.55. 125(i)(3)(A).
AS 12.55.155(c)(8) (Fawcett's criminal history included aggravated or repeated assaultive behavior); AS 12.55.I55(c)(I8)(B) (Fawcett had a prior conviction for a sexual crime); and AS 12.55.155(c)(2l) (Fawcett's criminal history included repeated instances of similar conduct to this case).
All three aggravators were related to Fawcett's prior criminal history. This prior history included nine misdemeanor charges - including attempted sexual abuse of a minor in the third degree for engaging in sexual conduct with a fifteen-year-old while she was asleep and assault in the fourth degree for an incident that arose after Fawcett tried to force himself onto a woman in a restroom.
When we review an excessive sentence claim, we independently examine the record to determine whether the sentence is clearly mistaken, i.e., whether the sentence falls within a "permissible range of reasonable sentences." Having independently reviewed the sentencing record in this case, we conclude that Fawcett's sentence - a sentence within the applicable presumptive range - is not clearly mistaken.
See Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
The judgment of the superior court is AFFIRMED. 4