Opinion
Court of Appeals No. A-12566 No. 6878
06-24-2020
ANTHONY F. GILLIAM, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3PA-14-01288 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory L. Heath, Judge. Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. Judge HARBISON.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Anthony F. Gilliam was convicted of twenty-two counts of first-degree sexual abuse of a minor and three counts of coercion after he sexually penetrated his two stepdaughters over a period of six years while the family was living in Alaska. Gilliam continued to sexually abuse the girls for several years after the family moved from Alaska to Idaho. Gilliam was sentenced to a 218-year composite sentence with 15 years of probation.
AS 11.41.434(a)(2) and AS 11.41.530(a)(1), respectively.
On appeal, Gilliam raises four claims. First, Gilliam argues that the trial court abused its discretion when it allowed the State to elicit testimony from his stepdaughters regarding uncharged acts of sexual and physical abuse after the family moved to Idaho. For the reasons explained in this opinion, we conclude that the trial court did not abuse its discretion.
Next, Gilliam argues that there was insufficient evidence to support his convictions for three of the twenty-two counts of sexual abuse of a minor (i.e., counts 11, 14, and 25). The State concedes that there was insufficient evidence to support Gilliam's conviction for count 14, and we find that the State's concession is well-founded. With regard to the other two counts, we conclude that there was insufficient evidence to support Gilliam's conviction for count 11, but that there was sufficient evidence for count 25.
Gilliam also argues that he should only receive one conviction for an incident in which an act of digital penetration accompanied a separately charged act of penile penetration. The Alaska Supreme Court's decision in State v. Thompson controls this issue. Under Thompson, acts of penile penetration and digital penetration support separate convictions, and we accordingly find no merit in Gilliam's argument.
State v. Thompson, 435 P.3d 947 (Alaska 2019).
Id. at 960-61.
Finally, Gilliam challenges the validity of two of his probation conditions, arguing that these conditions infringe on his constitutional right to associate with his biological children. For the reasons explained in this opinion, we reject Gilliam's challenge to his probation conditions.
Underlying facts
Gilliam was convicted of sexually abusing his two stepdaughters, T.H. and C.H., while the family lived in Alaska between 2001 and 2007. Gilliam first sexually penetrated the girls when they were eleven years old and eight years old, respectively. In late 2007, the family moved from Alaska to Idaho, where Gilliam continued to have sexual relations with the girls for several years, both before and after they reached the age of majority. The sexual abuse usually included sexual penetration, and it was sometimes preceded by physical abuse or threats.
In 2013, when both T.H. and C.H. were adults, T.H. returned to Alaska to visit her father and stepmother. During this trip, she disclosed the sexual abuse to the Alaska State Troopers. Gilliam was subsequently indicted for coercion and for twenty-five counts of first-degree sexual abuse.
At trial, several witnesses, including T.H. and C.H., testified about Gilliam's sexual abuse of the girls, both in Alaska and Idaho. Gilliam also testified, and he denied that he had engaged in sexual activity with T.H. or C.H. Gilliam claimed that T.H. and C.H. were lying.
After a week-long trial, the jury found Gilliam guilty of all charges. This appeal followed.
The admissibility of evidence of the physical and sexual abuse in Idaho
Before trial, the prosecutor moved to introduce testimony from T.H. and C.H. that Gilliam sexually and physically abused them between 2007 and 2013, when the family was living in Idaho. T.H. and C.H. detailed two specific instances of physical abuse occurring in Idaho: one incident during which Gilliam threatened and physically assaulted T.H. in order to coerce sex, and a second incident during which Gilliam held a knife to C.H.'s throat and threatened to cut her if she disclosed the abuse.
The prosecutor relied on Alaska Evidence Rules 404(b)(1), (b)(2), and (b)(4) as authority for admitting this evidence. She argued that the evidence was relevant to demonstrate the frequency and duration of the abuse, to explain how Gilliam was able to continue the abuse in secrecy, and to rebut any claim that the girls' delayed reporting was evidence that they were lying. In turn, Gilliam's attorney argued that the prejudicial impact of this evidence outweighed any probative value it might have.
After conducting an evidentiary hearing, the trial court concluded that the evidence was admissible for non-propensity purposes under Rule 404(b)(1) because, if Gilliam had engaged in the threatening acts, this would tend to explain why T.H. and C.H. did not report the abuse while they were in Idaho. The trial court also found that the evidence was admissible for propensity purposes under Rules 404(b)(2) and (b)(4) because the alleged physical and sexual abuse that occurred in Idaho was perpetrated against the same two persons who were the alleged victims of the charged Alaska offenses and were "nearly identical" to the charged offenses.
The court then conducted the required balancing test under Rule 403. The court determined that the probative value of the evidence was not outweighed by the danger of unfair prejudice and that the evidence, therefore, was admissible.
On appeal, Gilliam does not challenge the court's finding that the evidence was relevant under Evidence Rules 404(b)(1), (b)(2), and (b)(4). Instead, Gilliam argues that the evidence should have been excluded under Rule 403 and that the trial court erred by relying on the Bingaman factors to assess the admissibility of the evidence under Rule 404(b)(1).
We find no merit to these claims. The trial court's written order specifically indicates that it relied on the Bingaman factors only in its application of Rule 403 to the question of whether the evidence was admissible under Rule 404(b)(2) and (b)(4); the order makes no mention of relying on the Bingaman factors in assessing the admissibility of the evidence under Rule 404(b)(1).
We further note that the trial court acknowledged the potential prejudice of the Idaho evidence, and it implemented cures — including giving the jury a limiting instruction explaining how it should view this evidence, and ensuring that Gilliam would have an opportunity to cross-examine C.H. and T.H. about any inconsistencies in their previous statements about the abuse. For these reasons, we conclude that the trial court did not abuse its discretion by admitting this evidence.
The sufficiency of the evidence to support counts 11, 14, and 25
Gilliam next challenges his convictions for first-degree sexual abuse of a minor as charged in counts 11, 14, and 25. He argues that the State presented insufficient evidence to support his convictions on these counts. For count 14 only, the State concedes that there was insufficient evidence to convict Gilliam.
Count 14 charged Gilliam with choking T.H. until she allowed him to engage in genital intercourse with her in September of 2006. After reviewing the relevant portion of the record, including all of the testimony related to this incident, we agree that the evidence was insufficient to support Gilliam's separate conviction on this count. The conduct alleged in count 14 was the same as the conduct alleged in count 17. Because the jury convicted Gilliam of count 17 and because no evidence was presented of a separate, additional incident to support a conviction on count 14, we conclude that the State's concession of error is well-founded. Gilliam's conviction for count 14 must be reversed.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) ("The public interest in criminal appeals does not permit [a] disposition byparty stipulation. We must therefore independently review the proceedings below to insure the error confessed is supported by the record on appeal and has legal foundation.").
Gilliam also alleges that there was insufficient evidence presented to the jury to convict him of counts 11 and 25. Specifically, he contends that the State did not present sufficient evidence that he engaged in a completed act of sexual penetration in each instance.
See AS 11.41.434(a)(2) (first-degree sexual abuse) ("[B]eing 18 years of age or older, the offender engages in sexual penetration with a person who is under 18 years of age[.]"); AS 11.81.900(b)(62) (defining sexual penetration as "genital intercourse, cunnilingus, fellatio, anal intercourse, or an intrusion, however slight, of an object or any part of a person's body into the genital or anal opening of another person's body[.]").
When we evaluate the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the jury's verdict, and then determine whether reasonable jurors could conclude that the defendant's guilt had been established beyond a reasonable doubt. Additionally, for sexual penetration crimes, if separate convictions are based on different types of penetration during the same incident, the evidence must be sufficiently specific to support a finding on each alleged type of penetration.
See Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
See George v. State, 362 P.3d 1026, 1031 (Alaska 2015).
We conclude that the evidence presented at Gilliam's trial meets this standard for count 25. Count 25 involved a single incident of sexual penetration in November 2007, just days before the family moved to Idaho, which C.H. indicated was the last time Gilliam had sex with her in Alaska.
Gilliam argues that the evidence was insufficient because C.H. did not testify to specific details of this sexual act and did not specifically testify that Gilliam penetrated her. However, just before C.H. testified about this incident, she explained that Gilliam's acts of abuse against her followed a specific routine that he repeated each time he abused her. C.H. testified that Gilliam would tell her that he needed to talk to her in his bedroom. There, he would make her take off her clothes and lie on the bed, and then he would take off his clothes, get on top of her, and put "his penis in [her] vagina."
When C.H. testified about the incident alleged in count 25, she told the jury that what happened was "the same thing [that happened] every single time." She said that she could not recall specifics, other than that it was "the same thing every single time." Although the prosecutor did not ask C.H. to clarify that Gilliam's penis penetrated her vagina on this occasion, C.H. had just explained that Gilliam engaged in a particular routine each time he engaged in sexual activity with her, and that this routine always ended with sexual penetration. We therefore conclude that C.H.'s testimony was sufficient to support the jury's verdict on this count.
By contrast, the evidence offered in support of count 11 was not sufficient to establish the element of sexual penetration. In count 11, Gilliam was alleged to have engaged in genital intercourse with C.H. on or about June 2002 through May 2003. But when she testified at trial, C.H. could not remember this incident. As a result, to prove this count, the State relied on the testimony of C.H.'s mother and sister.
C.H.'s mother testified that, during this incident, she walked into the bedroom and observed Gilliam lying on top of C.H., and that both of them were naked. But when C.H.'s mother was asked on cross-examination if she actually saw "anything happen sexually," C.H.'s mother answered that she did not — because Gilliam quickly stood up when she came into the room.
C.H.'s sister, T.H., testified that she was acting as lookout in a front room that day while Gilliam was with C.H. in his bedroom. T.H. did not witness the incident, but she testified that this routine was typical — one girl acted as lookout while the other went with Gilliam to the bedroom to have sex. In a taped phone conversation between Gilliam and T.H. about this incident, which the State played at trial, Gilliam admitted to having sex with C.H. over many years, but he did not specifically say that he had sex with C.H. during the incident charged in count 11.
Thus, the evidence pertaining to count 11 showed only an interrupted encounter where the key eye-witnesses were unable to testify that penetration occurred. For this reason, even when this evidence is viewed in the light most favorable to the verdict, we conclude that it is insufficient to support a conviction for the completed crime of first-degree sexual abuse of a minor. However, because the evidence was sufficient to support a conviction for the lesser included offense of attempted first-degree sexual abuse of a minor, the trial court may, on remand, amend the judgment to reflect Gilliam's conviction for this lesser crime.
See, e.g., Willett v. State, 836 P.2d 955, 960 (Alaska App. 1992); S.R.D. v. State, 820 P.2d 1088, 1093 (Alaska App. 1991); Nathaniel v. State, 668 P.2d 851, 855 (Alaska App. 1983); Nix v. State, 624 P.2d 823, 824-25 (Alaska App.1981); Baden v. State, 667 P.2d 1275, 1279 (Alaska App. 1983).
Whether the separate convictions for digital and penile penetration that occurred during the same incident should merge
Gilliam next argues that his convictions for counts 1 and 2 should merge, as should his convictions for counts 15 and 17. Each of these paired counts involved a discrete encounter with T.H. during which Gilliam penetrated T.H.'s vagina with both his fingers and his penis. Gilliam argues that when digital penetration accompanies penile penetration in a single incident, these two sexual penetrations will not support separate convictions.
Gilliam's position is based on our decision in Thompson v. State, but Thompson was reversed by the Alaska Supreme Court after the parties completed the briefing in Gilliam's case.
Thompson v. State, 378 P.3d 707, 716 (Alaska App. 2016), rev'd, 435 P.3d 947 (Alaska 2019); see also Oswald v. State, 715 P.2d 276, 280 (Alaska App. 1986).
In State v. Thompson, the supreme court held that each different type of penetration "inflicts a distinct violation of the victim's autonomy, dignity, free will, and bodily integrity" and thus will support a separate conviction. Accordingly, separate convictions and sentences may be imposed for each distinct act of penetration when either the penetrating object or body part, or the penetrated orifice, is different.
Thompson, 435 P.3d at 961 (Alaska 2019) (internal quotations omitted).
The supreme court's opinion in Thompson controls our decision here. Because the challenged counts each involve a change in the penetrating body part, the trial court did not err in imposing separate convictions and separate sentences for these counts.
Gilliam's challenge to special probation conditions 24 and 25
Gilliam's final contention is that the trial court failed to adequately tailor two of his probation conditions — special probation conditions 24 and 25 — to avoid unnecessary interference with his familial relationships. As we have explained, T.H. and C.H. were Gilliam's stepchildren. Gilliam and the girls' mother also had two biological children together, both of whom are minors. Gilliam argues that probation conditions 24 and 25 are insufficiently narrow to avoid infringing on his constitutional right to associate with his wife and his biological children.
Specifically, Gilliam contends that special condition 24 is overbroad in that it requires Gilliam's family members to obtain the District Attorney's approval, and to have the District Attorney petition the court, before Gilliam can have contact with them. Gilliam also contends that special condition 25, by prohibiting him from having contact with all persons under eighteen years old, unnecessarily prohibits him from having contact with his own biological children. Lastly, he claims that both probation conditions unreasonably require him to obtain the written permission of a sex offender treatment provider even though (according to Gilliam) he likely will never receive sex offender treatment while incarcerated.
Gilliam notes that there was no evidence that he sexually or physically abused his biological children or his wife — only his stepchildren, T.H. and C.H. As such, he argues that a less restrictive alternative would be to allow him to contact his biological children and wife unless they have notified his probation officer that they do not want contact with him.
As an initial matter, we note that Gilliam was sentenced to a composite sentence of 218 years in prison. It is therefore unlikely that Gilliam will ever be released from custody. Gilliam also did not present any evidence at sentencing to establish his contention that the Department of Corrections does not provide sex offender treatment to lifetime inmates.
We question whether Gilliam's probation conditions apply during his term of imprisonment. However, the parties did not meaningfully argue this on appeal, so we do not address it here.
Nevertheless, we address the merits of Gilliam's argument. We conclude that special probation conditions 24 and 25 must be narrowly construed to avoid any unnecessary infringement on Gilliam's constitutional right to associate with his family. We accordingly construe probation conditions 24 and 25 to permit Gilliam to have contact with his own minor children and with his wife as long as two conditions are met. First, Gilliam's wife and children must provide written consent for any contact with Gilliam, and this written consent must be filed with the court and served on the district attorney's office. Second, if Gilliam is offered sex offender treatment, he must have written permission from his sex offender treatment provider before he may have contact with his family.
So construed, these two probation conditions are appropriately narrow, and we accordingly reject Gilliam's challenge to them.
See Hinson v. State, 199 P.3d 1166, 1174 (Alaska App. 2008) ("A sentencing court has broad authority to fashion conditions of probation so long as the conditions are reasonably related to the probationer's rehabilitation or the protection of the public.") (citation omitted). --------
Conclusion
We conclude that the trial court did not abuse its discretion when it allowed the State to elicit evidence of Gilliam's sexual abuse of T.H. and C.H. in Idaho. We reject Gilliam's claim that he should only receive one conviction for each incident in which an act of digital penetration accompanied an act of penile penetration, and we reject Gilliam's challenge to his probation conditions. Additionally, we conclude that there was sufficient evidence to support Gilliam's conviction on count 25, but there was insufficient evidence to support his convictions on counts 11 and 14.
Accordingly, we REVERSE Gilliam's convictions on counts 11 and 14. On remand, the superior court may amend the conviction in count 11 to reflect a conviction for the lesser included offense of attempted first-degree sexual abuse of a minor. In all other respects, the judgment of the superior court is AFFIRMED.