Opinion
Court of Appeals No. A-8868.
August 22, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Dan A. Hensley and Philip R. Volland, Judges, Trial Court No. 3AN-02-2916 CR.
Allan Beiswenger, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted John N. Hunter of sexually assaulting five different women over the course of a five-year period from 1996 to 2002. The jury also convicted Hunter of several counts of robbery and assault in connection with the sexual assaults.
Hunter raises several claims. First, he attacks the indictment. He argues that the indictment should have been dismissed because of pre-indictment delay. We reject this claim because the superior court properly ruled that Hunter had not been prejudiced by the delay. Hunter also contends that the indictment should have been dismissed because the prosecutor did not present exculpatory evidence to the grand jury. But the evidence Hunter points to is not exculpatory evidence as that term is defined in our caselaw.
Hunter argues that the trial court should have suppressed a statement Hunter made to police because the statement was given in violation of his Miranda rights. Because the record shows that Hunter's waiver of his Miranda rights was knowing and voluntary, the superior court properly denied the motion.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Hunter claims that the superior court should have severed the charges for trial because he was unfairly prejudiced by their joinder. Because the sexual assault evidence is cross-admissible, the superior court did not err when it ruled that joinder was appropriate based on Hunter's failure to show legal prejudice.
Hunter contends that the superior court should have granted his motion for a mistrial because of prosecutorial misconduct. Hunter argues that the prosecutor's opening statement improperly blamed him for causing the victim of the 1996 sexual assault to have a miscarriage. But the trial court did not abuse its discretion when it ruled that the prosecutor's comment was not overly prejudicial.
Next, Hunter argues that the trial court should not have allowed Sexual Assault Response Team nurses to testify about the consistency of the victims' injuries with the victims' statements. He claims that it was not proper testimony from lay witnesses, that the nurses acted like "human polygraphs," and that the nurses improperly relied on hearsay. But this testimony was proper, so Hunter's claims have no merit.
Hunter also argues that the trial court should not have allowed Sergeant David Koch to testify as an expert on prostitution practices. But Sergeant Koch was qualified to testify as an expert, his testimony helped the jury understand the evidence, and the evidence was a proper response to the issues raised by the defense.
Hunter next claims that the trial court should have admitted certain evidence of prior bad acts by the victims. But the trial court properly excluded this evidence because it was inadmissible character evidence or because the prejudicial effect of the evidence outweighed its probative value.
Finally, Hunter attacks his sentence. We agree with Hunter that there is plain error in one aspect of his sentencing. The State's notice of presumptive sentencing asserted that Hunter was a third felony offender. The presentence report also indicated that Hunter faced the presumptive term for a third felony offender for all his felony convictions. Hunter did not challenge these assertions in his sentencing memoranda or in his comments at sentencing. But the date of Hunter's unconditional discharge from his most recent felony conviction was more than ten years before the commission of certain of his present offenses. Therefore, the superior court could not consider that felony when determining what presumptive term applied to those offenses. Because the superior court employed an incorrect presumptive term when sentencing Hunter for those offenses, we must remand the case to the superior court.
We affirm Hunter's convictions, but remand for resentencing.
Facts and proceedings
In April 2002, the grand jury returned an indictment charging Hunter with sexually assaulting five women over a five-year period. The indictment also charged Hunter with two related counts of robbery and three related counts of felony assault. The five incidents included a December 1996 assault on M.N., an August 1997 assault on J.J., a December 1998 assault on R.S., a January 2001 assault on J.V., and a January 2002 assault on L.A.
The 1996 assault on M.N. On the night of December 13, 1996, M.N., a 21-year-old woman who worked as a prostitute, was standing at a bus stop near Bean's Café in Anchorage when a man driving a white Chevrolet El Camino offered her a ride. She accepted. The man, later identified as Hunter, drove to the industrial area near Ship Creek and parked the car. M.N. agreed to perform sexual acts with Hunter in exchange for $20, but when Hunter locked her door, she became scared and wanted to leave. When she tried to leave the car, he restrained her by kicking her, pulling her hair, and biting her arm so hard that it left a permanent scar. Hunter told her that she could "do this the easy way or the hard way." He then tried to penetrate her vaginally and anally with his penis; at trial, M.N. was not sure if he succeeded. M.N. did recall telling Hunter that she was pregnant. Eventually, she fled from the car and contacted a railway security guard, James Adams, and told Adams that she had been beaten up by her boyfriend. Adams noticed that she was distraught, disheveled, missing a shoe, swollen around the face, and missing some hair.
Adams called 911, and police transported M.N. to Alaska Regional Hospital where she was examined by Sexual Assault Response Team (SART) nurse Janice Ihrig. Ihrig observed injuries to M.N.'s face and genitals, and bite marks on her face and arm. M.N. began to have a miscarriage during the SART examination, and she miscarried two days later. Medical evidence suggested that the fetus might have been dead before the assault.
M.N. told police that her assailant was her boyfriend Mike, but she gave a description of Hunter's physical appearance and his white El Camino. Later that same day, police stopped to investigate a dispute involving a white El Camino driven by Hunter. Police found M.N.'s right shoe and hair that appeared similar to M.N.'s in the car.
Several days after the assault, M.N. contacted the police to tell them that she had seen her assailant again, that he had tried to get her sister to get in the car with him, and that his name was actually John.
The 1997 assault on J.J. Hunter picked up J.J., a prostitute who was working on Fourth Avenue in Anchorage, on or about August 15, 1997. Hunter offered $25 for sex, but J.J. refused, saying she "wouldn't do anything for $25." Hunter grabbed J.J. around the neck, put her in a head lock, and held an ice pick to the back of her head. He drove to a location near the Sullivan Arena and demanded sex, saying "[w]e can do this the easy way or the hard way." He pulled her hair and told her he would "snap [her] neck" if she did not cooperate. He forced her to take her clothes off, and then he raped her vaginally and anally. When he was finished he took $60 from her, let her out of the car, and drove away.
J.J. flagged down a police car and reported the incident. Police transported her to Alaska Regional Hospital where she was examined by SART nurse Mary Jane Schroeder. Schroeder found that J.J. had injuries to her genitals, bruises and a cut on her neck, and a bite mark on her thigh. Swabs taken from J.J.'s vagina and rectum contained DNA that matched DNA samples taken from Hunter during the investigation of the 2002 assault described below.
The 1998 Assault on R.S. On the night of December 19, 1998, Hunter stopped his car alongside R.S., a woman who had been drinking alcohol and was walking alone to a pay phone. Hunter got out of the car and asked R.S. if she wanted a ride, but she refused. Hunter grabbed her by the wrist and neck and threw her in the car. He drove to a secluded location and demanded that R.S. take off her clothes. When R.S. refused, Hunter showed her a pocketknife and said that she "could do this the easy way or the hard way." Hunter then raped her vaginally and anally in the front seat of the car.
When Hunter was finished he took R.S.'s wallet, which contained $11, forced R.S. out of the car, and drove away. R.S. walked to a convenience store where a clerk called the police. Police transported her to Alaska Regional Hospital where she was examined by SART nurse Janice Ihrig. Ihrig found bruising on R.S.'s neck and chin, marks on her arm, and injuries to her genitals. Swabs taken from R.S.'s vagina and rectum contained DNA that matched DNA samples taken from Hunter during the investigation of the 2002 assault described below.
The 2001 Assault on J.V. Early on the morning of January 27, 2001, J.V. was intoxicated and was walking home alone when Hunter pulled up in his car and offered her a ride. J.V. had occasionally worked as a prostitute. She got into the car when Hunter offered to take her to an apartment where there was cocaine. When they reached the apartment, J.V. decided against using cocaine because it was in a syringe, and she told Hunter she wanted to go home.
Hunter drove J.V. to a pay phone near St. Mary's Church at Lake Otis Parkway and East Tudor Road, but she was unable to contact her foster mother. Hunter escorted J.V. back to the car, and once she was inside, he raised a closed fist toward her and said "we could do this the easy way or we could do this the hard way." He ordered her to take her clothes off and lie back, and she did so because she was scared. Hunter then raped her vaginally.
When Hunter was finished, he drove J.V. to a hotel. He told J.V. that he used to work at the hotel, and that he had a gun and they should rob the hotel. Hunter told J.V. to go into the hotel, but to leave personal items and jewelry in the car. J.V. went into the hotel and reported to a desk clerk that she had been raped and that her assailant was outside and he intended to rob the hotel. The clerk called the police.
The police transported J.V. to Alaska Regional Hospital where she was examined by SART nurse Tara Henry. Henry found bruises on J.V.'s legs and injuries to her genitals.
Later that day, Detective W illiam Morris contacted Hunter, and Hunter said that he picked up J.V. for a sex act. Police searched Hunter's car and found personal items and jewelry similar to the ones J.V. described.
The 2002 Assault on L.A. Early on the morning of January 30, 2002, L.A., a woman who had been drinking heavily that night, was waiting outside Chilkoot Charlie's bar in Anchorage for a ride home. Hunter pulled up and offered her a ride. L.A. accepted, and Hunter told her that he had beer and marijuana at his home. They went to a home in south Anchorage where Hunter retrieved some beer and marijuana from a shed. From there they drove towards the Mountain View neighborhood where L.A. lived, but Hunter drove past, telling L.A. that he wanted to show her his "dream trailer" in Wasilla.
When they reached the secluded, unoccupied trailer, they went inside and Hunter demanded sex. When L.A. refused, Hunter hit her in the face, pulled her hair, and bit her. He threatened that she would never see her children again unless she did what he said, and L.A. stopped resisting. Hunter raped her vaginally and anally.
When he was finished, Hunter picked up and kept some coins that had fallen out of L.A.'s pocket. He drove her back to Anchorage and left her in a restaurant parking lot off Boniface Parkway. She wrote down the license plate number of Hunter's car, and then took a cab home. When she got home her daughter called the police.
The police transported L.A. to Alaska Regional Hospital where she was examined by SART nurse Karen Davis. Davis found bruises on L.A.'s leg and arm, bruises and cuts on her face and head, a bite mark on her hand, and injuries to her genitals. Swabs taken from L.A. contained DNA that matched Hunter's DNA. Around this same time, the State used its DNA database to match Hunter's DNA with DNA samples obtained during the investigation of the 1997 attack on J.J. and the 1998 attack on R.S.
On May 2, 2002, the grand jury returned an indictment charging five counts of first-degree sexual assault, two counts of first-degree robbery (of J.J. and R.S.), two counts of third-degree assault (on J.J. and R.S.), and one count of second-degree assault (on M.N.).
AS 11.41.410(a)(1), AS 11.41.500(a)(1), AS 11.41.220(a)(1)(A), and AS 11.41.210(a)(2), respectively.
The case was tried before Superior Court Judge Philip R. Volland. Hunter's defense was consent — Hunter claimed that all five women had agreed to have sex with him but falsely accused him of sexual assault after disputes over payment. The jury convicted Hunter of all charges except the third-degree assault charge relating to the 1998 assault on R.S. (Count VIII). The jury also returned a special interrogatory indicating that the jurors had unanimously determined that Hunter caused serious physical injury to M.N. by means other than terminating her pregnancy.
Hunter had three prior felony convictions when he was sentenced. First, he had a 1981 California armed robbery conviction. Second, he had a 1983 Indiana rape conviction. (Hunter was unconditionally discharged from these two convictions on September 28, 1988.) Third, Hunter had an April 2000 Alaska conviction for felony driving while intoxicated. Based on these prior convictions, Judge Volland ruled that Hunter was a third felony offender for presumptive sentencing purposes. Hunter therefore faced a 25-year presumptive term on each of the five counts of first-degree sexual assault, a 15-year presumptive term for the two first-degree robbery counts, a 3-year presumptive term on the third-degree assault charge, and a 6-year presumptive term on the second-degree assault charge.
AS 11.41.410(b) and former AS 12.55.125(i)(1)(E).
AS 11.41.500(b) and former AS 12.55.125(c)(4).
AS 11.41.220(d) and former AS 12.55.125(e)(2).
AS 11.41.210(b) and former AS 12.55.125(d)(2).
Judge Volland imposed a presumptive term of 25 years' imprisonment for each of the charges of first-degree sexual assault (Counts I-V). He imposed 17 years each for Counts II-V consecutively to Count I, resulting in 93 years to serve. Judge Volland sentenced Hunter to a term of 15 years on each of the first-degree robbery charges (Counts VI and VII), to be served concurrently to Counts I-V. He also sentenced Hunter to a term of 3 years on the third-degree assault charge (Count IX) and a term of 6 years on the second-degree assault charge (Count X), with 6 months of each of those terms to be served consecutively to Counts I-V. The result was a composite term of 94 years to serve. Hunter appeals.
Discussion Hunter's pre-indictment delay claim
Before trial, Hunter moved to dismiss the counts of the indictment involving the assaults on M.N. (1996), J.J. (1977), R.S. (1998), and J.V. (2001). Superior Court Judge Dan A. Hensley rejected Hunter's claim. Hunter renews his claim that the delay in indicting him for the assaults involving M.N. (1996), J.J. (1997), R.S. (1998), and J.V. (2001) violated his right to due process.
We consider two factors when deciding whether pre-indictment delay violates due process: the reasonableness of the delay and any harm resulting from the delay. Once a defendant establishes the absence of a valid reason for delay and actual prejudice, the State has the burden to advance reasons for the delay. If the State provides reasons for the delay, the defendant must demonstrate that the reasons do not justify the delay.
Coffey v. State, 585 P.2d 514, 519 (Alaska 1978).
State v. Mouser, 806 P.2d 330, 336 (Alaska App. 1991); York v. State, 757 P.2d 68, 70-71 (Alaska App. 1988).
Mouser, 806 P.2d at 336; York, 757 P.2d at 71.
The State offered two reasons for the delay. First, the State says it could not indict Hunter on the 1997 and 1998 assaults until he was linked to the assaults. This link was not made until 2002 when Hunter's DNA was matched to those two assaults through the state's DNA database (CODIS). Hunter claims that the State took samples of his DNA in 1996 and 2001 as part of its investigation of the assaults against M.N. and J.V., and that the State could have used those samples to identify him as a suspect. The State counters that backlogs in the system and funding requirements prevented the CODIS database from becoming operational in Alaska until 2002.
See Audit Div., U.S. Dep't of Justice, Combined DNA Index System Operational and Laboratory Vulnerabilities, Audit Report 06-32 1-8 (2006, http://www.usdoj.gov/oig/reports/FBI/a0632/final.pdf. See also Alaska Dep't of Pub. Safety, Mission and Measures Statement (2001),http://www.gov.state.ak.us/omb/2001site/2001PublicSafety.html; Alaska Dep't of Pub. Safety, State of Alaska FY2003 Governor's Operating Budget 3 (2001),http://www.gov.state.ak.us/omb/030MB/budget/PublicSafety/comp527.pdf.
Second, the State argues that it could not indict Hunter earlier because "the pattern of Hunter's assaults did not emerge until 2002 when he committed his fifth assault and was identified as the assailant in the 1997 and 1998 cases." The State asserts that before this connection was made, the State's "response to Hunter's defense of consent in the 1996 and 2001 cases — the two cases in which he was positively identified as a suspect — rested precariously on the word of the victims — M.N. and J.V. — who were admitted prostitutes and drug addicts." In 2002, the State contends, the case changed as a result of the discovery of Hunter's factually similar assaults against three more victims. Judge Hensley accepted both of the State's reasons for the delay as valid. He rejected Hunter's claim as to the January 2001 case because not much time had passed between the assault and the May 2002 indictment. He also found that it was reasonable for the State to delay charges in the 1997 and 1998 cases until a suspect could be identified. Finally, he found that the State's decision not to file charges in the 1996 case was "a reasonable evaluation at that time. But if these later cases are relevant to the 1996 case, then it now becomes reasonable to file charges."
The record supports Judge Hensley's findings. Because Judge Hensley properly found that the State had valid reasons for the delay, we need not address Hunter's claims of prejudice.
However, even though we need not address Hunter's prejudice claim, we also conclude that Hunter has not shown that he suffered actual prejudice. We have held that "[b]y actual prejudice we mean a particularized showing that the unexcused delay was likely to have a specific and substantial adverse impact on the outcome of the case." Hunter argues that he was prejudiced because "his recollection of the events was not the best given the passage of time." But we stated in Mouser that "generalized claims of lost witnesses and faded memories do not suffice as prejudice supporting the finding of a violation of due process." We said that a defendant "must show that but for the delay, he would have been able to present favorable evidence. Mere speculation about the loss of favorable evidence is insufficient." Hunter's claim that his memory of events had faded does not establish prejudice.
Mouser, 806 P.2d at 337.
Id.
Id. at 337-38 (quoting Wilson v. State, 756 P.2d 307, 311 (Alaska App. 1988)).
Hunter also claims that he suffered prejudice because the delay allowed the State to "present evidence of subsequent allegations of sexual assaults to `buttress' the earlier allegations." Hunter essentially argues that because of the delay, the State was able to wait for him to commit more crimes, and then use evidence of those crimes to support an indictment for his earlier crimes — in other words, that the State's delay allowed him to prejudice himself. Hunter cites no authority to support this theory.
Judge Hensley did not abuse his discretion by accepting the State's reasons for the delay and by finding that Hunter failed to identify any actual prejudice caused by the delay. W e affirm Judge Hensley's denial of Hunter's motion to dismiss the indictment.
Hunter's claim that exculpatory evidence should have been presented to the grand jury
Hunter argues that the counts relating to M.N. should have been dismissed because the prosecutor failed to present exculpatory evidence to the grand jury.
The prosecutor must inform the grand jury of exculpatory evidence, but "only material substantially favorable to a defendant need be presented." Evidence is considered substantially favorable only if it "tends, in and of itself, to negate the defendant's guilt."
State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994) (quoting Sheldon v. State, 796 P.2d 831, 838 (Alaska App. 1990)).
McDonald, 872 P.2d at 639; York, 757 P.2d at 73.
Hunter argues that the evidence that M.N. first told police, shortly after the 1996 assault, that her assailant was a boyfriend named Mike is exculpatory evidence. When testifying before the grand jury, M.N. said that she gave the police a description of her assailant and her assailant's car, but the prosecutor did not ask her about her initial identification of her boyfriend. The prosecutor also did not ask Detective Steven Hill, who testified about M.N.'s initial contact with police, about M.N.'s statement identifying someone named Mike. Hunter argues that M.N.'s identification of Mike would have negated Hunter's guilt.
We considered a similar argument in Abruska v. State. Abruska argued that the victim's inconsistent statements identifying the perpetrator should have been presented to the grand jury. We found that "[i]t is difficult to see how conflicting statements by [the victim] can be said to substantially negate [the defendant's] guilt." Similarly, Hunter does not convincingly explain how M.N.'s initial identification would have, in and of itself, negated his guilt.
705 P.2d 1261 (Alaska App. 1985).
Id. at 1272.
Id. at 1273.
Although M.N. initially blamed a boyfriend for her assault, she accurately described Hunter's physical appearance as well as the interior and exterior of his vehicle. A railway security guard saw Hunter's vehicle drive away from the scene, and the police found M.N.'s right shoe and hair similar to M.N.'s hair in Hunter's vehicle. In addition, several days after the assault, M.N. contacted the police and admitted that her assailant was not a former boyfriend, but was a customer, and later told police her attacker was named "John."
Judge Hensley found that M.N.'s identification of her assailant as a "boyfriend" was not substantially favorable to Hunter on its own because the rest of M.N.'s description of her assailant matched Hunter, and because an independent witness had also identified Hunter. We conclude from our review of the record that Judge Hensley did not abuse his discretion when he denied Hunter's motion to dismiss the charges relating to M.N.
Hunter's claim that the police violated Miranda
Hunter argues that the police violated Miranda when they obtained a statement from him after the 2002 assault.
The police interviewed Hunter on January 30, 2002, after the assault on L.A. At the beginning of the interview, Trooper Terry Shepherd advised Hunter of his Miranda rights and confirmed that Hunter understood each right. Trooper Shepherd then gave Hunter a waiver-of-rights form, which Hunter signed. The form required Hunter to put his initials next to each of the listed Miranda rights, and then to check "Yes" or "No" with regard to two questions: "Do you understand each of these rights I have explained to you?" and "Having these rights in mind, do you wish to talk to us now?" Hunter initialed each right, checked "Yes" for each question, and signed the form.
However, the transcript of the recorded interview reflects the following exchange between Hunter and Trooper Shepherd while Hunter was filling out the form:
Trooper Shepherd: If you understand these rights why don't you go ahead and just initial each one. If you do have a question you can, you can ask me. Basically it's just initialing that you understand your rights.
Hunter: But it's not waiving none of my, none of my rights or anything?
Trooper Shepherd: No, it's that you understand this and I'll ask you [for] a waiver of your rights. This is just to make sure you understand what your rights are.
Hunter: Okay.
Trooper Shepherd: Okay and again I'll ask you, do you understand your rights here?
Hunter: Yeah.
Trooper Shepherd: Okay.
Hunter: From what you read me.
Trooper Shepherd: Okay.
Hunter: And I've initialed yes, I do.
Trooper Shepherd: Okay. I'm going to ask you to waive your rights. Do you understand each of these rights as I have explained to you?
Hunter: Uh huh.
Trooper Shepherd: Okay. Why don't you go ahead and just check yes and initial that. That's just saying you do understand the rights and then the second question will be having these rights in mind, do you wish to talk to us now. Meaning would [you] like to . . . have me interview you or would you like to talk to me.
Hunter: Yeah I'd like to know what's going on.
Trooper Shepherd: Okay and again, just go ahead and check yes there and okay. And the other one is just for me to sign and I gave it to you.
Hunter: But I'm not waiving none of my rights?
Trooper Shepherd: No. Anytime like it says here you can stop answer[ing] any questions at any time . . . and you don't have to answer any questions. But if you are waiving these to talk to me now you can go ahead and we'll, we'll go ahead and talk to you. We'll, I'll let you know what's going on and, and ask you questions and, and you can answer them or you can't answer them. That's up to you. Okay?
Hunter: Okay.
Hunter went on to admit that he picked up a prostitute in the Spenard area and drove around Anchorage with her, but he said he did not sexually assault anyone. He did not admit to going to his residence or driving to Wasilla. Statements from this interview were used at trial to impeach Hunter.
Although Hunter concedes that he signed the waiver-of-rights form, he notes that twice he asked Trooper Shepherd: "But I'm not waiving none of my rights?" Hunter argues that these questions were either a refusal to waive his rights or an ambiguous statement that the trooper was required to clarify before continuing with the interrogation.
The first time Hunter asks the question — "But it's not waiving none of my, none of my rights or anything?" — Hunter was clearly asking for clarification about the questions on the waiver-of-rights form. Trooper Shepherd explained that the question on the form was asking whether he understands his rights, and that the next question would ask whether he would waive those rights. In this context, Hunter's question was not an invocation of his right to remain silent, but was instead a request for clarification about his rights and the form. Trooper Shepherd responded appropriately.
Immediately after the second time Hunter asked whether he was waiving his rights, Trooper Shepherd explained that Hunter would be waiving his rights by deciding to begin the interview, but that he retained his right to stop answering questions at any time, and his right to decide whether to answer or not answer any questions. Hunter then agreed to speak. Judge Hensley held that Hunter voluntarily agreed to speak to police and that Hunter was not confused.
Trooper Shepherd thoroughly explained the Miranda rights and made sure that Hunter understood them. Although it is true that by answering questions Hunter was functionally waiving his right to silence, Trooper Shepherd told Hunter that he retained the right to only answer certain questions and to end the questioning at any time. From our review of Judge Hensley's findings regarding the discussion between Trooper Shepherd and Hunter, we independently conclude that Hunter understood his rights and voluntarily elected to speak.
Hunter's understanding was confirmed later in the interview by an exchange between Hunter and Sergeant Martin Patterson. Sergeant Patterson asked if Trooper Shepherd had explained Hunter's rights to him, and Hunter responded that he understood his rights. Hunter explained that he knew he was not waiving his rights and he knew he could stop answering questions at any time.
Hunter argues that he made an ambiguous invocation of his right to silence that the trooper was required to clarify. But that is not how we read the transcript. The transcript shows that Hunter wanted to discuss the situation with the police. Trooper Shepherd carefully explained the Miranda rights to Hunter and informed Hunter that he could begin to talk to Shepherd about the case but still retain the option to invoke his rights at any point.
In summary, the record shows that Hunter voluntarily chose to answer the questions put to him by the police, while understanding his rights and understanding that he retained the right to end the questioning at any time. We affirm Judge Hensley's denial of Hunter's motion to suppress. Hunter's motion to sever the charges
Hunter argues that Judge Hensley improperly denied his motion to sever the charges arising from the five assaults.
Courts apply a two-part test to determine whether joinder is proper. First, the trial court must determine whether the charged offenses are so related as to make joinder proper. Second, the court must determine whether joinder of the offenses for trial would unduly prejudice the defendant. Judge Hensley denied Hunter's motion to sever, ruling that the charges were "situationally similar" and that their joinder was not unfairly prejudicial. We will not disturb this ruling absent an abuse of discretion and a showing of actual prejudice.
Alaska R. Crim. P. 8; Pease v. State, 54 P.3d 316, 322 (Alaska App. 2002).
Alaska R. Crim. P. 14; Pease, 54 P.3d at 322.
Pease, 54 P.3d at 322; Sharp v. State, 837 P.2d 718, 724 (Alaska App. 1992).
Alaska Criminal Rule 8(a) allows the joinder of offenses if they:
(1) are of the same or similar character and it can be determined that it is likely that evidence of one charged offense would be admissible to prove another charged offense,
(2) are based on the same act or transaction, or
(3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
The State argues that joinder is proper under Rules 8(a)(1) and 8(a)(3).
Under Rule 8(a)(1), Hunter's offenses may be joined either if they are of similar character or if evidence of each offense is likely to be cross-admissible to prove the other offenses. The State first argues that each of the sexual assaults was committed in "a remarkably similar manner." Hunter picked up each woman in his car. Each woman was alone on the street late at night, and each was either intoxicated, a prostitute, or both. Hunter threatened each victim — sometimes using a weapon — and in at least four of the cases he told the victim that they could "do it the easy way or the hard way." In four of the incidents (all except the incident where the victim did not fight back), Hunter physically assaulted the victim, including biting and hitting. He raped each woman vaginally, and four of them anally. Hunter claimed that each incident involved a pay dispute after an act of prostitution. Hunter does not argue here that the incidents were not of similar character.
The State next argues that evidence of one incident was likely to be cross-admissible to prove the other offenses under Alaska Evidence Rule 404(b)(3). Under Evidence Rule 404(b)(3), 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." At trial, Hunter argued that each woman consented.
In Bingaman v. State we explained how Rule 404(b) evidence should be admitted in light of Evidence Rule 402 (barring the admission of irrelevant evidence) and Evidence Rule 403 (under which we determine if the probative value of evidence is outweighed by its prejudicial effect). We listed six factors which a trial judge must consider when deciding whether evidence may properly be admitted under Rule 404(b):
76 P.3d 398 (Alaska App. 2003).
1. How strong is the government's evidence that the defendant actually committed the other acts?
2. What character trait do the other acts tend to prove?
3. Is this character trait relevant to any material issue in the case? How relevant? And how strongly do the defendant's other acts tend to prove this trait?
4. Assuming that the offered character evidence is relevant to a material issue, how seriously disputed is this material issue? Does the government need to offer more evidence on this issue? And is there less prejudicial evidence that could be offered on this point? In other words, how great is the government's need to offer evidence of the defendant's other acts? Or, if evidence of one or more other acts has already been admitted, how great is the government's need to offer additional evidence of the defendant's other acts?
5. How likely is it that litigation of the defendant's other acts will require an inordinate amount of time?
6. And finally, how likely is it that evidence of the defendant's other acts will lead the jury to decide the case on improper grounds, or will distract the jury from the main issues in the case?
Id. at 415-16.
We further held that "whenever the government offers evidence of a defendant's other bad acts under Evidence Rules 404(b)(2), (b)(3), or (b)(4), trial judges must conduct a balancing under Evidence Rule 403 and must explain their decision on the record."
Id. at 416.
Hunter acknowledges that Judge Hensley engaged in a Bingaman analysis, but he argues nonetheless that Judge Hensley failed to do the required "balancing."
Judge Hensley found that the State had "reasonably strong" evidence of the other acts because Hunter admitted to having sex with three of the women. (At trial, Hunter admitted to having sexual contact with all five women after the State showed that Hunter's DNA connected him to all five and after the State offered evidence of sexual injuries and bite marks on the victims that indicated the sexual acts were not consensual.) He found that the evidence tended to prove that Hunter had a "propensity for picking up prostitutes and doing a forcible sexual assault." Because consent was a material issue in the case, he found this trait to be a "key issue." He concluded that the 404(b)(3) evidence was "highly relevant," and that "an introduction of the evidence will not likely cause the jury to decide the case based on improper evidence." The record supports Judge H ensley's analysis, which was sufficiently detailed under Bingaman.
Furthermore, the evidence of Hunter's sexual assaults would also be cross-admissible under Evidence Rule 404(b)(1). Although Evidence Rule 404(b)(1) bars evidence of other crimes or bad acts to show a person's character to commit a similar act, the rule allows the admission of evidence of other crimes or bad acts "for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
As we discussed above, each victim was alone on the street, late at night, when Hunter picked them up while in his car. Each victim was intoxicated or working as a prostitute or both. Hunter threatened each victim — sometimes using a weapon — and in at least four of the cases he told the victim that they could "do it the easy way or the hard way." In four of the incidents (all except the incident where the victim did not fight back), Hunter physically assaulted the victims, including biting and hitting. He raped each woman vaginally and four of them anally. The incidents would thus be cross-admissible to show Hunter's intent and plan.
The State also argues that the joinder was proper under Criminal Rule 8(a)(3), but because we can conclude the charges were properly joined under Rule 8(a)(1), we need not address that argument.
Hunter contends that he was prejudiced by the joinder because the evidence of multiple assaults had a negative impact on the jury's ability to consider each assault individually. But as the State correctly points out, the jury must have considered each charge independently because it acquitted Hunter on one of the assault charges.
Hunter also argues that, because the State declined to prosecute him after the 1996 and 2001 assaults, the State was only able to successfully prosecute him for those assaults now with the help of the evidence of the other assaults. In other words, he contends that if the charges had been severed, evidence of one assault would not have been admitted at the trial of another. However, as discussed above, the evidence was cross-admissible, and we have observed that a defendant is "hard-pressed to show actual prejudice" when evidence of one crime is cross-admissible to prove the joined offenses.
Pease, 54 P.3d at 322. See also Machado v. State, 797 P.2d 677, 685 (Alaska App. 1990).
Judge Hensley did not abuse his discretion when he ruled that the charges were properly joined and that Hunter had failed to prove prejudice. We uphold Judge Hensley's denial of Hunter's motion to sever.
Hunter's motion for a mistrial
Hunter next argues that Judge Volland erred in denying his motion for a mistrial based on comments made by the prosecutor during opening statements.
Count X of the indictment charged Hunter with second-degree assault for recklessly causing serious physical injury to M.N. "Serious physical injury" is defined by statute as "physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy." Relying on this definition, the State asserted that two injuries to M.N. qualified as serious physical injury: the bite to M.N.'s arm, and the termination of M.N.'s pregnancy.
AS 11.81.900(b)(56)(B).
During opening statements, the prosecutor said:
[O]ne of the consequences of the beating to [M.N.], in 1996, was the unlawful termination of a pregnancy. She was pregnant, she lost the fetus. I'm not sure that she knew she was pregnant. It may be that she suspected she was pregnant. The beating to her face, to her belly, to her body, the struggle, caused a miscarriage.
The prosecutor referenced a miscarriage on two other occasions during her opening statement.
Later, Hunter moved for a mistrial, arguing that there was no proof that Hunter caused the death of the fetus, or even that the fetus was still alive when the assault occurred. He sought to dismiss all charges or, in the alternative, to dismiss the counts relating to M.N. (Counts V and X). Judge Volland denied the motion.
Hunter argues that the prosecutor's discussion of the miscarriage, particularly that M.N. "lost the fetus," unfairly attributed the fetus's death to Hunter. He notes that the prosecutor later acknowledged that she had no proof that Hunter actually caused the death of the fetus, but argued instead that he had caused the miscarriage. Medical evidence indicated that the fetus was probably already dead before the assault occurred. Hunter argues that the implication that Hunter killed M.N.'s fetus "inflame[d] the jury's sympathies in favor of the prosecution's case."
See Potts v. State, 712 P.2d 385, 390-91 (Alaska App. 1985).
But we agree with the State's argument that any error attributable to the prosecutor's comments is harmless because the second-degree assault charge was based on two injuries: the miscarriage and the bite (which left a permanent scar). The jury returned a special interrogatory indicating that the jurors unanimously agreed that Hunter "caused serious physical injury by any other means than unlawfully terminating a pregnancy." It is reasonable to conclude from this special interrogatory that the jury was not prejudiced by the prosecutor's statement.
We reject Hunter's argument that Judge Volland committed reversible error when he denied Hunter's motion for a mistrial.
Testimony by SART nurses describing victims' injuries
Following each of the five assaults in this case, each victim was examined by a Sexual Assault Response Team (SART) nurse. At Hunter's trial, each SART nurse described the injuries that they observed during these examinations.
The prosecutor asked several of the SART nurses if the injuries to the victims' bodies were consistent with the victims' claims of non-consensual sex. Hunter objected, arguing that the nurses' answers to these questions would be based on hearsay ( i.e., the statements of the victims), and also that the nurses' answers would constitute improper expert testimony. Judge Volland overruled the objections and allowed the nurses to answer. In three instances, the SART nurse testified that the victim's injuries (L.A.'s, R.S.'s, and M.N.'s) were consistent with a claim of non-consensual sex.
On appeal, Hunter renews his argument that the nurses' answers to these questions constituted improper expert testimony. The State responds that the nurses were not testifying as experts, but rather were simply offering their lay opinions about the victims' injuries. We do not agree with either party.
We begin our analysis with the observation that the terms "expert witness" and "lay witness" are somewhat misleading. For purposes of our evidence law (Alaska Evidence Rules 702 through 705), the question is not whether a particular witness is an "expert" in the sense that they have specialized training, education, or experience. Rather, the question is whether the witness's testimony is based on specialized training, education, or experience. Thus, the crucial distinction is not between "expert witnesses" and "lay witnesses." Instead, the crucial distinction is between expert and lay testimony.
The Alaska Supreme Court implicitly recognized this principle in Getchell v. Lodge. In Getchell, the court noted that "experts" — i.e., witnesses who have specialized training, education, or experience — will sometimes give testimony that is partially based on their own personal observations, and partially based on their expert analysis — that is, conclusions that the witness drew from these factual observations based on the witness's specialized training, education, or experience. The court employed the term "hybrid" witness to describe this situation.
65 P.3d 50 (Alaska 2003).
Id. at 56.
Id.
The supreme court's analysis in Getchell rests on the recognition that certain types of experts (for example, doctors and nurses) are often called to testify about things that they personally observed, and also to offer their expert opinion about the meaning of those observations. These witnesses are giving "lay testimony" to the extent that they are describing the events, conditions, or circumstances they personally observed, and they are giving "expert testimony" to the extent that they are offering an explanation or analysis of these observations based on their expertise.
The SART nurses in Hunter's case gave this "hybrid" type of testimony. They testified about their personal observations of the victims' injuries, and in doing this they were generally offering lay testimony. They also offered opinions as to whether those observed injuries were consistent with the victims' claims of sexual assault. In doing this, they were offering expert testimony — i.e., analysis based on their training and experience.
Hunter contends that the nurses were not qualified to offer an expert opinion concerning the nature or potential origin of the victims' injuries. We disagree.
Alaska Evidence Rule 702(a) permits a witness to offer expert testimony if the witness is qualified "by knowledge, skill, experience, training, or education," and if the witness's "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." In the present case, the nurses testified that not only were they trained as nurses, but they also had received specialized training as members of the Sexual Assault Response Team, and they had substantial experience working as SART nurses. Judge Volland did not abuse his discretion when he concluded the nurses were qualified to offer opinions concerning the nature or potential origin of the victims' injuries.
Hunter also argues that the prosecutor's question (whether the victims' injuries were consistent with their claims of sexual assault) invited the SART nurses to play the role of "human polygraphs" by vouching for the truthfulness of the victims. This is simply not so. The nurses did not testify that the victims' injuries proved that the victims were telling the truth, nor did the nurses testify that they personally believed the victims' assertions of sexual assault. Instead, the nurses merely testified that the victims' observed injuries were consistent with claims of sexual assault. The nurses acknowledged that there were other potential explanations for the victims' injuries.
Hunter also argues that the SART nurses improperly relied on hearsay ( i.e., the victims' out-of-court statements) when the nurses offered their opinions that the victims' observed injuries were consistent with their claims of non-consensual sex. This argument is mistaken.
Evidence Rule 801(c) declares that an out-of-court statement is "hearsay" only if the statement is "offered in evidence to prove the truth of the matter asserted" in the statement. Although it is true that the nurses' testimony related to, or referred to, the victims' out-of-court statements, the nurses did not rely on the victims' out-of-court statements for the truth of the matter asserted — i.e., the truth of the victims' assertions that they had been sexually assaulted. Rather, the nurses referred to the victims' out-of-court statements only for the fact that those accusations of sexual assault had been made, so that the nurses could then explain whether the victims' observed injuries were consistent with those accusations. Used for this purpose, the victims' out-of-court statements were not hearsay.
In sum, Judge Volland properly allowed the SART nurses to answer the prosecutor's questions as to whether the victims' injuries were consistent with their claims of non-consensual sex.
Sergeant Koch's expert testimony
Hunter next argues that the trial court erred by allowing Sergeant David Koch of the Anchorage Police Department to testify as an expert witness to rebut Hunter's testimony that twenty dollars was the "going rate" in Anchorage for commercial sex acts.
Hunter testified that the "going rate out there" for just about any sex act was twenty dollars. In rebuttal, the State called Sergeant David Koch to testify as an expert witness that Hunter's statement was incorrect, and that the going rates were actually higher.
Hunter first argues that Sergeant Koch should not have been allowed to testify as an expert witness because the State did not give timely notice of his testimony under Criminal Rule 16(b)(1)(B). Rule 16(b)(1)(B) requires that the State give the defendant advance notice of "any expert witnesses performing work in connection with the case or whom the prosecutor is likely to call at trial." Sergeant Koch's name was not on the State's pre-trial lists of witnesses.
However, the supreme court held in Howe v. State that the State need not disclose in advance of trial "the names of rebuttal witnesses whose knowledge was not thought to be germane to the case until a position taken by the defense during trial made it so." In Howe, the supreme court was discussing lay witnesses, not experts, but the same principle applies here. The State was not aware before trial that it would need an expert to contradict Hunter's contention about the cost of commercial sex. The State gave notice of its intent to call an expert shortly after the issue became apparent (the same day Hunter testified about "going rates"). This notice was sufficient.
589 P.2d 421 (Alaska 1979).
Id. at 424.
Second, Hunter argues that Sergeant Koch did not have the necessary expertise to qualify as an expert witness about prostitution practices. Evidence Rule 702(a) allows a witness to give expert testimony if the witness is qualified "by knowledge, skill, experience, training, or education," and if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." The supreme court has held that a police officer can be allowed to provide expert testimony under Evidence Rule 702.
See G etchell, 65 P.3d at 56-57. See also United States v. Hankey, 203 F.3d 1160, 1167-70 (9th Cir. 2000) (permitting a police officer who had spent years working undercover with gang members to testify as an expert about gang activity); United States v. Harris, 192 F.3d 580, 588-89 (6th Cir. 1999) (admitting expert testimony about drug operations given by a police officer with experience in narcotics).
Sergeant Koch had twenty-five years of experience with the Anchorage Police Department, twenty-two years of which were spent working on prostitution and drug cases. Hunter contends that Sergeant Koch's expertise was in the area of drug distribution, but the State points out that although he was assigned to the drug unit, Sergeant Koch had frequent contact with prostitutes because drug and prostitution cases often overlap. Because Sergeant Koch has extensive experience dealing with prostitution in Anchorage, and because his testimony might assist the jury in understanding the evidence about prostitution in Anchorage, Judge Volland properly qualified Koch as an expert under Rule 702.
Third, Hunter argues that Sergeant Koch's testimony was irrelevant and unhelpful because the issue before the jury was whether the victims agreed to accept twenty dollars for sex, not whether the going rate was twenty dollars. However, as the State points out, it was Hunter who testified that the "going rate out there" for just about any sex act was twenty dollars. The State argues that this testimony was useful to Hunter because it cast doubt on J.J.'s testimony that she had refused Hunter's offer of twenty-five dollars because it was too low. Hunter made this issue relevant, so Sergeant Koch's testimony was properly admitted.
Judge Volland's exclusion of evidence of prior bad acts by the victims Hunter next argues that Judge Volland erred by excluding some evidence of prior "bad acts" by three of the victims. Judge Volland excluded the evidence either because it was offered as character evidence for which specific instances of misconduct are inadmissible, or because the evidence was cumulative and its prejudicial effect outweighed its probative value.
Hunter first claims that Judge Volland erroneously excluded evidence of L.A.'s alleged assaults on her children and on another woman. Hunter offered this evidence under Evidence Rule 404(a)(2) to prove that L.A. was the first aggressor in the incident with Hunter. Judge Volland excluded this evidence because he thought it was more prejudicial than probative under Rule 403.
We have held that, in criminal cases involving claims of self-defense, Evidence Rules 404(a)(2) and 405 allow the admission of evidence proving the character of the defendant or victim if that evidence is offered to show who is the first aggressor; however, this evidence must be limited to reputation and opinion evidence. Thus, specific instances of L.A.'s purported violent tendencies were not admissible under Rule 404(a)(2) to prove that L.A. was the first aggressor.
Allen v. State, 945 P.2d 1233, 1239 (Alaska App. 1997).
From our examination of the record, we also conclude that Judge Volland's ruling that the prejudicial impact of the evidence outweighed its probative value was not an abuse of discretion.
See Alaska Northern Dev., Inc. v. Alyeska Pipeline Serv. Co., 666 P.2d 33, 42 (Alaska 1983); Doisher v. State, 632 P.2d 242, 254 (Alaska App. 1981).
Next, Hunter argues that Judge Volland wrongly excluded evidence relating to J.J.'s prostitution and drug use, as well as evidence of assaults on J.J. by someone other than Hunter. Hunter wanted to show both that J.J. engaged in prostitution to support her substance addiction and that she had a motive for fabricating a rape allegation. Judge Volland ruled that the prejudicial impact of this evidence outweighed its probative value. Judge Volland knew that J.J. would testify that she was a prostitute and that she had a substance abuse problem when she took the stand, so the specific evidence that Hunter sought to introduce would have little additional probative force compared to the potential prejudicial impact. We have held that "even when evidence of a victim's character or past bad acts is relevant, a trial judge has the discretion to limit the amount of evidence introduced on this point, so long as the substance of the defendant's claim is communicated to the jury." Hunter has not shown that Judge Volland abused his discretion.
Heaps v. State, 30 P.3d 109, 112 (Alaska App. 2001).
Finally, Hunter argues that Judge Volland erred by not permitting him to present evidence of M.N.'s drug use as well as evidence that M.N.'s parental rights were terminated because of her drug use. Again, because M.N. was ready to testify that she had acted as a prostitute and that she had abused drugs, Judge Volland found that the proffered evidence was more prejudicial than probative under Rule 403. Considering the evidence admitted regarding M.N., Hunter has not explained why the exclusion of this evidence was an abuse of discretion.
Hunter's attack on his sentence
Hunter was sentenced to a composite term of 94 years' imprisonment for five counts of first-degree sexual assault, two counts of first-degree robbery, one count of second-degree assault, and one count of third-degree assault. Hunter attacks several aspects of his sentence.
Hunter first argues that Judge Volland improperly speculated and relied on other uncharged sexual assaults when he sentenced Hunter. The issue arose when Hunter objected to a part of the presentence report which states: "This writer sincerely ponders how many other countless and unidentified victims have tragically suffered over the years at the hands of the defendant." In ruling on Hunter's objection, Judge Volland stated: "I think I can infer from the nature of the sexual assaults here and style of the sexual assaults that were in issue in this trial that there may have been other victims. . . . I think it's sufficient for me to be able to infer that other events might have happened." Even so, Judge Volland agreed to strike the comment to which Hunter objected from the record.
Hunter argues that Judge Volland's comments violated Donlun v. State, in which the supreme court held that a sentencing court erred when it inferred that the defendant had committed previous crimes, and that the charged crime was simply the first time the defendant had been caught. The State argues that "despite Judge Volland's recognition that he could infer other assaults, he did not rely on any such inference in sentencing Hunter." The State notes that Judge Volland's sentencing remarks do not show any reliance on an inference that Hunter may have committed other assaults when he fashioned the sentence imposed. In Donlun, the superior court judge expressly inferred other uncharged crimes when fashioning the sentence. The record does not show that Judge Volland explicitly relied on the possibility of other assaults, but he will have the opportunity to clarify this point because we must remand the case for resentencing, as we discuss below.
550 P.2d 369 (Alaska 1976).
Id. at 371.
Id.
Hunter next argues that he was not a third felony offender for the purposes of presumptive sentencing on some of the counts. Hunter had a 1981 California conviction for armed robbery, a 1983 Indiana conviction for rape, and a 2000 Alaska conviction for felony DWI. Hunter points out that, with respect to the charges that pre-dated the 2000 DWI (Counts III-X), the immediately prior conviction was the 1983 Indiana rape conviction. Under AS 12.55.145(a)(1)(A), a prior conviction may not be considered if a period of ten years or more has passed between the commission of the present offense and the defendant's unconditional discharge on the immediately preceding prior conviction "unless the prior conviction was for an unclassified or class A felony."
The presentence report indicated that Hunter was unconditionally discharged from the Indiana and California felonies on September 28, 1988. Thus, the pertinent ten-year period with respect to those offenses ended on September 27, 1998. Hunter committed the 1996 and 1997 offenses within that ten-year period. Therefore, Hunter was a third felony offender for presumptive sentencing purposes for the 1996 and 1997 offenses because of the California and Indiana felonies.
Hunter's convictions for his conduct in 2001 and 2002 followed his 2000 felony DWI conviction, so Hunter was also a third felony offender for the crimes he committed in 2001 and 2002.
The question remains whether Hunter was a third felony offender for the convictions arising from his conduct in 1998: Count III, first-degree sexual assault, and Count VI, first-degree robbery.
The State argues that the ten-year limit does not apply to Hunter's sentencing for Count III, first-degree sexual assault, because that count is a sexual felony. Under the current law, when the superior court sentences a defendant for a sexual felony under AS 12.55.125(i), AS 12.55.145(a)(4) imposes no time limit for prior felony convictions. But AS 12.55.145(a)(4) was enacted by ch. 90, § 6, SLA 2003. The legislature specified that this provision applied only to offenses committed on or after the effective date of the enactment, September 11, 2003. All of Hunter's felonies preceded this date, so this law does not apply to Hunter's case.
Ch 90, § 12, SLA 2003.
The provision governing the prior felony convictions the superior court could consider when deciding whether Hunter was a second or third felony offender was AS 12.55.145(a)(1). Under that statute, the ten-year limit does not apply when "the prior conviction was for an unclassified or class A felony."
The State contends that Hunter's Indiana rape conviction has elements equivalent to first-degree sexual assault under Alaska law. As Hunter points out, however, this is only partially true. The Indiana rape statute in question has three subsections, and only one of them defines conduct that would be first-degree sexual assault under Alaska law. The other two subsections have elements most similar to second-degree sexual assault under Alaska law, a class B felony. According to the Indiana code:
AS 11.41.420.
A person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when:
(1) the other person is compelled by force or imminent threat of force;
(2) the other person is unaware that the sexual intercourse is occurring; or
(3) the other person is so mentally disabled or deficient that consent to sexual intercourse cannot be given;
commits rape, a Class B felony. However, the offense is a Class A felony if it is committed by using or threatening the use of deadly force, or while armed with a deadly weapon.
Former Ind. Code Ann. § 35-42-4-1(a) (West 1980).
Although subsection (1) of this Indiana provision appears similar to first-degree sexual assault, an unclassified felony under Alaska law, subsections (2) and (3) are most similar to second-degree sexual assault under Alaska law. Since we are unable to determine from the record which subsection Hunter was convicted under, we conclude that the Indiana rape conviction is not sufficiently similar to a class A or unclassified felony under Alaska law for purposes of AS 12.55.145(a)(1)(A).
See AS 11.41.410.
See AS 11.41.420.
What remains, then, is the significance of Hunter's earlier California felony conviction. According to the record, Hunter was discharged from this conviction more than ten years before he committed the 1998 sexual assault and robbery. However, Hunter's California conviction was for armed robbery, which is similar to first-degree robbery under Alaska law. First-degree robbery under Alaska law is a class A felony.
Compare Cal. Penal Code §§ 211- 213 with former AS 11.41.500 and AS 11.41.510.
AS 11.41.500(b).
Under AS 12.55.145(a)(1)(A), a class A or unclassified felony can be considered for determining whether a defendant is a second or third felony offender for presumptive sentencing without a time-limit-based restriction. We studied the operation of this statute in Gilley v. State. We observed as follows:
955 P.2d 927 (Alaska App. 1998).
According to the wording of [AS 12.55.145(a)(1)(A)], only two factors affect a sentencing court's ability to consider a defendant's prior felony convictions: the classification of the prior felony, and the amount of time (if any) between the defendant's current offense and the defendant's unconditional discharge from the immediately preceding conviction. If that interval is less than 10 years, then all of the defendant's prior felony convictions are counted toward determining the defendant's status, regardless of how old those convictions are. If that interval is 10 years or more, then the only prior convictions that count are convictions for unclassified or class A felonies — again, regardless of how old those convictions are.
Id. at 930.
Although Hunter's armed robbery conviction is from California, because it has elements similar to a class A felony in Alaska, it is not excluded by AS 12.55.145(a)(1)(A). Thus, Hunter's California armed robbery conviction is considered for presumptive sentencing.
AS 12.55.145(a)(1)(B).
Because the superior court could not consider Hunter's Indiana rape conviction but could consider the California felony, Hunter is a second felony offender for presumptive sentencing for Counts III and VI, the 1998 first-degree sexual assault and the 1998 first-degree robbery.
As we pointed out before, the superior court sentenced Hunter as a third felony offender for these two convictions and imposed the presumptive 25-year term for first-degree sexual assault and the presumptive 15-year term for first-degree robbery. Because Hunter should have been sentenced as a second felony offender on these offenses, the presumptive term for this first-degree sexual assault count is 15 years, and the presumptive term for this first-degree robbery count is 10 years.
See former AS 12.55.125(i)(1)(C).
See former AS 12.55.125(c)(3).
Accordingly, we must vacate the sentence imposed on those two counts and direct the superior court to resentence Hunter. We express no opinion on the overall composite term the superior court may impose on resentencing. Conclusion
See Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991).
Hunter's convictions are AFFIRMED. That portion of the judgment that imposes sentence for Counts III and VI is VACATED. The superior court shall resentence Hunter within ninety days. After resentencing, the superior court shall transmit the record of sentencing and the amended judgment to this court. We will then resume our consideration of Hunter's case.