Opinion
Court of Appeals No. A-9228.
May 21, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Stephanie Joannides, Judge. Trial Court No. 3AN-02-7134 CR.
Marjorie Allard, Assistant Public Defender, and Q uinlan Steiner, Public D efender, Anchorage, for the A ppellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Branden A. Ling appeals his conviction for murder in the first degree and his sentence of 99 years of imprisonment. We affirm Ling's conviction and sentence. Factual background
Sixteen-year-old Ling murdered thirteen-year-old D.Z. In the early morning hours of July 10, 2002, D.Z. disappeared from her home. Shortly before D.Z. disappeared, she was talking on the phone with friends, including her boyfriend, Cody Rice. D.Z. stated that "Branden" was at her window and she was going to go out with him to get some free marijuana. She told Cody she would call him back in thirty minutes when she returned.
The next morning, D. Z.'s mother discovered that D.Z. was missing. D.Z.'s partially decomposed body was found five days later in the nearby woods. She had been stabbed multiple times and her clothes had been cut off her body. Her body had been posed in a sexually suggestive manner. The police found a piece of cloth from a shirt at the scene with spermatozoa. Forensic testing of the spermatozoa matched the DNA of Branden Ling.
A grand jury indicted Ling for murder in the first and second degree. A jury convicted Ling on both charges. Superior Court Judge Stephanie Joannides merged the two convictions and sentenced Ling to 99 years of imprisonment. Ling appeals his conviction and sentence.
Judge Joannides did not err in allowing evidence to be admitted that Ling had made prior statements about raping and murdering girls other than D.Z.
The State offered testimony from several witnesses that Ling had made several statements about raping, cutting, and killing young girls in the neighborhood. Ling characterizes these statements as "jokes" but recognizes that the statements could also be seen as threats. Ling had made statements on at least two different occasions in which he talked about raping, cutting, and killing D.Z. and hiding her body in the woods. Ling does not contest that these statements were admissible. But he argues that, given the fact that these more relevant statements were introduced into evidence, it was error to introduce Ling's similar comments about other young girls in the neighborhood.
Under Evidence Rule 404(b)(1), evidence of a person's wrongful acts are not admissible "to prove the character of a person in order to show that the person acted in conformity therewith." But the evidence is admissible if it is relevant for other purposes. Ling concedes that the evidence of his statements about raping and murdering other girls in the n eighborhood had some relevancy, but argues that, under Evidence Rule 403, the probative value of the evidence was outweighed by the danger of unfair prejudice.
We conclude that Judge Joannides did not abuse her discretion in admitting Ling's statements. The evidence in the case strongly suggested a sexual motive led to D.Z.'s murder. And D.Z.'s mutilated body was found in the woods. There was therefore a striking resemblance between Ling's statements and the crime. In addition, Judge Joannides could properly conclude that Ling's statements about the other girls were admissible. The statements were made close in time to D.Z.'s murder and the other girls about whom Ling had made statements had similar characteristics to D.Z. They were young women approximately D.Z.'s age, and all of them had socialized with Ling, D.Z., or each other. Ling's statements tended to show an unusual fixation with raping, cutting, and murdering the young women with whom he associated. Accordingly, the statements were admissible to show Ling's state of mind around the time of D.Z.'s murder and to suggest a possible motive. The 99-year sentence was not clearly mistaken
See Smithart v. State, 946 P.2d 1264, 1269-73 (Alaska App. 1997), rev'd on other grounds, 988 P.2d 583 (Alaska 1999).
In arguing that his sentence is excessive, Ling points out that he was barely sixteen years old at the time he committed the crime. He argues that his extreme youth and the difficult circumstances of his childhood showed that his prospects for rehabilitation are greater than it might otherwise appear. He points to the United States Supreme Court's recent decision in Roper v. Simmons that "juvenile offenders cannot with reliability be classified among the worst offenders." The Court concluded that the Eighth and Fourteenth Amendments to the United States Constitution barr the execution of offenders who are under the age of eighteen when their crimes are committed. In that case, however, the Court affirmed the Missouri Supreme Court's decision to resentence Simmons to life imprisonment without parole.
543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
Id. at 569, 125 S. Ct. at 1195.
Id. at 560, 125 S. Ct. at 1189-90 (quoting State ex. rel. Simmons v. Roper, 112 S.W.3d 397, 413 (Mo. 2003)).
In sentencing Ling, Judge Joannides found that Ling was a "worst offender." She noted that Ling had talked often of his thoughts about rape and murder. She noted that these comments tended to show his fixation with that behavior. She concluded that his statements suggested some form of premeditation and concluded that Ling was dangerous.
Judge Joannides fully recognized the factors that the Supreme Court considered in Roper and pointed out that it was not uncommon for teenagers to make poor decisions. Therefore, in spite of the seriousness of Ling's offense, she stated she could not conclude that Ling had no potential for rehabilitation. She concluded that it would be inappropriate to restrict his parole beyond the 33 years of impriso nment he was required to serve before being eligible for discretionary parole.
In Riley v. State, we observed that there was no reported Alaska case that found a sentence for murder in the first degree to be excessive. Since Riley, we have consistently upheld maximum sentences for murder in the first degree, including sentences for juvenile offenders. Judge Joannides's sentencing remarks show that she carefully considered the nature of Ling's offense and his youth and prospects for rehabilitation. We conclude that the sentence she imposed was not clearly mistaken.
720 P.2d 951 (Alaska App. 1986).
Id. at 952.
See, e.g., Perotti v. State, 843 P.2d 649 (Alaska App. 1992); Hightower v. State, 842 P.2d 159 (Alaska App. 1992); Ridgely v. State, 739 P.2d 1299 (Alaska App. 1987).
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment of the superior court is AFFIRMED.