Opinion
Court of Appeals No. A-8871.
March 8, 2006.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles K. Cranston and Charles T. Huguelet, Judges. Trial Court No. 3KN-02-1948 CR.
David D. Reineke, Assistant Public Defender, and Barbara K. Brink and Quinlan Steiner, Public Defenders, Anchorage, for the Appellant.
Nancy R. Simel, 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
Fred A. Nielsen was convicted of three counts of sexual abuse of a minor in the second degree, a class B felony. Nielsen argues that we should reverse one of his convictions because the State presented this count to a grand jury convened in the wrong election district in violation of Criminal Rule 6(b). We affirm the superior court's decision, which denied Nielsen's motion on the ground that he had not shown any prejudice. Nielsen also contends that the State presented insufficient evidence to support his convictions. We conclude that the State presented sufficient evidence for the jury to find Nielsen guilty.
AS 11.41.436(a)(2) (b).
Factual and procedural background
In October 2002, Fred A. Nielsen and his girlfriend Connie Tate-Reimann were living in a camper located in Soldotna on the property of D.F., an adult friend of Nielson's. A nine-year-old girl, R.H., was living in D.F.'s house, and sharing a room with D.F.'s daughters, T.F. and S.F.
On the night of October 6, and early morning of October 7, 2002, both Nielsen and Tate-Reimann were drinking at D.F.'s residence. The three girls R.H., T.F., and S.F. were in the girls' bedroom watching the movie "Peter Pan." Sometime during that evening, Nielsen entered the girls' room and laid down near R.H. and used his hand to touch her on her "bottom." His hand was moving while he touched R.H.'s vaginal area.
Also sometime during the evening, Nielsen lay down on the floor near nine-year-old T.F., put his hand underneath her pajamas, and touched her vaginal area. While Nielsen was touching T.F., Tate-Reimann entered the room and saw Nielsen with his hand under T.F.'s blanket and the blanket moving. Tate-Reimann then asked Nielsen to come out of the room. Tate-Reimann was angry after she saw Nielsen, the blanket and T.F., and went back to the kitchen. When Nielsen came out of the room he and Tate-Reimann got into a physical confrontation.
Tate-Reimann asked T.F. about the incident, and T.F. told her that Nielsen had touched her. The next morning, R.H. reported the touching both to her mother and another adult. That same day, R.H.'s mother took T.F. and S.F. to report the abuse to the troopers. Alaska State Trooper James Gardner Truesdell interviewed T.F. and S.F. A few days later, Trooper Truesdell interviewed R.H.
On November 1, 2002, a Kenai grand jury indicted Nielsen on three counts of second-degree sexual abuse of a minor. Counts I and II charged the incidents that occurred on October 6-7, 2002, in Soldotna, with T.F. and R.H.; Count III charged Nielsen with another act of abuse involving S.F., that occurred some three years earlier in Big Lake, "on or about the summer of 1999."
Nielsen moved to dismiss count III of the indictment on the ground that, since the conduct allegedly occurred in Big Lake, under Criminal Rule 6(b) it was improper for the State to present this charge to a grand jury in Kenai rather than in Palmer or Anchorage. But Superior Court Judge Charles K. Cranston denied the motion, finding that Nielsen had not shown any prejudice. A jury found Nielsen guilty as charged on all counts. Nielsen now appeals to this court.
Why we affirm Judge Cranston's denial of Nielsen's motion to dismiss the indictment on Count III
The State concedes that Criminal Rule 6(b)(1) requires the grand jury to be convened in Palmer or Anchorage to hear offenses that are alleged to have been committed in Big Lake. The State points out, however, that there were significant reasons to present all three charges to a Kenai grand jury. Chief among those was the fact that all three of the girls now lived in the same family unit in Soldotna, near Kenai.
In his order denying Nielsen's motion to dismiss the indictment, Judge Cranston relied on the Alaska Supreme Court's decision in Peterson v. State. In Peterson, the presiding judge of the third judicial district entered an order that all cases in the third judicial district would be presented to a grand jury in Anchorage. Peterson's offense occurred in Kodiak. Criminal Rule 6(b) required offenses committed in Kodiak to be investigated by a grand jury which was convened in Kodiak. Peterson argued that the presiding judge's order violated Criminal Rule 6(b) and therefore his indictment and later conviction were invalid.
562 P.2d 1350 (Alaska 1977).
Id. at 1365.
The supreme court agreed that the presiding judge's order violated Criminal Rule 6(b), but refused to invalidate Peterson's indictment and conviction. The court stated:
Id. at 1366.
A grand jury is asked to determine only that a crime has been committed and that there is probable cause to believe that a particular person committed that crime. So long as no group of citizens has been systematically excluded from the grand jury selection process, a conviction on an indictment which is otherwise sufficient will be upheld.
Id. at 1366 (citations omitted).
We have followed Peterson in Depp v. State and Nicholson v. State. Judge Cranston concluded that Nielsen had "not shown any systematic exclusion of any class or group from the grand jury, nor that he has been prejudiced in any conceivable way." He therefore denied Nielsen's motion to dismiss.
686 P.2d 712 (Alaska App. 1984).
656 P.2d 1209 (Alaska App. 1982).
We agree with Judge Cranston's decision. A contrary decision would probably have required the State to re-indict Nielsen in Anchorage or Palmer, making the three young girls travel from Soldotna and again testify before a second grand jury. Nielsen has not shown how he would have benefitted from such a process, or how he has been prejudiced by having the Kenai grand jury investigate the Big Lake incident. We therefore affirm Judge Cranston's refusal to dismiss Count III of the indictment.
There was sufficient evidence to support Nielsen's convictions
Under AS 11.41.436(a)(2), the State was required to prove, as to each count, that Nielsen, being 16 years of age or older at the time, engaged in sexual contact with a person who was under 13 years of age.
Nielsen argues that the evidence was insufficient to support the convictions. "Evidence is sufficient to support a conviction when fair-minded jurors, exercising reasonable judgment and taking the evidence in the light most favorable to the government, could find that the government had met its burden of establishing the defendant's guilt beyond a reasonable doubt."
Ashley v. State, 6 P.3d 738, 743 (Alaska App. 2000) (citing Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Pavlik v. State, 869 P.2d 496, 497 (Alaska App. 1994)). See also Sheldon v. State, 796 P.2d 831, 839 (Alaska App. 1990) (citations omitted) (in determining questions as to sufficiency of prosecution's evidence, appellate court views facts and reasonable inferences therefrom in light most favorable to state); Pedersen v. State, 420 P.2d 327, 330 (Alaska 1966) (citations omitted) (same).
Five witnesses testified at Nielsen's trial: T.F., S.F., R.H., Tate-Reimann, and Trooper Truesdell. No medical or physical evidence was admitted at trial.
The first witness to testify was T.F.T.F. was nine at the time of the trial. When asked what she talked about when she spoke to the police officer, T.F. testified that she did not remember. However, when asked more specific questions T.F. testified that she had spoken with the officer about a man named Fred (Nielsen), concerning an incident at her home. T.F. identified Nielsen in court and stated that he had touched her. When asked what part of her body Nielsen had touched, T.F. responded that she did not remember. However, when given a sketch of a little girl's body, and asked to mark the area where Nielsen touched her, T.F. circled the vaginal area on the drawing. The judge then published this drawing to the jury. When asked what Nielsen had touched her with and what she was wearing at the time, T.F. responded that he had touched her with his hand and that she was wearing pajamas. T.F. testified that Nielsen touched her under her pajamas. On cross-examination, T.F. testified that she had not discussed this incident with anyone except the prosecutor, Tate-Reimann, and maybe once with her parents.
The second witness to testify was S.F., T.F.'s older sister. S.F. was eleven at the time of Nielsen's trial. S.F. testified that she remembered going to the police station and talking about the touching incident involving Nielsen. When asked where Nielsen had touched her, S.F. testified that Nielsen touched her on her "private." When asked where she was residing at the time of the touching, S.F. indicated that she was "here" (meaning Soldotna/Kenai) and at their cabin at Big Lake. S.F. testified that she could not remember when or how long ago she was in Big Lake but that she thought she was six at the time. When asked what Nielsen had touched her with, S.F. testified that Nielsen rubbed "it" with his hands, that it hurt, and that it made her mad. S.F. also marked a drawing with a circle in the vaginal area, indicating where Nielsen had touched her. The prosecution published this drawing to the jury. On cross examination, S.F. testified that she was wearing her pajamas watching a movie in her sister's room when the touching incident took place in Soldotna. When asked whether she had been instructed on how to mark the diagram/drawing or on what to say, S.F. testified that she had not been directed as to either. S.F. testified that she could not remember how many times she had spoken to the police, or how long ago she had spoken to them, but she did remember that it was a male police officer that she had spoken with. On re-direct, S.F. testified that she had spoken about this incident before in front of people at the court (the grand jury proceeding). She said that Nielsen had touched her under her pajamas.
The third witness to testify was R.H.R.H. was nine at the time of the trial. R.H. testified that she did recall speaking with a police officer about Nielsen. She testified that while Nielsen was in her room, he had touched her on her "bottom" and that this made her feel bad. When asked whether Nielsen had touched her on her outer clothing or underneath, R.H. testified that she could not remember. R.H. could not remember what he did with his hand but testified that Nielsen used his hand to touch her and that it was moving. R.H. was shown the drawing of a little girl and asked to mark with a red pen where Nielsen had touched her. R.H. marked the vaginal area on the drawing. This exhibit was published to the jury.
The fourth witness to testify was Tate-Reimann. Tate-Reimann was Nielsen's girlfriend at the time of the incident and at the time of Nielsen's trial. Tate-Reimann indicated that Nielsen was thirty-three years old at the time of trial. She testified that on the night of October 6 and the early morning hours of October 7, 2002, she and Nielsen were drinking. Tate-Reimann testified that she had gone to the children's room that night on two occasions asking Nielsen to come out because they were supposed to be getting ready for bed. On her second attempt, Tate-Reimann witnessed Nielsen's hand underneath T.F.'s blanket, and the blanket moving. When asked what she did when she saw Nielsen with his hand under S.F.'s blanket, Tate-Reimann answered that she got mad and went back to the kitchen. When asked why she was mad, Tate-Reimann replied "Because I got mad. It would be like anybody else, you know, you see a blanket, you see a kid, you — you get mad." Tate-Reimann testified that she and Nielsen then got into a argument, but could not remember what it was about.
The fifth and final witness was Trooper Truesdell. Trooper Truesdell conducted interviews with T.F. and S.F. on October 7, 2002, and one with R.H. about two days after that. Trooper Truesdell testified that he did not have the girls examined by a medical professional because the girls told him that the touching had occurred above the clothing. He concluded that no penetration that would injure any of their sexual organs had taken place. Therefore, after speaking with the girls' parents, he decided that, given the intrusive nature of such an exam, it wasn't necessary.
Nielsen contends that the evidence was insufficient to support his convictions. He argues that the girls' testimony was vague and contradictory. But the State established the ages of both Nielsen and the young girls. Each girl testified that Nielsen touched them around their vaginal area, as demonstrated by their testimony and the diagrams which they marked indicating where Nielsen had touched them. T.F.'s testimony was corroborated by Tate-Riemann's testimony and the girls' testimony corroborated each other's account of the abuse. The jury was able to observe and evaluate the girls' credibility as they testified. The jury found the girls credible. Therefore, viewing the evidence in a light most favorable to the State, the evidence was sufficient to support Nielsen's convictions.
Nielsen argues that the evidence was insufficient because there was no medical corroboration that the girls had been abused. But it was not necessary for the State to produce medical evidence in order to convict Nielsen.
Nielsen contends that the State did not present any evidence at trial about when his abuse of S.F. occurred. Count III of the indictment charged "that on or about the summer of 1999, at or near Big Lake, in the Third Judicial District, State of Alaska," Nielsen committed the offense of sexual abuse of a minor in the second degree by engaging in sexual contact with S.F. According to the record, S.F. testified that the abuse occurred in Big Lake when she was about six years of age. At the time of trial, December 2003, S.F. was eleven years old. S.F. was born in September of 1992. Thus S.F.'s testimony is consistent with the date alleged in the indictment because in August of 1999, S.F. was six years old.
It is uncontested that the alleged sexual abuse took place before the indictment was returned and that the offense occurred within the pertinent statute of limitations. Furthermore, it is uncontested that at the time of the alleged offense, S.F. was under the age of 13. Therefore, the date of the offense was not a material element the State had to prove to convict Nielsen. And Nielsen has not argued that he was prejudiced in his investigation or presentation of his defense by any possible variance between the date charged in the indictment and S.F.'s testimony. Therefore, Nielsen's claim that S.F.'s testimony was insufficient to support his conviction, because there was some question about the date when the offense occurred, has no merit.
See Larkin v. State, 88 P.3d 153, 157 (Alaska App. 2004).
See id. at 158.
The judgment of the superior court is AFFIRMED.