Opinion
Court of Appeals No. A-9902.
September 2, 2009.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge, Trial Court No. 3KN-05-01778 CR.
Kenneth Cole, Kenai, for the Appellant. W. H. Hawley, 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 Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Donald Jay Samel appeals his conviction on seventeen counts of sexual abuse of a minor. We affirm Samel's conviction but remand for resentencing.
Factual and procedural background
In October 2005, Samel was indicted on nine counts of sexual abuse of a minor in the first degree, and eight counts of sexual abuse of a minor in the second degree. The counts charged Samel with sexual abuse of his stepdaughter, B.R.F., starting from the time she was seven years old and continuing until a final incident when she was fifteen years old. According to B.R.F.'s testimony at trial, the abuse consisted of Samel touching her buttocks, vagina, and breasts, rubbing his penis between the outer lips of her vagina, forcing B.R.F. to perform oral sex and masturbate him, and performing oral sex on B.R.F.; the abuse also included full genital penetration, digital penetration, and anal penetration. B.R.F. testified that one or more of these sexual activities occurred on more days of any given month than not.
AS 11.41.434(a)(1), (2).
AS 11.41.436(a)(2), (3).
B.R.F. was born August 9, 1989, and had turned seventeen a few weeks before the trial in August 2006. B.R.F. was born with CHARGE Syndrome, a recognizable pattern of birth defects that can cause hearing loss, vision loss, heart problems, and breathing problems. She had a feeding tube for the first eight years of her life, wore hearing aids at the time of the trial, and had difficulties breathing. Her mother, Laurie Samel, married Samel in 1996 when B.R.F. was six years old. Samel was thirty-five years old at the time of trial.
See About CHARGE, http://www.chargesyndrome.org/about-charge.asp (last visited Aug. 17, 2009).
In 1998, B.R.F. told her mother that Samel was abusing her. Although B.R.F.'s mother briefly sent her to live with her aunt, her mother and other family members apparently did not believe her. A couple of years later, when she was ten or eleven years old, B.R.F. told her brother-in-law about the abuse, but again, nothing came of it. In 2004, one of B.R.F.'s friends, Danielle Little, in whom B.R.F. had confided over a period of several years, made a report to the state troopers. But when interviewed, B.R.F. denied that any abuse had taken place. She testified at trial that she denied the abuse because she was afraid of losing her family and certain privileges. Indeed, when B.R.F. reported the abuse to her school counselor on May 16, 2005, she did lose her family — her mother, sister, grandparents, and family friends all rallied behind Samel and attested to his innocence. B.R.F.'s family characterized her as spoiled and apparently believed that her allegations were false.
Significant evidence corroborated B.R.F.'s account of eight years of sexual abuse. In her interview with the SART nurse and Investigator Robert Hunter, an Alaska State Trooper in Soldotna, B.R.F. was able to direct Trooper Hunter to a semen-stained t-shirt in Samel's bedroom. According to B.R.F., Samel had used it to wipe off both himself and B.R.F. after he had ejaculated on her the previous day. Additionally, B.R.F. directed the troopers to the clothes she was wearing at the time of that final incident; the pants B.R.F. had been wearing were stained with semen that contained Samel's DNA (to a probability of one in over one quadrillion). Ella Edmondson, the SART nurse who examined B.R.F., generally confirmed that the results of her physical examination were consistent with B.R.F.'s account. Edmondson found a "pre-estrogen, pre-puberty" injury to the hymen called an evulsion, as well as a friction injury on the area between the vagina and the anus.
Aside from that physical evidence, however, the State had only B.R.F.'s testimony — and, except with respect to a few incidents, she had trouble recalling details that would differentiate one incident of abuse from another. Because of B.R.F.'s age at the beginning of the abuse and the fact that it occurred multiple times per week over many years, her memories of each incident were often imprecise. Nevertheless, B.R.F. had a clear recollection of the first instance, where, on the porch of a house that the family was building, Samel anally penetrated her. B.R.F. further recalled that in Las Vegas in July 2001, she made a deal with Samel that he could anally penetrate her if he would agree to restrict his abuse of her in the future to once per week. B.R.F. was able to link other incidents to events such as Samel's birthday or New Years Eve or Day. Lastly, B.R.F. also clearly recollected the last incident on May 15, 2005, following which she reported the abuse and was able to direct the troopers to the incriminating evidence in the house.
The State charged Samel with seventeen counts of sexual abuse of a minor. All of these counts, except one, encompassed lengthy time periods, frequently one year. For instance, Count IV charged Samel with engaging in sexual penetration with B.R.F. "on or about or between August 1997 and July 1998." A jury found Samel guilty of all seventeen counts. Samel appeals.
Samel's challenges to the indictment
Samel's argument that the indictment should have been dismissed because the State failed to present exculpatory evidence to the grand jury
Samel first argues that Superior Court Judge Charles T. Huguelet erred in denying his motion to dismiss the indictment, in which Samel contended that the State failed to present exculpatory evidence to the grand jury. The leading Alaska case on the prosecutor's duty to present exculpatory evidence to the grand jury is Frink v. State. In Frink, the Alaska Supreme Court construed Alaska Rule of Criminal Procedure 6(q) to require the prosecutor to present exculpatory evidence to the grand jury. (Criminal Rule 6(q) states that "[w]hen the grand jury has reason to believe that other available evidence will explain away the charge, it shall order such evidence to be produced.") "Exculpatory evidence," however, is narrowly defined: "Exculpatory evidence for purposes of Frink is 'evidence that tends, in and of itself, to negate the defendant's guilt.'"
597 P.2d 154 (Alaska 1979).
Id. at 164.
Grandstaff v. State, 171 P.3d 1176, 1185 (Alaska App. 2007) (quoting State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994)).
As noted above, B.R.F. had previously reported to a friend that Samel had sexually abused her, but later denied that any abuse had occurred. Samel argues that this "false allegation" constituted exculpatory evidence that the State was required to present to the grand jury. But although a defense attorney could certainly use this evidence at trial to try to undermine B.R.F.'s credibility, other evidence suggested that B.R.F.'s accusation was true and that she denied being abused out of fear. Therefore, the evidence of B.R.F.'s prior accusations of Samel was not exculpatory evidence that the State was required to present to the grand jury under Frink.
Cf. Morgan v. State, 54 P.3d 332, 339 (Alaska App. 2002) (requiring a defendant to convince the trial judge by a preponderance of the evidence that a prior accusation of sexual misconduct was false before the accusation can be admitted at trial).
Samel also argues that statements B.R.F. made in her diary indicating that "she had sexual relations with a boyfriend and was emotionally unstable" constituted exculpatory evidence that should have been presented to the grand jury. But again, although a skilled defense attorney might be able to use these statements to impeach B.R.F.'s testimony, the evidence did not tend "in and of itself, to negate the defendant's guilt." We accordingly conclude that Judge Huguelet did not err in denying Samel's motion to dismiss the indictment.
McDonald, 872 P.2d at 639.
Samel's argument that the time spans in the counts of the indictment were too broad
Samel argues that Judge Huguelet erred in failing to dismiss the indictment because B.R.F. testified at grand jury to a long-term pattern of abuse rather than describing specific incidents. Samel contends that the evidence the State presented to the grand jury did not "present a sufficiently detailed account of criminal activity." He argues that, except for Count XVII (which charged an offense that occurred on May 15, 2005), the charges were too general and the time frames were unreasonable.
At grand jury, B.R.F. testified that after their house in Nikiski burned down on January 17, 1997, and they moved into an apartment, Samel touched her "on the breasts and the vagina area." B.R.F. further testified that on the back porch of the new house they were building, Samel "penetrated or put his penis up [her] butt." Because there was no snow on the ground at that point, B.R.F. could determine that this incident occurred somewhere in spring or summer of 1997. After describing this specific incident, B.R.F. generally described that Samel continued to abuse her up until May 2005 and would touch her "in the vaginal area or in the butt or on the breast." She testified that Samel would use lubricant and rub his penis between the outer lips of her vagina and would occasionally fully penetrate her vagina. Additionally, Samel would force B.R.F. to perform oral sex on him, would perform oral sex on her, and would force her to touch his penis with her hands. The sexual activity, B.R.F. testified, occurred "[a]t least once a week" during that period.
B.R.F. also testified that, when the family was in Las Vegas, Samel woke her up and "wanted to put it up [her] butt." B.R.F. testified that she made a deal with him that she would let him do so only if he limited his abuse to once per week in the future, so she would not "have to be afraid every night." That deal stayed in place for some time. But B.R.F. testified that after Samel found out that she had been sexually active with her boyfriend, the abuse intensified: Samel would try to fully penetrate her vagina more often, which she would resist. According to B.R.F., the final incident of abuse occurred on May 13, 2005, when Samel used lubricant to rub his penis between the outer lips of her vagina and ejaculated on her, then used a blue t-shirt to wipe himself off. B.R.F. testified that she put her clothes back on afterward.
In B.R.F.'s brief testimony before the grand jury, she seemed to describe only three specific incidents of abuse that occurred in Alaska (touching at the apartment in Nikiski, penetration at the partially built house, and the final incident in May 2005). Other than describing these three incidents, B.R.F.'s testimony generally outlined abuse occurring on a frequent basis over many years.
In Covington v. State, we rejected an attack on an indictment that was similar to the indictment in Samel's case. We stated that we generally agree with "authorities which hold that leeway is necessary in charging sexual abuse and sexual intercourse with minors because children who are the victims of abuse may find it difficult to recall precisely the dates of offenses against them months or even years after the offense has occurred." We concluded that Covington had not been prejudiced because his defense was "a 'blanket denial' of sexual activity with the victim as opposed to an alibi defense as to specific dates." We also noted that a defendant is protected by "the broad rights to discovery granted a criminal defendant under the Alaska Rules." We stated that, at trial, to ensure jury unanimity, the prosecutor must elect specific incidents or alternatively, the jury must be instructed "that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt."
703 P.2d 436 (Alaska App. 1985).
Id. at 439-40.
Id. at 439 (citations omitted).
Id. (citations omitted).
Id. at 439-40.
Id. at 440 (quoting State v. Petrich, 683 P.2d 173, 178 (Wash. 1984), overruled on other grounds by State v. Kitchen, 756 P.2d 105 (Wash. 1988)).
We adhere to our decision in Covington. As in Covington, B.R.F. claimed that the abuse occurred on a regular basis over a period of several years, while Samel denied engaging in any sexual activity with hisvictim. Samel's defense focused on discrediting B.R.F. as a witness. We note that Judge Huguelet gave a Covington instruction that required the jury to unanimously agree to the same underlying criminal act. We conclude that the charges were not too general and that the time frames specified in the counts of the indictment were reasonable.
Cf. People v. Watt, 600 N.Y.S.2d 714, 720 (N.Y. App. Div. 1993) (noting that the "defendant's . . . living arrangements at the very place wherein the crimes were committed renders any potential alibi defense far less meaningful").
Samel's argument that the time frames in the indictment prejudiced him because they covered periods during which the sentencing laws became more severe
Samel further argues that the time spans set out in the indictment prejudiced him because the sentencing laws became more severe during the time periods in which the offenses were alleged to have been committed. Although Samel cites to several changes in the sentencing statutes that occurred during the relevant time periods, he does not provide any specific examples where the trial court sentenced him under the more severe standard applicable to a particular time frame.
The State acknowledges that Samel should have been sentenced under the most lenient sentencing statutes applicable during the time period of the offenses alleged in the indictment. And the State concedes that the sentence for Count XIV — first-degree sexual abuse of a minor between August 2003 and January 2005 — exceeded the statutory maximum for that offense as of August 2003. (In August 2003 the presumptive term was 25 years for a third felony offender, and the maximum sentence was 30 years. Samel was sentenced to 40 years with 15 years suspended.) Clearly Samel must be resentenced on this count.
Additionally, we note that Samel's sentence for Count XII — first-degree sexual abuse of a minor between August 2002 and August 2003 — also appears to exceed the most lenient statutory maximum applicable during that period. As discussed above, the maximum sentence allowable in August 2003 (and the year prior) was 30 years. In his oral sentencing remarks, Judge Huguelet sentenced Samel to 40 years' imprisonment with 15 years suspended. The written judgment, however, provides for a sentence of 30 years' imprisonment with 15 years suspended. The oral pronouncement would usually control. But, because the oral sentence exceeds the maximum sentence allowable under former AS 12.55.125(i) (2002), that sentence is illegal. On remand, Samel should be resentenced on Count XII in accordance with the pre-2003 amendment version of AS 12.55.125(i).
See Marunich v. State, 151 P.3d 510, 514 (Alaska App. 2006) (citing Herrin v. State, 93 P.3d 477, 478 (Alaska App. 2004); Graybill v. State, 822 P.2d 1386, 1388 (Alaska App. 1991)).
See ch. 90, § 5, SLA 2003.
Aside from these two counts, it appears that Samel was sentenced based on the most lenient sentencing scheme applicable. The record shows that at sentencing, Judge Huguelet stated that "the law had changed, and what I need to get from the parties is their position of what the minimum possible sentence that I can give and the maximum." A few weeks before sentencing, the State produced a chart "of the various offenses, and their position with respect to what the maximum, minimum, and presumptive terms were." Samel's attorney agreed that the chart was correct. It appears from the record that, except for Counts XII and XIV, Judge Huguelet sentenced Samel under the most lenient sentencing provisions applicable during the relevant time periods. However, when this case is remanded for resentencing, the superior court should review Samel's sentence and make sure that the record reflects that Samel is sentenced under the most lenient sentencing provisions applicable during the relevant periods.
Samel's contention that the State offered improper rebuttal
Samel contends that Judge Huguelet erred by allowing two witnesses who had testified during the State's case-in-chief to testify as rebuttal witnesses. Samel argues that this evidence should have been presented during the State's case-in-chief. He also argues that he was denied surrebuttal.
A trial judge has broad discretion in controlling the order and manner in which evidence is admitted. Here, the evidence in question was legitimate rebuttal evidence. During the defense case, Samel presented evidence that suggested that the police, through sloppy evidence-gathering practices, contaminated B.R.F.'s clothing with Samel's DNA. In the rebuttal portion of its case, the State presented two witnesses to rebut Samel's contention. Although Samel claims at several points that he was "denied . . . the opportunity to effectively put on evidence to the contrary," the record does not indicate, nor does Samel assert, that he requested surrebuttal. We conclude that Judge Huguelet did not abuse his discretion by allowing the State to present rebuttal testimony.
Alaska R. Evid. 611(a); Am. Nat'l Watermattress Corp. v. Manville, 642 P.2d 1330, 1339 (Alaska 1982); Gafford v. State, 440 P.2d 405, 409 n. 22 (Alaska 1968), overruled on other grounds by Fields v. State, 487 P.2d 831 (Alaska 1971); Pedersen v. State, 420 P.2d 327, 337 (Alaska 1966); Rhodes v. Rhodes, 370 P.2d 902, 906 (Alaska 1962) (quoting Johnston v. Brewer, 105 P.2d 365, 368 (Cal. App. 1940)).
Samel's challenges to his sentence
Samel's argument that Judge Huguelet erroneously found aggravator (c)(8)
Samel contends that Judge Huguelet erred in finding aggravating factor AS 12.55.155(c)(8) — that "the defendant's prior criminal history includes conduct involving aggravated or repeated instances of assaultive behavior." Samel points out that he had only one prior conviction for felony assault (a second-degree assault conviction based on an incident where Samel fired shots through a door at a Costco store, wounding two employees). Samel argues that aggravator (c)(8) requires proof of "repeated instances" of assaultive behavior — that is, at least two instances of assault — and that the State was therefore required to prove to a jury that Samel had committed at least one additional assaultive act.
Former AS 12.55.155(c)(8) (2006).
Samel's argument is based on a misunderstanding of aggravator (c)(8). This aggravator requires proof of either "repeated instances of assaultive behavior" or one instance of "aggravated . . . assaultive behavior." We addressed this issue of statutory interpretation in Andrews v. State :
Id.
967 P.2d 1016 (Alaska App. 1998).
Aggravator (c)(8) is proved by evidence that the defendant engaged in either "aggravated" or "repeated" instances of assaultive behavior. Because the ordinary meaning of "repeated" is "more than once" or "on more than one occasion[,]" the legislature must have intended aggravator (c)(8) to encompass cases where the defendant previously engaged in even a single prior instance of "aggravated" assault.
Id. at 1019 (citation omitted).
Judge Huguelet found that Samel's conviction "for a violent assault with a gun" qualified as an "aggravated assault" under AS 12.55.155(c)(8). Samel has not argued that his prior conviction for the Costco shooting does not qualify as an "aggravated" instance of assaultive behavior. Therefore, under the construction of aggravator (c)(8) that we adopted in Andrews, the superior court could properly apply this aggravator based on Samel's single prior conviction. (And because the aggravator was based on an undisputed prior conviction, the aggravator was Blakely-compliant and did not have to be submitted to a jury.)
See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury."); see also Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403 (2004).
Samel also contends that Judge Huguelet did not adequately explain why the aggravating factor applied or indicate what weight would be placed on the aggravating factor. However, as already noted, Judge Huguelet explained that the aggravator applied because of Samel's prior felony assault conviction. It appears that Judge Huguelet used the aggravating factor to impose suspended time of imprisonment because the terms he imposed, without the suspended time, are equal to or fall just below the presumptive term for each count. However, Judge Huguelet did not explain on the record what weight he gave to aggravator (c)(8) in fashioning those sentences. We are already remanding for resentencing. On remand, Judge Huguelet should also explain, for the record, the weight he gave to aggravator (c)(8).
Samel's argument that the jury should have been required to make a finding as to the dates of the offenses
Lastly, Samel contends that he was prejudiced because the jury did not determine the actual dates of his offenses but rather relied on the broad time spans set out in the indictment, and the sentencing provisions became more severe during some of those time periods. But, as we have previously indicated, Samel must be sentenced based upon the most lenient sentencing provisions that applied to each time span in the indictment. Therefore, Samel will not be prejudiced. Conclusion
The sentences that the superior court imposed on Counts XII and XIV are VACATED. The case is REMANDED for resentencing. In all other respects, the judgment of the superior court is AFFIRMED.