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Harmon v. State (10/27/00) ap-1696

Harmon v. State (10/27/00) ap-1696

     The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter.  Readers are
encouraged to bring typographical or other formal errors to the
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                              )  Court of Appeals No. A-7319
             Appellant,       )  Trial Court No. 3AN-S97-9206 CR
          v.                  )                    
                              )        O  P  I  N  I  O N
STATE OF ALASKA,              )                    
             Appellee.        )  [No. 1696   October 27, 2000]

          Appeal from the Superior Court, Third Judicial
District, Anchorage, Larry D. Card, Judge.

          Appearances:  Kathleen A. Murphy, Assistant
Public Defender, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant.  W. H. Hawley, Jr., Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee. 

          Before:  Coats, Chief Judge, and Mannheimer and
Stewart, Judges. 

          STEWART, Judge.
          Floyd Joseph Harmon pleaded no contest to two felony
charges:  one count of second-degree sexual assault [Fn. 1] and one
count of incest. [Fn. 2]  There were no agreements regarding his
sentence.  The superior court imposed a sentence of 10 years with
2 years suspended for the sexual assault count and a consecutive 5
years with 4 years suspended for the incest count, a composite 9-
year term to serve.  Harmon raises three claims in this sentence
appeal.   First, he argues that double jeopardy concerns require
that the two counts merge for sentencing.  Second, he contends the
superior court erred by finding that the sexual assault was the most
serious in its class.  Finally, he claims that the sentence is
excessive.  We affirm Harmon's sentence for the reasons stated
          Facts and proceedings
          On October 19, 1997, C.W., her mother, Helen, and her
brother, Harmon, were drinking and playing pool at a bar in
Anchorage.  After several hours, the three drove to Helen's home. 
At grand jury, C.W. testified that she fell asleep with her mother
in Helen's queen-sized bed in Helen's bedroom. C.W. woke up to find
Harmon raping her.  C.W. testified that she yelled at the defendant
and slugged him, but Harmon choked her until she lost consciousness. 
          Later, C.W. ran to a nearby Mapco station where the police
were called.  The police took C.W. to the hospital for a sexual
assault examination.  During the course of C.W.'s examination, the
Sexual Assault Response Team nurse noted some bruising around her
neck and shoulders.  Her knee was also bruised.  An ultraviolet
examination revealed the probable presence of sperm and this was
confirmed by lab tests.  An examination of C.W.'s genitals revealed
the presence of blood, bruising, and reddening.  A consulting
physician said that C.W's injuries were consistent with non-
consensual intercourse. 
          The police obtained a Glass [Fn. 3] warrant and recorded
a conversation between C.W. and Harmon.  On the recording, Harmon
told C.W. that he did not remember much of the sexual assault, but
apologized and said he would do anything to obtain C.W.'s
          The grand jury indicted Harmon for one count of first-
degree sexual assault [Fn. 4] and one count of incest.  Later,
Harmon entered no contest pleas to an Information Amending
Indictment.  Superior Court Judge Larry D. Card imposed the sentence
described above.  
          Should the superior court have merged second-degree sexual
assault and incest for sentencing? 
          Before sentencing, Harmon moved to merge second-degree
sexual assault and incest for purposes of sentencing.  Judge Card
concluded that the counts did not merge and imposed separate
sentences on each count.  Harmon claims that under Whitton v. State,
[Fn. 5] his conviction for incest must merge with his conviction for
second-degree sexual assault to avoid double jeopardy.  
          In Whitton, our supreme court addressed whether separate
punishments can be imposed for the violation of two statutes in a
single course of conduct:
               The trial judge first would compare the
different statutes in question, as they apply to the facts of the
case, to determine whether there were involved differences in intent
or conduct.  He would then judge any such differences he found in
light of the basic interests of society to be vindicated or
protected, and decide whether those differences were substantial or
significant enough to warrant multiple punishments.  The social
interests to be considered would include the nature of personal,
property or other rights sought to be protected, and the broad
objectives of criminal law such as punishment of the criminal for
his crime, rehabilitation of the criminal, and the prevention of
future crimes.

               If such differences in intent or conduct
are significant or substantial in relation to the social interests
involved, multiple sentences may be imposed, and the constitutional
prohibition against double jeopardy will not be violated.[ [Fn. 6]] 

          Judge Card analyzed the statutes in question and concluded
that the social interests protected by the incest statute and the
second-degree sexual assault statute are significantly distinct and
that there were considerable differences in the intent or conduct
that the State had to prove.  Harmon argues that Judge Card
misapplied the Whitton test.
          The incest statute criminalizes any sexual penetration
between certain blood relatives. [Fn. 7]  The subsection of the
second-degree sexual assault statute under which Harmon was charged
criminalizes sexual penetration with an incapacitated person
independent of any relationship between the offender and victim.
[Fn. 8] 
          The two statutes require proof of different conduct.  For
the subsection of second-degree sexual assault that was charged in
this case, the State was obliged to prove that Harmon engaged in
sexual penetration with a person Harmon knew was incapacitated. [Fn.
9]  To prove incest in this case, the State was obliged to prove
that Harmon engaged in sexual penetration with his sister. [Fn. 10] 
Harmon's conviction for second-degree sexual assault did not require
proof that Harmon's victim was his blood relative.  Harmon's
conviction for incest did not require proof that Harmon knew that
his victim was incapacitated. 
          Furthermore, the social interests to be vindicated or
protected by each statute are different.  Judge Card recognized
society's interest in preventing any sexual penetration between
closely related people.  He also recognized the different social
interest protected by the subsection of second-degree sexual assault
that was charged here, protecting incapacitated persons from sexual
penetration.  From our consideration of these factors, we agree with
Judge Card's conclusion that separate sentences on Harmon's
convictions for incest and second-degree sexual assault do not
violate double jeopardy.  In Kailukiak v. State, [Fn. 11] we stated
that corresponding first-degree sexual assault and incest counts
merge.  We have reconsidered that statement and conclude that it was
wrong in light of our analysis above.  
          Did the superior court erroneously find statutory
aggravating factor (c)(10)?
          The State alleged that statutory aggravating factor AS
12.55.155(c)(10) applied to Harmon's sentencing for second-degree
sexual assault.  That aggravating factor requires proof that
Harmon's conduct "was among the most serious included in the
definition of the offense." [Fn. 12]  Judge Card found that the
State had proven this factor by clear and convincing evidence. [Fn.
13]  Harmon argues that this finding was error.  
          We uphold a trial judge's finding on an aggravating factor
unless the appellant convinces us that the finding is clearly
erroneous. [Fn. 14]  When Judge Card found that the State had proved
(c)(10), he mentioned C.W.'s grand jury testimony.  Harmon claims
that Judge Card erred by not specifically rejecting the testimony
of other witnesses whose testimony did not support aggravator
(c)(10).  But this argument rests on a view of the evidence that is
most favorable to Harmon.  Instead, Harmon must convince us that the
evidence does not support Judge Card's finding even when viewed in
the light most favorable to that ruling. [Fn. 15]  
          Harmon has not met this burden.  Harmon inflicted
significant injuries on C.W. in addition to sexually penetrating
her.  He assaulted her at night while she was sleeping.  According
to C.W.'s testimony, Harmon's assault escalated to forcible rape
when she woke up and tried to stop Harmon and he choked her until
she lost consciousness.  C.W.'s grand jury testimony and the
description of the offense in the pre-sentence report support Judge
Card's (c)(10) finding.  Judge Card's (c)(10) finding is not clearly
erroneous.          Is Harmon's sentence excessive?
          The grand jury indicted Harmon for first-degree sexual
assault, an unclassified felony, and one count of incest, a class
C felony.  Harmon pleaded no contest to the Information Amending
Indictment that charged second-degree sexual assault, a class B
felony, and incest.  Harmon was a second felony offender for
purposes of presumptive sentencing because of a 1987 felony
conviction.  Therefore, Harmon faced a presumptive term of 4 years
for second-degree sexual assault, [Fn. 16] and 2 years for incest.
[Fn. 17]            Harmon was convicted in 1987 on one count of
first-degree sexual abuse of a minor. [Fn. 18]  He received a
presumptive sentence of 8 years.  This charge involved approximately
twelve admitted incidents of fellatio, cunnilingus, and penile and
digital penetration with a seven-year-old girl occurring over a one-
and one-half year period.  Harmon was referred to sex offender
treatment at Hiland Mountain.  However, Harmon asked to leave the
program early.  The discharge summary states that he "remains a
dangerous untreated sex offender and thus poses a very real threat
to the community."            Judge Card found two other statutory
aggravating factors under AS 12.55.155 in addition to the (c)(10)
factor discussed above.  Judge Card found that aggravating factors
(c)(7) (Harmon's prior conviction for first-degree sexual abuse of
a minor was a more serious class of offense) and (c)(18)(B)
(Harmon's offense was a sexual offense under AS 11.41 and Harmon had
engaged in other sexual offenses prohibited by AS 11.41 with another
victim) applied to second-degree sexual assault. Harmon did not
allege any statutory mitigating factors.  
          Under Farmer v. State, [Fn. 19] when an offender is
sentenced for multiple crimes, the presumptive term for the most
serious offense is a benchmark that should not be exceeded without
good reason. [Fn. 20]  Because of Harmon's prior felony conviction,
he faced a presumptive 4-year sentence for second-degree sexual
assault, the more serious offense. [Fn. 21] 
          Judge Card considered the Chaney [Fn. 22] criteria and
found that Harmon's rehabilitation was not totally "out the window"
but that Harmon was "untreated."  Judge Card stressed reaffirmation
of societal norms and community condemnation and the deterrence of
Harmon and others similarly situated.  Considering all the factors,
Judge Card concluded that a sentence in excess of the presumptive
term was required.  Judge Card imposed the composite 9-year term to
          Harmon, a second felony offender, sexually assaulted C.W.,
his sister.  C.W. received multiple injuries during the assault and
Harmon choked her into unconsciousness.  Harmon had a prior felony
conviction for another offense and failed at sex offender treatment
after his previous sex offense.  From our review of the record, we
are not able to say that Harmon's composite 9-year term to serve is
clearly mistaken. [Fn. 23] 
          The judgment of the superior court is AFFIRMED.


Footnote 1:

     AS 11.41.420(a)(3)(B) (sexual penetration with a person the
offender knows is incapacitated), a class B felony.

Footnote 2:

     AS 11.41.450(a)(2), a class C felony. 

Footnote 3:

     See State v. Glass, 583 P.2d 872 (Alaska 1978), on reh'g, 596
P.2d 10 (Alaska 1979) (holding that the Alaska Constitution requires
police to obtain judicial authorization before electronically
monitoring or recording a person's private conversations).

Footnote 4:

     AS 11.41.410(a)(1).

Footnote 5:

      479 P.2d 302 (Alaska 1970).

Footnote 6:

     Id. at 312.

Footnote 7:

     AS 11.41.450(a)(2) provides:
person commits the crime of incest if, being 18 years of age or
older, that person engages in sexual penetration with another who
is related, either legitimately or illegitimately, as a brother or
sister of the whole or half blood[.]   

Footnote 8:

     AS 11.41.420(a)(3)(B) provides:
offender commits the crime of sexual assault in the second degree
if the offender engages in sexual penetration with a person who the
offender knows is incapacitated[.]

Footnote 9:

     See id.

Footnote 10:

     See AS 11.41.450(a)(2).  

Footnote 11:

     959 P.2d 771, 774 n.1 (Alaska App. 1998).

Footnote 12:


Footnote 13:

     See AS 12.55.155(f).

Footnote 14:

     See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App.

Footnote 15:

     See Steve v. State, 875 P.2d 110, 125 (Alaska App. 1994)
(citing Degler v. State, 741 P.2d 659, 661 (Alaska App. 1987)).

Footnote 16:

     See AS 12.55.125(d)(1).

Footnote 17:

     See AS 12.55.125(e)(1).

Footnote 18:

     AS 11.41.434(a)(1).

Footnote 19:

     746 P.2d 1300 (Alaska App. 1987).   

Footnote 20:

     See id. at 1301.

Footnote 21:

     See AS 12.55.125(d)(1).

Footnote 22:

     See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).   

Footnote 23:

     See McClain v. State, 519 P.2d 811, 812-14 (Alaska 1974) (an
appellate court is to affirm a sentencing decision unless the
decision is clearly mistaken).