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Douglas v. State (9/4/2009) ap-2231

Douglas v. State (9/4/2009) ap-2231

                             NOTICE
     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 attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


TY S. DOUGLAS,                     
                                   
                    Appellant,          Court  of Appeals No.  A-
                                   8799
               v.                            Trial Court No. 1KE-
                                   02-990 Cr
STATE OF ALASKA,                   
                                   
                    Appellee.                      O  P  I  N   I
End of Caption                     O  N
                                   
                                   
                                        No.  2231   September  4,
                                   2009
                                   
          Appeal  from the Superior Court,  First  Judi
          cial  District,  Ketchikan, Larry  R.  Weeks,
          Judge.

          Appearances:  Paul E. Malin, Assistant Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender, Anchorage, for the Appellant.  Eric
          A.  Ringsmuth,  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.

          MANNHEIMER, Judge.

          Ty  S.  Douglas was convicted of two counts  of  first-
degree sexual assault and two counts of fourth-degree assault for
separate attacks that he committed upon his girlfriend, K.I.,  on
June 26 and 27, 2002.  A detailed description of these crimes  is
contained in Douglas v. State, 151 P.3d 495, 497-98 (Alaska App. 2006), the opinion in which we affirmed Douglass convictions on appeal.
Although we affirmed Douglass convictions in our earlier decision, we remanded Douglass case to the superior court for further sentencing proceedings because, at sentencing, the superior court violated Douglass Sixth Amendment rights as construed in Blakely v. Washington1 by relying on aggravating factors that were not tried to a jury. Douglas, 151 P.3d at 506- 07.
(The decision in Blakely governs Douglass case because Douglass direct appeal of his convictions was pending when Blakely was decided.)
When Douglass case returned to the superior court, the court held a jury trial on the States proposed aggravating factors. With regard to the assault that was committed on June 26, 2002, the jury found no aggravators. However, with regard to the assault that was committed on June 27, 2002, the jury found three aggravators under AS 12.55.155: (c)(1) that Douglas inflicted physical injury on K.I. during the sexual assault; (c)(2) that Douglas acted with deliberate cruelty toward K.I. during the assault; and (c)(5) that Douglas knew or should have known that K.I. was a particularly vulnerable victim.
Because no aggravating factors applied to the June 26th sexual assault, the superior court sentenced Douglas to the unadjusted presumptive term of 8 years imprisonment. (The court also imposed a consecutive term of 1 years imprisonment for the fourth-degree assault committed on June 26th.)
With regard to the June 27th sexual assault, based on the aggravating factors found by the jury, the superior court exceeded the 8-year presumptive term and sentenced Douglas to 30 years imprisonment with 15 years suspended. For reasons that we explain in this opinion, the superior court declined to sentence Douglas for the fourth-degree assault committed on June 27th.
The superior court imposed the sentence for the June 27th sexual assault consecutively to the sentences for Douglass June 26th crimes. Thus, Douglass composite sentence was 24 years to serve and another 15 years suspended.
Douglas now appeals. In this appeal, Douglas contends that the superior court lacked the legal authority to hold a jury trial on the States proposed aggravating factors. Douglas also contends that the jury was misinstructed concerning the scope of its decision-making authority, and that the evidence fails to support the jurys verdict on aggravator (c)(5) (i.e., that K.I. was a particularly vulnerable victim). In addition, Douglas argues that when the superior court re- sentenced him (based on the jurys verdicts), the court violated the rule announced in Juneby v. State2 the rule that a sentencing judge should not rely on an aggravating factor when that factor is premised on conduct for which the defendant has been separately convicted and sentenced. Finally, Douglas argues that his composite sentence is excessive.
For the reasons explained here, we reject Douglass contentions, and we therefore affirm the judgement of the superior court.
Douglass   argument   that   the
     superior  court had no legal authority to hold  a  jury
     trial to decide the States proposed aggravating factors
     
          Alaskas   original   presumptive   sentencing
statutes  (which were enacted in 1978, and  which  took
effect  on January 1, 1980),3 did not comport with  the
United  States Supreme Courts later decision in Blakely
v.  Washington.  These statutes called for  aggravating
factors to be tried to the sentencing judge rather than
to  a  jury, and the statutes specified that the burden
of  proof  applicable to aggravating factors was  clear
and  convincing  evidence rather than  proof  beyond  a
reasonable doubt.
          Both  of  these  aspects of  the  presumptive
sentencing  laws violated the holding in Blakely    the
holding  that, under the Sixth Amendment to the  United
States  Constitution, criminal defendants have a  right
to  demand a jury trial, and to demand proof  beyond  a
reasonable  doubt,  on  any  factual  issue  that,   if
resolved  against  them,  will  increase  the   maximum
punishment for their crime.4
          In March 2005, the Alaska Legislature amended
the presumptive sentencing statutes for the purpose  of
bringing them into conformity with Blakely.5  Under the
revised  presumptive sentencing law,  many  aggravating
factors  must  now be tried to a jury.6   But  Douglass
case  is governed by the pre-March 2005 version of  the
law,  which  had  no  provision  for  jury  trials   of
aggravating factors.
          Douglas  argues  that, because  his  case  is
governed by the pre-March 2005 version of the law,  and
because  that version of the law contained no provision
for  jury  trials of aggravating factors, the  superior
court  had  no  authority to convene a  jury  trial  to
decide the aggravating factors in his case  and it  was
improper for this Court to remand Douglass case to  the
superior  court  for  this purpose.   Douglas  contends
that, under the circumstances of his case, the superior
court   was  obliged  to  ignore  the  States  proposed
aggravating  factors, and to sentence  Douglas  to  the
unadjusted 8-year presumptive term on each of  the  two
first-degree sexual assault convictions.
          To  support these contentions, Douglas relies
on the state law of Washington.  The Washington Supreme
Court  has  held that, because Washingtons  pre-Blakely
sentencing  laws made no provision for jury  trials  of
aggravating  factors,  the Washington  courts  have  no
authority to cure Blakely errors by convening juries to
reconsider  the aggravating factors that  were  earlier
decided (improperly) by sentencing judges.7
          But  in State v. Moreno, 151 P.3d 480 (Alaska
App. 2006), this Court considered this same issue,  and
we reached a different conclusion.
          In  Moreno, we acknowledged that Alaskas pre-
March 2005 presumptive sentencing laws violated Blakely
because  they  did  not  provide  for  jury  trials  of
aggravating  factors, and because they  specified  that
aggravating factors could be established by  clear  and
convincing evidence (rather than requiring proof beyond
a  reasonable doubt).8  The problem presented in Moreno
was  that,  based  on  the fact  that  the  presumptive
sentencing  statutes  violated  Blakely,  the  superior
court concluded that the presumptive sentencing laws as
a whole were unconstitutional.
          The   superior  court  concluded   that   the
statutory   procedures  for  adjudicating   aggravating
factors  (procedures that were invalid  under  Blakely)
were   so   crucial  to  the  overall  functioning   of
          presumptive sentencing that they could not be severed
or  amended  by judicial decision, and thus the  entire
presumptive sentencing structure had to be struck down.
Moreno,  151  P.3d at 481.  We disagreed, and  we  held
that  the  constitutionally flawed procedures specified
in  the  pre-March 2005 statutes could be  replaced  by
jury trial procedures conforming to the requirements of
Blakely.  Id.
          Moreno,  like  Douglas, argued  that  it  was
beyond  the  proper scope of judicial authority  for  a
court  to amend the statutory procedures for litigating
aggravating  factors.  Id. at 482.  But  based  on  the
Alaska Supreme Courts decision in R.L.R. v. State,9  we
concluded that it was within our judicial authority  to
alter   [the]  litigation  procedures  [pertaining   to
aggravating  factors] to ensure that  they  conform  to
constitutional   guarantees[,  and]   to   order   that
defendants receive a jury trial on proposed aggravating
factors  that are not Blakely-compliant.   Moreno,  151
P.3d  at  482.   Accordingly, we  upheld  the  pre-2005
version  of  the presumptive sentencing law   with  the
proviso  that defendants must receive a jury  trial  on
aggravating  factors if mandated by  Blakely.   Id.  at
483.
          Based  on our holding in Moreno, and for  the
reasons   articulated  in  that  decision,  we   reject
Douglass  argument  that  the  superior  court  had  no
authority  to convene a jury to decide the  aggravating
factors  in  Douglass  case.  It was  both  proper  and
necessary  for the superior court to hold a jury  trial
on those aggravating factors.

Douglass  argument  that the superior  court  committed
error  by  giving  an instruction  to  the  jury  which
(according to Douglas) told the jurors that they had no
authority to re-evaluate whether Douglas was guilty  of
the underlying sexual assaults

          During  an early stage of the proceedings  on
remand  (i.e.,  when  the parties began  their  renewed
litigation   of   the  aggravating  factors),   Douglas
contended  that he should be allowed to  argue  to  the
sentencing  jury  that he was not  guilty  of  the  two
underlying sexual assaults, even though the first  jury
had found him guilty of these offenses.
          (Douglas did not contend that the second jury
should  be  allowed to re-evaluate  his  guilt  of  the
sexual  assaults in the sense of re-evaluating  whether
he  should  be  convicted of those  offenses.   Rather,
Douglas  argued that the second jury should be  allowed
to  reject  the States proposed aggravating factors  if
the  jurors believed that Douglas was not guilty of the
underlying sexual assaults.)
          Superior  Court  Judge Larry  R.  Weeks,  the
judge   who   presided  over  the  renewed   sentencing
          proceedings, agreed with Douglas:  the judge ruled
that,   despite  Douglass  conviction  of  the   sexual
assaults   (and   this  Courts  affirmance   of   those
convictions on appeal), Douglas remained free to  argue
to the second jury [that] he didnt do it.
          Judge  Weeks  adhered to this position  when,
during  the jurys deliberations, the jury sent  a  note
asking:
     
          Do  we  have to assume [that]  the  rape
     happened   because  of  [Douglass]   previous
     conviction?  If we doubt [that] there  was  a
     sexual  assault, does that negate all of  the
     new  charges?   Are we allowed to  have  that
     doubt?
     
     In   response  to  this  note,  Judge   Weeks
     instructed the jury:  You must find that  any
     aggravating  factors  occurred   during   the
     course  of a sexual assault[, and therefore,]
     if you have reasonable doubts about whether a
     sexual  assault occurred[,] you may not  find
     that aggravating factors apply.
               But  the  following day,  the  jury
     sent  a second question on this issue.   This
     time, the jurys note asked:  [M]ust this jury
     agree   whether  a  sexual  assault  occurred
     beyond a reasonable doubt?
          Douglas  argued  that  the  correct
answer  to  this question was yes;  in  other
words, Douglas argued that the jury had to be
convinced beyond a reasonable doubt  that  he
was guilty of the underlying sexual assaults.
The State argued that the answer was no  that
the sentencing jury was not authorized to set
aside the findings of guilt made by the first
jury and affirmed on appeal.
          Judge   Weeks  gave  the  following
response to the jurys question:

     The   defendant  was  convicted  by   an
earlier   jury   [which   found]   beyond   a
reasonable  doubt that he had penetrated  the
victim without her consent.  In order for you
to  find aggravating factors[,] you must find
that    [the   proposed   aggravators]   were
committed  during  the commission  of  sexual
assault in the first degree.

          The    jury    sent   no    further
communications  to the court concerning  this
issue.   As we noted earlier, the jury  found
no  aggravators with respect to the June 26th
sexual  assault, but they found three of  the
States five proposed aggravators with respect
to the June 27th sexual assault.
          On   appeal,  Douglas  argues  that
Judge  Weekss final instruction to  the  jury
was  erroneous because (according to Douglas)
it  directed the jurors to acquiesce  in  the
earlier jurys determination that Douglas  was
guilty of the two underlying sexual assaults.
          Douglas points to the clause of the
instruction which reads, you must  find  that
[the  proposed  aggravators]  were  committed
during  the  commission of sexual assault  in
the  first  degree.   In his  brief,  Douglas
italicizes the word must, and he argues  that
the  jurors would have taken this word  as  a
command to set aside whatever doubts they had
on  this issue, and to acquiesce in the trial
jurys  earlier  verdicts.   In  other  words,
Douglas  construes this instruction  to  mean
that,  when  the  jurors deliberated  on  the
aggravators, they were obliged to follow  the
earlier  jurys verdicts and to  presume  that
Douglas was committing sexual assault at  the
time of the alleged aggravating conduct.
          We    reject   Douglass   suggested
interpretation  of  Judge Weekss  instruction
because it rests on taking one phrase of  the
instruction   you must find  out of  context.
Contrary  to  Douglass position, this  phrase
was  not  a  command to the jurors that  they
were  required  to presume that  Douglas  was
engaged in sexual assault at the time of  the
aggravating  conduct.   Rather,  it   was   a
reminder  to the jurors that they  could  not
lawfully return a verdict in the States favor
on  these  aggravating  factors  unless  they
found  that  Douglas was  engaged  in  sexual
assault   at  the  time  of  the  aggravating
conduct.
          It   is   true  that  Judge  Weekss
instruction reminded the jurors that Douglass
trial  jury had found him guilty of  the  two
sexual  assaults  beyond a reasonable  doubt.
But  the jurors had already been informed  of
this.   The  real  question is  whether  this
second  instruction negated  or  contradicted
Judge  Weekss  earlier  instruction  to   the
jurors  on this issue  the instruction  which
told  the jurors that they were free  to  re-
evaluate the trial jurys conclusion, and that
if [they had] reasonable doubts about whether
a  sexual assault occurred[, they could]  not
find ... aggravating factors.
          Contrary   to   Douglass   proposed
reading of the second instruction, we do  not
believe  that  this  second  instruction  can
reasonably  be  interpreted  to   negate   or
contradict  what Judge Weeks told the  jurors
earlier.   Thus, viewing the instructions  on
this  issue as a whole (which we are  obliged
to  do),10  we  conclude  that  Judge  Weekss
instructions  allowed  the  jurors   to   re-
evaluate  the  decision  earlier  reached  by
Douglass trial jury.
          This   is   not  to  say  that   we
necessarily    agree   with   Judge    Weekss
resolution of this issue.  That is, we do not
necessarily  agree  that Douglass  sentencing
jury  was  entitled  to  re-evaluate  whether
Douglas  was  factually  guilty  of  the  two
underlying sexual assaults.
          The  earlier jury found,  beyond  a
reasonable doubt, that Douglas had  committed
the  two  sexual  assaults, and  we  affirmed
those  verdicts on appeal.  When we  remanded
Douglass case to the superior court,  it  was
purely to cure the Blakely error.
          The  Alaska Supreme Court  recently
decided an analogous issue in L.D.G., Inc. v.
Brown, 211 P.3d 1110 (July 10, 2009).  L.D.G.
arose from a lawsuit brought by the estate of
a  woman  who had been shot and killed.   The
estate alleged that a bar operated by L.D.G.,
Inc.   should  be  held  liable  for  damages
stemming  from  the womans death,  under  the
theory   that  the  bar  allowed  the  womans
assailant  to consume alcoholic beverages  in
the bar just before the shooting, even though
he was visibly intoxicated.11
          When  this lawsuit was first tried,
the  jury  found that the bar was  criminally
negligent in allowing the womans assailant to
consume  alcoholic beverages,  and  the  jury
also  concluded  that  the  womans  assailant
would   not  have  shot  her  but   for   his
intoxication.        Nevertheless,        and
paradoxically,  the jury concluded  that  the
bars  negligent action was not a contributing
factor in the womans death; the jury returned
a verdict in favor of the bar on the issue of
liability.12   (Because of this verdict,  the
jury did not reach the issue of damages.)
          The womans estate immediately filed
a  motion  asking the superior court  to  set
aside the verdict, to enter judgement (on the
issue  of liability) in favor of the  estate,
and  to  set  a  new trial on  the  issue  of
damages.   The  superior court  granted  this
motion:   the superior court concluded  that,
given  the  jurys findings that the  bar  was
negligent   when   it   served   the   womans
          assailant, and that the shooting would not
have   occurred   but  for   the   assailants
intoxication,  then (as a legal  matter)  the
bars   negligent   action   had   to   be   a
contributing factor in the womans death.13
          At  the beginning of the new  trial
on  damages, the superior court  ruled   over
the  bars objection  that the new trial would
be  limited to the question of damages,  that
the   issue   of  liability  was   irrelevant
(because   that   issue  had   already   been
decided),  and  that the bar therefore  would
not  be allowed to introduce evidence at  the
new   trial   regarding   the   circumstances
surrounding the womans death.14
          On  appeal, the bar challenged  the
superior courts ruling, but the supreme court
upheld the superior courts decision to  limit
the  litigation to the issue of damages,  and
to   exclude   the  bars  proposed   evidence
regarding  the circumstances surrounding  the
womans death:

     [The   bar]   appears  to  have   sought
introduction  of  the evidence  in  order  to
relitigate questions of causation,  including
the  degree to which the actions of [the bars
employee]  ...  contributed to  [the  womans]
death.   Because  the  jury  and  the   trial
[judge]  had  already determined [the]  legal
cause  [of  the womans death] and established
[the bars] liability [for that death] in  the
original  trial, ... the superior  court  did
not  err in excluding evidence pertaining  to
the  circumstances of [the womans] death from
the trial on damages.

L.D.G., 211 P.3d at 1123.
          Given the supreme courts ruling  in
L.D.G., it appears that Douglas may not  have
been  entitled to ask the second jury to  re-
evaluate  whether he was factually guilty  of
the two sexual assaults.  However, we are not
required  to resolve this issue.   Regardless
of  whether Douglas was entitled to  ask  the
second jury to re-assess his factual guilt of
the  sexual  assaults, Judge  Weeks  in  fact
allowed Douglas to make this argument to  the
jury,  and  the jury instructions  authorized
the  jurors  to  refuse to  find  aggravating
factors if they believed that Douglas was not
factually  guilty  of the  underlying  sexual
assaults.   Thus, any error ran  in  Douglass
favor.

The  relationship  between the  jurys  verdict  on
aggravating factor (c)(1)  the jurys finding  that
Douglas  inflicted physical injury on K.I.  during
the   June   27th  sexual  assault   and  Douglass
conviction for fourth-degree assault on K.I. based
on that same June 27th incident

     Under AS 12.55.155(c)(1), a felony offense is
aggravated for presumptive sentencing purposes  if
a  person,  other  than  an accomplice,  sustained
physical  injury  as  a  direct  result   of   the
defendants  conduct.  In the  Blakely  jury  trial
that  was  held following our remand  of  Douglass
case, the jury concluded that the State had proved
this  aggravator  with respect to  the  June  27th
sexual assault.
     (Under AS 12.55.155(e), a sentencing court is
prohibited  from relying on an aggravating  factor
that  is  based  on  a necessary  element  of  the
defendants  underlying felony.  But  in  State  v.
Woods,  667  P.2d 184, 187-88 (Alaska  1983),  the
supreme court held that the infliction of physical
injury is not a necessary element of the crime  of
first-degree sexual assault, and thus a sentencing
court can properly rely on aggravator (c)(1)  when
sentencing a defendant for that crime.)
     In  addition to this sexual assault,  Douglas
was convicted of the misdemeanor offense of fourth-
degree assault, AS 11.41.230(a)(1), stemming  from
the   same   June  27th  attack  on  K.I..    This
subsection  of  the fourth-degree assault  statute
defines   the  offense  as  recklessly   caus[ing]
physical injury to another person.
          Given   the  facts  of  Douglass   case   (in
particular,  the fact that the sexual assault  and  the
fourth-degree assault were simply different  components
of  the same attack, and the fact that Douglas was  the
sole  assailant and K.I. the sole victim),  essentially
the  same  conduct formed the basis for both aggravator
(c)(1) and the fourth-degree assault conviction.   (The
primary  difference  is  that,  for  the  fourth-degree
assault conviction, the State had to prove that Douglas
acted  recklessly with respect to the possibility  that
his conduct would cause physical injury.)
          In  Juneby  v.  State,641  P.2d  823,  842-43
(Alaska App. 1982), modified on rehearing, 665 P.3d 30,
38   (Alaska  App.  1983),  this  Court  held  that   a
sentencing  court  should not rely  on  an  aggravating
factor  to  increase a presumptive term of imprisonment
if  that  aggravating factor is based  on  conduct  for
which  the defendant is being separately punished.   In
our earlier decision in Douglass case, we noted that it
would  apparently violate the rule announced in  Juneby
if  the superior court increased Douglass sentence  for
the  sexual assault based on aggravator (c)(1) and,  at
the  same  time,  imposed a separate sentence  for  the
fourth-degree  assault.   Douglas,  151  P.3d  at  505.
However, we did not have to resolve this issue, because
we  vacated the superior courts sentencing decision for
other reasons.  Id.
          On  remand,  Judge Weeks submitted aggravator
(c)(1)  to the jury.  This is the procedure called  for
in  AS  12.55.155(f)(2)  although, under the  facts  of
Douglass  case,  an argument could be made  that  Judge
Weeks  might  properly  have  found  aggravator  (c)(1)
without submitting this aggravator to a jury, since the
factual   basis  for  this  aggravator  was   seemingly
encompassed by the original trial jurys guilty  verdict
on  the fourth-degree assault charge.  See Cleveland v.
State, 143 P.3d 977, 982 (Alaska App. 2006).
          The  jury  found  that the State  had  proved
aggravator (c)(1) with respect to the June 27th  sexual
assault,  and thus Judge Weeks was forced  to  confront
the  Juneby  issue.   It  is  true  that,  at  Douglass
original  sentencing, he received a  concurrent  1-year
sentence  of  imprisonment for the  June  27th  fourth-
degree  assault;15  in other words, this  fourth-degree
assault  sentence  did not increase Douglass  composite
sentence  for his crimes.  But this fact did not  solve
the  Juneby  problem  because the Juneby  rule  applies
even  when  the  separate punishment  is  a  completely
concurrent sentence.16
          Judge  Weeks  decided to resolve  the  Juneby
problem by completely vacating Douglass conviction  for
the  June 27th fourth-degree assault, so that he  could
then  rely  on  aggravator (c)(1) to  enhance  Douglass
sentence  for the June 27th sexual assault.  The  State
did not ask the judge to do this, but the State did not
object to the judges action.
          On  appeal, Douglas argues that Judge  Weekss
action   violated   the  constitutional   doctrine   of
separation of powers.  Douglas relies on the fact  that
the  executive branch of government has sole discretion
regarding  charging decisions in criminal cases.17   He
points  out  that the State made the decision  to  file
separate  charges  of sexual assault and  fourth-degree
assault  based on the June 27th attack, and  he  argues
that  the superior court had no authority to alter  the
States decision.
          Given our supreme courts holding in State  v.
Woods  that the infliction of physical injury is not  a
necessary  element of the crime of first-degree  sexual
assault,18  the  State  had  an  obvious  interest   in
prosecuting   Douglas  for  both  first-degree   sexual
assault  (based  on the act of sexual penetration)  and
fourth-degree  assault  (based  on  the  infliction  of
physical  injury).  But Judge Weeks did not attempt  to
impede   the  States  prosecution  of  these   separate
charges.   Rather,  the judicial  action  that  Douglas
challenges  in this appeal took place after  the  State
          prosecuted these charges and obtained guilty verdicts
on both of them.
          In  important  respects, the  Juneby  problem
confronting  Judge Weeks was analogous to  the  problem
that confronts sentencing judges under the Whitton rule
the  Alaska  rule  that defines when separate  offenses
should  be  deemed the same crime for purposes  of  our
states double jeopardy clause.19
          Under  Alaska  law, the State is  allowed  to
pursue an indictment which separately charges different
theories  of the same crime, or which charges  separate
crimes  that clearly will be treated as the same  crime
for  sentencing purposes under Whitton if the defendant
is  convicted of each.20  In other words, the State  is
allowed  to  litigate,  and obtain  jury  verdicts  on,
separate  crimes or separate theories of a  crime  even
though it is known beforehand that, if the defendant is
convicted  of  these  various  counts,  the  law   will
preclude  the  sentencing judge from imposing  separate
convictions on each verdict.
          In  these situations, when a sentencing judge
follows  Whitton  and  declines  to  enter  a  separate
conviction on each jury verdict, the judges action does
not   infringe   the  executive  branchs  prosecutorial
discretion.  The judge has not prevented the State from
choosing  the  appropriate charges, or from  litigating
those  charges  and  obtaining jury verdicts  on  them.
Rather,  the  sentencing  judges  authority  under  the
double  jeopardy clause comes into operation after  the
jury  returns its verdicts, when the judge is asked  to
enter  judgement on those verdicts.  At that time,  the
judge  is  authorized  to merge  one  or  more  of  the
verdicts so that the defendant receives only the number
of  convictions  and sentences allowed  by  the  double
jeopardy clause.
          Often, when a sentencing judge complies  with
Whitton and enters a single judgement based on  two  or
more  verdicts,  there will be no  dispute  as  to  the
offense  for which judgement should be entered   either
because the various verdicts simply represent different
theories  of the same offense, or because  one  of  the
verdicts  is for an offense that is clearly of  a  more
serious  category than the others.  But  in  situations
where  it  is  not  clear which offense  the  defendant
should  stand  convicted of, Alaska case  law  suggests
that the State should be able to choose the offense for
which  the  court  enters judgement and  sentences  the
defendant.21
          On this point, it is possible that the Juneby
rule  should operate differently from the Whitton rule.
In  Juneby situations, the problem lies in the  overlap
between  one  offense  and an aggravating  factor  that
applies to another offense.  Because of this, both  the
prosecuting  agency and the sentencing  court  arguably
have authority to choose the outcome.
          As  Douglas  notes  in his brief,  the  State
decided  to  charge him with fourth-degree  assault  in
addition  to first-degree sexual assault.  Because  the
executive  branch  has the authority  to  choose  which
charges  to file and litigate, one can argue  that  the
State  should  be  able  to insist  that  judgement  be
entered   on  the  fourth-degree  assault  charge,   in
accordance  with the trial jurys verdict   even  though
this  means that the sentencing judge will be forbidden
from  relying  on  aggravating factor (c)(1)  when  the
judge  sentences  Douglas for the  first-degree  sexual
assault.
          But  under Alaska law, a sentencing court has
an   independent  obligation  to  make  sure  that  all
applicable  aggravating  and  mitigating  factors   are
considered  at a felony sentencing, regardless  of  the
wishes  of the parties.  In Hartley v. State, 653  P.2d
1052,  1056  (Alaska App. 1982), and again in  Love  v.
State,  799  P.2d 1343, 1346 (Alaska App.  1990),  this
Court held that, despite the willingness of the parties
to  ignore the existence of applicable aggravating  and
mitigating    factors,   a   sentencing   court    must
independently  evaluate the aggravators and  mitigators
revealed  by  the  evidence.   Conceivably,  in  Juneby
situations, this doctrine might give a sentencing judge
overriding  authority to decline to enter judgement  on
another,  overlapping offense if  the  judge  concludes
that  it  is  necessary to consider  the  corresponding
aggravating  factor in order to achieve a  fair  felony
sentence.
          We  need  not resolve this issue in  Douglass
case   because,  when  Judge Weeks  announced  that  he
intended  to  vacate the judgement on the fourth-degree
assault  charge  so that he could consider  aggravating
factor  (c)(1) when he sentenced Douglas for the first-
degree  sexual assault charge, the prosecutor  did  not
object, and the State has not cross-appealed the judges
decision.
          Based  on  the States inaction,  we  conclude
that the State acquiesced in Judge Weekss resolution of
the  Juneby issue.  For this reason, we need not decide
whether, in Juneby cases where the State insists  on  a
judgement  for  the separate offense  and  announces  a
willingness   to   relinquish  any  reliance   on   the
corresponding aggravating factor, a judge would violate
the  doctrine  of  separation of powers  if  the  judge
followed  the same course as Judge Weeks did   in  this
case.
          In  his reply brief, Douglas asserts for  the
first   time  that  Judge  Weeks  violated  the  double
jeopardy clause when he vacated the previously  entered
judgement for the June 27th fourth-degree assault.  (We
say  for the first time even though we acknowledge that
Douglas  referred  to double jeopardy  in  the  section
heading  of his opening brief that introduces  Douglass
discussion  of  the Juneby problem.   Even  though  the
section heading mentions double jeopardy, the text that
follows this section heading contains no argument based
on  the double jeopardy clause; instead, Douglas relies
entirely  on the doctrine of separation of  powers  and
this Courts decision in Juneby.)
          Douglas  also asserts for the first  time  in
his  reply brief that there was an overlap (for  Juneby
purposes) between the fourth-degree assault charge  and
aggravating  factor  (c)(2)   the  deliberate   cruelty
aggravator.
          Because both of these contentions are  raised
for  the  first time in Douglass reply brief, they  are
waived, and we do not address them further.22

Douglass  argument that there was insufficient evidence
to  sustain  the  jurys verdict on  aggravating  factor
(c)(5)  (particularly vulnerable victim)   or,  in  the
alternative,  that it was improper for Judge  Weeks  to
rely on this aggravator

          Under    the   pre-2008   version    of    AS
12.55.155(c)(5), the version that applies  to  Douglass
case,  a  felony offense is aggravated for  presumptive
sentencing  purposes if the defendant  knew  or  should
have   known  that  the  victim  of  the  offense   was
particularly vulnerable or incapable of resistance  due
to  advanced  age, disability, ill health,  or  extreme
youth[,]  or  was  for  any other reason  substantially
incapable  of  exercising  normal  physical  or  mental
powers of resistance.23
          In  Douglass case, the jury found  aggravator
(c)(5)  with  respect to the June 27th  sexual  assault
under  the  theory  that  Douglass  victim,  K.I.,  was
substantially    incapacitated   by   ...    emotional,
psychiatric[,]   or  psychological  condition[s]   when
Douglas sexually assaulted her.
          On  appeal,  Douglas argues  that  the  State
failed  to  present evidence of any specific emotional,
psychiatric,  or psychological condition that  rendered
K.I. particularly vulnerable.
          Although the State may not have pointed to  a
specific   psychiatric  diagnosis  or  defined   mental
condition,  the record contains evidence  that  Douglas
repeatedly  engaged in manipulative,  controlling,  and
violent behavior toward K.I. during their relationship.
He  subjected  her  to  frequent  beatings  and  sexual
assaults.  Following one episode of physical abuse  (in
March   2002),   K.I.  obtained  a  domestic   violence
protective order against Douglas, but Douglas prevailed
on her to dissolve this protective order.
          Their  relationship continued to be volatile,
and, at one point, K.I. even moved out of her own house
and  went  to stay in a hotel for a while to  get  away
from Douglas, after Douglas refused to leave the house.
          After the sexual assaults in the present case (June
2002), Douglas continued to contact K.I. from jail, and
he  asked  K.I.  to  recant her allegations  of  sexual
assault  which she did.
          Based on the tenor of Douglass and K.I.s long-
term  relationship,  a  jury  might  be  justified   in
concluding  that Douglas exerted control over  K.I.  to
such   an   extent  that  she  suffered  emotional   or
psychological vulnerability.
          This  Court addressed an analogous  situation
in  Williams v. State, 859 P.2d 720 (Alaska App. 1993).
Like  Douglass  appeal, the Williams  case  involved  a
challenge   to   the  States  evidentiary   basis   for
aggravator (c)(5).  The defendant in Williams committed
sexual  assault on his nineteen-year-old  stepdaughter,
but   this   assault  was  not  an  isolated  incident.
Williams  began  sexually assaulting  his  stepdaughter
when  she  was six or seven years old, and he continued
to  assault her on a regular basis, both physically and
sexually,  for  the  next twelve years,  until  he  was
finally charged.24
          In  his  appeal,  Williams  argued  that  his
stepdaughter  should  not  be  considered  particularly
vulnerable  because, by the time of the charged  sexual
assault,  she  was  nineteen years old.25   This  Court
ruled,  however,  that a reasonable  fact-finder  could
properly find aggravator (c)(5)  i.e., could find  that
Williamss   stepdaughter  was  particularly  vulnerable
based  on  the  long-term abuse  she  had  suffered  at
Williamss  hands.  We declared that Williams background
of   abuse   toward  his  victim  [bore]  an  intrinsic
relationship to his assault and to his victims response
to that assault.  Id., 859 P.2d at 722.
          Our   decision   in  Williams  supports   the
conclusion that Douglass long-term physical and  sexual
abuse of K.I. could properly form the evidentiary basis
for  the  jurys  verdict  on  aggravator  (c)(5).    We
therefore  hold  that  a  jury  could  reasonably  find
aggravator (c)(5) in Douglass case.
          Douglas  points out that, although  the  jury
found  aggravator  (c)(5) with respect  to  the  second
sexual  assault (the one committed on June  27th),  the
jury  did not find this aggravator with respect to  the
first  sexual assault (the one committed on June 26th).
Based  on  this  discrepancy  in  the  jurys  verdicts,
Douglas  argues that the jury must have concluded  that
the  June  26th sexual assault was, itself,  a  primary
factor  in  rendering K.I. particularly  vulnerable  on
June  27th.   And based on this premise,  Douglas  then
argues  that Judge Weeks violated the Juneby rule  when
he  relied  on aggravator (c)(5) in sentencing  Douglas
since  Douglas  was being separately punished  for  the
June 26th sexual assault.
          Even  if Douglass premise were correct   that
is, even if the jury believed that the June 26th sexual
          assault was a primary reason why K.I.  was  a
particularly  vulnerable victim  on  June  27th   there
would  be  no violation of Juneby if Judge  Weeks  took
this  aggravator into account when he sentenced Douglas
for the June 27th sexual assault.
          Even under Douglass view of the evidence  and
the jurys verdicts, aggravator (c)(5) was not proved by
the  fact that Douglas sexually assaulted K.I. on  June
26th.   Rather,  aggravator (c)(5)  was  based  on  the
result of that June 26th sexual assault  the fact  that
K.I.  was  in  a  heightened state of psychological  or
emotional vulnerability on June 27th (the date  of  the
second sexual assault).
          The  physical  or emotional  aftermath  of  a
sexual assault is not an element of the offense itself.
Compare  State v. Woods, 667 P.2d at 187-88, where  our
supreme  court  held  that the infliction  of  physical
injury is not a necessary element of the crime of first-
degree  sexual assault.  Thus, Douglass  premise   that
K.I.s  heightened vulnerability stemmed from  the  fact
that  Douglas had sexually assaulted her the day before
does not lead to the conclusion that he suffered double
punishment  for that earlier sexual assault when  Judge
Weeks relied on aggravator (c)(5).
          Under  Juneby, the fact that a defendant  has
already been punished for an earlier crime does not bar
a sentencing judge from considering aggravating factors
that flow from the defendants commission of the earlier
crime.   Thus,  for  example, Juneby  does  not  bar  a
sentencing  judge  from considering  aggravator  (c)(7)
(prior conviction for a felony of a more serious  class
than  the present offense), or aggravator (c)(8) (prior
commission  of aggravated assault or repeated  acts  of
assault),  or aggravator (c)(15) (three or  more  prior
felony convictions).
          Similarly,  there are times when a defendants
commission  of  an  earlier  crime  will  result  in  a
persisting physical or emotional injury that leaves the
victim in a heightened state of vulnerability.  If,  on
a later occasion, the defendant takes advantage of that
heightened  vulnerability to commit another crime  upon
the  same victim, a sentencing judges consideration  of
this fact  i.e., the judges consideration of aggravator
(c)(5)   does not violate the Juneby rule, even  though
the  defendant has been, or is being, punished for that
earlier crime as well.
          We  therefore  hold that, even if  the  jurys
verdicts  are construed as Douglas suggests  (that  is,
even  if  we assume that K.I.s heightened psychological
or  emotional vulnerability on June 27th was the result
of  Douglass  previous sexual assault on  her  the  day
before),  Judge Weeks did not violate the  Juneby  rule
when  he  considered aggravator (c)(5) when formulating
Douglass sentence for the June 27th sexual assault.

Whether Douglass composite sentence is excessive

          Douglas  was  sentenced for  three  offenses:
the first-degree sexual assault committed on June 26th,
the  fourth-degree assault committed that same day, and
the first-degree sexual assault committed on June 27th.
          At the time of Douglass offenses (June 2002),
the  maximum  sentence for first-degree sexual  assault
was  30  years  imprisonment and,  as  a  first  felony
offender, Douglas faced a presumptive term of  8  years
imprisonment  on  each  of the two  counts.26   Fourth-
degree assault is a class A misdemeanor, with a maximum
penalty of 1 years imprisonment.27
          Because  the  jury found no aggravators  with
respect  to  the June 26th sexual assault, and  because
there  were  no mitigators, Judge Weeks was obliged  to
sentence  Douglas  to  the 8-year presumptive  term  of
imprisonment  for this offense.  However,  because  the
jury  found aggravators with respect to the  June  27th
sexual assault, Judge Weeks was empowered to impose any
term of imprisonment up to the 30-year maximum sentence
for this offense.28
          As  we  have already noted, Judge Weeks found
Douglas to be a worst offender for sentencing purposes.
This  finding  authorized  Judge  Weeks  to  impose   a
composite sentence of imprisonment of up to 30 years to
serve   the  maximum sentence for Douglass single  most
serious  offense (i.e., the aggravated  sexual  assault
committed on June 27th).29
          Nevertheless,  Judge Weeks did  not  exercise
the  full  extent  of  this  authority.   Instead,   he
sentenced Douglas to a composite 24 years to serve:   8
years  to  serve  for the June 26th sexual  assault,  a
consecutive  1  year  to  serve for  the  fourth-degree
assault  committed  that same day,  and  a  consecutive
sentence of 30 years with 15 years suspended (i.e.,  15
years to serve) for the June 27th sexual assault.
          On  appeal, Douglas argues that this  24-year
composite sentence is excessive.  But when Judge  Weeks
originally sentenced Douglas in 2004, the judge imposed
a  more  severe composite sentence  30 years  to  serve
and, in Douglass first appeal, we upheld this sentence,
concluding  that it was not clearly mistaken.   Douglas
v. State, 151 P.3d at 505.  Seemingly, then, it follows
that  Douglass  new,  lesser sentence  is  not  clearly
mistaken.
          Douglas  argues  that  Judge  Weeks  did  not
sufficiently consider the testimony of Dr. Fred Wise, a
neuropsychologist  who  testified  at  Douglass  second
sentencing  hearing  and  who suggested  that  Douglass
criminal behavior was attributable to a combination  of
alcoholism  and treatable psychiatric conditions.   But
in  his  sentencing  remarks, Judge Weeks  specifically
referred  to  Dr.  Wises testimony and recommendations.
Judge   Weeks   did  not  disregard  the  psychologists
          testimony.  Rather, the judge weighed that testimony,
and  Douglass potential for rehabilitation, against the
other  sentencing criteria.  In particular, Judge Weeks
weighed   the  potential  for  Douglass  rehabilitation
against the danger that Douglas would pose until he was
successfully treated.
          Having  reviewed the record of Douglass  2007
sentencing,  and having reviewed again  the  record  of
Douglass original sentencing in 2004, we conclude  that
Judge  Weeks was not clearly mistaken when he sentenced
Douglas  to  a  composite term of 24  years  to  serve.
Accordingly, we uphold this sentence.30

Conclusion

          For the reasons explained here, the judgement
of the superior court is AFFIRMED.

_______________________________
  1 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

  2  641  P.2d  823,  842-43  (Alaska  App.  1982),  modified  on
rehearing 665 P.2d 30 (Alaska App. 1983).

3 SLA 1978, ch. 166,  12 (the presumptive sentencing statutes
themselves)  and  25 (declaring that the new  criminal  code
and  sentencing statutes would govern offenses committed  on
or after January 1, 1980).

4 Blakely, 542 U.S. at 303-04, 124 S.Ct. at 2537.

5 See SLA 2005, ch. 2.  Pursuant to  33 of that session law,
the  revised presumptive sentencing statutes took effect  on
March 23, 2005.

6 See AS 12.55.155(f)(2).

7 See State v. Womac, 160 P.3d 40, 50 (Wash. 2007); State v.
Pillatos,  150  P.3d 1130, 1134-35 (Wash.  2007);  State  v.
Hughes, 110 P.3d 192, 208 (Wash. 2005).

8 Moreno, 151 P.3d at 481.

9 487 P.2d 27, 32-33 (Alaska 1971).

10  See Edwards v. State, 158 P.3d 847, 857 (Alaska App.
2007);  Brown v. Anchorage, 915 P.2d 654,  660  (Alaska
App. 1996).

11  L.D.G., 211 P.3d at 1116.

12  Id.

13  Id. at 1116-17.

14  Id. at 1117, 1121.

15Douglas, 151 P.3d at 504.

16Ritter v. State, 97 P.3d 73, 82 (Alaska App. 2004); Juneby
(on rehearing), 665 P.2d at 38.

17See State v. District Court, 53 P.3d 629, 631 (Alaska App.
2002)  (Both  the Alaska Supreme Court and this  Court  have
declared  that  charging  decisions  are  committed  to  the
discretion  of  the  executive  branch;  so  long  as  these
decisions  are exercised within constitutional bounds,  they
are not subject to judicial control or review.).

18667 P.2d at 187-88.

19Whitton v. State, 479 P.2d 302, 312-13 (Alaska 1970).

20Garhart v. State, 147 P.3d 746, 752-53 (Alaska App. 2006).

21See Dunn v. Alaska, 653 P.2d 1071, 1089 (Alaska App. 1982),
where this Court stated:  On appeal, the state has confessed
error  [on  the  Whitton] issue and has requested  that  the
judgment  ... entered [on] the lesser offense  of  theft  be
vacated[.]  ...  Remand of this case to permit the  superior
court  to  vacate the judgment entered for  the  offense  of
theft  ...  appears  to  be  the  appropriate  remedy.   See
Tuckfield  v.  State, 621 P.2d 1350, 1352-53 (Alaska  1981);
Robinson v. State, 484 P.2d 686 (Alaska 1971).  Accordingly,
the case will be remanded for this purpose.

22See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d
406,  411  (Alaska 1990);  Hitt v. J.B. Coghill,  Inc.,  641
P.2d  211,  213 n. 4 (Alaska 1982); Charliaga v. State,  157
P.3d 1053, 1055-56 (Alaska App. 2007).

23The legislature amended aggravator (c)(5) in 2008 by adding
homelessness to the list of circumstances that may render  a
victim particularly vulnerable.  See SLA 2008, ch. 58,  1.

24Williams, 859 P.2d at 721-22.

25Id. at 722.

26See AS 12.55.125(i)(1) (2002).

27See AS 11.41.230(b) (declaring that fourth-degree assault is
a  class  A  misdemeanor) and AS 12.55.135(a)  (providing  a
maximum  penalty  of  1  years  imprisonment  for  class   A
misdemeanors).

28See AS 12.55.155(a)(2) (2002).

29See State v. Wortham, 537 P.2d 1117, 1120-21 (Alaska 1975).

30See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an
appellate  court  is to affirm a sentencing decision  unless
the decision is clearly mistaken).

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