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Joseph v. State (12/14/2012) ap-2383

Joseph v. State (12/14/2012) ap-2383

                                               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 



ANGELO JOSEPH,                                  ) 

                                                )          Court of Appeals No. A-10795 

                           Appellant,           )         Trial Court No. 3AN-09-6658 CR 

                                                ) 

             v.                                 ) 

                                                )                  O P I N I O N 

STATE OF ALASKA,                                ) 

                                                ) 

                           Appellee.            ) 

                                                )           No. 2383 - December 14, 2012 



                Appeal from the Superior Court, Third Judicial District, 

                Anchorage, Philip R. Volland, Judge. 



                Appearances: David D. Reineke, 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 Michael C. 

                Geraghty, Attorney General, Juneau, for the Appellee. 



                Before: Coats, Chief Judge, and Mannheimer and Bolger, 

                Judges. 



                BOLGER, Judge. 



                Angelo Joseph raises several issues related to his convictions for sexual 



assaults committed against his wife, R.C. He argues that there was insufficient evidence 



to support his convictions because R.C. was reluctant to testify and she believed that a 


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husband should not be punished for sexually assaulting his wife. But we conclude that 



the evidence that Joseph forced his wife to engage in sexual penetration and sexual 



contact was sufficient to support his convictions. 



                Joseph also argues that his multiple convictions for sexual assault should 



be merged to avoid double jeopardy. He urges us to overturn the cases holding that 



distinct types of sexual penetration will support separate convictions for first-degree 



sexual    assault.   We   conclude     that  we   should   follow    our  recent   cases   declining    to 



reexamine   this   rule.   On   the   other   hand,   we   conclude   that   Joseph's   convictions   for 



second-degree       sexual    assault,  related   to  this  same   incident,   must    merge    with   his 



convictions for first-degree sexual assault. 



        Background 



                 Because Joseph contends that the evidence was insufficient to support his 



convictions,   we     summarize      this  trial   testimony   in  the  light   most   favorable   to  the 

verdicts.1 Joseph picked up R.C. and her two sons at the Anchorage airport late at night 



when they returned from a trip to New York. When they got home, the boys (who were 



nine and five at the time) went to bed, and R.C. began to check her computer to see what 



work orders she had for later that day. 



                Joseph said he wanted to have sexual intercourse, but R.C. told him she did 



not want to. Joseph picked her up and carried her to the bedroom. R.C. testified that 



Joseph removed her underwear and began to perform cunnilingus on her, even though 



she told him she did not want to have sex. 



    1    See Silvera v. State, 244 P.3d 1138, 1143-44 (Alaska App. 2010). 



                                                    2                                                2383 


----------------------- Page 3-----------------------

                When R.C. began to struggle, Joseph hit her on the left side of her face. She 



continued to struggle, and Joseph choked her with his hands. Joseph did not stop choking 



her until the boys came into the bedroom. The older son yelled something, and Joseph 



stopped choking R.C. Joseph then left the room and put the boys back to bed. 



                When Joseph returned to the bedroom, R.C. again told him that she didn't 



want to have sex, but he began having sex with her anyway. R.C. decided not to struggle 



because she "didn't want anything else to happen." Joseph made R.C. engage in genital 



intercourse, he performed cunnilingus on her, he touched her breasts, and he touched her 



genitals. Afterward, Joseph talked to her for a couple of hours until he fell asleep. R.C. 



took the boys to her aunt's house, then went to the police station. 



                A grand jury indicted Joseph on seven counts that were later presented to 



the trial jury: first-degree sexual assault for cunnilingus before the children interrupted; 



first-degree   sexual   assault   for   cunnilingus   after   the   interruption;   first-degree   sexual 



assault for genital intercourse; second-degree sexual assault for placing his hand on 



R.C.'s   breast; second-degree   sexual assault for   placing   his   hand   on   R.C.'s   genitals; 



second-degree   assault   for   strangling   R.C.;   and   fourth-degree   assault   for   recklessly 



causing physical injury to R.C. 



                Despite R.C.'s description of this assault, she testified that she did not agree 



with the charges against Joseph because they were married and because the incident 



happened in their bedroom. When Joseph's defense attorney asked R.C. if she believed 



that Joseph raped her, she said no. But the jury eventually convicted Joseph of all seven 



counts. 



                At sentencing, Joseph's attorney argued that the sexual assault charges 



should   merge   for   sentencing   purposes   because   they   all   offended   the   same   societal 



interests. Judge Volland ruled that separate sentences were warranted because the sexual 



                                                    3                                               2383
 


----------------------- Page 4-----------------------

assaults were distinct in their nature and addressed different societal interests. Joseph 



now appeals, arguing that there was insufficient evidence to convict him of sexual assault 



and that his sexual assault convictions should be merged. 



        Discussion 



                 There   was   sufficient   evidence   to   support   Joseph's   sexual 

                assault convictions. 



                Joseph first argues that there was insufficient evidence to support his sexual 



assault convictions. When we review a claim of insufficient evidence, we ask whether 



a reasonable juror could conclude that the State had proven the defendant's guilt beyond 

a reasonable doubt.2 



                Joseph does not argue that the State failed to meet its burden of proof on 



any element of these offenses. Instead, he argues that there were problems with the 



State's case: R.C. testified that she did not believe that Joseph had raped her; R.C. was 



reluctant to testify; and there was no medical evidence to corroborate R.C.'s testimony. 



But when we rule on a claim of insufficient evidence, we do not weigh the evidence; we 

view the evidence in the light most favorable to the jury's verdicts.3 



                Viewed in this light, the evidence established that Joseph used force when 



he   carried   R.C.   to  the   bedroom,     removed     her  underwear,      and  engaged     in  sexual 



penetration.   Then   Joseph   attacked   R.C.   when   she   began   to   struggle.   After   the   boys 



interrupted,     Joseph    again   forced   R.C.   to  engage    in  sexual   penetration.    From     this 



    2   Cleveland v. State, 258 P.3d 878, 885 (Alaska App. 2011). 



    3   Silvera , 244 P.3d at1143-44. 



                                                    4                                                 2383 


----------------------- Page 5-----------------------

evidence, a reasonable juror could conclude that Joseph coerced R.C. to engage in sexual 

penetration and sexual contact.4 



               It is true that R.C. testified that she did not believe that Joseph had raped 



her. But she also stated that it would have been rape if another man had done it and that 



the fact that she was married to Joseph made a difference to her. 



               R.C.'s testimony reflects a legal attitude that is long outdated. Historically, 



a   man   could   not  be  convicted    of  rape  for  forcing   his  wife  to  engage   in  sexual 

intercourse.5                                                                 6 

               But marriage is no longer a defense to sexual assault.  In this case, R.C. 



testified that Joseph engaged in sexual relations with her without her consent, and this 



testimony was sufficient to sustain his convictions. 



               Joseph's convictions for first-degree sexual assault do not 

               merge. 



               Joseph     also  argues    that  the  double   jeopardy    clause   of  the  Alaska 



constitution required the sentencing judge to merge his three convictions for first-degree 

sexual assault. Joseph urges us to overrule our decisions in Yearty v. State7 and Erickson 



v. State,8 which held that distinct types of sexual penetration that occur as part of a single 



criminal incident will support separate convictions for sexual assault.9 On this issue, 



    4   See AS 11.41.410(a)(1); AS 11.41.470(8).
 



    5   See 2 Wayne R. LaFave, Substantive Criminal Law ,  17.4(d) (2d ed. 2003).
 



    6   See 11.41.432(b).
 



    7   805 P.2d 987 (Alaska App. 1991).
 



    8   950 P.2d 580 (Alaska App. 1997).
 



    9   Yearty, 805 P.2d at 990, 995; Erickson , 950 P.2d at 583-84.
 



                                                 5                                            2383
 


----------------------- Page 6-----------------------

Joseph bears a heavy burden to overcome the doctrine of stare decisis . We will overrule 



a prior decision only if we are "clearly convinced that the [precedent] was originally 



erroneous or is no longer sound because of changed conditions" and that "more good 

than harm would result from a departure from precedent."10 



               This court recently considered similar arguments in Lincecum v. State 11 and 



Iyapana v. State .12 In those cases, we declined to overrule our prior decisions, and we 



remain convinced that we should not do so today. 



               The changed conditions that Joseph relies on are the increased penalties for 



first-degree sexual assault. He notes that, under the 1997 version of AS 12.55.125, a 



first-time felon was subject to a presumptive term of eight years. Under the current 



version of AS 12.55.125, a first-time felon is subject to a presumptive term of 20 to 30 



years. Also, under the current framework, the trial court must impose at least one-fourth 



of the presumptive term consecutively for each additional conviction of first-degree 

sexual assault.13 



               However,   the     legislature  is  presumed    to  be  aware   of  pertinent  court 

decisions   when   it   amends   a   statute.14 Yearty   and  Erickson   both   involved   multiple 



convictions imposed for a single incident. So when the legislature increased the penalties 



for sexual assault, the legislature was on notice that, under these decisions, a defendant 



    10   Wilson v. State , 207 P.3d 565, 570 (Alaska App. 2009) (Stewart, J., concurring) 



(quotation and alterations in original omitted). 



    11   Mem. Op. & J. No. 5877, 2012 WL 4039820 (Alaska App. Sept. 12, 2012). 



    12   284 P.3d 841 (Alaska App. 2012). 



    13  See AS 12.55.127(c)(2)(E). 



    14   Shea v. State, Dept. of Admin ., 267 P.3d 624, 633 n.33 (Alaska 2011). 



                                                 6                                            2383
 


----------------------- Page 7-----------------------

could     be  convicted     of  multiple    offenses    committed      during    a  single   incident.   The 



legislature   did   nothing   to   mitigate   this   rule.   We   thus   conclude   that   the   legislature's 



decisions to increase the penalties for sexual assault do not require us to overrule the 



cases that define when multiple convictions violate double jeopardy. 



                 Moreover, sexual assault convictions need not merge if there is a sufficient 

break between the offenses. 15 Here, Joseph first performed cunnilingus on R.C. - the 



misconduct that formed the basis for Count 1. Joseph then physically assaulted R.C. 



when she began to struggle, but he stopped when the two boys came into the room. After 



Joseph put the boys back to bed, he forced R.C. to engage in genital intercourse and 



performed cunnilingus on her again - the misconduct that formed the basis for Counts 



2 and 3. 



                 Even if these events took place relatively quickly, Joseph clearly stopped 



the   first   sexual   assault   when   he   began   beating   R.C.   Joseph   was   interrupted   by   the 



children, talked to them in the bedroom for a short time, and left the bedroom to put the 



children   to   bed.   These   circumstances   provide   a   sufficient   break   to   support   separate 



convictions for Joseph's misconduct before and after the children's interruption. 



                 On the other hand, Counts 2 and 3 were part of the same incident after the 



children's interruption, with no significant break between them. But these two counts 

involved different types of sexual penetration - cunnilingus and genital intercourse.16 



Under the rule discussed above, these different types of sexual penetration will support 



    15  See   Oswald   v.   State,   715   P.2d   276,   281   (Alaska   App.   1986),  overruled   on   other 



grounds as recognized in Iyapana v. State , 284 P.3d 841, 852 (Alaska App. 2012). 



    16  See AS 11.81.900(b)(59). 



                                                      7                                                  2383 


----------------------- Page 8-----------------------

separate convictions.17 We thus conclude that the sentencing judge correctly decided to 



enter separate convictions for all three counts of first-degree sexual assault. 



                Joseph's convictions for second-degree sexual assault merge 

                 with his convictions for first-degree sexual assault. 



                 Joseph also argues that his convictions for second-degree sexual assault (for 



forcible sexual contact with R.C.) should merge with his convictions for first-degree 



sexual assault (for forcible sexual penetration). On this issue, Joseph has the advantage 



of more favorable precedent. In Johnson v. State , we stated that "two acts of sexual 



contact   performed   as   part   of   a   single   transaction   with   a   single   incident   of   sexual 



penetration permit but one conviction for the most serious contact, in this case the sexual 

penetration." 18 Likewise, in Harvey v. State , we stated that "It is a well-settled rule that 



an act of sexual touching and an act of sexual penetration will not constitute separate 



crimes if they occur on a single occasion and the touching is merely preliminary to the 

penetration ... ." 19 



                 In this case, most of the testimony at trial described the first-degree sexual 



assault    misconduct,      not   the  second-degree       sexual    assaults.   During     R.C.'s   direct 



examination, the prosecutor questioned her very briefly with respect to these charges: 



        Q.       I need to talk to you about the specific acts that occurred when he came 

        back [into the bedroom after putting the boys to bed]. Did he put his penis inside 

        your vagina? 

        A.        Yes. 



    17  See Iyapana, 284 P.3d at 852.
 



    18  762 P.2d 493, 495 (Alaska App. 1988).
 



    19  Mem. Op & J. 3489 1996 WL 658501 at *7 (Alaska App. Nov. 13, 1996) (citing
 



Johnson , 762 P.2d at 495). 



                                                     8                                                2383
 


----------------------- Page 9-----------------------

       Q.     Did he again have oral sex with you? 

       A.      Yes. 

       Q.     Did he touch your breasts? 

       A.     Yes. 

       Q.     Did he touch your genitals? 

       A.      Yes. 



              From   this   testimony, it appears that Joseph touched R.C.'s breasts and 



genitals during a single incident, which also involved sexual penetration. Based on the 



rule we stated in Johnson and Harvey , we conclude that Joseph's convictions for second- 



degree sexual assault must merge with his convictions for   sexual assault in the first 



degree. 



              Conclusion 



              We VACATE Joseph's separate convictions and   sentences for second- 



degree sexual assault on Counts 4 and 5. The superior court shall amend its judgment to 



reflect a single conviction for first-degree sexual assault based on the jury's verdicts on 

Counts 3, 4, and 5, and the superior court shall resentence Joseph.20 



              In all other respects, the judgment of the superior court is AFFIRMED. 



    20 See Allain v. State, 810 P.2d 1019, 1021-22 (Alaska App. 1991). 



                                             9                                          2383 

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