Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Dwight Samuel O'Connor v State of Alaska (5/24/2019) ap-2645

Dwight Samuel O'Connor v State of Alaska (5/24/2019) ap-2645

                                                                   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 @ akcourts.us
  



                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



DWIGHT SAMUEL O'CONNOR,  

                                                                                       Court of Appeals No. A-12328  

                                              Appellant,                           Trial Court No. 3AN-11-08340 CR  



                                  v.  

                                                                                                     O P I N I O N  

STATE OF ALASKA,  



                                              Appellee.                                   No. 2645 - May 24, 2019  



                       Appeal   from  the  Superior  Court,  Third  Judicial  District,  

                                               

                       Anchorage, Kevin M. Saxby, Judge.  



                       Appearances:   Jason A. Weiner, Gazewood & Weiner, P.C.,  

                                                                                                       

                       Fairbanks, under contract with the Office of Public Advocacy,  

                                                                                                  

                       Anchorage, for the Appellant.   Eric A. Ringsmuth, Assistant  

                                                                             

                       Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                                      

                       Jahna Lindemuth, Attorney General, Juneau, for the Appellee.  

                                                                      



                       Before:         Allard,         Chief        Judge,        Wollenberg,             Judge         and  

                                                                                                                      

                       Mannheimer, Senior Judge.*  

                                                                        



                       Judge WOLLENBERG.  



                       Dwight Samuel O'Connor was indicted on three counts of first-degree                                       



sexual assault against P.A.B. - one count of penile-vaginal penetration, one count of                                                             



      *     Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


----------------------- Page 2-----------------------

digital-vaginal penetration, and one count of fellatio.  A jury acquitted O'Connor of  

                                                                                                                                 



digital  penetration  and  fellatio  but  did  not  reach  a  verdict  on  the  charge  of  penile  

                                                                                                                          



penetration.   The State then retried O'Connor.   At the second trial, a jury convicted  

                                                                                                                     



O'Connor of the remaining count.  

                                           



                    On appeal, O'Connor argues that the trial court erred in precluding him  

                                                                                                                              



from introducing evidence of the acquittals from his first trial.  

                                                                                                 



                    Initially, the court ruled that O'Connor's two prior acquittals would be  

                                                                                                                                



admissible if the State introduced testimony regarding the conduct underlying those two  

                                                                                                                               



counts.  But at trial, the State did not elicit testimony from P.A.B. regarding the conduct  

                                                                                                                        



for  which  O'Connor  had  been  acquitted,  nor  did  the  State  rely  on  this  conduct  as  

                                                                                                                                



substantive evidence of O'Connor's guilt.  Rather, the evidence pertaining to the digital  

                                                                                                                           



penetration  and  the  fellatio  was  elicited  by  O'Connor's  attorney  during  his  cross- 

                                                                                                                          



examination of P.A.B., solely for the purpose of impeaching P.A.B.'s testimony.  

                                                                                                                              



                    Accordingly, the trial court instructed the jury that any testimony about  

                                                                                                                           



those other alleged acts of penetration was relevant only to assessing the credibility of  



the witnesses - and not as substantive evidence of O'Connor's guilt.  And the court  

                                                                                                                            



declined to admit evidence of O'Connor's prior acquittals.  

                                                                                           



                    As we explain in this opinion, we conclude that the trial court's ruling was  

                                                                                                                              



not an abuse of discretion, given the way this issue was litigated.  

                                                                                      



                    O'Connor also argues that the State presented insufficient evidence to  

                                                                                                                                 



support his conviction.  Viewing the evidence in the light most favorable to the jury's  

                                                                                                                           



verdict, we conclude that the evidence was sufficient to support O'Connor's conviction.  

                                                                                                                   



                    Finally, O'Connor argues that the sentencing judge erred in declining to  

                                                                                                                                 



refer his case to the statewide three-judge sentencing panel based on the non-statutory  



mitigating factor of extraordinary potential for rehabilitation. For the reasons explained  

                                                                                                                      



in this opinion, we conclude that a remand is required so that the sentencing judge can  

                                                                                                                               



                                                              - 2 -                                                          2645
  


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

re-assess whether referral to the three-judge panel is warranted under the totality of the                                              



circumstances.  



           Factual background and procedural history  

                                                                        



                      BecauseO'Connor challenges thesufficiencyoftheevidencetosupport his  

                                                                                                                                         



conviction, we present the following background facts in the light most favorable to  

                                                                                                                                          

upholding the jury's verdict.1  

                                   



                                                                                            

                      In July 2011, after a night of drinking and socializing, P.A.B. took a taxi  



                                                                                                                                        

to Penland Mobile Home Park in Anchorage. At the time, P.A.B. was homeless, and she  



                                                                

would often sleep at a friend's house.  



                                                                                                                                       

                      When P.A.B. arrived at the residence where she was supposed to sleep that  



                                                                                                                                  

night, P.A.B. discovered that the door was locked and she could not get inside.  P.A.B.  



                                                                                                                                              

walked back to the road and decided to hitchhike to the apartment of another friend.  



                                                                                                                                  

                      P.A.B.  eventually saw a white truck drive past her.   This truck turned  



                                                                                                                                 

around and pulled up next to her.  The driver - later identified as O'Connor - offered  



                                                                          

P.A.B. a ride, and P.A.B. got into the truck.  



                                                                                                                                          

                      Instead of driving P.A.B. to her friend's apartment, O'Connor took her to  



                                                                                                                                       

a fenced-off construction yard.   O'Connor unlocked the gate, parked the truck, and  



                                                                                                   

guided P.A.B. to a small camper trailer.  P.A.B. went inside because she assumed that  



                                                                             

O'Connor was taking her to get another drink.  



                                                                                                                                         

                      The next thing P.A.B. remembered was O'Connor lying naked on top of  



                                                                                                                                      

her, with her pants removed.   P.A.B. tried to kick O'Connor off of her, but she was  



                                                                                                                                       

unable to do so.  According to P.A.B.'s later testimony, O'Connor pulled P.A.B.'s hair  



                                                                                                                                         

back and put his hands around her neck.  O'Connor repeatedly yelled at P.A.B. that he  



      1    See Newsom v. State, 199 P.3d 1181, 1188 (Alaska App. 2009).  



                                                                  -  3 -                                                             2645
  


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

could not "come" in her vagina and that he wanted "to rape [P.A.B.'s] ass"; P.A.B. told  

                                                                                                                             



him to stop and to get off of her.  

                                                    



                    At some point, O'Connor put lotion on both of their genitals and penetrated  

                                                                                                                    



P.A.B.'s vagina with his penis, but he did not ejaculate.  When he could not maintain an  

                                                                                                                                



erection, O'Connor became angry, and he threw P.A.B.  face down on the bed and  

                                                                                                                             



attempted to penetrate her anus with his penis, but he was unable to do so.  

                                                                                                                  



                    O'Connor eventually stopped and drove P.A.B. to her friend's apartment.  

                                                                                                                                    



P.A.B. knocked on the door, and when her friend answered, she immediately told him  

            



that she had been raped.  P.A.B. then reported the sexual assault, and she subsequently  

                                                                                                               



met with the police.   P.A.B. described O'Connor, his white truck, and the last three  

                                                                                                                           



numbers of the truck's license plate.  

                                                          



                    P.A.B. underwent a SART examination, during which she reported feeling  

                                                                                                                         



pain and soreness in her vaginal area. The forensic examination revealed an abrasion on  

                                                                                                                                



P.A.B.'s chest, a bruise on P.A.B.'s hymen, and a laceration to P.A.B.'s perineal area,  

                                                                                             



in addition to bruises on P.A.B.'s shoulder, back, clavicle, and right inner thigh.  

                                                                                                                          



                    The police subsequently located O'Connor and talked with him at the  

                                                                                                                              



construction yard.  O'Connor told the police that he had picked up P.A.B. and dropped  

                                                                                                                       



her off at her friend's residence without incident; he denied having any sexual contact  

                                                                                                              



with P.A.B.  

         



                    When the police interviewed O'Connor a second time, O'Connor again  

                                                                                                                           



initially denied having any sexual contact with P.A.B.  But when the police presented  

                                                                                                                    



O'Connor with evidence that undermined his account, O'Connor admitted that he had  



lied when he denied having sexual contact with P.A.B.  O'Connor now claimed that  

                                                                                                                             



P.A.B. voluntarily removed her pants after he drove her back to his trailer, and she  

                                                                                                                              



started performing oral sex on him. O'Connor stated that he rubbed his hands and penis  

                                                                                                                           



                                                              - 4 -                                                         2645
  


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

against P.A.B.'s vagina, but he continued to deny that he had penetrated her with his                                                                                                                                    



penis, claiming that he was physically unable to do so.                                                                                         



                                   Later during the same interview, O'Connor again changed his story and                                                                                                



said that he had managed to penetrate P.A.B.'s vagina with his penis for a few seconds.                                                                                                                                             



                                   A grand jury indicted O'Connor on three counts of first-degree sexual                                                                                                        



                   2  

assault.                                                                                                                                                                                                                

                        At O'Connor's first trial in February 2014, the jury acquitted O'Connor of two  



                                                                                                                                                                                                                           

counts (digital-vaginal penetration and fellatio), but the jury could not reach a verdict on  



                                                                                               

the remaining count (penile-vaginal penetration).  



                                                                                                                                                                                                          

                                   The State retried the remaining count.  At the second trial, the previous  



                                                                                                                                                                                                                 

evidence  was  adduced,  and  O'Connor  testified.                                                                                        O'Connor  stated  that  the  entire  



                                                                                                                                                                                                   

encounter with P.A.B. was consensual.  The jury convicted O'Connor of first-degree  



                                                                                                                                                                                                                       

sexual assault for engaging in penile penetration with P.A.B. without her consent.  



                                                                                                                                                                                                          

                  Why we uphold the trial court's decision to preclude the admission of  

                                                                                                 

                  evidence of O'Connor's prior acquittals  



                                                                                                                                                                                                                            

                                   Prior to O'Connor's second trial, O'Connor's attorney filed a motion to  



                                                                                                                                                                                                 

introduce evidence of the acquittals from the first trial.   In this motion, O'Connor's  



                                                                                                                                                                                                     

attorney announced that he intended to rely on a defense of consent, and he anticipated  



                                                                                                                                                                                                                           

that the State would seek to introduce the acts for which O'Connor was acquitted as  



                                                                                                                                                                   3  

                                                                                                                                       

propensity evidence under  Alaska Evidence Rule 404(b)(3).                                                                                                                                                 

                                                                                                                                                                          O'Connor's attorney  



         2       AS 11.41.410(a)(1).  



         3       See  Dowling  v.  United  States,  493  U.S.  342,  348   (1990)  (upholding,  against  



constitutional challenge, the admission under Federal Evidence Rule 404(b) of conduct for   

which a defendant was previously acquitted).                                                                      Alaska Evidence Rule 404(b)(3) provides, in  

relevant part, that "[i]n a prosecution for a crime of sexual assault in any degree, evidence                                                                                          

of other sexual assaults or attempted sexual assaults by the defendant against the same or                                                   

                                                                                                                                                                                                (continued...)  



                                                                                                          -  5 -                                                                                                      2645
  


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

 argued that, if the State introduced evidence of the conduct for which O'Connor was                                                                                             



 acquitted, then he should be permitted to introduce evidence of the acquittals.                                                                                        



                             After the prosecutor told the court that she anticipated that P.A.B. would   



 discuss this other conduct as part of her description of the events, the judge preliminarily                                                                 



ruled that evidence of the prior acquittals would be admissible under the Alaska Supreme                                                                               



 Court's decision in                       Hess v. State                  and this Court's unpublished decision in                                                 Espinal v.   



             4  

State.   



                                                                                                                                                                            

                             But during P.A.B.'s direct examination, when the prosecutor asked P.A.B.  



                                                                                                                                                               

to  describe  what  had  happened  with  O'Connor,  P.A.B.  testified  about  O'Connor's  



                                                                                                                                                                            

 attempts at penile penetration, but she did not testify to any acts of fellatio or digital  



                                                                                                                                                                                    

penetration. As a result, following P.A.B.'s direct examination, the prosecutor asked the  



                                                                                                                                              

judge to reconsider his ruling about O'Connor's prior acquittals.  



                                                                                                                                                                                     

                             O'Connor's attorney did not present a new legal argument in favor of  



                                                                                                                                                                           

 admitting the acquittals.  He indicated, however, that he might seek to impeach P.A.B.  



                                                                                                                                                                        

with her prior statements from the first trial about these acts.  He argued that, if he did  



                                                                                                                                                                                   

 so, at a minimum there would need to be a limiting instruction advising the jurors to use  



                                                                                                                                                                   

the evidence of this other conduct solely for purposes of assessing P.A.B.'s credibility,  



                                                                                                                                                                        

 and not for O'Connor's propensity to commit sexual assault.   (O'Connor's attorney  



                                                                                                                                                                            

 specifically noted that he was not contending that the prosecutor had instructed P.A.B.  



                                                                                                                                                    

not to discuss the conduct for which O'Connor had been acquitted.)  



                                                                                                                                                                                  

                             The trial court agreed with the  prosecutor that the acquittals were not  



                                                                                                                                                                       

relevant to P.A.B.'s testimony at that point, since the State had not introduced evidence  



        3      (...continued)  



 another person is admissible if the defendant relies on a defense of consent."  

                                                                                                                                           



        4      Hess v. State, 20 P.3d 1121, 1127 (Alaska 2001); Espinal v. State, 2013 WL 6576734,  



 at *6 (Alaska App. Dec. 11, 2013) (unpublished).  



                                                                                        -  6 -                                                                                  2645
  


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

of the conduct underlying those acquittals to rebut O'Connor's consent defense. And the  

                                                                                                                                 



court ruled that if the defense attorney introduced evidence of these acts during cross- 

                                                                              



examination for impeachment purposes (and the prosecutor did not suggest that this  

                                                                                                                               



evidence was otherwise relevant for propensity purposes), then the acquittals would  

                                                                                                                           



remain inadmissible.  

                                  



                    During his cross-examination of P.A.B., O'Connor's attorney impeached  

                                                                                                                     



P.A.B. with her prior statements that O'Connor had forced her to perform fellatio and  

                                                                                                                                



had forcibly penetrated her vagina with his fingers.  The attorney did not mention the  

                                                                                                                                



prior trial or the prior charges; he simply confronted P.A.B. with the fact that she had  

                                                                                                                               



made these prior allegations, both before the grand jury and again later "under oath."  

                                                                                                                                      



When pressed as to why she had omitted discussion of these other acts during her  

                                                                                                                                



testimony on direct examination, P.A.B. said that she "forgot" about those aspects of the  

                                                                                                                                 



assault.  

             



                    The prosecutor did not address this issue on redirect, and the prosecutor did  

                                                                                                                                 



not argue in closing that these other acts made it more likely that O'Connor engaged in  

                                                                                                                                  



the conduct for which he was on trial.  As a result, the jury was never informed of the  

                                                                                                                                



prior acquittals.  

         



                    Consistentwith O'Connor'srequest for alimiting instruction, thetrial court  

                                                                                                                              



instructed  the  jury  to  restrict  its  consideration  of  the  other-acts  evidence  solely  to  

                                                                                                                                  



assessing P.A.B.'s credibility.  In particular, the court instructed the jury that O'Connor  

                                                                                                                      



was "on trial solely for one count of penile-vaginal penetration," and that the jury should  

                                                                                                                           



not consider evidence of other types of sexual penetration "when determining whether  

                                                                                                                         



the State has satisfied its burden of establishing, beyond a reasonable doubt, that the  

                                                                                                                                



defendant engaged in sexual penetration, penis to genitals, with P.A.B., without the  

                                                                                                                                



consent of P.A.B."  Rather, the court told the jury that it could consider this evidence  

                                                                                                                       



only in "assessing [the] witnesses' overall credibility regarding the events on the night  

                                                                                                                             



                                                               -  7 -                                                         2645
  


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

in question."  In his closing argument, O'Connor's attorney argued - consistent with                                                                                                   



this instruction - that P.A.B.'s failure to remember such significant aspects of the                                                                                                                                 



assault undermined P.A.B.'s credibility.                                                                



                                  On appeal, O'Connor argues that the trial court erred in precluding him                                                                                                          



from introducing evidence of his prior acquittals. In support of his argument, O'Connor                                                                                                             



relies on the supreme court's decision in                                                               Hess.  



                                  As a general matter, "a defendant's acquittal of one charge is . . . not                                                                                                    



relevant   to   prove   [the   defendant's]   factual  innocence   of   the   facts   underlying   that  



                      5 

charge."   Rather, the acquittal "proves only that the state did not prove every element  



                                                                                                          6  

                                                                                       

of the crime beyond a reasonable doubt." 



                                                                                                                                                                                                                

                                  Nevertheless, the Alaska Supreme Court held in Hess that when the State  



                                                                                                                                                                                                                  

introduces evidence that the defendant has committed another crime, the defense may  



                                                                                                                                                                                             7  

                                                                                                                                                                                                               

introduce evidence that the defendant was acquitted of that other crime.                                                                                                                           The court  



                                                                                                                                                                                                                      

concluded that, in those instances, the acquittal helps the jury weigh the evidence of the  



                                                                                                                                                                                                

prior act.  That is, "[e]ven though the defendant's acquittal does not prove  that he was  



                                                                                                                                                                                                   

innocent of the prior act, a jury may reasonably infer a greater probability of innocence  



                                                                             8  

                                                                                 

from the fact of the acquittal." 



                                                                                                                                                                                                                    

                                  O'Connor's caseis distinguishablefromHess . Here, the other conduct was  



                                                                                                                                                                                                                      

not admitted as substantive evidence tending to establish O'Connor's guilt.  That is, the  



                                                                                                                                                                                             

other  conduct  was  not  admitted  for  propensity  purposes,  nor  was  it  admitted  to  



                                                                                                                                                                          

contextualize and explain P.A.B.'s account and chronology of the events.  



         5       Hess, 20 P.3d at 1125.  



         6       Id.  



         7       Id. at 1127; Espinal, 2013 WL 6576734, at *6.  



         8       Hess, 20 P.3d at 1125 (emphasis added).  



                                                                                                         - 8 -                                                                                                    2645
  


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

                                          Indeed, this evidence was not introduced by the State at all.                                                                                                                                  Rather, the   



evidence of these other acts was introduced by O'Connor's attorney, solely to impeach                                                                                                                                                               



P.A.B.   And the parties' use of this evidence was limited throughout the trial to that                                                                                                                                                                           



purpose, consistent with the trial judge's instruction to the jury.                                                                                                                     



                                          Thus, unlike in                                 Hess, the acquittals in this case were not relevant to rebut                                                                                                        



an argument by the prosecutor that O'Connor's other acts of sexual assault tended to                                                                                                                                                                                    



prove his propensity to commit the charged sexual assault.                                                                                                                                 



                                          Seemingly, the only purpose of the acquittals would have been to suggest                                                                                                                                     



that   the   prior   jury   had   doubts   about   P.A.B.'s   credibility.     But   under   Hess,   a   prior  



acquittal is not admissible for this purpose.                                                                                               That is, an acquittal is not admissible to                                                                                 



establish the historical facts underlying the prior jury's verdict or the reasons why the                                                                                                                                                                            



                                                                                                       9  

                                                                                                                                                                                                                                                         

prior jury had a reasonable doubt.                                                                          And in any event, O'Connor's attorney never argued  



                                                                                                                                                                                                                                                                  

that the prior  jury  acquitted  him because of  doubts  about P.A.B.'s credibility,  and  



                                                                                                                                                                                                                                             

O'Connor does not argue this on appeal.  (In fact, he has not requested or supplied a  



                                                                                                        

transcript of the first trial for our review.)  



                                                                                                                                                                                                                                                     

                                          On  appeal,  O'Connor  does  not  cite  any  authority  that  would  support  



                                                                                                                                                                                                                                                                     

admission of the acquittals under these circumstances. Given this record, we uphold the  



                                                                                                                                                                                            10  

                                                                                                                                                           

trial court's decision precluding admission of the acquittals. 



           9         Id. at 1127.  



           10        See  State  v.   Washington,   257  N.W.2d  890,  893  (Iowa  1977)  (holding  that  the  



defendant was not entitled to the admission of prior acquittals because evidence of the prior                                                                                                                                                         

charges was first elicited by defense counsel).  



                                                                                                                                -  9 -                                                                                                                           2645
  


----------------------- Page 10-----------------------

                  Why   we   uphold   the   trial   court's   denial   of   O'Connor's   motion   for   a  

                judgment of acquittal            



                                  After the State rested at O'Connor's second trial, O'Connor's attorney                                                                                                



moved for a judgment of acquittal.                                                         The trial court denied this motion.                                                       



                                  On appeal, O'Connor renews his claim that there was insufficient evidence                                                                                            



to support his conviction.                                         O'Connor argues that P.A.B. was not a credible witness and                                                                                       



that the physical evidence was consistent with consensual sexual activity.                                                                                                                    



                                  But when this Court reviews the sufficiency of the evidence to support a                                                                                                                



conviction,   we   do   not   weigh   the   credibility   of   witnesses,   as   witness   credibility  is  

exclusively a question for the jury.                                                     11                                                                                                       

                                                                                               Rather, we view the evidence, and all reasonable  



                                                                                                                                                                                                             

inferences  from  that  evidence,  in  the  light  most  favorable  to  upholding  the  jury's  



                    12  

verdict.                                                                                                                                                                                                        

                           Viewing the evidence in that light, we then ask whether a reasonable juror  



                                                                                                                                                                                                           13  

                                                                                                                                                                                          

could have concluded that the State proved its case beyond a reasonable doubt. 



                                                                                                                                                                                                             

                                  Here, the jury could reasonably credit P.A.B.'s testimony about the events  



                                                                                                                                                                                                        

and her reports to her friend and to the police that she was sexually assaulted, together  



                                                                                                                                                                                                            

with her injuries, to conclude that O'Connor engaged in sexual penetration with P.A.B.  



                                                                                                                                                                                                                  

without her consent within the meaning of AS 11.41.410(a)(1).  The jury could also  



reasonably consider O'Connor's own shifting statements to the police regarding these  



                     

events.  



                                                                                                                                                                                                                      

                                  Viewing the evidence in the light most favorable to the jury's verdict, we  



                                                                                                                                                                                                

conclude that the State presented sufficient evidence to support O'Connor's first-degree  



                                     

sexual assault conviction.  



         11      Morell v. State , 216 P.3d 574, 576 (Alaska App. 2009); Daniels v. State, 767 P.2d  



 1163, 1167 (Alaska App. 1989).  



         12      Iyapana v. State , 284 P.3d 841, 848-49 (Alaska App. 2012).  



         13      Johnson v. State , 188 P.3d 700, 702 (Alaska App. 2008).  



                                                                                                       -  10 -                                                                                                    2645
  


----------------------- Page 11-----------------------

              Why we remand O'Connor's case to the trial court for reconsideration of                                                                            

              his request for referral to the three-judge sentencing panel                                                  



                           As afirst felony offenderconvictedoffirst-degreesexualassault,O'Connor                                                             

was subject to                   a presumptive                   sentencing   range of 20                           to   30   years.14  

                                                                                                                                                                   

                                                                                                                                                    Under  former  



                                                                                                                                                                             

AS  12.55.125(o)(1),  the  court  was  also  required  to  impose  a  minimum  period  of  



                                                                                                                                                                             

suspended imprisonment of 5 years.  O'Connor was fifty-one years old at the time he  



                                                                                                                                                                             

sexually assaulted P.A.B.   He had little criminal history, having been convicted of  



                                                                                                                                              

negligent driving in 1979 and taking a sub-legal Dall sheep in 2003.  



                                                                                                                                                                              

                           Prior to sentencing, O'Connor's attorney filed a motion seeking referral of  



                                                                                                                                                                        

O'Connor's  case  to  the  statewide  three-judge  sentencing  panel  based  on  the  non- 



                                                                                                                                      15  

                                                                                                                                                                          

statutory mitigator of extraordinary potential for rehabilitation.                                                                          In support of this  



                                                                                                                                                                              

motion, O'Connor's attorney noted O'Connor's minor criminal history, his history of  



                                                                                                                                                               

community service, including his service as a member of the Public Safety Advisory  



                                                                                                                                                    

Commission and a regular volunteer for the Community Safety Patrol, and his strong  



                                                                                                                                                                        

support system of friends and family (as evidenced by the letters submitted to the court  



                                                                                                                                                                    

on O'Connor's behalf).  At the sentencing hearing itself, O'Connor's attorney further  



                                                                                                                                                                              

noted that O'Connor had participated in the Static-2002R, an actuarial tool designed to  



                                                                                                                                                                    

assess the risk of recidivism for sex offenders, and that this test classified him as having  



                                                        

a low risk of re-offending.  



                                                                                                                                                             

                            The State opposed O'Connor's three-judge panel request.  The prosecutor  



                                                                                                                                                       

argued that O'Connor had to prove "five elements" to establish that he had extraordinary  



                                                                                                                                                                         

potential  for  rehabilitation,  and  that  he  had  failed  to  do  so.                                                             (The  prosecutor  also  



                                                                                                                      

variously referred to these considerations as "factors" or "steps.")  



       14     AS 12.55.125(i)(1)(A)(ii).  



       15     AS 12.55.165(a);  Smith v. State, 711 P.2d 561, 571-72 (Alaska App. 1985) (first                                 



recognizing extraordinary potential for rehabilitation as a non-statutory mitigator).  



                                                                                   -  11 -                                                                               2645
  


----------------------- Page 12-----------------------

                     According  to  the  prosecutor,  these  five  elements  were:                                (1)  that  the  

                                                                                                                                



defendant  is  a  first  felony  offender;  (2)  that  the  crime  is  out  of  character  for  the  

                                                                                                                                



defendant; (3) that the court understands the problems that led the defendant to engage  

                                                                                                                          



in criminal conduct; (4) that the criminal conduct is unlikely to be repeated; and (5) that  

                                                                                                                                



there is reason to believe that the defendant can be rehabilitated in a period shorter than  

                                                                                                                               



the presumptive sentencing range.  

                                                       



                     The trial court denied O'Connor's request to refer his case to the three- 

                                                                                                                            



judge panel. Significantly, the court found that O'Connor was unlikely to ever repeat his  

                                                                                                                                 



criminal conduct.  However, the court expressed uncertainty as to why O'Connor had  

                                                                                                                                



committed  the  sexual  assault,  and  the  court  therefore  concluded  that  it  could  not  

                                                                                                                               



determine whether he could be adequately rehabilitated in a period shorter than the  

                                                                                                                                



presumptive range.  The court ultimately imposed a sentence of 25 years with 5 years  

                                                                                                                             



suspended (20 years to serve) - the lowest permissible sentence within the presumptive  

                                                                                                                   



range.  



                     On appeal, O'Connor underscores the trial court's finding that he was  

                                                                                                                               



unlikely to re-offend, and he argues that this finding was essentially a confirmation of  

                                                                      



his exceptionally good prospects for rehabilitation, justifying referral of his case to the  

                                                                                                                                 



three-judge panel.  He contends that when a court makes a finding that a defendant is  

                                                                                                                                  



unlikely to recidivate, then it becomes less important for the court to identify the precise  

                                                                                                                          



reasons why the defendant committed the offense.  

                                                                               



                     We agree with O'Connor that the trial court's finding that O'Connor's  

                                                                                                                  



conduct was "unlikely [to] ever be repeated" was significant and that it lessened the need  

                                                                                                                              



to understand the precise reasons for O'Connor's criminal conduct.  Given that, we are  

                                                                                                                                



concerned that the trial court adopted the five-factor test proposed by the prosecutor and,  

                                                                                                                               



as a result, appeared to heavily weigh one particular factor - the reason for O'Connor's  

                                                                                                                   



conduct - to the exclusion of the totality of the circumstances.  

                                                                                                   



                                                              -  12 -                                                         2645
  


----------------------- Page 13-----------------------

                      When   evaluating   whether   a   defendant   has   extraordinary   potential   for  



                                                                                                                                          16  

rehabilitation, the sentencing court must apply a "totality of the circumstances" test.                                                       



                                                                                                                                 

Although the considerations proposed by the prosecutor were relevant to the court's  



                                                                      

analysis, there is no set "five-factor" test.  



                                                                                                                                       

                      Moreover,  as  O'Connor  notes,  the  court  made  two  findings  that  are  



                                                                                                                                       

potentially at odds with each other:  the judge affirmatively found that O'Connor was  



                                                                                                                          

unlikely to ever commit sexual assault again, but the judge declined to refer O'Connor's  



                                                                                                                              

case to the three-judge panel because the judge could not identify the precise reason(s)  



                                                                                              

why O'Connor committed the sexual assault in this case.  



                                                                                                                                          

                      The judge's two findings accentuate an ambiguity or potential difficulty in  



                                                                                                                                        

the  ways  that  this  Court  has  described  the  non-statutory  mitigating  factor  of  



                                                                      

extraordinary potential for rehabilitation.  



                                                                                                                                          

                      In Kirby v. State, this Court declared that a sentencing court is justified in  



                                                                                                     

concluding that a defendant has unusually good potential for rehabilitation when "the  



              

court is satisfied, after reviewing the totality of the circumstances, that [the defendant]  



                                                                                                                                       

can adequately be treated in the community and need not be incarcerated for the full  



                                                                                                     17  

                                                                                                          

presumptive term in order to prevent future criminal activity." 



                                                                                                                                        

                      Three years later, in Lepley v. State, this Court attempted to clarify the  



                                                                                                                                         

Kirby  test:         we  declared  that  a  sentencing  court  should  not  make  "a  prediction  of  



                                                                                                                                      

successful treatment and non-recidivism" unless the court "is reasonably satisfied both  



                                                                                                     

that it knows why a particular crime was committed and that the conditions leading to  



                                                                                                                                          

the criminal act will not recur - either because the factors that led the defendant to  



      16   See Kirby v. State, 748 P.2d 757, 766 (Alaska App. 1987).  



      17   Id.  



                                                                 -  13 -                                                             2645
  


----------------------- Page 14-----------------------

commit the crime are readily correctable or because the defendant's criminal conduct                                                       

resulted from unusual environmental stresses unlikely ever to recur."                                                     18  



                                                                                                                                          

                        In O'Connor's case, the sentencing judge found that O'Connor's criminal  



                                                                                                                                                   

conduct was "unlikely [to] ever be repeated," both because it was out of character for  



                                                                                                                                             

him and because O'Connor had already been strongly deterred by the criminal justice  



                                                                                                                                                   

process.          Thus,  even  though  the  judge  could  not  identify  the  precise  reasons  for  



                                                                                                                                           

O'Connor's criminal conduct, the judge affirmatively found that O'Connor was unlikely  



                        

to re-offend.  



                                                                                                                               

                       However, the judge also concluded that, as a legal matter, his inability to  



                                                                                                                                         

identify the precise reasons for O'Connor's sexual assault precluded him from referring  



                                                                                                                                           

O'Connor's case to the three-judge sentencing panel.  The judge reasoned that, because  



                                                                                                                   

he could not identify the precise causes of O'Connor's criminal conduct, he could not  



                                                                                                                                               

predict with any assurance that O'Connor would be rehabilitated in a shorter time frame  



                                                                                                                                      

than the 20-year minimum sentence required by the applicable presumptive sentencing  



             

range.  



                                                                                                                                      

                        Obviously, there is a tension between the judge's finding that O'Connor  



                                                                                                                                           

will not re-offend and the judge's statement that he could not reasonably predict whether  



                                                                                                  

O'Connor could be rehabilitated in less than 20 years.  



                                                                                                                                                   

                        The tension arises from the fact that, in this context, a finding that the  



                                                                                                                                                    

defendant will not re-offend is equivalent to a finding of "rehabilitation." As used in the  



                                                                                                                                                   

criminal law, the term "rehabilitation" (or its synonym, "reformation") means that the  



                                                                                                                                                   

defendant need not be confined in order to prevent future criminal activity, and that the  



                                                                                                  

defendant can be expected to be a law-abiding citizen.  



      18    Lepley v. State , 807 P.2d 1095, 1100 (Alaska App. 1991).  



                                                                       -  14 -                                                                  2645
  


----------------------- Page 15-----------------------

                         (See  Black's Law Dictionary, which defines "rehabilitation" for criminal  



law purposes as "[t]he process of seeking to improve a criminal's character and outlook                                                          



                                                                                                                                       19  

so that he or she can function in society without committing other crimes."                                                                             

                                                                                                                                           Or, as this  



                                                                                                                                            

Court suggested in Kirby, "rehabilitation" is the converse of recidivism or continued  



                            20 

                                  

dangerousness.                 )  



                                                                                                                                           

                        Although our decision in Lepley could be interpreted as strictly prohibiting  



                                                                                                                                      

a sentencing judge from making a finding of extraordinary potential for rehabilitation  



                                                                                                                                              

unless  the  judge  is  able  to  identify  the  precise  causes  of  the  defendant's  criminal  



                                                                                                                                                           

behavior, such an interpretation would be unwarranted. While identifying the causes of  



                                                                                                                                      

a defendant's criminal behavior may better assist a judge in predicting rehabilitative  



                                                                                                                                                            

potential, sometimes, even after a comprehensive analysis, the ultimate causes of a  



                                                                                                                                                 

person's actions remain murky, and a judge may be unable to identify the precise reasons  



                                                                                                                                            

why the person engaged in particular antisocial behavior.  But even in these situations,  



                                                                                                                                                       

there may still be articulable reasons to conclude that the behavior will not recur.  



                                                                                                                                                         

                        We interpret Lepley  as saying that a sentencing judge may not rely on  



                                                                                                                                                     

hunches about the defendant, or personal assessments of the defendant's character, when  



                                                                                                                                                     

the judge makes a finding of extraordinary potential for rehabilitation. Rather, the judge  



                                                                                                                                                         

must have articulable reasons, based on the evidentiary record, for concluding that the  



                                                                                                                                            

defendant can berehabilitated earlier than theminimumtermofimprisonmentprescribed  



                                                                                                                                                 

by the applicable presumptive sentencing range - even though these articulable reasons  



                                                                                                                                                          

may not precisely identify the ultimate causes of the defendant's criminal behavior.  



                                                                                                                                                        

                        Here,  although  the  court  could  not  pinpoint  the  precise  reason  for  



                                                                                                                                                        

O'Connor's conduct, it posited several rationales.  Ultimately, the court concluded that  



      19    Black's Law Dictionary  (10th ed. 2014), at 1476.  



      20    Kirby, 748 P.2d at 766.  



                                                                          -  15 -                                                                     2645
  


----------------------- Page 16-----------------------

O'Connor's conduct was unlikely to "ever be repeated" - that, regardless of the reasons  

                                                                                                                        



for O'Connor's conduct, he had been strongly deterred by the entire criminal process.  

                                                                                                                                    



The court also concluded that O'Connor had prospects for rehabilitation that were "well  

                                                                                                                           



above average."  

                          



                    We acknowledge that there were factors weighing against a finding of  

                                                                                                                                



extraordinary  potential  for  rehabilitation:                      the  court  found  that  O'Connor  had  not  

                                                                                                                              



expressed remorsefor his conduct, and the court found that O'Connor'sown evasiveness  

                                                                                                                  



with the police, and his shifting narrative, suggested that he had exhibited some "level  

                                                                                                                          



of deception" that contradicted his lifetime of community service. But we conclude that  

                                                                                                                              



it is appropriate  to  remand O'Connor's case so that the trial court can, in the first  

                                                                                                                             



instance, apply a totality of the circumstances test to evaluate O'Connor's request to refer  

                                                                                                                            



his case to the three-judge panel in light of the guidance we have provided here.  

                                                                                                                           



          Conclusion  



                    We AFFIRMO'Connor's conviction. We REMAND O'Connor's case for  

                                                                                                                               



reconsideration of his request for referral to the three-judge panel based on the non- 

                                                                                                                            



statutorymitigator ofextraordinary potential for rehabilitation, and weretain jurisdiction  

                                                                                                                  



over this matter.  The superior court shall report to us within 90 days of the issuance of  

                                                                                                                                



this opinion.  This deadline may be extended for good cause.  

                                                                                    



                                                             -  16 -                                                        2645
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC