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Cleveland v. State (6/17/2011) ap-2313

Cleveland v. State (6/17/2011) ap-2313

        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
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BRENDA CLEVELAND,                                ) 
                                                 )           Court of Appeals No. A-10466 
                            Appellant,           )         Trial Court No. 3AN-07-4046 CR 
             v.                                  ) 
                                                 )                 O   P   I  N  I  O  N 
STATE OF ALASKA,                                 ) 
                            Appellee.            ) 
                                                 )              No. 2313 - June 17, 2011 

                Appeal from the Superior Court, Third Judicial District, 
                Anchorage, Patrick J. McKay, Judge. 

                Appearances:      Jane B. Martinez, Attorney at Law, Anchorage, 
                for   the   Appellant.   Tamara   E.   de   Lucia,   Assistant   Attorney 
                General,      Office    of   Special    Prosecutions      and   Appeals, 
                Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, 
                for the Appellee. 

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

                BOLGER, Judge. 

                Brenda   Cleveland   appeals   from   her   convictions   of   first-degree   sexual 

assault,   coercion,   kidnapping,   third-degree   assault,   misconduct   involving   weapons, 

fourth-degree assault, and harassment.            Cleveland argues the following:           (1) the trial 

court erred in failing to dismiss the indictment because the grand jury was improperly 

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

instructed on kidnapping; (2) the trial court erred in denying her request to confront and 

cross-examine M.J., the victim, regarding a pending municipal prostitution charge; (3) 

the court erred in failing to dismiss the kidnapping charge due to insufficient evidence; 

(4) the court erred in not revising the present-offense section of the presentence report 

based on the evidence presented at trial; and (5) her sentence was excessive in light of 

her history and the facts of this case.  For the reasons that follow, we affirm Cleveland's 

conviction and sentence, but we remand the case to the trial court so that it can clarify 

its ruling on Cleveland's presentence report. 


              Cleveland was tried jointly with co-defendants Douglas McClain and Annie 
Shinault.1 The following description of the evidence focuses on the testimony regarding 

Cleveland's personal involvement in these crimes. 

              M.J. was a prostitute who relocated to   Anchorage from Kansas City in 

2006.  In April 2007, M.J. stole two ounces of crack, a pistol, a cell phone, and a set of 

car keys from McClain after coming to his trailer and performing sexual services. M.J.'s 

acquaintances later robbed McClain, stealing about $8,000 from him. 

              A few days later, on April 8, 2007, M.J. was walking home when Shinault 

- a friend of McClain's - pulled up in a truck.   Believing it would be futile to run, M.J. 

accepted Shinault's invitation to get in.  Shinault picked up Cleveland and proceeded to 

McClain's trailer. 

              Upon her arrival, McClain struck M.J. in the face, demanding to know what 

became of his money and drugs.  M.J. fell to the ground and all three defendants began 

    1  See Shinault v. State, ___ P.3d ___, Op. No. 2308, 2011 WL 2084136 (Alaska App. 

May 27, 2011). 

                                             2                                          2313 

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

kicking her.     This was the start of a series of beatings and tortures that lasted for about 

three days. 

                Cleveland hit M.J. in the head with a gun and shaved off some of M.J.'s 

hair before the clippers broke.        She sprayed M.J. with Febreze, hit her in the knee with 

a hammer, and threatened her life. Cleveland shoved her gloved hand into M.J.'s rectum 

and then made M.J. lick the glove.  She also burned M.J. with crack pipes and cigarettes, 

and pointed a gun at her. 

                At some point during this period of abuse, an acquaintance of Cleveland's 

named V.B. arrived to help clean up the trailer.            V.B. stole McClain's crack pipe and 

smoked its residue while he was sleeping and then hid it, presumably so she could use 

it again later.   She also stole some rolls of quarters from one of the bedrooms. 

                When      McClain     realized   that   V.B.   had   stolen   these  items,   V.B.    was 

subjected to much of the same treatment as M.J.              V.B. testified that all three assailants 

beat her with a belt, shoved her with a bat, struck her in the face, and strip-searched her. 

Eventually McClain fell asleep, and Cleveland and Shinault apparently left the trailer. 

V.B. grabbed her clothes and escaped to a nearby gas station, where she called the police. 
                The jury found Cleveland guilty of first-degree sexual assault on M.J.,2 

           3                     4                                        5 
coercion,     kidnapping M.J.,      third-degree assault against M.J.,  third-degree misconduct 

    2    AS 11.41.410(a)(1). 

    3    AS 11.41.530(a)(1). 

    4    AS 11.41.300(a)(1)(C); AS 11.16.110. 

    5    AS 11.41.220(a)(1)(A). 

                                                    3                                               2313

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                        6                                          7 
involving weapons,  fourth-degree assault against M.J.,  and second-degree harassment 
of M.J.8   She was acquitted of kidnapping V.B. and fourth-degree assault against V.B., 

and the State dismissed a charge of third-degree assault against V.B. 


                The trial court was not required to dismiss the kidnapping 

                "In challenges to the sufficiency of the evidence before a grand jury, every 

legitimate inference that may be drawn from the evidence must be drawn in favor of the 
indictment."9     The evidence is sufficient if, viewed in the light most favorable to the 

indictment, "it is adequate to persuade reasonable minded persons that if unexplained or 

uncontradicted it would warrant a conviction of the person charged with an offense by 
the judge or jury trying the offense."10 

                Count 18 of the indictment charged Cleveland with kidnapping M.J. under 

theories    of  both   principal    and  accomplice      liability.  The    indictment    charged     that 

Cleveland "restrained M.J. with intent to inflict physical injury upon or sexually assault 

M.J., or place M.J. or a third person in apprehension that any person will be subjected 
to serious physical injury or sexual assault."11 

    6    AS 11.61.200(a)(1).

    7    AS 11.41.230(a)(1).

    8    AS 11.61.120(a)(5).

    9    State v. Williams, 855 P.2d 1337, 1346 (Alaska App. 1993) (citing State v. Ison, 744

P.2d 416, 418 (Alaska App. 1987)). 

    10   State v. Parks, 437 P.2d 642, 644 (Alaska 1968) (footnote omitted). 

    11   See AS 11.41.300(a)(1)(C). 

                                                    4                                               2313

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

                 As part of its presentation of Cleveland's kidnapping charge, the State read 

to the grand jury the definition of "restrain," as found in AS 11.41.370(3): 

                 "restrain" means to restrict a person's movements unlawfully 
                 and without consent, so as to interfere substantially with the 
                person's   liberty   by   moving   the   person   from   one   place   to 
                 another or by confining the person either in the place where 
                 the restriction commences or in a place to which the person 
                 has   been   moved;   a   restraint   is  "without   consent"   if   it   is 
                 accomplished ... by force, threat, or deception. 

The   State   then   presented   evidence   of   Cleveland's   kidnapping   of   M.J.      Much   of   the 

evidence presented was the same as that presented later in trial. 

                 M.J. testified that she had stolen drugs from McClain and that she was 

walking home when Shinault pulled up in a car and told her to get in.                      Shinault then 

drove to the Merrill Field Inn where Cleveland was already standing outside, waiting for 

Shinault to arrive.     The three women proceeded to McClain's trailer, and upon arrival, 

Shinault, Cleveland, and McClain all began beating her. 

                 M.J. testified that Cleveland hit her in the face countless times and shaved 

off some of M.J.'s hair.       She sprayed M.J.'s genitals with Febreze while calling her a 

"stinking ho[]."  She hit M.J. in the knee with a hammer, subjected her to death threats, 

and beat her with a shoe and a beer bottle. Cleveland shoved her gloved hand into M.J.'s 

rectum and then made M.J. lick the glove.             She also burned M.J. with crack pipes and 

lighters.  McClain whipped M.J. with a belt and forced her to perform fellatio on him at 

least twice. 

                 M.J. testified that she never felt free to leave the house.   She told the police 

officers who raided the house that they had saved her life. 

                 Cleveland moved to dismiss the kidnapping charge involving M.J., arguing 

that the State's evidence presented to the grand jury was legally insufficient to establish 

                                                     5                                                2313

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

the element of restraint required under the kidnapping statute.   Cleveland did not argue 

to the trial court that the prosecutor failed to properly instruct the grand jury on the 

definition of restraint, as she now argues on appeal.               Judge McKay denied the motion, 

ruling that "[t]he Grand Jury was presented with sufficient evidence that, if unexplained 

or    uncontradicted,      would     warrant    [Cleveland's]      conviction     ...  on  the   charge    of 

kidnapping."      Cleveland now appeals. 

                 A restraint that is "merely incidental" to the commission of another offense 
(like sexual assault) does not constitute kidnapping.12             To support a separate conviction 

for kidnapping, the State must show that the defendant "intended to restrain [the victim] 

either [temporally] or spatially beyond what was necessary to commit sexual or physical 

                 We   have   identified   five   factors   that   the   trial   court   should   consider   in 

determining whether a restraint is incidental to the target crime: 

                 (1) how long the victim was restrained; (2) if the victim was 
                 moved, how far the victim was moved and where the victim 
                 was taken; (3) whether, under the facts, the restraint exceeded 
                 what was necessary for commission of the defendant's target 
                 crime; (4) whether the restraint significantly increased the 
                 risk of harm to the victim beyond the risk of harm inherent in 
                 the target crime itself; and (5) whether the restraint had some 
                 independent   purpose   -  i.e.,   whether   the   restraint   made   it 
                 significantly   easier   for   the   defendant   to   commit   the   target 
                 crime   or   made   it   significantly   easier   for   the   defendant   to 
                 escape detection.14 

    12    Alam v. State  (Alam I), 776 P.2d 345, 349 (Alaska App. 1989). 

    13    Alam v. State (Alam II), 793 P.2d 1081, 1083-84 (Alaska App. 1990). 

    14    Hurd v. State, 22 P.3d 12, 19 (Alaska App. 2001). 

                                                      6                                                  2313 

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

                Cleveland also relies onAlam andHurd. However, she arrives at the wrong 

conclusion in applying the facts of her case to the Hurd  factors.                When viewing the 

evidence   presented   to   the   grand   jury   in   the   light   most   favorable   to   upholding   the 

indictment, it becomes clear that the evidence presented meets the Hurd test. 

                The first factor is the time the victim was restrained.          Cleveland correctly 

points out that M.J. did not testify as to precisely how long she was held.                And M.J.'s 

testimony is hard to follow temporally.  But it appears that she was held for at least two 

days, as she was picked up at 3:00 a.m. and testified that the following night she fell 

asleep and was awakened the next morning by V.B.  And the next night, it appears that 

V.B. and M.J. were together sleeping on a floor.  It therefore appears that M.J. spent at 

least two full nights in McClain's trailer, feeling that she was never free to leave.  M.J.'s 

restraint   of   at   least   two   days   is   certainly   long   enough   to   constitute   a   restraint   for 

kidnapping purposes. 

                The second factor is an evaluation of the distance the victim was moved. 

M.J. testified that Shinault picked her up at 11th Avenue and Hyder Street.  They drove 

to   the   Merrill   Field   Inn   to   pick   up   Cleveland. After   dropping   off   a   passenger   in 

Mountain View, the women continued on to McClain's trailer in Muldoon. Driving M.J. 

miles across Anchorage is enough distance to satisfy this factor. 

                The third factor is whether the restraint exceeded what was necessary for 

the commission of the target offense. Cleveland argues that M.J. presented no testimony 

establishing that Cleveland personally restrained her any longer than was needed to 

commit the target acts (i.e., sexual and physical assault).             Because Cleveland left the 

trailer for periods of time, leaving M.J. alone with McClain, she argues that this weighs 

against a finding of kidnapping.         But this ignores Cleveland's assistance in physically 

transporting M.J. from downtown Anchorage to Muldoon and her personal involvement 

                                                    7                                               2313

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

in   M.J.'s   abuse.     Even   if   Cleveland   did   leave   the   trailer   for   periods   of   time,   she 

participated in the transportation, the abuse, and the creation of a climate in which M.J. 

felt unable to leave and feared for her life.             This was a level of restraint beyond that 

required to commit sexual and physical abuse. 

                 The fourth factor is whether the restraint significantly increased the risk to 

M.J. beyond that inherent in the target crimes themselves.   Cleveland brandished a gun 

for at least part of the time M.J. was held at the trailer.                She threatened to kill M.J. 

multiple times.      Cleveland's restraint of M.J. significantly increased the risk to M.J. 

beyond that inherent in sexual and physical assaults themselves. 

                 The final factor is whether the restraint had an independent purpose.  Here, 

the   target   crimes   -   sexual   and   physical   assault   -   could   have   been   committed   in 

Shinault's truck, at the Merrill Field Inn, or just about anywhere else, especially since 

M.J.'s initial abduction occurred at 3:00 a.m. when few people would have been likely 

to   observe   the   assaults.  By   isolating   M.J.   in   the   trailer,   the   defendants   enabled   the 

assaults and the restraint to continue for days - a period far longer than that required to 

simply commit a sexual assault and a few beatings.                   The independent purpose of the 

restraint   was   to   isolate   and   scare   M.J. Indeed,   it   worked   -   M.J.   testified   that   she 

thought she was going to die. 

                 In summary, the State presented the grand jury with sufficient evidence 

that, if unexplained or uncontradicted, would warrant Cleveland's conviction on the 

charge of kidnapping. 

                 As noted above, Cleveland argues for the first time on appeal that the grand 

jury indictment should have been dismissed because the grand jurors were not properly 

instructed by the prosecutor.          She argues that even though the grand jury received the 

statutory definition of restraint, the jury should have been instructed on the five-factor 

                                                      8                                                2313

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

test   we   have   outlined   above.  We   conclude   the   evidence   at   grand   jury   showed   that 

Cleveland restrained M.J. far more than was "merely incidental" to the target crimes of 

assault and sexual assault, and that it is unlikely that the grand jury would have refused 

to indict Cleveland for kidnapping even if they had been fully instructed on the five- 
factor test.15  We therefore uphold the kidnapping conviction. 

                The limitation on the cross-examination of M.J. was harmless 
                beyond a reasonable doubt. 

                M.J. was arrested in September 2007 (about five months after her assault 

at   McClain's     trailer)  for  a  prostitution   charge   prosecuted     by  the   Municipality     of 

Anchorage.   However, before she appeared in court, she returned to Kansas City, and a 

bench warrant issued for her arrest.         She nonetheless worked with the State to prepare 

as a witness in this case, and returned to Alaska for trial in June 2008.                 Despite the 

State's knowledge of M.J.'s outstanding warrant, she was not arrested upon arrival. 

                Judge McKay ruled that Cleveland and her co-defendants could inquire "as 

to the existence of the bench warrant" and as to a phone call that the prosecutor made to 

urge the Office of Victims' Rights to help M.J. get the warrant quashed.                But the judge 

ruled that the defendants could not ask "what the underlying crime was." 

                M.J.    also   received    immunity     from    prosecution     for  any   crimes    she 

committed in the course of her interactions with McClain in exchange for her testimony 

against McClain, Shinault, and Cleveland.             McClain's attorney cross-examined M.J. 

extensively   regarding   this   immunity   agreement.         He   asked   her   about   nine   different 

crimes she committed and their respective penalties, including several drug offenses, 

robbery, burglary, assault, and conspiracy to commit robbery.               He established that she 

    15   Hurd, 22 P.3d at 20. 

                                                   9                                                2313 

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

did not want to go to prison.  And he asked, "Committing nine serious felonies is a good 

motivation to try to get out of [going to prison], isn't it? ... And do whatever it takes to 

not have to spend any time there?"        M.J. answered in the affirmative and admitted that 

she got a "huge break" from the State in this case. 

                McClain also cross-examined M.J. about the outstanding warrant for her 

arrest and the fact that she had not been arrested upon arrival in Alaska.           M.J. admitted 

that the District Attorney's Office and the Office of Victims' Rights worked with her to 

get her warrant quashed and that knowing she would not be arrested was a "strong 


                Cleveland's attorney specifically cross-examined M.J. about the fact that 

she was supporting herself by prostitution at the time she met McClain. 

                On appeal, Cleveland argues that Judge McKay erred in denying her the 

constitutional right to cross-examine M.J. concerning her bias on account of the pending 

Municipality of Anchorage prostitution charges. 

                A trial court must be "particularly solicitous toward cross-examination that 
is intended to reveal bias, prejudice, or motive to testify falsely."16          But "trial judges 

retain   wide   latitude   insofar  as  the  Confrontation     Clause    is  concerned    to  impose 

reasonable   limits   on   such   cross-examination   based   on   concerns   about,   among   other 

things,   harassment,     prejudice,   confusion    of  the  issues,   the  witness'[s]   safety,  or 
interrogation that is repetitive or only marginally relevant."17 

    16   Wood v. State, 837 P.2d 743, 745 (Alaska App. 1992) (collecting cases). 

    17   Id. at 746-47 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). 

                                                 10                                              2313 

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

              We generally review a trial court's ruling regarding the limits of cross- 
examination for abuse of discretion.18   If the trial court made a constitutional error, then 

the State bears the burden of proving that the error was harmless beyond a reasonable 

              The co-defendants were permitted to cross-examine M.J. extensively on her 

bias; the only restriction the court placed was that they could not inquire into the criminal 

charge (prostitution) that formed the basis for her outstanding warrant.       Judge McKay 

ruled that they could inquire into "[t]he fact that there's a warrant out there and that the 

state and the municipality, law enforcement officers aren't arresting her."  However, he 

ruled that inquiring into the underlying charge of prostitution would be irrelevant. 

              We conclude that, if there was any error in the judge's ruling about the 

prostitution charge, then the error was harmless beyond a reasonable doubt.  The name 

of the charge that M.J. was facing was not particularly relevant to her bias.  And the fact 

that the prostitution charge was being prosecuted by the Municipality weakened the 

inference that the State prosecutor would be able to control the disposition of that charge. 

              In addition, McClain thoroughly cross-examined M.J. regarding the felony 

charges covered by the State's immunity agreement. These felony charges carried much 
more serious penalties than the misdemeanor prostitution charge.20         Cleveland cross- 

examined M.J. about the fact that she was a prostitute. There is no reasonable possibility 

    18   See  Wyatt v. State, 981 P.2d 109, 112 (Alaska 1999) (citing Colt Indus. Operating 

Corp., Quincy Compressor Div. v. Frank W. Murphy Mfr., Inc., 822 P.2d 925, 932 (Alaska 

    19  Id. (citing  Wamser v. State, 652 P.2d 98, 103 (Alaska 1982)). 

    20  AS 11.66.100; Anchorage Municipal Code 8.65.010-.020. 

                                              11                                         2313

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

that additional examination regarding the pending prostitution charge would have altered 

the jury's verdicts. 

                 The trial evidence was sufficient to support the kidnapping 

                This court reviews claims of insufficient evidence by viewing the evidence 

presented at trial, and reasonable inferences drawn from that evidence, in the light most 
favorable to upholding the jury's verdict.21        "Viewing the evidence from this perspective, 

this court must decide whether a fair-minded juror exercising reasonable judgment could 
conclude that the State had met its burden of proving guilt beyond a reasonable doubt."22 

                Cleveland also argues that the State did not present any evidence that she 

planned or aided in the assaults by McClain against M.J. that occurred while Cleveland 

was not present.      But these arguments improperly view the evidence in the light most 

favorable to Cleveland and ignore the ample evidence of M.J.'s restraint while Cleveland 

was, in fact, present. 

                The jury was properly instructed on the law of kidnapping.  They were 

instructed that in order to find Cleveland guilty of kidnapping M.J., they had to find the 


                         (1)   That   the   event   in   question   occurred   at   or   near 
                Anchorage, Alaska, and on or about April 8, 2007, to April 
                 11, 2007; 

                         (2)   The    defendant,      as   principal    or accomplice, 
                restrained M.J.; and 

    21   Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003). 

    22   Id. 

                                                    12                                                2313 

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

                        (3) That such restraint was with the intent to inflict 
                physical injury upon or sexually assault M.J. or place M.J. or 
                another   person   in   apprehension   that   any   person   would   be 
                subjected to serious physical injury or sexual assault. 

And the jury was properly instructed as to how to evaluate whether M.J. was restrained. 

                Cleveland's participation in M.J.'s abduction and restraint was far more 
than "incidental" to the assaults she also committed.23            Shinault and Cleveland picked 

M.J. up off the streets and brought her to a secure, discreet location so that the defendants 

could more easily torture and beat her for days. She was moved miles across Anchorage 

and restrained for at least two days. The restraint far exceeded the minimal time required 

to   perpetrate   sexual   and   physical   assaults.   We   conclude   that   the   State   presented 

sufficient evidence to support the jury's verdict. 

                The   trial   court's   ruling   on   the   presentence   report   needs 

                As noted above, Cleveland was convicted of several crimes committed 

against M.J.; she was not convicted of any of the charges that she had committed crimes 

against V.B.     But the presentence report included a detailed statement that V.B. had 

given to the police that alleged that Cleveland had committed crimes against her. 

                Cleveland   objected   to   the   portion   of   the   presentence   report   containing 

V.B.'s police statement.      At the sentencing hearing, Cleveland's attorney clarified that 

she was asking the court to strike V.B.'s statement as it appeared on pages nine through 

    23   See generally Alam I, 776 P.2d at 349 (discussing whether the restraint used by the 

defendant was "merely incidental" to the commission of another crime). 

                                                   13                                               2313 

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

fifteen of the report.24     Judge McKay stated that he would not rely on V.B.'s statement 

when he sentenced Cleveland, but he declined to strike the disputed material from the 

presentence report. 

                 Alaska Criminal Rule 32.1(f)(5) states the procedure to resolve disputed 

material in the presentence report: 

                 The     court   shall   enter   findings    regarding     any    disputed 
                 assertion in the presentence report. Any assertion that has not 
                 been proved shall be deleted from the report; any assertion 
                 that has been proved only in part shall be modified in the 
                 report. Alternatively, if the court determines that the disputed 
                 assertion   is   not   relevant   to   its   sentencing   decision   so   that 
                 resolution   of   the   dispute   is   not   warranted,   the   court   shall 
                 delete   the   assertion   from   the   report   without   making      any 
                 finding. After the court has made the necessary deletions and 
                 modifications, the court's corrected copy shall be labeled the 
                 "approved version" of the presentence report. 

                 In past cases, we have required the defendant to deny disputed portions of 
the presentence report under oath in order to raise a legitimate dispute.25               Criminal Rule 

32.1(d)(5) also requires that the defendant identify the information that raises a genuine 

dispute.  In this case, Cleveland made an equivalent offer of proof when she relied on the 

testimony that led the jury to return acquittals on all of the charges involving V.B. 

                 When the defendant makes an offer of proof that is adequate to raise a 

genuine dispute, a sentencing judge must make take the action required by Rule 32.1(f). 

If the judge finds that the assertions in the presentence report are true, then it is not 

    24   The State argues that Cleveland failed to properly raise this issue in the superior 

court, but we conclude that it was adequately preserved for appeal. 

    25   See, e.g., Garland v. State, 172 P.3d 827, 828-29 (Alaska App. 2007). 

                                                     14                                                 2313 

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

necessary to modify the report.  But if the judge finds that the assertions in the report are 

not true, then the judge must make appropriate modifications or deletions. 

                 In the alternative, the judge may determine that the disputed allegations are 

"not   relevant   to    [the]   sentencing    decision   so   that   resolution   of   the  dispute  is  not 
warranted."26      This may be what Judge McKay determined when he indicated that he 

would not rely on the disputed allegations when he sentenced Cleveland.                       But when a 

judge decides not to resolve the validity of irrelevant assertions, the judge must delete 

those assertions from the presentence report. 

                 On   remand,   the   superior   court   must   determine   whether   V.B.'s   police 

statement   is   true,   not   true,   or   irrelevant. If   the   disputed   assertions   are   not   true   or 

irrelevant to the sentencing decision, then the disputed portion of the report must be 

modified or stricken and the court must issue a corrected copy labeled as the "approved 

version" of the presentence report. 

                 Cleveland's sentence is not excessive. 

                 The   Alaska   Supreme   Court   has   adopted   the   "clearly   mistaken   test"   in 
reviewing excessive sentence claims.27 

                 Cleveland was previously convicted in 1997 of a felony:                   fourth-degree 

misconduct involving a controlled substance. For her convictions in the present case, she 

therefore faced the following:          (1) a presumptive sentence of thirty to forty years and a 
maximum of ninety-nine years for the first-degree sexual   assault conviction;28 (2) a 

    26    Alaska R. Crim. P. 32.1(f)(5). 

    27   McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). 

    28    AS 12.55.125(i)(1)(C). 

                                                     15                                                 2313 

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

presumptive sentence of two to four years and a maximum of five years for each of her 

Class C felony convictions for coercion, third-degree assault, and third-degree weapons 
misconduct;29 (3) a minimum sentence of five years and a maximum sentence of ninety- 

nine years for the kidnapping conviction;30 (4) a maximum sentence of one year for the 

fourth-degree assault conviction;31 and (5) a maximum sentence of ninety days for the 

second-degree harassment conviction.32            The judge found an aggravating factor based 

on   Cleveland's   prior   assault   convictions,   so   the   court   had   the   option   to   exceed   the 

otherwise applicable presumptive ranges as long as the sentences did not exceed the 
maximum sentences for these counts.33 

                Judge McKay sentenced Cleveland as follows:                 (1) forty years with ten 

years suspended for the first-degree sexual assault; (2) two years to serve with one year 

to run concurrent for coercion; (3) two years to serve with one year to run concurrent for 

third-degree assault; (4) two years to serve with one year to run concurrent for third- 

degree weapons misconduct; (5) thirty years to serve with fifteen years to run concurrent 

for the kidnapping; (6) six months to serve consecutive to the other counts for fourth- 

degree assault; and (7) ninety days to serve with sixty days to run concurrent for second- 

degree harassment. The composite sentence was forty-eight years and seven months of 

imprisonment with ten years suspended. 

    29   AS 12.55.125(e)(2); AS 11.41.220(e); AS 11.41.530(c); AS 11.61.200(i).

    30   AS 12.55.125(b).

    31   AS 12.55.135(a); AS 11.41.230(b).

    32   AS 12.55.135(b); AS 11.61.120(b).

    33   See AS 12.55.155(a)(2).

                                                   16                                              2313

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                Cleveland presents two primary arguments as to why her sentence was 

excessive:     (1) her conduct in committing the sexual assault and kidnapping fell on the 

least serious end of the spectrum of these types of crimes and (2) the court should have 

placed     more    emphasis     on   rehabilitation    instead    of   isolation   and   community 


                The active portion of Cleveland's sentence for sexual assault  actually falls 

on the bottom of the presumptive range of thirty to forty   years   for a second felony 

offender.  The judge was also required to impose a minimum suspended sentence of five 
years'    imprisonment      for  this  unclassified   felony.34   And    Cleveland's     consecutive 

sentence of fifteen years' imprisonment for kidnapping also falls in the lower range of 

sentences for that offense - the judge was required to impose at least five years of 
consecutive time for this count.35     Thus, the minimum sentence for these two counts was 

thirty-five years of active imprisonment. 

                Cleveland received an active sentence of forty-five years' imprisonment for 

the   assault   and   kidnapping   offenses.   Thus,   Cleveland   received   a   sentence   near   the 

minimum       for  these  offenses   -    a  sentence   that   would  be  appropriate    even   if   we 

concluded that Cleveland's conduct was substantially mitigated. 

                But "[w]hen this court reviews a composite sentence imposed for two or 

more criminal convictions, we assess whether the combined sentence is clearly mistaken, 
given the whole of the defendant's conduct and history."36            And because we look at the 

defendant's conduct as a whole, "we do not require that each specific sentence imposed 

    34   See AS 12.55.125(o)(1). 

    35   AS 12.55.127(c)(2)(B). 

    36  Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000). 

                                                  17                                              2313 

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for a particular count or offense be individually justifiable as if that one crime were 
considered in isolation."37 

                Judge McKay found that Cleveland's behavior verged on torture.  Her acts 

were violent and designed to degrade M.J.  The kidnapping lasted for three days, during 

which time M.J. was beaten, sexually abused, and feared for her life.                    Even though 

Cleveland did not personally inflict all of the damage, she was an integral player in the 

drama as a whole. 

                Judge McKay chose to make the sexual assault conviction the lead sentence 

and imposed much of the remaining sentences to run concurrently.                   Cleveland's claim 

that the   sexual assault and kidnapping sentences were excessive because of the less 

serious nature of the crimes ignores the court's prerogative to craft a sentence based on 

the entirety of the defendant's conduct and history. 

                Cleveland also claims that the trial court should have placed more emphasis 

on rehabilitation rather than isolation, because her prior felony conviction   was non­ 

violent and she is a good candidate for rehabilitation.              She appears to rely on Judge 

McKay's comment that he was "not giving up" on her.  But she ignores Judge McKay's 

other lengthy comments concerning why he crafted her sentence as he did. 

                The judge explained, that while Cleveland appeared to perform well in 

therapy, she previously had ample opportunities to rehabilitate herself but failed.  While 

she   was   actually   in   therapy,   she   performed   well,   but   as   soon   as   she   was   moved   to 

probation, she fared poorly.       Judge McKay concluded that Cleveland would fail if she 

was again released on probation.   And given the violent, degrading, and lengthy nature 

of her crimes, he felt strongly about the need to protect the public from future retaliation 

    37   Id. 

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of this type.   Judge McKay therefore carefully evaluated Cleveland's past, her present 

crimes,    and   her  potential   for  rehabilitation   and   concluded     that  the  isolation   and 

community        condemnation       factors   outweighed      the   unlikely    prospects     for   her 

rehabilitation.    We   conclude   that   the   judge   was   not   clearly   mistaken   in   fashioning 

Cleveland's sentence. 


                We AFFIRM the superior court's judgment and sentence, but remand the 

case to the court to clarify its order regarding the presentence report.            On remand, the 

superior court must determine whether the portion of the presentence report containing 

V.B.'s police statement is true, not true, or irrelevant.  If the disputed assertions are not 

true or they are irrelevant to the sentencing decision, then the disputed portion of the 

report must be modified or stricken, and the court must issue a corrected copy labeled 

as the "approved version" of the presentence report. 

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