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Moore v. State (8/26/2011) ap-2321

Moore v. State (8/26/2011) ap-2321


        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. 

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YOSBANY MOORE,                                  ) 
                                                )           Court of Appeals No. A-10351 
                            Appellant,          )         Trial Court No. 3AN-07-6251 CR 
             v.                                 ) 
                                                )                   O P I N I O N 
STATE OF ALASKA,                                ) 
                            Appellee.           ) 
                                                )             No. 2321 - August 26, 2011 

                Appeal from the Superior Court, Third Judicial District, 
                Anchorage, Michael L. Wolverton, Judge. 

                Appearances:     Beth G.L. Trimmer, Assistant Public Advocate, 
                and    Rachel    Levitt,   Public   Advocate,     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. 

                Yosbany Moore stopped M.S. in an alleyway and began to grope her. He 

beat her severely when she resisted his advances, then dragged her down an alley toward 

some   bushes   until   two   men   intervened   and   subdued   him.   Moore   contends   that   this 

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

evidence was insufficient to support his conviction for attempted first-degree sexual 

assault. But we conclude that a juror could have reasonably inferred that Moore intended 

to sexually penetrate M.S. without her consent. 

                Moore also argues that the three-judge panel should have concluded that 

the applicable presumptive sentencing range of thirty-five to fifty years' imprisonment 

was manifestly unjust, that the presumptive range violates the ban on cruel and unusual 

punishment, and that his forty-year sentence is excessive. We conclude that the three- 

judge panel was not clearly mistaken when they decided that Moore's offense was not 

unusually   mitigated   and   that   his   background   was   not   so   unusual   as   to   mitigate   his 


                We also conclude that the presumptive range of thirty-five to fifty years' 

imprisonment is not shockingly disproportionate to the offense, when one considers the 

sentencing scheme for sexual offenders who have committed previous felonies. We have 

no jurisdiction to address Moore's excessive sentence claim. But we agree with the 

State's arguments that some aspects of Moore's sentence violate the requirements of the 

sentencing statutes. 


                Moore stopped M.S. at 2:30 a.m. and blocked her way to her apartment 

door. Moore put his arm around M.S. and began groping her breasts, her butt, and her 

vaginal area. M.S. tried to push Moore away and told him to get off of her. But Moore 

said, "Fuck you bitch," hit M.S. in the head, then threw her on the ground and kicked her 

repeatedly. Moore then grabbed M.S. by the hair and began dragging her down the alley 

outside her apartment door. However, two men intercepted Moore and restrained him 

until the police arrived. 

                                                   2                                             2321

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                 Moore was indicted on one count of attempted first-degree sexual assault1 

and two counts of second-degree sexual assault.  At the close of the State's case, Moore 

moved for a judgment of acquittal, claiming there was insufficient evidence to show he 

had   the   specific   intent   to   sexually   penetrate   M.S.   Superior   Court   Judge   Michael   L. 

Wolverton ruled that there was sufficient circumstantial evidence to support the charge. 

The jury ultimately found Moore guilty on all three counts. 

                 The State filed a notice of presumptive sentencing, stating that Moore had 

five prior felony convictions from North Carolina: two prior convictions for larceny of 

a motor vehicle, a conviction for possession of marijuana with the intent to distribute or 

manufacture,       a  conviction     for  possession     of  cocaine    with    intent  to  distribute    or 

manufacture, and breaking and entering. The notice stated that because Moore had two 

or more prior felonies, the applicable presumptive range for the attempted first-degree 
sexual assault count was thirty-five to fifty years' imprisonment3 and the presumptive 

range for the second-degree sexual assault counts was twenty to thirty-five years.4 The 

State later filed a notice alleging an aggravating factor for sentencing purposes, since 
Moore had three or more prior felony convictions.5 

                 Moore admitted the prior felony convictions and conceded the aggravating 

factor. But Moore claimed that, given his history and age of twenty-four, even a thirty­ 

    1   AS 11.31.100; AS 11.41.410(a)(1). 

    2   AS 11.41.420(a)(1). 

    3   AS 12.55.125(i)(2)(E). 

    4   AS 12.55.125(i)(3)(D). 

    5   AS 12.55.155(c)(15). 

                                                     3                                                2321

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

five year sentence would be manifestly unjust. Accordingly, Moore requested that the 

court refer his sentencing to the three-judge sentencing panel. 

                Moore's sentencing judge, Judge Wolverton concluded that he could not 

refer Moore's case to the three-judge panel based on his potential for rehabilitation (as 
a nonstatutory mitigating factor) because Moore had three or more prior felonies.6 But 

the   judge   decided   to   refer   Moore's   case   to   the   panel   based   on   his   conclusion   that 

manifest injustice could result from the presumptive sentence because of Moore's age, 

his   lack   of  prior  violent   felonies,   and   the  fact  that  Moore     was   never   previously 

incarcerated for longer than six months. 

                A    majority    of  the  three-judge    panel   concluded     that  it  would    not  be 

manifestly   unjust   to   sentence   Moore   within   the   presumptive   range   because   nothing 

substantially distinguished Moore from other individuals with similar backgrounds who 

committed attempted first-degree sexual assault. The panel therefore remanded the case 

to Judge Wolverton to proceed with sentencing. 

                Judge     Wolverton     sentenced     Moore     to  forty  years'   imprisonment      for 

attempted first-degree sexual assault with no time suspended. The court also sentenced 

Moore to   concurrent sentences of twenty   years apiece for the second-degree   sexual 

assault counts. Moore now appeals. 


                There was sufficient evidence suggesting Moore's intent to 
                commit sexual assault. 

    6   See generally AS 12.55.165(b) (forbidding a referral on this basis if the court finds 

an aggravating factor under AS 12.55.155(c)(15)). 

                                                    4                                                2321 

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

                 To convict Moore of attempted first-degree sexual assault, the State was 

required   to   show   that   (1)   Moore   had   the   specific   intent   to   sexually   penetrate   M.S. 

without her consent and (2) Moore engaged in conduct that amounted to a substantial 
step toward the commission of first-degree sexual assault.7 When we review a ruling on 

a motion for a judgment of acquittal, we view the evidence in the light most favorable 
to the verdict.8 A motion for judgment of acquittal must be denied if the court determines 

that   fair-minded      jurors   could   conclude     that  guilt   had   been   established     beyond     a 
reasonable doubt.9 The same standard applies regardless of "whether the evidence of 

guilt is direct or circumstantial."10 

                 Moore's   argument   mistakenly   construes   the   evidence   in   the   light   most 

favorable to himself. Moore focuses on several cases where the defendant explicitly 

stated    his   intent   to  sexually     penetrate    the   victim    and   argues     that  his   case   is 

distinguishable because there was insufficient evidence to "support an inference that he 
intended to sexually penetrate [M.S.]"11 

                 But reasonable jurors could infer from the circumstantial evidence in this 

case that Moore intended to sexually penetrate M.S. A reasonable juror could infer that 

    7   See AS 11.31.100; AS 11.41.410(a)(1). 

    8   Dorman v. State, 622 P.2d 448, 453 (Alaska 1981). 

    9   Pavlik v. State, 869 P.2d 496, 497 (Alaska App. 1994). 

    10  Id .; see also Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976). 

    11  See, e.g., Portalla v. State, Mem. Op. & J. No. 5147, 2006 WL 3691697, at *1 (Alaska 

App. Dec. 13, 2006) (affirming the denial of a motion to acquit where the defendant beat the 
victim, dragged her into the bushes, straddled her, grabbed her breast, and exclaimed, "Now, 
that's what I'm talking about."); Kingeekuk v. State, Mem. Op. & J. No. 3246, 1995 WL 
17221282, at *1, *3 (Alaska App. Sept. 20, 1995) (upholding the denial of a motion to acquit 
where the defendant asked, "[W]ant to do something with me?" before assaulting the victim). 

                                                      5                                                2321

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

Moore initially had a sexual purpose when he began groping M.S., that he continued his 

assault in spite of her resistance, and that he beat M.S. and dragged her toward the bushes 

so that he could further his sexual assault on   her. This circumstantial evidence was 

sufficient to reasonably establish Moore's purpose and to support his conviction, even 

though he did not make any express statement of his intent. 

                 Moore's      sentence     for   attempted     sexual    assault    is  not 
                 manifestly unjust. 

                 Moore argues that his sentence is manifestly unjust since his prior felony 

convictions       were    for   non-assaultive      conduct.     Moore     claims    that   the   goals   of 

rehabilitation and isolation have not been "tested" in his case since he has never been in 

jail for any significant period of time. 

                 In order to find manifest injustice, the three-judge panel must find that the 
defendant or his conduct is significantly different than that of a typical offender.12 The 

panel "must determine whether the sentence, taking into account all of the appropriate 

sentencing   considerations,   including   the   defendant's   background,   his   education,   his 

character,   his   prior   criminal   history,   and   the   seriousness   of   his   offense,   would   be 

obviously      unfair   in  light  of  the   need   for  rehabilitation,    deterrence,    isolation,   and 
affirmation of community norms."13 

                 Moore is essentially arguing that the three-judge panel should have adopted 

a non-statutory mitigating factor. In other words, he is effectively claiming that the less 

     12 Manrique v. State, 177 P.3d 1188, 1194 (Alaska App. 2008). 

     13  Totemoff v. State, 739 P.2d 769, 775 (Alaska App. 1987). 

                                                     6                                                  2321 

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

serious nature of his prior convictions makes the presumptive range manifestly unjust. 
We considered a similar claim in Totemoff v. State.14 

                 Roger Totemoff was a second felony offender, but his prior conviction was 
for   a   less   serious   class   of   felony.15  He   contended   that   this   circumstance   should   be 

recognized       as  a  non-statutory     mitigating     factor.   We    noted   that   when    the  Alaska 

Legislature originally enacted the presumptive sentencing law, it included a statutory 

mitigator for defendants whose prior convictions were less serious than the offense under 
consideration.16 But the legislature later repealed this provision on the ground that the 

mitigator would reward a criminal for increasing the seriousness of his misconduct.17 

                 Based on this evidence of legislative intent, we concluded that it would be 

inappropriate for this court to adopt the non-statutory mitigator that the legislature had 
specifically  rejected.18      We    similarly    reject  Moore's      argument     that  the   three-judge 

sentencing panel should have mitigated his sentence because of the lack of assaultive 
conduct in his prior felony history.19 

    14  Id. 

    15  See id. at 776 (noting that the defendant's prior felony conviction was for second- 

degree burglary, but his later conviction was for one count of first-degree sexual assault). 

    16  Id.; see also former AS 12.55.155(d)(8) (1980) (providing for a   mitigating factor 

where "a prior felony conviction considered for the purpose of invoking the presumptive 
terms of this chapter was of a less serious class of offense than the present offense"). 

    17   Totemoff, 739 P.2d at 776 n.5 (quoting 1982 House Journal Supp. 2356). 

    18  Id. 

    19  See Walsh v. State, 677 P.2d 912, 919 (Alaska App. 1984) (rejecting claim that a 

presumptive sentence is manifestly unjust when the defendant's prior convictions are not 
similar to the present offense). 

                                                      7                                                 2321

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

                 More generally, the three-judge panel was not clearly mistaken when it 

concluded that Moore was a typical offender who did not deserve special consideration. 

The panel is not authorized "to disregard the legislature's assessment concerning the 

relative    seriousness     of   the  crime  or   the  general   appropriateness       of   the  prescribed 
penalty."20     Moore   approached   a   stranger   late   at   night,   began   groping   her,   and   then 

physically assaulted her when she resisted. Moore had five prior felony convictions, and 

he   did   not   appear   to   be   amenable   to   rehabilitation.   Moore   thus   failed   to   show   any 

specific circumstances that made his background significantly more promising than a 

typical third felony offender or that made his conduct significantly less serious than a 
typical offense of this type.21 We conclude that the three-judge panel was not clearly 

mistaken when it decided that the sentencing judge should impose a sentence within the 

presumptive range. 

                 The presumptive range of imprisonment for attempted sexual 
                 assault is not cruel and unusual punishment. 

                 Moore also argues that the presumptive range for attempted first-degree 

sexual   assault   constitutes   cruel   and   unusual   punishment.   He   bears   a   high   burden   to 

establish     this  claim:   we    "grant   substantial    deference     to  the   broad    authority    that 

legislatures necessarily possess in determining the types and limits of punishments for 

    20  Beltz v. State, 980 P.2d 474, 480 (Alaska App. 1999).

    21  See id.

    22  Dancer v. State, 715 P.2d 1174, 1181 (Alaska App. 1986) (quoting Solem v. Helm,

463 U.S. 277, 290 (1983)). 

                                                      8                                                2321

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

                 In Sikeo v. State, this court recently analyzed the proportionality of the 

prescribed penalty for an offender who committed first-degree sexual abuse of a minor 
and had two or more prior convictions for sexual felonies.23  We noted that "the United 

States Supreme Court has repeatedly rejected 'cruel and unusual punishment' challenges 

to   sentencing     statutes   that   prescribe   greatly    increased    sentences     for  repeat   felony 
offenders."24      "The   Supreme      Court    has   declared    that  these   increased     penalties   are 

'proportionate' for purposes of the Eighth Amendment because state legislatures are 

entitled to take account of the defendant's history of criminal conduct and recidivism 

when assessing the defendant's danger to the public and the need to deter or forestall 
future crime."25 

                 Likewise, the Alaska Constitution "does not require that criminal penalties 
be directly proportionate to the offense."26 Accordingly, "[o]nly punishments that are 'so 

disproportionate to the offense committed as to be completely arbitrary and shocking to 

the sense of justice' are cruel and unusual for purposes of Article I, Section 12 of our 

                 The legislature provided an escalating presumptive sentencing range for 

sexual crimes that turns on both the seriousness of the offense and the number of prior 

convictions.   For   example,   the   presumptive   ranges   for   attempted   first-degree   sexual 

assault, where the individual has no prior convictions for sexual felonies, are fifteen to 

    23  ___ P.3d ___, Op. No. 2315, 2011 WL 2611285, at *1 (Alaska App. July 1, 2011).

    24  Id. at *5.

    25  Id.

    26  Id. at *6. 

    27  Id. (quoting  Thomas v. State, 566 P.2d 630, 635 (Alaska 1977)).

                                                      9                                                 2321

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

thirty years for a first felony offender, twenty-five to thirty-five years for a second felony 
offender, and thirty-five to fifty years for a third felony offender.28 If Moore had two 

prior convictions for sexual felonies, then he would be subject to a presumptive term of 
ninety-nine years.29 If Moore had two prior convictions for class A felonies similar to his 

present conviction, then he would be subject to a mandatory ninety-nine year sentence.30 

                It is apparent from this sentencing scheme that the legislature intended to 

provide increasingly serious penalties for sexual offenses depending on the offender's 

prior criminal record. In Sikeo, we held that a ninety-nine year presumptive sentence for 

defendants who committed first-degree sexual abuse of a minor and who have two prior 
convictions for sexual felonies was not "shockingly or arbitrarily disproportionate."31 We 

likewise conclude that the thirty-five to fifty year presumptive term is not arbitrarily 

disproportionate for attempted first-degree sexual assault where the defendant has two 

or more prior felony convictions. 

                We lack jurisdiction to decide Moore's excessive sentence 

                Moore also argues that his composite sentence of forty years' imprisonment 

is excessive, given his less serious prior convictions and the sentences imposed in other 

similar cases. But this court does not have jurisdiction to hear an excessive sentence 

claim   when   a   sentence   is   "within   an  applicable   presumptive   range   set   out   in   AS 

12.55.125" and when a consecutive or partially consecutive sentence is "imposed in 

    28  AS 12.55.125(i)(2). 

    29  AS 12.55.125(i)(2)(F). 

    30  AS 12.55.125(l); AS 12.55.185(10). 

    31  2011 WL 2611285, at *6-7. 

                                                  10                                             2321

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accordance with the minimum sentences set out in AS 12.55.127."32 As noted above, the 

presumptive range for Moore's attempted   first-degree sexual assault conviction was 
thirty-five to fifty years.33  Since Moore's composite sentence of forty years is within the 

presumptive range established for attempted first-degree sexual assault, this court does 

not have jurisdiction to review Moore's excessive sentence claim. 

                Ordinarily we would refer Moore's excessive sentence claim to the Alaska 

Supreme Court under Alaska Appellate Rule 215(k). But we are required to remand this 

case to the superior court to correct other defects in the sentence as set forth below. 

Following   resentencing,   Moore   will   retain   the   option   to   file   a   petition   for   sentence 

review with the supreme court. 

                Moore's       sentences    do   not   comply     with   the  sentencing 

                The State argues that Moore's sentence should be remanded to the superior 

court for resentencing since the superior court did not impose a suspended sentence or 

any period of probation as required by AS 12.55.125(o). The State also argues that Judge 

Wolverton should have sentenced Moore to some term of consecutive imprisonment as 

required by AS 12.55.127(c)(2)(F). 

    32  AS 12.55.120(e). 

    33  AS 12.55.125(i)(2)(E) ("[I]f the offense is a third felony conviction, the offense does 

not involve circumstances described in (F) of this paragraph, and the defendant is not subject 
to sentencing under (l) of this section, 35 to 50 years."). 

                                                    11                                                2321 

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

                Technically the State was required to file a cross-appeal to pursue these 
issues. But this court may still review the claim for plain error.34 An illegal sentence that 

clearly violates the sentencing statutes will constitute plain error.35 

                Two   aspects   of   Moore's   sentence   did   not   comply   with   the   sentencing 

statutes.   First,   Alaska   Statute   12.55.125(o)   requires   a   sentencing   judge   to   impose   a 

minimum three-year suspended sentence and a minimum ten-year term of probation for 
each class A or class B felony conviction for a sexual offense.36 Moore was convicted 

of one class A felony (attempted first-degree sexual assault)37 and two class B felonies 

(second-degree sexual assault).38 But the trial court did not impose a suspended sentence 

or any period of probation. 

                 Second, Alaska Statute 12.55.127(c) requires a sentencing judge to impose 
a   partially   consecutive     sentence    for  each   crime    charged    under    AS   11.41.39   Both 

    34  See Wood v. Collins, 812 P.2d 951, 957 (Alaska 1991) ("[The party] did not file a 

cross-appeal on this issue; however, we find that misapplication of the statute constitutes 
plain error."). 

    35  See Forster v. State, 236 P.3d 1157, 1173 (Alaska App. 2010). 

    36  AS 12.55.125(o) provides in part: 

        Other than for convictions subject to a mandatory 99-year sentence, the court 
        shall impose, in addition to an active term of imprisonment imposed under (i) 
        of this section, a minimum period of ... suspended imprisonment of three years 
        and a minimum period of probation supervision of 10 years for conviction of 
        a class A or class B felony ... . 

    37  AS 11.41.410(b); AS 11.31.100(d)(2). 

    38  AS 11.41.420(b). 

    39  AS 12.55.127(c)(2)(F) provides: 

        If the defendant is being sentenced for ... two or more crimes under AS 11.41, 

                                                    12                                               2321

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

attempted first-degree sexual assault and second-degree sexual assault fall within this 

category, but Judge Wolverton stated that the three sentences would run concurrently. 

                We conclude that the superior court committed plain error by failing to 

properly apply AS 12.55.125(o) and AS 12.55.127(c)(2)(F). We therefore remand the 

case to the superior court so the court can impose the required suspended sentences, a 

term   of   probation,   and   partially   consecutive   sentences.   To   the   extent   possible,   the 

composite sentence on remand should not exceed the composite sentence originally 
imposed.40 The court may wish to review the separate counts to determine whether the 

separate convictions should be merged.41 


                We     AFFIRM       the   judgments     of   conviction,    but   we   REMAND         for 

resentencing as set forth above. Moore retains the right to file a petition for sentence 

review to the Alaska Supreme Court following the resentencing proceedings. 

        a   consecutive   term   of   imprisonment   shall   be   imposed   for   at   least   ...   some 
        additional    term   of  imprisonment      for  each   additional   crime   ...  under  ... 
        11.41.420 ... . 

    40  See Joseph v. State, 712 P.2d 904, 905-06 (Alaska App. 1986); see also Woodard v. 

State, Mem. Op. & J. No. 4374, 2001 WL 322213, at *2 (Alaska App. Apr. 4, 2001). 

    41	 See Tuckfield v. State, 621 P.2d 1350, 1352-53 (Alaska 1981). 

                                                   13                                                2321 
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