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Leopold v. State (4/13/2012) ap-2350

Leopold v. State (4/13/2012) ap-2350


        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 @


JOHN LEOPOLD,                                   ) 

                                                )           Court of Appeals No. A-10556 

                           Appellant,           )          Trial Court No. 4EM-08-108 CR 


             v.                                 ) 

                                                )                  O P I N I O N 

STATE OF ALASKA,                                ) 


                           Appellee.            ) 

                                                )              No. 2350 - April 13, 2012 

                Appeal from the Superior Court, Fourth Judicial District, 

                Bethel, Leonard Devaney III, Judge. 

                Appearances: Andrew Steiner, Attorney at Law, Bend, Oregon, 

                for   the  Appellant.    Eric  A.   Ringsmuth,     Assistant   Attorney 

                General,     Office    of   Special    Prosecutions     and    Appeals, 

                Anchorage, and John J. Burns, Attorney General, Juneau, for the 


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


                BOLGER, Judge. 

                John Leopold was convicted of first-degree sexual assault, second-degree 

sexual assault, and incest for the sexual assault of his sister, J.L. On appeal, Leopold 

challenges the court's decision to admit several hearsay statements and to admit evidence 

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

of a prior sexual assault conviction. We conclude that the superior court's evidentiary 

rulings were generally reasonable and that any errors were harmless. Leopold also asserts 

that   his   sentence   is   excessive,   but   we   conclude   that   the   superior   court's   sentencing 

decision was not clearly mistaken. 


                On February 26, 2008, John Leopold invited his sister, J.L., to a party at his 

house in Alakanuk. Other guests at the party included another of Leopold's sisters, J.L.'s 

two children, and J.L.'s boyfriend, James Ayunerak. The guests at the party consumed 

home brew. Everyone ultimately left the house except for Leopold, J.L., and her children. 

                At some point, J.L. fell asleep. The next thing J.L. remembered was waking 

up with Leopold on top of her. J.L. told Leopold to stop and unsuccessfully attempted 

to push him off with her hands and feet. When J.L. woke up again, it was around eight 

in the morning. J.L. found her underwear on the floor, but could not recall how her 

underwear was removed. 

                Around nine o'clock, J.L. went next door to the house of her sister. J.L. 

informed her sister that Leopold had raped her. J.L. called James Ayunerak, who took 

her   to   the   local   health   aide.   On   the   way   to   the   clinic,   J.L.   informed   Ayunerak   that 

Leopold raped her. 

                At the clinic, J.L. was examined by health aide Marlene Ayunerak. J.L. told 

Marlene that "she got beat up and raped" by Leopold that morning. Shortly after J.L.'s 

visit to the clinic, she was flown to Bethel for treatment. 

                Alaska State Trooper John Williamson spoke with J.L. over the phone 

before she flew to Bethel. When Williamson asked J.L. whether Leopold penetrated her, 

she said yes and that she tried to defend herself. 

                                                    2                                              2350

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                At the hospital in Bethel, J.L. was examined by Colleen Palacios, a sexual 

assault nurse examiner. J.L. told Palacios that her body was "achy" all over and that her 

genitalia were sore. J.L. had vaginal bruising that Palacios indicated was consistent with 

blunt force contact to that area. 

                Palacios also took a vaginal sample from J.L. DNA testing of the sample 

revealed DNA consistent with both J.L. and Leopold. 

                Leopold was indicted on charges of first-degree sexual assault, second- 

degree sexual assault, and incest. The jury ultimately convicted Leopold of all three 

counts. Superior Court Judge Leonard Devaney III sentenced Leopold to a composite 

sentence of 109 years with ten years suspended. Leopold now appeals. 


                The court did not err when it admitted evidence of Leopold's 

                prior sexual assault. 

                Prior   to  trial,   the   State   gave   notice   of   its   intent   to  offer   evidence   of 

Leopold's prior bad acts pursuant to Alaska Evidence Rule 404(b). One of the acts the 

State offered was an incident that occurred in November 1987. Leopold's aunt, R.R., was 

sleeping on the floor when Leopold entered her residence and began to rape her. R.R. 

indicated she struggled and screamed, but Leopold held her arms and covered her mouth. 

When village police arrived at R.R.'s residence, they observed Leopold still lying on top 

of   R.R.   Leopold   ultimately   pleaded   no   contest   to   a   charge   of   second-degree   sexual 


                The prosecutor argued that Leopold opened the door to the admission of 

this prior sexual assault because the defense took the position that the sexual encounter 

with J.L. was consensual. Leopold argued that the prior act evidence should be excluded 

                                                    3                                              2350

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

as more prejudicial than probative. In the event that the court decided to admit the prior 

act evidence, Leopold requested that the court limit the State's proof to the documents 

related to the prior case and exclude R.R.'s testimony. 

                Judge     Devaney      concluded     that  the   probative    value   of   the  evidence 

outweighed any risk of unfair prejudice; however, he agreed to exclude the testimony of 

R.R. and to limit the State to the documentary record of the prior crime. Judge Devaney 

also excluded evidence of Leopold's assaults against several other victims. 

                During the trial, the court admitted redacted versions of the 1987 complaint, 

information, and judgment of conviction. Judge Devaney informed the jury that Leopold 

was convicted in 1987 of committing a second-degree sexual assault against R.R., and 

then read the information and complaint to the jury. The court also provided two jury 

instructions explaining the limited purpose for which the jury could consider the incident 

related to R.R. 

                Leopold argues on appeal that Judge Devaney   abused his discretion in 

admitting the evidence of his sexual assault of R.R. Leopold asserts that the court failed 

to   consider    his  youth   at  the  time   of   the  offense,   the  age  of   the  offense,   and  the 

dissimilarity of the prior offense to the present case. 

                Alaska   Rule   of   Evidence   404(b)(3)   provides   that,   in   a   prosecution   for 

sexual assault, "evidence of other sexual assaults or attempted sexual assaults by the 

defendant against the same or another person is admissible if the defendant relies on a 

defense of consent." Under this provision, evidence of a defendant's character can be 

used as "circumstantial evidence of the defendant's likely conduct during the episode 

being litigated." 1  But the admission of evidence related to prior acts of sexual assault "is 

    1   Bingaman v. State , 76 P.3d 398, 415 (Alaska App. 2003). 

                                                    4                                                 2350 

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

still limited by ... Evidence Rule 403, which requires courts to exclude evidence if its 

probative   value   is   outweighed   by   the   danger   that   it   will   engender   unfair   prejudice, 

confuse the issues, or mislead the jury."2 

                 The factors that a trial judge must examine when deciding whether to admit 

evidence      of  a   defendant's     other   acts   are  the   following:    (1)   the  strength    of  the 

government's evidence that the defendant actually committed the other acts; (2) the 

character trait the other acts tend to prove; (3) whether this character trait is relevant to 

any   material   issue   in   the   case;   (4)   how   seriously   this   issue   is   disputed;   (5)   whether 

litigation of the defendant's other acts will require an inordinate amount of time; and (6) 

whether the evidence of the defendant's other acts will lead the jury to decide the case 

on improper grounds.3        We review the trial court's decision under Evidence Rule 403 for 

abuse of discretion.4 

                 Leopold does not challenge the court's conclusion that he raised a consent 

defense, so the next step is to analyze whether the court abused its discretion in weighing 

these factors. On the first factor, the State introduced strong evidence that Leopold had 

sexually assaulted R.R. Outside the presence of the jury, the State offered the personal 

testimony of R.R. and the court documents that showed Leopold had been convicted of 

this offense. In response, Leopold did not offer any evidence disputing R.R.'s testimony 

that he had sexually assaulted her. 

                 Leopold   now   argues   that   this   proof   was   insufficient   because   the   only 

information submitted to the jury was redacted versions of the complaint, information, 

    2   Bennett v. Anchorage , 205 P.3d 1113, 1117 (Alaska App. 2009) (considering the 

admission of prior acts of domestic violence in an assault prosecution). 

    3   Bingaman , 76 P.3d at 415-16. 

    4   See Bennett, 205 P.3d at 1118. 

                                                      5                                                2350

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

and   judgment   of   conviction.   But   Judge   Devaney   limited   the   evidence   that   could   be 

presented to the jury based on Leopold's argument that R.R.'s personal testimony would 

be more prejudicial than these documents. Regardless of this limitation, the judge could 

reasonably conclude that there was strong evidence that Leopold had sexually assaulted 


                On the second and third factors, this evidence was related to a relevant 

character trait. Leopold acknowledges that his defense at trial was that J.L. fabricated her 

account of what happened that evening and that her sexual encounter with Leopold was 

consensual. The evidence that Leopold had sexually assaulted R.R. tended to show that 

he was willing to sexually assault an incapacitated female relative and to continue with 

his assault even after the woman resisted. This character trait thus involves the same type 

of situational behavior at issue in this case.5 The court could properly conclude that the 

similarity of these incidents was sufficient to outweigh any issue with the age of the prior 


                On the fourth factor, it also appears that the issue of J.L.'s consent was 

seriously disputed and that there was a need for this evidence. Leopold continues to 

argue that J.L. was unable "to recall even basic events within the relevant time period 

and ... had a strong motive to falsely allege that the sex was non-consensual." J.L. and 

Leopold were the only witnesses to the crime and a significant portion of the case turned 

on whether the jury believed J.L.'s statements, despite   the   gap in her memory. The 

    5   See Bingaman , 76 P.3d at 415 (indicating the court should analyze whether the prior 

act demonstrates the same type of situational behavior at issue in the later case). 

    6   See   Mooney   v.   State,   105   P.3d   149,   154   (Alaska   App.   2005)   (concluding   that   a 

twenty-year-old conviction was admissible because of the similarity of the offense). 

                                                    6                                                 2350 

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

evidence of Leopold's prior   rape   of R.R. was relevant to show that Leopold would 

sexually assault a family member.7 

                On the fifth factor, the parties agree that admission of this evidence did not 

take an inordinate amount of time. 

                On the sixth factor, Leopold argues that, because the testimony from J.L. 

was weak, the jury was unfairly swayed by the prior act evidence. But this court has 

previously held that "it is not fundamentally unfair to use character evidence for the 

limited purpose of circumstantially suggesting the likelihood that the defendant acted 

true   to   character   during   the   episode   being   litigated."8  The   evidence   was   not   overly 

inflammatory since it did not involve extremely violent or grotesque acts (outside of the 

sexual assault itself). And the court also instructed the jury that they could not rely on 

the evidence of Leopold's prior act, standing alone, to justify his conviction. 

                We conclude that Judge Devaney did not abuse his discretion in admitting 

the evidence of Leopold's prior sexual assault of R.R. 

                 The evidence of J.L.'s out-of-court statements was properly 

                admitted or harmless error. 

                Leopold challenges the admission of J.L.'s statements to James Ayunerak, 

Marlene Ayunerak, and Trooper Williamson. Leopold concedes that the court did not err 

in admitting the statements J.L. made to her sister or to Colleen Palacios, and Leopold 

does not challenge any hearsay statements contained in J.L.'s trial testimony. 

    7   Id . 

    8   Bingaman , 76 P.3d at 416. 

                                                    7                                                 2350 

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

                         J.L.'s statements to James Ayunerak 

                 J.L. testified at trial that when James Ayunerak was driving her to the clinic, 

she   informed   Ayunerak   that   her   brother   raped   her.   Leopold   did   not   object   to   this 

testimony.   Ayunerak   later   testified   that   J.L.   told   him   Leopold    raped    her.   Leopold 

objected on the basis that the statement was hearsay. The court allowed the State to 

introduce this hearsay account of J.L.'s statement for the limited purpose of showing why 

Ayunerak took J.L. to the clinic. 

                 Leopold   argues   on   appeal   that   the   court   should   not   have   admitted   the 

statement because the reason why Ayunerak took J.L. to the clinic was irrelevant and 

undisputed. If hearsay testimony is admitted in error, the error is harmless when there is 

no reasonable likelihood that the admitted evidence had an appreciable effect on the 

jury's decision. 9 Even if the court erred in admitting Ayunerak's testimony about the 

statement, any error was harmless because J.L.'s statements to Ayunerak were already 

properly before the jury. 

                         J.L.'s statements to Marlene Ayunerak 

                 As noted above, on direct examination, J.L. testified that she woke up with 

Leopold on top of her. J.L. told Leopold to stop and unsuccessfully attempted to push 

him off with her hands and feet. On cross-examination, she admitted that the only things 

she remembered about the incident were that her brother was on top of her and that she 

was trying to push him off. She did not even remember if they had their clothes on or off. 

J.L. also testified that she could not remember anything about her statements to Marlene 

Ayunerak at the clinic. 

    9   Jones v. State , 215 P.3d 1091, 1101 & n.24 (Alaska App. 2009) (citing Love v. State , 

457 P.2d 622, 632 (Alaska 1969)). 

                                                     8                                                2350 

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

                 Marlene Ayunerak later testified that, at the clinic, J.L. informed her that 

"she   got   beat   up   and   raped"   by   Leopold   earlier   that   morning.   Leopold's   attorney 

objected on hearsay grounds, but Judge Devaney ruled that this evidence was admissible 

as   a   prior   inconsistent   statement.   On   appeal,   Leopold   argues   that       this   ruling  was 

improper because J.L.'s statement was not inconsistent with her testimony. 

                 Alaska   Rule   of   Evidence   801(d)(1)   allows   the   court   to   admit   a   prior 

statement by a witness if the "declarant testifies at the trial or hearing and the statement 

is ... inconsistent with the declarant's testimony." Inconsistency "does not necessarily 

require textual conflict; other circumstances, including lack of memory   at trial, may 

suffice."10 In other words, a statement is inconsistent when the witness testifies that he 

or she cannot remember the event that the statement describes.11 The offering party must 

show that the prior statement is inconsistent with the declarant's testimony and give the 

declarant an opportunity to explain or deny the statement.12 

                 In this case, Leopold's cross-examination established that J.L. could not 

remember anything about this incident, except that her brother was on top of her and that 

she   was   trying   to   push   him   off.   In   particular,   J.L.   apparently   could   not   testify   that 

Leopold      had   raped    her   and  beat   her   up.   The  prosecutor     confronted      her  with   her 

statements to Marlene Ayunerak, but J.L. could not remember making those statements. 

    10   Vaska v. State, 135 P.3d 1011, 1015 (Alaska 2006). 

    11   See Richards v. State , 616 P.2d 870, 871 (Alaska 1980); Wassilie v. State, 57 P.3d 

719, 722-23 (Alaska App. 2002); Brandon v. State , 839 P.2d 400, 411-12   (Alaska App. 

1992); Van Hatten v. State, 666 P.2d 1047, 1051 (Alaska App. 1983), abrogated on other 

grounds by Adams v. State , 261 P.3d 758 (Alaska 2011). 

    12   Vaska, 135 P.3d at 1015-16. 

                                                      9                                                 2350

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

Under   these   circumstances,   the   court   properly   allowed   the   State   to   introduce   J.L.'s 

statements to Ayunerak as prior inconsistent statements. 

                        J.L.'s statements to Trooper Williamson 

                J.L. testified that she did not recall speaking with Trooper Williamson while 

she was at the clinic. J.L. also testified that she did not remember that Williamson asked 

her whether Leopold penetrated her. At that point, Leopold's attorney said, "I have a 

continuing objection to the lack of foundation, the hearsay, and the leading." The court 

replied, "Objection noted. Thank you." 

                The     following     day,   Williamson      testified   and   the   prosecutor    asked 

Williamson about the same conversation with J.L. Williamson testified that J.L. informed 

him that Leopold penetrated her, that his penis went inside her, and that she attempted 

to defend herself. Leopold's attorney did not object. 

                On    appeal,    Leopold    challenges     the  admission     of  J.L.'s  statements    to 

Trooper Williamson. Leopold argues that the "defense did not make a new objection, but 

instead apparently relied on the continuing objection made during J.L.'s testimony." 

Leopold asserts that the "continuing objection" during J.L.'s testimony was sufficient to 

preserve his challenge to Williamson's testimony. 

                Under Alaska Criminal Rule 46, in order to preserve a claim, a party must 

"at the time the ruling or order of the court is made or sought, make[] known to the court 

the action which the party desires the court to take or the party's objection to the action 

of the court and the grounds therefor." "[T]he ground of an objection must be clearly 

                                                    10                                              2350

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

stated so that the [lower] court may intelligently rule upon the objection."13 If there is no 

"comprehensible objection, the point [is] not properly preserved for appeal."14 

                 We conclude that Leopold failed to make it clear to the court that he wanted 

the   objection   he   made   to   J.L.'s   testimony   to   apply   to   Williamson's   testimony   the 

following day. Leopold made no effort to either object to the hearsay the following day 

or to ensure that the court interpreted his prior objection as applying to Williamson's 

testimony, as well as J.L.'s testimony. Although the court could have been clearer about 

the scope of its ruling the previous day, Leopold still had the burden to seek clarification 

of the court's ruling, if necessary, and to clearly   state   his   request. Leopold failed to 

properly   preserve   this   hearsay   challenge   because   he   did   not   make   it   clear   that   his 

objection extended to Williamson's testimony. 

                 It was not obvious that Leopold's objection to J.L.'s testimony would also 

apply to Williamson's testimony. As noted above, in order to introduce J.L.'s statement 

to Williamson as a prior inconsistent statement, the prosecutor was required to give J.L. 

the   opportunity   "to   explain   or   to   deny   the   statement." 15  Leading   questions   may   be 

employed to establish this foundation.16 The trial judge properly overruled Leopold's 

objection during J.L.'s testimony because the prosecutor's questions were not leading 

nor was J.L.'s elicited testimony hearsay - it was merely foundational. 

    13   Williams v. State, 629 P.2d 54, 62 (Alaska 1981) (alterations in original) (quoting 

State v. Miller, 440 P.2d 792, 795 (N.M. 1968)). 

    14  Pierce v. State , 261 P.3d 428, 432 (Alaska App. 2011) (alteration in original) (quoting 

Williams, 629 P.2d at 62). 

    15  See Alaska Evid. R. 801(d)(1)(a)(i). 

    16  See Alaska Evid. R. 611(c)(1). 

                                                     11                                                2350

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

                Williamson's testimony, on the other hand, was the permissible product of 

this foundation. J.L.'s statement to Williamson that she had been penetrated by Leopold 

was inconsistent with her testimony that she could not remember anything except trying 

to push Leopold off of her. J.L. was properly confronted with this statement and she 

could not remember making it. So, even if Leopold had renewed his hearsay objection, 

it   would   have   been   properly   overruled   because   J.L.'s   statement   to   Williamson   was 

admissible as a prior inconsistent statement. 

                Leopold's sentence was not excessive . 

                The presentence report indicated that Leopold had a long history of criminal 

misconduct. Leopold committed second-degree burglary in 1984, when he was fourteen 

years old. Two years later, Leopold forcibly dragged his female cousin under a building 

and committed first-degree sexual assault while she "screamed" and "cried."                    Leopold 

was adjudicated a delinquent and placed at McLaughlin Youth Center. Thirty days after 

being   released,   when   Leopold   was   eighteen   years   old,   he   "held   his   aunt   down   and 

penetrated her vaginally with his penis, 'while she was yelling and screaming.'" Leopold 

was sentenced to seven years with five years suspended for this offense. Within thirty 

days of being released on parole for the sexual assault of his aunt, he amassed four 

incident reports, including an assault. Leopold failed to attend counseling, and his parole 

was revoked. 

                When Leopold was twenty-one, he sexually assaulted a fifteen-year-old girl 

at a school dance. In response, the court imposed three years of the suspended time from 

his   previous   conviction.   During   that   investigation,   a   probation      officer   spoke   with 

Leopold's girlfriend, who stated that Leopold also sexually assaulted her. The probation 

                                                    12                                              2350

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

officer described Leopold as a "predatory rapist" and stated that "Leopold is sexually 

maladjusted and at high risk to rape again." 

                In 1998, Leopold was convicted of fourth-degree domestic violence assault, 

sixth-degree misconduct involving a controlled substance, and failure to register as a sex 

offender. In 1999, Leopold was convicted of another assault. 

                About this time, the authorities found out that Leopold had a fifteen-year­ 

old girlfriend; in 2001, he was convicted of third-degree attempted sexual abuse of a 

minor. In 2002, Leopold committed fourth-degree assault and violated the conditions of 

his release when he assaulted his seventeen-year-old girlfriend and her eleven-year-old 

sister.   In  2004,   Leopold     was   convicted     of  third-degree     assault  and   fourth-degree 

misconduct involving weapons for threatening to kill a village public safety officer and 

for discharging a shotgun. 

                Based   on   this   prior   history   and   the   circumstances   of   this   offense,   the 

presentence report recommended that the court sentence Leopold to the maximum term 

of ninety-nine years' imprisonment. 

                As a third felony offender, Leopold was subject to a presumptive range of 

forty to sixty years' imprisonment and a maximum term of ninety-nine years with five 

years   suspended   for   the   first-degree   sexual   assault   conviction.17     At   the   sentencing 

hearing,   Judge   Devaney   found   four   aggravating   factors:   that   Leopold   had   repeated 

instances of assaultive behavior,18 that Leopold had an adjudication as a delinquent for 

conduct that would   have been a felony if committed by an adult (the sexual assault 

    17  AS 12.55.125(i)(1)(E), (o). 

    18  AS 12.55.155(c)(8). 

                                                    13                                                2350 

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

committed   against   his   cousin),19    that   Leopold   had   a   history   of   committing   repeated 

crimes similar in nature to the underlying offenses (based on his convictions for third- 

degree attempted abuse of a minor and second-degree sexual assault)20 and that he had 

five or more convictions for class A misdemeanors.21 

                Judge Devaney found that Leopold had "a very serious juvenile history" 

including the sexual assault against his cousin. The judge noted that the sexual assault 

of   his   aunt   was   especially   frightening   because   it   was   committed    in  revenge   or   in 

retaliation for the adjudication of his sexual assault of her daughter. He noted Leopold 

also had a sexual abuse of a minor conviction in 2001.               The judge found Leopold had 

been unable to succeed at any of the treatment offered to him. The judge found that 

Leopold "presents a clear risk to the public" because of his "consistent criminal history 

over    the  years."   Based    on  Leopold's     background      and   criminal   history,   the  judge 

concluded that Leopold was a worst offender. 

                Judge Devaney also concluded that no sentence of imprisonment would 

likely deter Leopold because his numerous   prior   attempts at rehabilitation had been 

unsuccessful.      He    also   noted    the  importance      of  community       condemnation        and 

reaffirmation of societal norms in view of the length of Leopold's criminal history and 

the circumstances of the present offense. 

                Judge     Devaney      merged     the  first-  and   second-degree      sexual    assault 

convictions. He sentenced Leopold to ninety-nine years' imprisonment with five years 

suspended for the first-degree sexual assault conviction. He also imposed twenty years 

    19  AS 12.55.155(c)(19). 

    20  AS 12.55.155(c)(21). 

    21  AS 12.55.155(c)(31). 

                                                   14                                                2350 

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

with five years suspended for the incest conviction, and made ten years of the incest 

sentence   concurrent.   Leopold's         composite      sentence   was   109    years   with   ten  years 

suspended or ninety-nine years to serve. 

                 Leopold argues on appeal that the judge should not have found that he was 

a worst offender. In determining whether a defendant is a worst offender, a sentencing 

judge     may    examine      several    factors,   including     the   defendant's      "prior   criminal 

convictions,   age,   military   records,   employment   history,   drug   or   alcohol   addiction, 

presentence   report   evaluations   and   recommendations,   and   behavior   which   has   been 

considered to demonstrate an antisocial nature or dangerous propensities which pose a 

clear    risk  to  the  public."22   A   worst    offender    finding    can   be  based    either  on   the 

defendant's current offense or the defendant's criminal history or both."23 

                 In this case, the record supports the worst offender finding. Leopold had 

multiple prior criminal convictions, including second-degree sexual assault, attempted 

sexual   abuse   of   a   minor,   assault,   failure   to   register   as   a   sex   offender,   and   several 

probation revocations. And as a juvenile, Leopold committed sexual assault and second- 

degree burglary. Leopold was thirty-nine years old; his current offense is not related to 

immaturity. Leopold did not graduate from high school, had no military service, and 

appears to have been previously employed only by correctional facilities. Leopold's 

alcohol     addiction    appears     to  have   had   a  strong    influence    on   many    of   his  prior 


                 The presentence report evaluations and recommendations also support the 

conclusion that Leopold was a worst offender. Leopold's probation officers concluded 

    22   State v. Wortham , 537 P.2d 1117, 1120 (Alaska 1975). 

    23   See id. 

                                                     15                                                 2350 

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

that he is a predatory rapist; he is "sexually maladjusted and at high risk to rape again"; 

he is "an extreme danger to the public"; he should be "considered a very serious, violent, 

and worst offender"; rehabilitation is not a "viable option"; and he "continues to be a 

danger to society." Leopold had multiple, prior opportunities to participate in treatment 

and rehabilitation, as well as a history of similar offenses. There is ample support to 

conclude that Leopold has dangerous propensities that pose a clear risk to the public. 

                 Leopold relies on several cases where individuals were treated as worst 

offenders   to   demonstrate   why   he   is   not   a   worst   offender.   But   those   cases   do   not 

necessarily establish a ceiling or benchmark.24  There was ample support in this case for 

the court's conclusion that Leopold is a worst offender. 

                 Leopold also argues that his composite sentence should not have exceeded 

the maximum sentence of imprisonment for first-degree sexual assault. He relies on Neal 

v. State, where the Alaska Supreme Court adopted a rule that a sentencing judge should 

not   impose   consecutive   sentences   that   total   more   than   the   maximum   sentence   for   a 

defendant's most serious offense, unless the judge expressly finds that the total sentence 

is necessary to protect the public.25 But the lack of "an express finding of necessity may 

be excused where the need to isolate the defendant is apparent from the record."26 And 

this   court   recently   recognized   that   this   rule   is   only   "a   starting   point   or   guide   for 

    24  See Hurn v. State, 872 P.2d 189, 199-200 (Alaska App. 1994) (concluding that our 

affirmance   of   a   sentence   on   appeal   "means   only   that   we   conclude   the   sentence   is   not 

excessive" and "does not set a ceiling on sentences in similar cases, nor does it necessarily 

mean that we would not have affirmed a greater sentence in the appeal being litigated"). 

    25   628 P.2d 19, 21 (Alaska 1981); see also Mutschler v. State , 560 P.2d 377, 380 (Alaska 


    26  Peruski v. State , 711 P.2d 573, 574 (Alaska App. 1985) (citing Neal , 628 P.2d at 21). 

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analyzing      the  proper    severity   of  a  defendant's     composite     sentence     -   and   that   a 

composite sentence greater than [this] ceiling can sometimes be justified by sentencing 

goals other than the particular goal of protecting the public."27 

                 In   Leopold's   case,   the   court   did   state   that   the   sentence   was   necessary 

because Leopold presented "a clear risk to the public." It also appears from the record 

that Leopold had a criminal history of assaulting and sexually assaulting members of his 

community,   and   that   he   was   unresponsive   to   treatment.   This   record   supports   Judge 

Delaney's      implicit   conclusion      that  a  five-year    consecutive     sentence    to  serve   was 

necessary to protect the public. 

                 Leopold also asserts that his sentence is excessive because his sentence is 

"the   longest   sentence   in   the   history   of   Alaska   appellate   cases   for   a   non-homicide 

conviction." Leopold compares his case to other Alaska cases where the defendants 

committed multiple or particularly egregious sexual assaults. 

                 Leopold's reliance on previous sentencing decisions by this court is of 

limited value. As discussed earlier, when we affirm a sentence on appeal, that holding 

"does not set a ceiling on sentences in similar cases, nor does it necessarily mean that we 

would not have affirmed a greater sentence in the appeal being litigated."28 Several of the 

cases relied on by Leopold were also decided prior to the legislature's 2006 revisions to 

the sentencing scheme for sexual offenses.29 

                 In Sikeo v. State, this court recently reviewed a case where the defendant 

was subject to a presumptive ninety-nine year sentence for first-degree sexual abuse of 

    27  Phelps v. State , 236 P.3d 381, 393 (Alaska App. 2010). 

    28  Hurn , 872 P.2d at 199-200. 

    29  See AS 12.55.125(i); Ch. 14, § 4, SLA 2006. 

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a   minor   because   he   had   two   prior   convictions   for   sexual   felonies.30  We   ultimately 

concluded   that   the   ninety-nine   year   presumptive   term   did   not   constitute   cruel   and 

unusual punishment.31 

                In Leopold's case, he was subject to a forty- to sixty-year presumptive 

range for first-degree sexual assault because he had two prior felonies: one conviction 

for second-degree sexual assault and one conviction for third-degree assault. If Leopold 

had been convicted as an adult for the sexual assault of his cousin in 1986, or if he had 

been convicted of sexually assaulting his girlfriend, or the girl at the school dance, then 

he would have been subject to a presumptive term of ninety-nine years - the same 

sentence   we   reviewed   in  Sikeo .32    Although  Sikeo  is   not   directly   on   point,   the   case 

illustrates why Leopold's sentence was not clearly mistaken. 

                As noted above, we conclude that the sentencing judge could reasonably 

decide that Leopold was a worst offender who deserved a maximum sentence for first- 

degree sexual assault, and that a five-year consecutive sentence to serve was necessary 

to protect the public. We accordingly conclude that Leopold's composite sentence of 109 

years' imprisonment with ten years suspended was not clearly mistaken. 


                We AFFIRM the superior court's judgment and sentence. 

    30  258 P.3d 906, 908 (Alaska App. 2011). 

    31  Id. at 912. 

    32  See AS 12.55.125(i)(1)(F). 

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