from the Superior Court Trial Court No. 3AN-11-08340 CR,
Third Judicial District, Anchorage, Kevin M. Saxby, Judge.
A. Weiner, Gazewood & Weiner, P.C., Fairbanks, under
contract with the Office of Public Advocacy, Anchorage, for
A. Ringsmuth, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Appellee.
Before: Allard, Chief Judge, Wollenberg, Judge and
Mannheimer, Senior Judge.
Samuel O'Connor was indicted on three counts of
first-degree sexual assault against P.A.B. - one count of
penile-vaginal penetration, one count of digital-vaginal
penetration, and one count of fellatio. A jury acquitted
O'Connor of digital penetration and fellatio but did not
reach a verdict on the charge of penile penetration. The
State then retried O'Connor. At the second trial, a jury
convicted O'Connor of the remaining count.
appeal, O'Connor argues that the trial court erred in
precluding him from introducing evidence of the acquittals
from his first trial.
the court ruled that O'Connor's two prior acquittals
would be admissible if the State introduced testimony
regarding the conduct underlying those two counts. But at
trial, the State did not elicit testimony from P.A.B.
regarding the conduct for which O'Connor had been
acquitted, nor did the State rely on this conduct as
substantive evidence of O'Connor's guilt. Rather, the
evidence pertaining to the digital penetration and the
fellatio was elicited by O'Connor's attorney during
his cross-examination of P.A.B., solely for the purpose of
impeaching P.A.B.'s testimony.
the trial court instructed the jury that any testimony about
those other alleged acts of penetration was relevant only to
assessing the credibility of the witnesses - and not as
substantive evidence of O'Connor's guilt. And the
court declined to admit evidence of O'Connor's prior
explain in this opinion, we conclude that the trial
court's ruling was not an abuse of discretion, given the
way this issue was litigated.
also argues that the State presented insufficient evidence to
support his conviction. Viewing the evidence in the light
most favorable to the jury's verdict, we conclude that
the evidence was sufficient to support O'Connor's
O'Connor argues that the sentencing judge erred in
declining to refer his case to the statewide three-judge
sentencing panel based on the non-statutory mitigating factor
of extraordinary potential for rehabilitation. For the
reasons explained in this opinion, we conclude that a remand
is required so that the sentencing judge can re-assess
whether referral to the three-judge panel is warranted under
the totality of the circumstances.
background and procedural history
O' Connor challenges the sufficiency of the evidence to
support his conviction, we present the following background
facts in the light most favorable to upholding the jury's
2011, after a night of drinking and socializing, P.A.B. took
a taxi to Penland Mobile Home Park in Anchorage. At the time,
P.A.B. was homeless, and she would often sleep at a
P.A.B. arrived at the residence where she was supposed to
sleep that night, P.A.B. discovered that the door was locked
and she could not get inside. P.A.B. walked back to the road
and decided to hitchhike to the apartment of another friend.
eventually saw a white truck drive past her. This truck
turned around and pulled up next to her. The driver - later
identified as O'Connor-offered P.A.B. a ride, and P.A.B.
got into the truck.
of driving P.A.B. to her friend's apartment, O'Connor
took her to a fenced-off construction yard. O'Connor
unlocked the gate, parked the truck, and guided P.A.B. to a
small camper trailer. P.A.B. went inside because she assumed
that O'Connor was taking her to get another drink.
next thing P.A.B. remembered was O'Connor lying naked on
top of her, with her pants removed. P.A.B. tried to kick
O'Connor off of her, but she was unable to do so.
According to P.A.B.'s later testimony, O'Connor
pulled P.A.B.'s hair back and put his hands around her
neck. O'Connor repeatedly yelled at P.A.B. that he could
not "come" in her vagina and that he wanted
"to rape [P.A.B.'s] ass"; P.A.B. told him to
stop and to get off of her.
point, O' Connor put lotion on both of their genitals and
penetrated P.A.B.' s vagina with his penis, but he did
not ejaculate. When he could not maintain an erection,
O'Connor became angry, and he threw P.A.B. face down on
the bed and attempted to penetrate her anus with his penis,
but he was unable to do so.
eventually stopped and drove P.A.B. to her friend's
apartment. P.A.B. knocked on the door, and when her friend
answered, she immediately told him that she had been raped.
P.A.B. then reported the sexual assault, and she subsequently
met with the police. P.A.B. described O'Connor, his white
truck, and the last three numbers of the truck's license
underwent a SART examination, during which she reported
feeling pain and soreness in her vaginal area. The forensic
examination revealed an abrasion on P.A.B.'s chest, a
bruise on P.A.B.'s hymen, and a laceration to
P.A.B.'s perineal area, in addition to bruises on
P.A.B.'s shoulder, back, clavicle, and right inner thigh.
police subsequently located O'Connor and talked with him
at the construction yard. O'Connor told the police that
he had picked up P.A.B. and dropped her off at her
friend's residence without incident; he denied having any
sexual contact with P.A.B.
the police interviewed O'Connor a second time,
O'Connor again initially denied having any sexual contact
with P.A.B. But when the police presented O'Connor with
evidence that undermined his account, O'Connor admitted
that he had lied when he denied having sexual contact with
P.A.B. O'Connor now claimed that P.A.B. voluntarily
removed her pants after he drove her back to his trailer, and
she started performing oral sex on him. O'Connor stated
that he rubbed his hands and penis against P.A.B.'s
vagina, but he continued to deny that he had penetrated her
with his penis, claiming that he was physically unable to do
during the same interview, O'Connor again changed his
story and said that he had managed to penetrate P.A.B.'s
vagina with his penis for a few seconds.
jury indicted O'Connor on three counts of first-degree
sexual assault. At O'Connor's first trial in
February 2014, the jury acquitted O'Connor of two counts
(digital-vaginal penetration and fellatio), but the jury
could not reach a verdict on the remaining count
State retried the remaining count. At the second trial, the
previous evidence was adduced, and O'Connor testified.
O'Connor stated that the entire encounter with P.A.B. was
consensual. The jury convicted O'Connor of first-degree
sexual assault for engaging in penile penetration with P.A.B.
without her consent.
we uphold the trial court's decision to preclude the
admission of evidence of O'Connor's prior
to O'Connor's second trial, O'Connor's
attorney filed a motion to introduce evidence of the
acquittals from the first trial. In this motion,
O'Connor's attorney announced that he intended to
rely on a defense of consent, and he anticipated that the
State would seek to introduce the acts for which O'Connor
was acquitted as propensity evidence under Alaska Evidence
Rule 404(b)(3). O'Connor's attorney argued that,
if the State ...