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O'Connor v. State

Court of Appeals of Alaska

May 24, 2019


          Appeal from the Superior Court Trial Court No. 3AN-11-08340 CR, Third Judicial District, Anchorage, Kevin M. Saxby, Judge.

          Jason A. Weiner, Gazewood & Weiner, P.C., Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.

          Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

          Before: Allard, Chief Judge, Wollenberg, Judge and Mannheimer, Senior Judge.

          OPINION [*]


         Dwight Samuel O'Connor was indicted on three counts of first-degree sexual assault against P.A.B. - one count of penile-vaginal penetration, one count of digital-vaginal penetration, and one count of fellatio. A jury acquitted O'Connor of digital penetration and fellatio but did not reach a verdict on the charge of penile penetration. The State then retried O'Connor. At the second trial, a jury convicted O'Connor of the remaining count.

         On appeal, O'Connor argues that the trial court erred in precluding him from introducing evidence of the acquittals from his first trial.

         Initially, the court ruled that O'Connor's two prior acquittals would be admissible if the State introduced testimony regarding the conduct underlying those two counts. But at trial, the State did not elicit testimony from P.A.B. regarding the conduct for which O'Connor had been acquitted, nor did the State rely on this conduct as substantive evidence of O'Connor's guilt. Rather, the evidence pertaining to the digital penetration and the fellatio was elicited by O'Connor's attorney during his cross-examination of P.A.B., solely for the purpose of impeaching P.A.B.'s testimony.

         Accordingly, the trial court instructed the jury that any testimony about those other alleged acts of penetration was relevant only to assessing the credibility of the witnesses - and not as substantive evidence of O'Connor's guilt. And the court declined to admit evidence of O'Connor's prior acquittals.

         As we explain in this opinion, we conclude that the trial court's ruling was not an abuse of discretion, given the way this issue was litigated.

         O'Connor also argues that the State presented insufficient evidence to support his conviction. Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the evidence was sufficient to support O'Connor's conviction.

         Finally, O'Connor argues that the sentencing judge erred in declining to refer his case to the statewide three-judge sentencing panel based on the non-statutory mitigating factor of extraordinary potential for rehabilitation. For the reasons explained in this opinion, we conclude that a remand is required so that the sentencing judge can re-assess whether referral to the three-judge panel is warranted under the totality of the circumstances.

         Factual background and procedural history

         Because 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 verdict.[1]

         In July 2011, after a night of drinking and socializing, P.A.B. took a taxi to Penland Mobile Home Park in Anchorage. At the time, P.A.B. was homeless, and she would often sleep at a friend's house.

         When P.A.B. arrived at the residence where she was supposed to sleep that night, P.A.B. discovered that the door was locked and she could not get inside. P.A.B. walked back to the road and decided to hitchhike to the apartment of another friend.

         P.A.B. eventually saw a white truck drive past her. This truck turned around and pulled up next to her. The driver - later identified as O'Connor-offered P.A.B. a ride, and P.A.B. got into the truck.

         Instead of driving P.A.B. to her friend's apartment, O'Connor took her to a fenced-off construction yard. O'Connor unlocked the gate, parked the truck, and guided P.A.B. to a small camper trailer. P.A.B. went inside because she assumed that O'Connor was taking her to get another drink.

         The next thing P.A.B. remembered was O'Connor lying naked on top of her, with her pants removed. P.A.B. tried to kick O'Connor off of her, but she was unable to do so. According to P.A.B.'s later testimony, O'Connor pulled P.A.B.'s hair back and put his hands around her neck. O'Connor repeatedly yelled at P.A.B. that he could not "come" in her vagina and that he wanted "to rape [P.A.B.'s] ass"; P.A.B. told him to stop and to get off of her.

         At some point, O' Connor put lotion on both of their genitals and penetrated P.A.B.' s vagina with his penis, but he did not ejaculate. When he could not maintain an erection, O'Connor became angry, and he threw P.A.B. face down on the bed and attempted to penetrate her anus with his penis, but he was unable to do so.

         O'Connor eventually stopped and drove P.A.B. to her friend's apartment. P.A.B. knocked on the door, and when her friend answered, she immediately told him that she had been raped. P.A.B. then reported the sexual assault, and she subsequently met with the police. P.A.B. described O'Connor, his white truck, and the last three numbers of the truck's license plate.

         P.A.B. underwent a SART examination, during which she reported feeling pain and soreness in her vaginal area. The forensic examination revealed an abrasion on P.A.B.'s chest, a bruise on P.A.B.'s hymen, and a laceration to P.A.B.'s perineal area, in addition to bruises on P.A.B.'s shoulder, back, clavicle, and right inner thigh.

         The police subsequently located O'Connor and talked with him at the construction yard. O'Connor told the police that he had picked up P.A.B. and dropped her off at her friend's residence without incident; he denied having any sexual contact with P.A.B.

         When the police interviewed O'Connor a second time, O'Connor again initially denied having any sexual contact with P.A.B. But when the police presented O'Connor with evidence that undermined his account, O'Connor admitted that he had lied when he denied having sexual contact with P.A.B. O'Connor now claimed that P.A.B. voluntarily removed her pants after he drove her back to his trailer, and she started performing oral sex on him. O'Connor stated that he rubbed his hands and penis against P.A.B.'s vagina, but he continued to deny that he had penetrated her with his penis, claiming that he was physically unable to do so.

         Later during the same interview, O'Connor again changed his story and said that he had managed to penetrate P.A.B.'s vagina with his penis for a few seconds.

         A grand jury indicted O'Connor on three counts of first-degree sexual assault.[2] At O'Connor's first trial in February 2014, the jury acquitted O'Connor of two counts (digital-vaginal penetration and fellatio), but the jury could not reach a verdict on the remaining count (penile-vaginal penetration).

         The State retried the remaining count. At the second trial, the previous evidence was adduced, and O'Connor testified. O'Connor stated that the entire encounter with P.A.B. was consensual. The jury convicted O'Connor of first-degree sexual assault for engaging in penile penetration with P.A.B. without her consent.

         Why we uphold the trial court's decision to preclude the admission of evidence of O'Connor's prior acquittals

         Prior to O'Connor's second trial, O'Connor's attorney filed a motion to introduce evidence of the acquittals from the first trial. In this motion, O'Connor's attorney announced that he intended to rely on a defense of consent, and he anticipated that the State would seek to introduce the acts for which O'Connor was acquitted as propensity evidence under Alaska Evidence Rule 404(b)(3).[3] O'Connor's attorney argued that, if the State ...

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