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McCoy, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Nancy R. Simel, Asst. Cole, Atty. Charles Henry appeals his convictions and sentences for first- and second-degree sexual abuse of a minor. We affirm Henry's convictions, but we vacate Henry's sentences and remand this case for a new sentencing hearing. InHenry lived in Chignik with his girlfriend, O. In late July, O. Henry remained in Chignik with S.
Late in the morning of July 23,Henry brought S. At some point in the afternoon, Mrs. While Mrs. At about p. Bowers, the Chignik village public safety officer and fire chief, brought some fish to Mrs. Officer Bowers came to Mrs. When Officer Bowers asked S. Then Officer Bowers asked her if she had told A. According to Bowers, S. She said that She said she was afraid to go back home. Officer Bowers left the K.
When Mrs. Then Mrs. Meanwhile, Bowers had gone into town to call his supervising trooper, Joseph Masters. Trooper Masters instructed Bowers to contact O. Officer Bowers arrested Henry shortly thereafter. She allowed S. Doctor Thomas Bellinger examined S. Trooper Belden and Mrs. Bellinger that S. Bellinger that she had been in her bedroom, trying to sleep, when someone "undressed [himself] and undressed her and tried to put his private parts in hers. Bellinger that it was her mother's boyfriend who had done this.
Bellinger found several bruises on S. Bellinger noted that S. He also measured the diameter of S. He determined that the measurement was within normal range for children of S. Examination by Woods lamp an ultraviolet light device revealed an area on S. Bellinger found no other evidence of fungal infection, and further tests for sperm were negative.
From this Dr. Bellinger determined that the Woods lamp were inconclusive. Based on the entire examination, Dr. The next morning July 24Trooper Belden interviewed S. Three days later July 27Troopers Steven C. DeHart and Rosemary Decker conducted a videotaped interview of J. At some point during the interview, Trooper DeHart told J.
However, it is unclear whether J. The record does show that several times, when Investigator Decker or Trooper DeHart was about to conclude the interview and turn off the video recorder, J. On July 30,S. Shortly before S. Trooper Masters immediately re-interviewed S.
At the time, S. At grand jury, the two sisters reiterated their assertions that Henry had sexually abused them. A few months later, O. In response to O. In addition, S. Acting on this new information, the defense investigator interviewed J.
She asserted that no one had pressured her to change her story, and she declared that she had never spoken to her mother about Henry's abusing her.
Henry's trial began a few weeks later. Both S. She gave inconsistent answers when asked whether she had told Investigator Decker that Henry had sexually abused her. However, J. She gave two explanations for this. First, J. Later, during direct examination by the defense attorney, J.
Like her sister, J. The jury found Henry guilty of one count of first-degree sexual abuse of a minor for engaging in sexual penetration of S. Henry argues that, because S. Henry relies on this court's decision in Brower v. State, P. But while Brower requires corroborating evidence, this corroborating evidence need not take any specific form, and it need not independently establish the crime.
Thompson v. When judging the legal sufficiency of the evidence, we must construe the evidence in the light most favorable to upholding the jury's verdicts. Dorman v. In Henry's case, we conclude that S. In her initial statements to the K. Shortly afterwards, J. Viewing the testimony in the light most favorable to the State, J. The two sisters repeated their accusations at grand jury.
Then, as Henry's trial drew nearer, both sisters simultaneously recanted their accusations and instead protested Henry's innocence. We note that, at Henry's trial, J. K had threatened to hurt her sister, S. We conclude that these circumstances gave the jurors a rational basis to distrust the sisters' recantations at trial and to credit the sisters' earlier statements to the authorities and their testimony at grand jury. Therefore, the requirement of corroboration was met, and the jury's verdicts are supported by sufficient evidence.
Henry next argues that he should be granted a new trial because the prosecuting attorney made several improper comments during opening statement, examination of witnesses, and summation. Henry did not object to any of these comments when they were made, so we review his claims for plain error only. Potts v. Henry's first allegation concerns a comment the prosecutor made during his opening statement to the jury.
The prosecutor was explaining that S. The prosecutor then wondered, rhetorically, whether the jurors might be asking themselves why the State of Alaska had involved itself in the affairs of this family. He proceeded to answer his own question:.
Given the circumstances of this case two sisters allege that their mother's boyfriend has sexually molested them, and subsequently retract the allegations after he is indictedwe do not find the prosecutor's comment to be plain error. Henry also asserts that the prosecutor made another improper comment during opening statement when he referred to Henry as a "child molester".
This comment occurred toward the end of the prosecutor's opening statement:. In context, the term "child molester" appears to have merely summarized the prosecutor's contention that Henry was guilty of sexually abusing two minors. Henry argues that labeling him a "child molester" is more inflammatory than asserting that he is guilty of sexually abusing children. To the extent that this might be true, the prosecutor immediately cured the inflammatory connotation by telling the jury that they were to be governed solely by the evidence, not their feelings.
We find no plain error. Henry next complains of a question the prosecutor asked the children's mother, O. As noted above, O. By asking O. The prosecutor paid particular attention to the fact that, even though O. Instead, O. The prosecutor then asked O. Nevertheless, the prosecutor persisted:. On cross-examination, Henry's defense counsel attempted to ameliorate the effect of this testimony by asking O.
Henry argues that the prosecutor's question, "Did you see any pain in her heart? It was. However, there was no objection. Moreover, the prosecutor immediately followed his improper question with another that was more to the point: he asked O. We do not believe that the course of Henry's trial was affected by the isolated argumentative question he complains of; thus, we find no plain error. Henry next challenges a portion of the prosecutor's direct examination of Trooper Ron Belden, the officer who interviewed S.
Early in Belden's direct examination, the following exchange occurred:. Even though the defense attorney did not object to this exchange, there were obvious grounds for objection. The prosecutor's questions and the trooper's answers implied that Belden was an experienced sex abuse investigator who knew how to screen out unfounded allegations of sexual abuse, and that, Adult wants real sex Chignik Alaska the case against Henry had been pursued rather than dropped, the accusations against Henry must be well-founded.
However, we will not find plain error when there appears to have been a tactical reason to withhold objection. Massey v.
In the present case, Henry's attorney apparently chose to respond to Belden's testimony, not by objecting, but by pursuing the matter again during cross-examination. Because S. In apparent accord with this strategy, Henry's attorney did not object to Belden's assertion that he believed Henry was guilty.
Instead, during cross-examination, the defense attorney asked Belden to reiterate this belief, trying to derive advantage from the fact that Belden had become subjectively convinced of Henry's guilt:. Asking a state trooper to announce his belief in the defendant's guilt obviously presents a two-edged sword for the defense.
Nevertheless, such a tactic is within the realm of reasonable defense strategies. We therefore find no plain error. Henry also complains of the manner in which the prosecuting attorney returned to Belden's testimony during his summation to the jury. Responding to Henry's assertion that the authorities had unjustifiedly prosecuted Henry, the prosecutor argued:.
We agree with Henry that this argument was improper.Adult wants real sex Chignik Alaska
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