Akeya v. State, A-13182

CourtCourt of Appeals of Alaska
Writing for the CourtALLARD. JUDGE
PartiesCALVIN AKEYA, Appellant, v. STATE OF ALASKA, Appellee.
Docket NumberA-13182
Decision Date21 September 2022

CALVIN AKEYA, Appellant,
v.

STATE OF ALASKA, Appellee.

No. A-13182

Court of Appeals of Alaska

September 21, 2022


UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Second Judicial District, Nome Trial Court No. 2NO-14-00193 CR, Timothy Dooley and Raymond Funk, Judges.

Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.

RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Harbison and Terrell, Judges.

MEMORANDUM OPINION

ALLARD. JUDGE

Calvin Akeya was convicted, following a jury trial, of first-degree sexual assault for sexually penetrating a woman, L.K., without her consent.[1] Akeya was separately convicted of second-degree sexual assault and third-degree assault for

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sexually and physically assaulting his fourteen-year-old daughter, A.O., after she tried to help L.K.[2] Akeya was also convicted of furnishing alcohol to a person under twenty-one years of age (A.R.), manufacturing liquor without a license in a local option area, and two counts of third-degree misconduct involving a controlled substance for delivering marijuana to two people under nineteen years of age (A.R. and A.O.).[3] At sentencing, Akeya received a composite sentence of 48 years with 10 years suspended (38 years to serve). Akeya now appeals his sexual assault convictions and his sentence. For the reasons explained here, we reject his claims of error on appeal and affirm the judgment of the superior court. We do, however, remand for the superior court to correct various errors in the judgment.

Factual background-In

March 2014, Akeya hosted a party at his house in Savoonga. Akeya manufactured homebrew for the party and gave homebrew and marijuana to his guests, including his fourteen-year-old daughter, A.O., and her friend, A.R.

Also at the party were Akeya's adult niece and her girlfriend, L.K. At some point in the day, Akeya told everyone to leave except for L.K. and his niece. L.K. drank the homebrew and she got "drunk kind of fast." She later testified that she "blacked out for a little bit or passed out." L.K's girlfriend (Akeya's niece) left to get cigarettes, and Akeya locked the door behind her, locking out everyone except himself and L.K. L.K. testified that when she regained consciousness, Akeya had removed her pants and was penetrating her vagina with his penis.

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According to L.K., "the next thing [she] [knew]... [h]e was forcing [her] to have sex," and she testified that he held her down by her arms. She testified that she tried to fight back, but she was not strong enough. She could hear Akeya's daughter, A.O., banging on the door and screaming to be let in, but Akeya told L.K. to ignore A.O. She passed out again, and the next thing she remembered was waking up at home with her girlfriend and "hurting down there."

A.O. testified that when she got into the house, she saw Akeya on top of L.K. in bed and neither of them had pants on. She and Akeya's niece got Akeya off L.K., and then Akeya's niece and L.K. left. A.O. tried to leave, but Akeya locked her inside. A.O. told Akeya that she was going to tell people what he did. He then pushed her on the bed, held his hand over her nose and mouth, and choked her.

At trial, A.O. testified that Akeya undid her pants, touched her vagina with his hands, and penetrated her with his fingers and penis. A.O. testified that she told Akeya to stop and tried to push him off but could not. A.O.'s testimony at trial that Akeya had touched her vagina and digitally penetrated her was consistent with her grand jury testimony, although she had originally reported only that Akeya "tried" to touch her vagina. A.O. had not previously said that Akeya penetrated her with his penis.

Following the incident, A.O. was examined by a nurse, Terra Abbott, who reported that A.O. had petechiae on her neck; she also had abrasions on the tip of her nose and her neck. A.O. had a hoarse voice and "was tender on her back and front of her neck and she had difficulty swallowing." L.K. was also examined by Abbott, who reported that a pelvic exam showed redness and abrasions and that L.K. had bruising on her back.

A grand jury indicted Akeya on the following charges: (1) two counts of first-degree sexual assault for engaging in sexual penetration with L.K. and A.O. without

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their consent;[4] (2) two counts of second-degree sexual assault for engaging in sexual penetration with L.K. while he knew she was incapacitated and engaging in sexual contact with A.O. without her consent;[5] (3) one count of first-degree sexual abuse of a minor for engaging in sexual penetration with A.O. while she was under eighteen and he was her parent;[6] (4) one count of second-degree sexual abuse of a minor for engaging in sexual contact with A.O. while she was under eighteen and he was her parent;[7] (5) one count of third-degree assault for recklessly causing physical injury to A.O. by means of a dangerous instrument;[8] (6) one count of furnishing alcohol to a person under twenty-one for giving alcohol to A.R. (A.O.'s friend) (which was a felony because it occurred in a local option area);[9] (7) one count of manufacturing liquor without a license or permit in a local option area for making the homebrew;[10] and (8) two counts of third-degree misconduct involving a controlled substance for giving marijuana to A.O and A.R. while they were under nineteen and at least three years younger than Akeya.[11]

The jury found Akeya guilty on all counts except the counts of first-degree sexual assault and sexual abuse of a minor involving A.O. (In other words, the jury

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found Akeya guilty of touching A.O.'s vagina but found that there was a reasonable doubt as to whether he sexually penetrated her vagina.)

At sentencing, the judge merged the first-degree sexual assault count against L.K. with the second-degree sexual assault count against L.K. for a single conviction of first-degree sexual assault. The judge also merged the second-degree sexual assault count against A.O. with the second-degree sexual abuse of a minor count.[12] The judge expressly considered whether to run the counts concurrently or consecutively but concluded that consecutive sentences were required because of the need for isolation and community condemnation. The judge ultimately imposed a composite sentence of 48 years with 10 years suspended (38 years to serve).

This appeal followed.

Akeya's argument that the evidence was insufficient to support his first-degree sexual assault conviction involving L.K.

Akeya argues that the evidence was insufficient to support the jury's guilty verdict for first-degree sexual assault of L.K. - i.e., that he engaged in sexual penetration with L.K. without her consent. He also argues that the evidence was insufficient to support the jury's guilty verdict for second-degree sexual assault of L.K. - i.e., that he engaged in sexual penetration with L.K. while she was incapacitated. (This guilty verdict for second-degree sexual assault merged with the guilty verdict for first-degree sexual assault.)

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When we review a claim of insufficiency on appeal, we are required to view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the verdict.[13] Here, L.K. testified that she "got drunk kind of fast" and "blacked out for a little bit or passed out" when her girlfriend went to get cigarettes. L.K. testified that when she regained consciousness, Akeya had removed her pants and was penetrating her vagina with his penis. L.K. further testified that Akeya was forcing her to have sex with him by holding her down by the arms. She testified that she tried to fight back, but she was not strong enough. Viewing these facts in the light most favorable to upholding the verdict, we conclude that a reasonable juror could find proof beyond a reasonable doubt that Akeya sexually penetrated L.K. while she was incapacitated and that he sexually penetrated her "without [her] consent" as that term is defined under AS 11.41.470(10).[14]

Akeya's argument that the evidence was insufficient to support the jury's guilty verdicts for second-degree sexual assault and second-degree sexual abuse of A.O.

Akeya argues that the evidence was insufficient to support the jury's finding beyond a reasonable doubt that he touched A.O.'s vagina and therefore insufficient evidence to support the jury's guilty verdicts for second-degree sexual assault and second-degree sexual abuse of A.O. At trial, A.O. testified that Akeya prevented her from leaving the house after L.K. and her girlfriend left, and that Akeya

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pushed her down on the bed, put his hand over her mouth and nose, and then strangled her. She further testified that Akeya unzipped her pants, pulled them down, and touched her vagina "[a] lot." A.O. "kept telling him to stop and get off." On appeal, Akeya argues that this testimony was not credible because A.O. had been inconsistent about whether there had been sexual contact and whether that sexual contact had included penetration. But when we review a claim of insufficiency on appeal, we do not re-weigh the evidence or evaluate witness credibility because those are questions for the jury.[15]Accordingly, viewing A.O.' s trial testimony in the light most favorable to upholding the verdict, we...

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