Henry v. State

• Decision Date: 22 October 1993
• Docket Number: No. A-4168,A-4168
• Citation: 861 P.2d 582
• Parties: Charles HENRY, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 582

861 P.2d 582

Charles HENRY, Appellant, v. STATE of Alaska, Appellee.

No. A-4168.

Court of Appeals of Alaska.

Oct. 22, 1993.

Kevin F. McCoy, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant.

Nancy R. Simel, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

OPINION

MANNHEIMER, Judge.

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.

In 1990, Henry lived in Chignik with his girlfriend, O.S., and her two daughters, nine-year-old S.S. and ten-year-old J.S. In late July, O.S. was away from home, engaging in commercial fishing, and J.S. was in Anchorage for medical treatment. Henry remained in Chignik with S.S.

Late in the morning of July 23, 1990, Henry brought S.S. to the home of Mrs. K., a relative of S.S.'s, and then left. S.S. stayed with Mrs. K. and her nine-year-old son, A.J.K., for several hours. At some point in the afternoon, Mrs. K. left to go to the grocery store. While Mrs. K. was gone, S.S. told A.J.K. that she wanted to spend the night at his house, that she didn't want to go home, and that Henry was "sick". A.J.K. asked S.S. if Henry had ever touched her. S.S. said no three times, but when A.J.K. asked her a fourth time, she said that Henry had "[taken] down her clothes and ... got on top of her." S.S. also told A.J.K. that Henry had given her $16.00 not to tell anyone.

At about 4:50 p.m., while Mrs. K. was still away, Ronald L. Bowers, the Chignik village public safety officer and fire chief, brought some fish to Mrs. K.'s neighbor. A.J.K. saw Officer Bowers and told him that S.S. had said that Henry had hurt her. Officer Bowers came to Mrs. K.'s house and found S.S. sitting in a corner with her head down, acting somewhat frightened and concerned.

When Officer Bowers asked S.S. if she had anything to tell him, she didn't say anything. Then Officer Bowers asked her if she had told A.J.K. that Henry had hurt her; he told S.S. that, if she was hurt, he would help her. According to Bowers, S.S. then replied that "she was hurting where [Henry] humped her. She said that ... she took a shower the night before and that [Henry] came into her bedroom and took her pants down and that he humped her, and that he 'wet' inside her. She said she was afraid to go back home." S.S. also told Officer Bowers that, although Henry had never done this to her before, she had seen Henry try to do it to her sister, J.S., but J.S. had pushed him off.

Officer Bowers left the K. residence. When Mrs. K. returned home after Officer Bowers left, A.J.K. and S.S. informed her that Henry was going to be arrested. A.J.K. told his mother that Henry had touched S.S., that they had told Officer Bowers, and that Officer Bowers was out looking for Henry. Mrs. K. asked S.S. why Bowers was looking for Henry, and S.S. answered that Henry had "raped" her the night before. Mrs. K. asked S.S. if she knew what the word "rape" meant, and S.S. said she knew. Then Mrs. K. asked S.S. if Henry had touched her private parts, and S.S. said yes.

Meanwhile, Bowers had gone into town to call his supervising trooper, Joseph Masters. Trooper Masters instructed Bowers to contact O.S. on her fishing boat and to arrest Henry. Officer Bowers arrested Henry shortly thereafter.

O.S. returned to Chignik around 9 o'clock that evening, approximately two hours after Henry's arrest. She allowed S.S., accompanied by Mrs. K., to be taken to Dillingham for a medical examination.

Doctor Thomas Bellinger examined S.S. at Kanakanak Hospital in Dillingham. Trooper Belden and Mrs. K. told Dr. Bellinger that S.S. was a possible sexual abuse victim. S.S. told Dr. 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." S.S. indicated to Dr. Bellinger that it was her mother's boyfriend who had done this.

Dr. Bellinger found several bruises on S.S.'s knees and shins, which he estimated to be less than two to three days old. Dr. Bellinger noted that S.S.'s hymen was intact, but he testified that this did not rule out penetration. He also measured the diameter of S.S.'s vaginal opening. He determined that the measurement was within normal range for children of S.S.'s age and height; therefore, he could not conclude that she had been penetrated. Examination by Woods lamp (an ultraviolet light device) revealed an area on S.S.'s labia majora that could have been either a fungal infection or sperm. Dr. Bellinger found no other evidence of fungal infection, and further tests for sperm were negative. From this Dr. Bellinger determined that the Woods lamp results were inconclusive. Based on the entire examination, Dr Bellinger concluded that he could not tell whether S.S. had been sexually penetrated. ¹

Mrs. K. and S.S. spent the night in Dillingham. The next morning (July 24), Trooper Belden interviewed S.S. at the Alaska State Troopers office. S.S. told Belden that Henry had put his penis in her "bottom" the night before.

Three days later (July 27), Troopers Steven C. DeHart and Rosemary Decker conducted a videotaped interview of J.S. in Anchorage. J.S. told Investigator Decker that Henry had touched her "private part" under her nightgown and over her underwear. At some point during the interview, Trooper DeHart told J.S. that her sister S.S. had accused Henry of sexual abuse. However, it is unclear whether J.S. knew, when she told the troopers that Henry had sexually abused her, that S.S. had already accused Henry of sexual abuse. ² The evidence is also unclear as to whether J.S. knew that S.S. had accused Henry of trying to abuse J.S. 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.S. stopped them and stated that she wished to continue.

On July 30, 1990, S.S. and J.S. testified before a grand jury considering charges against Henry. Shortly before S.S. was scheduled to testify, O.S. told Trooper Masters that, three days before, S.S. had confessed to her that A.J.K., not Henry, had sexually abused her. Trooper Masters immediately re-interviewed S.S. At the time, S.S. indicated that both A.J.K. and Henry had abused her.

At grand jury, the two sisters reiterated their assertions that Henry had sexually abused them. S.S. testified that Henry had sexually abused her twice. S.S. also told the grand jury that Henry had "hurt" her sister J.S. in the same way. J.S. testified that Henry had touched her genitals through her clothes.

A few months later, O.S. contacted the Public Defender Agency (who was representing Henry) and said that she had something important to tell them. In response to O.S.'s call, a Public Defender investigator interviewed S.S. S.S. told the defense investigator that Henry had not abused her, and that A.J.K. had. S.S. further stated that A.J.K. had threatened her and had told her to say that Henry had raped her, and that both she and A.J.K. had lied to the authorities. In addition, S.S. told the defense investigator that she did not even know what the word "rape" meant.

Acting on this new information, the defense investigator interviewed J.S. J.S. told the investigator that Henry had never touched her. 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. J.S. told the investigator that Mrs. K. had pressured her into accusing Henry of sexual abuse.

Henry's trial began a few weeks later. Both S.S. and J.S. were called as witnesses. S.S. initially testified that she could not remember whether Henry had sexually abused her, and that she could not remember telling anyone that he had. S.S. then flatly denied that Henry had done "anything ... bad." S.S. testified that A.J.K. had tried to sexually abuse her, and that he had told S.S. to say that Henry had done it because A.J.K. did not like Henry.

J.S. likewise denied that Henry had touched her. She gave inconsistent answers when asked whether she had told Investigator Decker that Henry had sexually abused her. However, J.S. declared that she had falsely accused Henry. She gave two explanations for this. First, J.S. asserted that Mrs. K. had told her to accuse Henry of sexual abuse or she would hurt S.S. J.S. stated that Mrs. K. had made this threat and demand in early July, before J.S. left for Anchorage. Later, during direct examination by the defense attorney, J.S. gave a different explanation for accusing Henry of sexual abuse:

DEFENSE COUNSEL: Do you remember telling [the troopers] that [Henry] touched you in a private place?

J.S.: Yes.

DEFENSE COUNSEL: Okay. [J.S.], why did you tell the troopers that [Henry] touched you?

. . . . .

J.S.: Because he wasn't my dad.

DEFENSE COUNSEL: Okay. Were you mad at [Henry]?

J.S.: Yes.

DEFENSE COUNSEL: Okay. Are you sure that's the only reason you told them that he touched you?

J.S.: Yes.

. . . . .

DEFENSE COUNSEL: Okay, but I'm not sure I understand. Why would you say something like that just because [Henry] wasn't your dad?

J.S.: I didn't want him around.

DEFENSE COUNSEL: Okay, were you mad at him?

J.S.: Yes.

Like her sister, J.S. denied speaking to her mother about Henry's touching her. J.S. also testified that, before the troopers interviewed her in Anchorage, Officer Bowers had telephoned her and told her that something had happened involving S.S. and Henry.

The jury found Henry guilty of one count of first-degree sexual abuse of a minor (for engaging in sexual penetration of S.S.) and one count of second-degree sexual abuse of a minor (for engaging in sexual contact with J.S.).

Henry argues that,...