Jones v. State, 013019 AKSC, A-12252

Docket Nº:A-12252
Opinion Judge:WOLLENBERG, JUDGE
Party Name:MATTHEW JOHN JONES, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Maureen E. Dey, Gazewood & Weiner, P.C., Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.
Case Date:January 30, 2019
Court:Supreme Court of Alaska
 
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MATTHEW JOHN JONES, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12252

Supreme Court of Alaska

January 30, 2019

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-12-7911 CR Kevin M. Saxby, Judge.

Maureen E. Dey, Gazewood & Weiner, P.C., Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.

Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

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

MEMORANDUM OPINION

WOLLENBERG, JUDGE

Matthew John Jones appeals his convictions on three counts of first-degree sexual assault and one count of first-degree harassment, as well as his composite sentence for these crimes. Jones raises three issues on appeal.

First, Jones argues that the trial court erred in granting the State's motion to introduce evidence of Jones's prior unlawful sexual conduct if Jones testified and asserted a consent defense. But Jones did not testify, and as a result, evidence of Jones's prior conduct was never admitted. Jones has therefore failed to preserve this issue for appellate review.

Second, Jones contends that the trial court erred in denying his motion for a mistrial after the prosecutor questioned prospective jurors about the capacity of an alleged victim to maintain a false allegation for two years, the length of time that Jones's case spent in pretrial status. Although we question the propriety of the prosecutor's questions, we conclude that the court did not abuse its discretion in denying a mistrial.

Finally, Jones challenges his composite sentence. We reject Jones's challenge and affirm his sentence.

Underlying facts and prior proceedings

One night in August 2012, Jones and A.K. were drinking together with two other people in downtown Anchorage. Jones and A.K. had just met. Sometime later that night, Jones and A.K. engaged in consensual sexual intercourse in a nearby wooded area.

Afterward, Jones and A.K. started walking together toward their respective residences. Jones invited A.K. to come back to his house, but A.K. declined. As the two neared an overpass, Jones pulled A.K. under the overpass; Jones was squeezing A.K's hand and would not let go.

Jones pulled A.K. down and sat on top of her. Jones wanted to have sex again, and he tried to remove A.K's pants. When A.K. refused, Jones pinned A.K's arms above her head and ripped off her pants.

Jones forced A.K. to engage in a number of sexual acts with him, including penetration of A.K's genitals, anus, and mouth. While he was assaulting A.K, Jones repeatedly threatened A.K. and called her degrading names. At one point, while Jones was forcing A.K. to perform fellatio, he pulled her head up, spat on her, and rubbed his saliva on her face.

A.K. eventually escaped and ran to a hotel; a hotel employee contacted the police. The police found and arrested Jones that night.

Based on these events, a grand jury indicted Jones on four counts of first-degree sexual assault (for penile penetration of A.K's mouth and anus, and for digital penetration of A.K. 's genitals and anus) and one count of second-degree assault (for strangling A.K.).1 The State also charged Jones with one count of first-degree harassment (for subjecting A.K. to offensive physical contact with human saliva, with the intent to harass or annoy).2

Jones's case proceeded to a jury trial. The trial court granted Jones's motion for a judgment of acquittal on one of the four counts of first-degree sexual assault (digital-anal penetration). The jury could not reach a verdict on the second-degree assault count, and the State dismissed that charge. The jury convicted Jones of the remaining three counts of sexual assault and the single count of first-degree harassment.

Because Jones was a first felony offender, 3 he was subject to a presumptive range of20 to 30 years for each first-degree sexual assault conviction.4 The trial court was required to run at least 6.25 years of the sentence on each of the second and third counts of sexual assault consecutively to the sentence imposed on the first count.5 Jones also faced a sentence of up to 1 year on the first-degree harassment conviction (with no minimum required consecutive time).6 Absent mitigating factors or referral of his case to the statewide three-judge sentencing panel, Jones therefore faced a minimum composite sentence of 32.5 years.

Jones asked the court to refer his case to the three-judge panel based on the nonstatutory mitigator of extraordinary potential for rehabilitation. The court denied Jones's request and imposed a composite sentence of35.5 years to serve.

Jones failed to preserve his challenge to the trial court's ruling regarding admission of evidence related to his prior conviction

Prior to trial, the prosecutor filed a conditional motion to introduce evidence that, six years prior to the events in this case, Jones admitted to putting his hand inside the underwear of his roommate's girlfriend while she was asleep. Based on this conduct, Jones was convicted at a United States Army court-martial of "indecent acts with another." The prosecutor argued that evidence of this prior conduct would be admissible...

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