Yearty v. State

• Decision Date: 15 February 1991
• Docket Number: Nos. A-2776,A-2792,s. A-2776
• Citation: 805 P.2d 987
• Parties: Richard Todd YEARTY, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 987

805 P.2d 987

Richard Todd YEARTY, Appellant, v. STATE of Alaska, Appellee.

Nos. A-2776, A-2792.

Court of Appeals of Alaska.

Feb. 15, 1991.

Leslie A. Hiebert, Asst. Public Advocate, and Brant McGee, Public Advocate, Anchorage, for appellant.

Cynthia M. Hora, Asst. Atty. Gen., Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., COATS, J., and ANDREWS, District Court Judge. ^*

OPINION

BRYNER, Chief Judge.

Richard Todd Yearty was convicted in two jury trials of four counts of kidnapping, five counts of first-degree sexual assault, one count of first-degree sexual abuse of a minor, two counts of attempted first-degree sexual assault, and one count of attempted first-degree sexual abuse of a minor. Superior Court Judges Karl S. Johnstone and James K. Singleton imposed partially consecutive sentences totaling forty years in prison. Yearty challenges his convictions on various grounds and argues that his sentence is excessive. We affirm Yearty's convictions and his composite sentence but remand for entry of a modified judgment.

FACTS

A. The Goose Lake Incident

On the evening of October 21, 1987, twelve-year-old J.L. was riding his bicycle on the bike path near Goose Lake in Anchorage when he passed Yearty walking in the opposite direction. Yearty called to J.L., asking what time it was. J.L. stopped, looked at his watch, and told Yearty it was 6:48. As J.L. remounted and began to pedal away, Yearty grabbed his bike and threw J.L. and the bike off the path, into the bushes. Yearty pulled J.L. off the bike and dragged him about 100 yards into the woods, away from the path.

Yearty told J.L. that he wanted to give him a blow job. He pulled J.L.'s pants down and began to perform fellatio on him, stopping every several minutes to sniff cocaine from a vial that he pulled from his pocket. After a while, Yearty pulled his own pants down, straddled J.L., and attempted to insert the boy's penis into his own anus. His effort failed, and Yearty resumed sucking on J.L.'s penis. After a second unsuccessful attempt at inserting J.L.'s penis into his own anus, Yearty got dressed and fled.

Yearty's assault lasted for well over half an hour, from about 6:48 p.m. until approximately 7:30 p.m. J.L. cried and repeatedly begged to be let go during that time. After Yearty fled, J.L. found his bike, rode home, and told his parents what had happened. They notified the police.

B. The East High Incident

Within an hour of the Goose Lake assault, Yearty attacked a woman at nearby East High School. At approximately 8:30 p.m., J.C. was getting into her car in the East High parking lot after finishing a class. Yearty stepped between J.C. and the open car door. He said, "I'm not going to hurt you. I just want to eat you." J.C. kicked Yearty in the crotch, and a struggle ensued.

During the struggle, J.C. began to scream. Yearty tried to stop her by pushing his fingers down her throat. J.C. bit him. J.C. stopped screaming when Yearty threatened to kill her. Yearty pushed her back into the car, but J.C. grabbed a tire iron from the back seat and tried to hit Yearty with it. Yearty struggled for the tire iron and eventually managed to wrest it from her. He told J.C. to remove her pants. She refused, telling him to get out of her car. Yearty then terminated the attack and left the car. J.C. ran back into the school. She found two janitors and told them that a man had attempted to rape her. They called the police.

C. The Carrs Supermarket Incident

Eight days after the Goose Lake and East High incidents, Yearty attacked his third victim. At about 11:00 p.m. on the night of October 29-30, 1987, M.M. was working alone as a clerk in the bakery section of the Carrs Supermarket at Dimond Boulevard and Jewel Lake Road in Anchorage. Yearty grabbed M.M. and forced her into a closet behind the bakery counter. With his hand over her mouth, Yearty told M.M. he was going to eat her. He pulled off M.M.'s pants and performed cunnilingus on her. He then inserted his fingers into M.M.'s vagina and tried to penetrate her with his penis. Yearty also forced M.M. to perform fellatio on him. At one point, he stopped the assault to ingest some cocaine.

At around midnight, James Hankins, a Carrs employee, discovered Yearty and M.M. in the closet. Yearty covered M.M.'s mouth and told Hankins to leave. Hankins thought Yearty and M.M. were engaged in consensual relations and shut the closet door. He returned a short time later and told them they would have to come out.

After getting dressed, Yearty forced M.M. to walk with him from the closet toward the store exit. M.M. was visibly distraught, and mouthed to Hankins, "I've been raped." Hankins told Yearty to release M.M. When Yearty refused, Hankins alerted other store employees.

As other employees responded to Hankins' call, Yearty grabbed M.M. in a headlock and pushed a screwdriver against her neck. Telling everyone to stay back, he dragged M.M. outside, toward his car. Once outside, M.M. managed to break away. Yearty attempted to flee but was pursued by Carrs employees, who were soon joined by a police officer. The officer eventually apprehended Yearty.

Upon arresting Yearty for the Carrs incident, the police noticed that he matched the descriptions that J.L. and J.C. had given of their assailant after the Goose Lake and East High incidents. The police placed Yearty's picture in a photographic lineup and displayed the lineup to J.L. and J.C. Both identified Yearty.

SEVERANCE

Yearty was charged in two separate indictments, one dealing with the Goose Lake and East High incidents, and the other with the Carrs Supermarket incident. For the Goose Lake incident, Yearty was charged with kidnapping, first-degree sexual assault, first-degree sexual abuse of a minor, attempted first-degree sexual assault, and attempted first-degree sexual abuse of a minor. For the East High incident, Yearty was charged with attempted first-degree sexual assault and third-degree assault. ¹

Because the charges stemming from the Goose Lake and East High incidents were joined in the same indictment, they were set for trial together. Prior to trial, Yearty moved to sever the Goose Lake charges from the East High charges, contending that he was entitled to automatic severance under Johnson v. State, 730 P.2d 175 (Alaska App.1986). Judge Johnstone denied the motion. Yearty renews his severance argument on appeal.

Yearty's reliance on Johnson is misplaced. The rule of automatic severance discussed in Johnson applies only when joinder is based exclusively on Alaska Criminal Rule 8(a)(1), which permits similar charges to be filed together. See Newcomb v. State, 800 P.2d 935, 943 (Alaska App.1990). A separate provision of Criminal Rule 8(a) applies to Yearty's case.

Under Criminal Rule 8(a)(3), joinder is proper when charges are "based on two or more acts or transactions connected together...." The Goose Lake and East High incidents were closely linked in time, place, and circumstance. The connection is particularly significant because Yearty's primary defense at trial was mistaken identity. In the circumstances of this case, the nexus between the Goose Lake and East High charges was sufficient to permit their joinder as charges "connected together," within the meaning of Criminal Rule 8(a)(3). See, e.g., People v. Poggi, 45 Cal.3d 306, 246 Cal.Rptr. 886, 894-895, 753 P.2d 1082, 1090 (1988); State v. Lucas, 146 Ariz. 597, 708 P.2d 81, 85 (1985); Shietze v. State, 724 P.2d 262, 264 (Okl.Cr.App.1986).

Because the charges stemming from the two incidents were properly joined in the first instance, Yearty bore the burden of establishing actual prejudice in order to justify severance. See Alaska Criminal Rule 14; Cleveland v. State, 538 P.2d 1006, 1008 (Alaska 1975); Richards v. State, 451 P.2d 359, 362 (Alaska 1969); Newcomb, 800 P.2d at 943; Collins v. State, 778 P.2d 1171, 1174 (Alaska App.1989). Yearty made no showing of prejudice below, arguing only that he had a right to automatic severance. Nor has he made a convincing showing of prejudice on appeal. We find no error.

SPEEDY TRIAL

Yearty's trial on the Goose Lake and East High charges was initially set for the week of March 14, 1988. On March 11, an assistant public defender appeared at calendar call on Yearty's behalf and informed the court that the assistant public defender assigned to try Yearty's case had agreed with the state to a continuance of the trial until May 16. The court granted the continuance.

The public defender agency was subsequently allowed to withdraw, and Yearty obtained new counsel. Prior to trial, he moved to dismiss, alleging that his right to a speedy trial under Criminal Rule 45 had been violated because he did not personally consent to the March 11 continuance. The superior court denied Yearty's motion. On appeal, Yearty contends that the court erred.

Yearty's claim lacks merit. The attorney who appeared for Yearty at the March 11, 1988, calendar call was empowered to relinquish Yearty's rights under Criminal Rule 45 without Yearty's personal waiver. Snyder v. State, 524 P.2d 661, 664 (Alaska 1974). Absent an affirmative showing to the contrary, we must assume that Yearty's counsel requested the continuance until May 16 with Yearty's knowledge and consent. Henson v. State, 576 P.2d 1352, 1356 n. 9 (Alaska 1978).

Yearty asserts for the first time on appeal that his counsel at the March 11 hearing mistakenly moved for a continuance until May 16 instead of March 16. The record, however, fails to support this assertion. Moreover, Yearty did not advance this claim below and is consequently precluded from relying on it on appeal. See Criminal Rule 45(f); James v. State, 567 P.2d 298, 299-300 (Alaska 1977); Trudeau v. State, 714 P.2d 362, 366 (Alaska App.1986) . The superior court did not err in denying Yearty's motion to dismiss.

VOLUNTARINESS OF FALSE EXCULPATORY STATEMENTS

An Anchorage police officer interviewed...