JOHNNY JENKINS v. STATE OF ALASKA (2011)

NOTICE Memorandum decisions of this court do not create legal precedent.  See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3).  Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Johnny B. Jenkins was convicted of sexual assault in the first degree ¹ and sexual abuse of a minor in the second degree ² for engaging in sexual penetration with K.A., who was fifteen years old at the time.   Jenkins appeals, arguing that there was insufficient evidence to support his convictions.   He also argues that, assuming his convictions are upheld, the two convictions should merge.   We conclude that there was sufficient evidence to support the jury's verdicts.   But we agree that Jenkins's convictions should merge and therefore remand his case for resentencing.

Factual and procedural background

On July 26, 2005, K.A. was babysitting for a neighbor, Dianne Matthews.   K.A. was fifteen years old, but had mental disabilities which made her function at the level of a nine or ten year old.   Johnny Jenkins was painting in Matthews's apartment that day.   Jenkins was fifty-two years old.

According to K.A., Jenkins picked her up, threw her on the bed, and penetrated her with his penis.   K.A. promptly reported this to Matthews.   K.A. then told the investigating detective and the sexual assault response team (SART) nurse that Jenkins had penetrated her.   Jenkins was arrested, and a swab was taken of his penis.   This swab revealed DNA on Jenkins's penis that was a match with K.A.'s DNA.

Superior Court Judge Eric A. Aarseth presided at Jenkins's trial.   At trial, K.A. testified that she did not know whether Jenkins had penetrated her.   The State presented evidence of K.A.'s prior statements that Jenkins had penetrated her.   The State also presented evidence that K.A.'s DNA was present on Jenkins's penis.   In addition, the SART nurse who examined K.A. shortly after the abuse stated that the injuries to K.A.'s genitals were “consistent with [K.A.'s] report of non-consensual sexual penetration.”   Jenkins testified and denied any sexual contact with K.A.

The jury convicted Jenkins of first-degree sexual assault and second-degree sexual abuse of a minor.

Judge Aarseth considered whether the two convictions should merge but ultimately concluded they should not.   He reasoned that the two statutes reflected different societal values:  the sexual assault statute protected people from non-consensual sexual penetration, while the sexual abuse of minors statute protected minors from sexual penetration.   He imposed a sentence of twelve years with four years suspended on the conviction for sexual assault and a consecutive four years with two years suspended on the conviction for sexual abuse of a minor.   Therefore, Jenkins's composite sentence was sixteen years with six years suspended.

There was sufficient evidence to support the jury's verdicts

In deciding whether there was sufficient evidence to support a conviction, we view the record in the light most favorable to upholding the jury's verdict.³  The question is whether the evidence and the inferences to be drawn from that evidence are sufficient to support a conclusion by fair-minded jurors that the State met its burden of proof.⁴  We do not determine the credibility of witnesses;  that is a function of the jury.⁵

Jenkins points out that K.A. testified at trial that she was unsure whether Jenkins had succeeded in putting his penis inside her.   Jenkins argues that if he had actually penetrated K.A. “she would have been able to testify to it unequivocally.”   He concedes that shortly after the sexual assault, K.A. made statements to the investigating detective and the SART nurse that she had been sexually penetrated.   But he argues that, because these statements were not made under oath, they “were not as reliable as her in-court testimony.”

K.A.'s prior statements that Jenkins penetrated her were admissible as substantive evidence.⁶  Based upon this testimony, fair-minded jurors could conclude that K.A., who was developmentally disabled, more accurately reported what happened shortly after the incident than she did later at trial.   In addition, K.A.'s original reports that Jenkins had penetrated her were corroborated by the SART nurse's testimony that K.A.'s injuries were “consistent with [K.A.'s] report of non-consensual sexual penetration.”   Evidence that K.A.'s DNA was on Jenkins's penis also corroborated K.A.'s initial reports.

We conclude, after viewing the evidence in the light most favorable to upholding the jury's verdict, that there was sufficient evidence to support Jenkins's convictions.

Jenkins's convictions merge

Jenkins argues that Judge Aarseth erred in failing to merge his convictions for sexual assault and sexual abuse of a minor.   The State concedes error.   When the State concedes error, we must ensure that the concession is supported by the record and has legal foundation.⁷  We conclude that this issue is controlled by our decision in Yearty v. State ⁸ and that Jenkins's convictions should merge.   We accordingly remand the case to the superior court and direct the court to merge Jenkins's convictions and reimpose sentence.   The court may conduct further sentencing proceedings in its discretion and may impose any sentence for first-degree sexual assault that is authorized by the sentencing statutes and no greater than the original composite sentence.⁹

Conclusion

Jenkins's convictions are AFFIRMED.   The case is REMANDED to the superior court for resentencing.

FOOTNOTES

FN1. AS 11.41.410(a)(1)..  FN1. AS 11.41.410(a)(1).

FN2. AS 11.41.436(a)(1)..  FN2. AS 11.41.436(a)(1).

FN3. State v. McDonald, 872 P.2d 627, 652 (Alaska App.1994)..  FN3. State v. McDonald, 872 P.2d 627, 652 (Alaska App.1994).

FN4. Hewitt v. State, 188 P.3d 697, 698 (Alaska App.2008)..  FN4. Hewitt v. State, 188 P.3d 697, 698 (Alaska App.2008).

FN5. Brown v. Anchorage, 680 P.2d 100, 104 (Alaska App.1984)..  FN5. Brown v. Anchorage, 680 P.2d 100, 104 (Alaska App.1984).

FN6. Sheldon v. State, 796 P.2d 831, 839 (Alaska App.1990)..  FN6. Sheldon v. State, 796 P.2d 831, 839 (Alaska App.1990).

FN7. Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972)..  FN7. Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).

FN8. 805 P.2d 987, 994-95 (Alaska App.1991)..  FN8. 805 P.2d 987, 994-95 (Alaska App.1991).

FN9. Allain v. State, 810 P.2d 1019, 1022 (Alaska App.1991)..  FN9. Allain v. State, 810 P.2d 1019, 1022 (Alaska App.1991).

COATS, Chief Judge.