Boggess v. State

783 P.2d 1173, 1989 Alas. App. LEXIS 102, 1989 WL 151000
CourtCourt of Appeals of Alaska
DecidedDecember 8, 1989
DocketA-2168
StatusPublished
Cited by22 cases

This text of 783 P.2d 1173 (Boggess v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boggess v. State, 783 P.2d 1173, 1989 Alas. App. LEXIS 102, 1989 WL 151000 (Ala. Ct. App. 1989).

Opinion

OPINION

BRYNER, Chief Judge.

Rickey E. Boggess was convicted, following two separate jury trials, of multiple counts of sexual abuse of a minor in the first and second degree, one count of attempted sexual abuse of a minor in the first degree, one count of indecent exposure, and two counts of tampering with a witness in the first degree. Superior Court Judge Victor D. Carlson sentenced Bog-gess to serve a composite term of forty-three years, with fifteen years suspended. Boggess appeals his convictions and sentence. We remand for additional proceedings.

FACTS

In the summer of 1985, Boggess began sexually abusing his eleven-year-old stepdaughter, R.M. Initially, his conduct involved fondling. Subsequently, Boggess sexually penetrated R.M. On separate occasions, he used his finger, a plastic cigar case, and a douche applicator. On another occasion, Boggess attempted to have sexual intercourse with R.M.

R.M. reported the abuse on July 22,1985. While R.M.’s report of abuse was being investigated, Boggess told a co-worker, Eugene Smith, that he had fondled R.M.’s breasts and sexually penetrated her with a cigar case. When Smith was later subpoenaed to testify before the grand jury, Bog-gess asked him to “forget about the admissions he had made.” Boggess also spoke with his wife about her anticipated testimony before the grand jury. He instructed her to plead the fifth amendment or break down and cry if she were asked for damaging information about him.

Based on evidence of Boggess’ sexual abuse and of his efforts to influence the testimony of his wife and Smith, the grand jury returned an indictment charging Bog-gess with two counts of sexual abuse of a minor in the first degree, two counts of sexual abuse of a minor in the second degree, two counts of indecent exposure, and two counts of tampering with a witness in the first degree.

The prosecution subsequently dismissed one of the indecent exposure charges. Boggess was tried before a jury on the remaining charges. The jury convicted him of the two second-degree sexual abuse charges and of one of the two witness *1176 tampering charges. It deadlocked on the other counts.

Through testimony presented by R.M. and Boggess at the trial, the state learned for the first time of the incident of sexual abuse in which Boggess sexually penetrated R.M. with a douche applicator. Based on that incident, the state secured a supplemental indictment charging one additional count of sexual abuse of a minor in the first degree. That charge was joined with the charges upon which the first jury had deadlocked, and Boggess was retried. The second jury found Boggess guilty of all charges.

GRAND JURY VIOLATIONS

A. Unauthorized Presence before the Grand Jury

On appeal, Boggess raises several claims relating to the grand jury proceedings that resulted in his initial indictment. He first contends that error occurred because the prosecutor’s two-year-old son was in the room during a portion of the grand jury proceedings. The state concedes that the child was brought into the grand jury room while one witness was questioned and while the next witness, Boggess’ wife, was called. Boggess’ wife, after being sworn, invoked her right to remain silent, and the grand jury recessed for the day.

The state further concedes that the child’s presence violated Alaska Criminal Rule 6(k), which provides:

The prosecuting attorney, the witness under examination, interpreters when needed, and a deputy clerk of the court for the purpose of recording the proceedings may be present while the grand jury is in session. No persons other than the jurors shall be present while the grand jury is deliberating or voting.

The state argues, however, that the violation of Criminal Rule 6(k) was minor and did not require dismissal.

This court has previously declined to require automatic dismissal for violations of Criminal Rule 6(k). See Soper v. State, 731 P.2d 587, 591-92 (Alaska App.1987). We have held that there must be some indication that the violation contributed to the return of the indictment, or that it resulted in unfair prejudice. Id.

In the present case, the presence of the prosecutor’s child before the grand jury was relatively brief, and the jury did not hear any important testimony while the child was in the room. Because the child was only two years old, his presence posed no realistic threat to the secrecy of the grand jury proceedings.

Although it is conceivable that under some circumstances the unauthorized presence of a young child before the grand jury could result in undue emotional impact on the jury’s deliberation, that possibility is remote in the present case. R.M., the victim in this case, was eleven years old; there seems little likelihood that grand jurors would draw any association between R.M. and the prosecutor's child. Moreover, the grand jury recessed immediately after the child’s unauthorized presence and did not reconvene or vote on the indictment until approximately two weeks later. On these facts, we hold that the violation of Criminal Rule 6(k) did not require dismissal of Boggess’ indictment.

B. Improper Grand Jury Evidence

Boggess next cites several evidentiary errors before the grand jury, which he contends warranted dismissal. Specifically, Boggess complains that the grand jury was improperly allowed to hear evidence that he had abused R.M. physically and sexually and that he had recently contacted R.M. in violation of a court order. Boggess also complains that the prosecution mischarac-terized the nature of his sexual contact with R.M. on one occasion.

Even if it was improper for the grand jury to hear the challenged evidence, however, that impropriety would only warrant dismissal if the remaining evidence was insufficient to support Boggess’ indictment or the improper evidence was likely to have had an overriding influence on the grand jury’s decision. See, e.g., Patterson v. State, 747 P.2d 535, 537 (Alaska App.1987). The prosecutor’s case before the *1177 grand jury was extremely strong and certainly sufficient to support the indictment. It does not appear that the evidence that Boggess complains of would have had any appreciable effect on the grand jury’s decision. Under the circumstances, any error was clearly harmless and did not require dismissal.

C. Improper Intent Instruction

Boggess further argues that the prosecutor failed to instruct the grand jury that specific intent is a necessary element of sexual assault in the first degree. Boggess mistakenly relies on Anderson v. State, 749 P.2d 369 (Alaska App.1988), which involved a prosecution under statutory definitions of “sexual contact,” and “sexual penetration” that have since been revised. Under the current definitions of those terms, specific intent is no longer an element of sexual abuse of a minor.

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Cite This Page — Counsel Stack

Bluebook (online)
783 P.2d 1173, 1989 Alas. App. LEXIS 102, 1989 WL 151000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boggess-v-state-alaskactapp-1989.