State v. Williams (7/16/93) ap-1301

THE COURT OF APPEALS OF THE STATE OF ALASKA STATE OF ALASKA, ) ) Court of Appeals No. A-4324 Appellant, ) Trial Court No. 4BE-S91-444CR ) v. ) ) O P I N I O N BOYCE WILLIAMS, JR., ) ) Appellee. ) [No. 1301 - July 16, 1993] ________________________________) FACTS AND PROCEDURAL HISTORY

1. Facts

The charges against Williams arose from two incidents that occurred during April and May of 1991 in the village of Kwethluk, where Williams taught high school. The incidents involved two boys, fifteen-year-old A.A. and fourteen-year-old R.M. During the spring of 1991, A.A. lived in Bethel and attended school there. The previous year, however, he had lived in Kwethluk; Williams had been his teacher. In mid-May of 1991, A.A. visited Kwethluk for several days. After returning to Bethel, he reported that Williams had assaulted him during the visit.

According to A.A., he and another boy went to Williams' residence in Kwethluk to watch a video. Williams asked A.A. to come into the bedroom, saying that he (Williams) needed to do something about detentions that A.A. had received at school in Bethel. Once in the bedroom, Williams wrestled A.A. down, forced A.A.'s pants and underpants off, and spanked A.A., striking the boy's buttocks with his hand. During the spanking, Williams touched A.A.'s testicles; as he did so, he asked if A.A. was "getting a hard-on." A.A. eventually managed to push Williams away.

When interviewed by a trooper, Williams admitted spanking A.A., claiming that he had done it as a form of discipline, to make A.A. a better student.2 Williams claimed that he did not recall touching A.A.'s testicles but acknowledged that the touching might have occurred accidentally during the spanking. During a subse-quent, surreptitiously monitored telephone conversation with A.A., however, when A.A. mentioned that Williams had asked if A.A. was "getting a hard-on", Williams responded: "Yes, I did say that, and that was really stupid of me to say. I'm very sorry that I said that." Williams also said he wished that A.A. had come to him before contacting the troopers.

While investigating A.A.'s report, the troopers learned of a similar incident involving R.M., who was a resident of Kwethluk and an eighth-grade student of Williams. According to R.M., in mid-April of 1991, Williams accosted R.M. as R.M. came out of the school shower, naked; Williams grabbed R.M.'s chest and testicles, pulled the boy down over his knee, and spanked him. Williams said nothing to R.M. to explain or justify this conduct. R.M. later reported the incident to his brother-in-law.

Williams was reinterviewed by a trooper in connection with R.M.'s report and admitted spanking R.M. Williams also admitted grabbing R.M.'s testicles, telling the trooper that

this was just a -- sort of a move that he [Williams] had, that he would use in an effort to control somebody, that he grabbed him with one hand by his testicles, other hand by his chest, and just put him on his lap and administered a spanking.

2. Procedural History

On May 31, 1991, after hearing testimony from A.A., R.M., and the trooper who had interviewed Williams, a grand jury in Bethel indicted Williams for three counts of sexual abuse of a minor in the second degree, three counts of sexual assault in the second degree, and three counts of assault in the fourth degree. Three of the nine counts related to the bedroom spanking incident involving A.A.: for touching A.A.'s testicles, Williams was charged with one count of second-degree sexual abuse of a minor (engaging in sexual contact with a person under 16 years of age over whom Williams occupied a position of authority in violation of AS 11.41.436(a)(5)(B), and, alternatively, with one count of second-degree sexual assault (engaging in nonconsensual sexual contact in violation of AS 11.41.420(a)(1)); in addition, Williams was charged with one count of fourth-degree assault for spanking A.A. (recklessly causing physical injury to A.A. in violation of AS 11.41.230(a)(1)).

For the shower room spanking of R.M., Williams was charged with three similar counts -- second-degree sexual abuse of a minor, second-degree sexual assault, and fourth-degree assault. In addition, apparently due to a miscommunication, the state mistakenly believed that R.M. had been the victim of another, similar spanking incident in Williams' office. The three remaining counts of the indictment addressed the purported office spanking, paralleling the charges that dealt with the bedroom and shower-room incidents.

Williams moved to dismiss all of the charges. Among various other grounds, he alleged that the evidence presented to the grand jury was insufficient to establish: 1) that sexual contact had occurred, for purposes of the sexual assault and sexual abuse charges; 2) that Williams occupied a position of authority over A.A., for purposes of the second-degree sexual abuse charge that stemmed from the bedroom spanking incident of A.A.; 3) that physical injury had occurred, for purposes of the fourth-degree assault charges; and 4) that any offenses at all had occurred with R.M. in the alleged office incident.

Judge Curda agreed with Williams' claims of insufficient evidence; in addition, the judge concluded that Williams' grand jury hearing had been tainted by hearsay and inadmissible evidence of other bad acts. For these reasons, Judge Curda ordered Williams' indictment dismissed.

The state elected not to appeal the order of dismissal. Instead, it re-presented Williams' case to the grand jury and secured a second indictment. The indictment contained three counts dealing with the bedroom spanking incident involving A.A. For the touching of A.A.'s testicles, the indictment alternatively alleged: one count of sexual abuse of a minor in the third degree (for having sexual contact with A.A. when A.A. was 13, 14, or 15 years of age in violation of AS 11.41.438(a)(1)), and one count of sexual assault in the second degree (for nonconsensual sexual contact); a third count alleged fourth-degree assault for A.A.'s spanking (recklessly causing physical injury to A.A.).

The indictment also contained four counts dealing with the shower room spanking incident involving R.M.: for the touching of R.M.'s testicles, the indictment alternatively alleged one count of sexual abuse of a minor in the second degree (for engaging in sexual contact with R.M. when R.M. was under sixteen years of age and when Williams occupied a position of authority over him), one count of sexual assault in the second degree (for nonconsensual sexual contact), and one count of sexual abuse of a minor in the third degree (for having sexual contact with R.M. when R.M. was 13, 14, or 15 years of age); the remaining count alleged fourth-degree assault for R.M.'s spanking.

Shortly after the issuance of the new indictment, the state filed a notice of dismissal as to the two charges of fourth- degree assault, leaving Williams with five counts: two alternative counts relating to the touching of A.A.'s testicles and three relating to the touching of R.M.'s testicles.

As reconfigured, the new charges avoided many of the pitfalls the trial court had found in dismissing the first indict ment. By dropping all charges relating to the office spanking of R.M., which had never occurred, the new indictment resolved the problems of hearsay and prior-misconduct evidence that Judge Curda had originally found, as well as the problem of insufficient evidence relating to the office spanking incident. Furthermore, by replacing the original charge of second-degree sexual abuse of a minor relating to A.A. (which had been based on the theory that Williams occupied a position of authority over A.A.) with a lesser charge of sexual abuse of a minor in the third degree (which required no evidence of Williams' authority over A.A.), the new indictment addressed the trial court's finding that there was insufficient evidence of Williams' authority over A.A., who was no longer a pupil of Williams' when the alleged abuse occurred. Finally, by dismissing the fourth- degree assault charges, the state rendered moot Judge Curda's original finding that insufficient evidence of physical injury had been presented.

The reconfigured charges nevertheless failed to resolve one remaining aspect of Judge Curda's original dismissal order: all remaining charges against Williams were based on the theory that Williams' touching of A.A.'s and R.M.'s testicles amounted to sexual contact. The evidence presented to the second grand jury in support of these charges was substantially similar to the evidence presented to the first grand jury; yet Judge Curda's original order of dismissal had, in part, been based on the conclusion that the evidence presented to the first grand jury was insufficient to establish that Williams' touchings amounted to sexual contact. . .

. . . Williams also admitted that he had spanked other boys. Although he declined to name anyone, he stated that he would be willing to admit or deny individual spankings if asked about specific people.