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Ahvakana v. State11/1/2002
Ronald Ahvakana was convicted, based upon his plea, of criminally negligent homicide, a class B felony. Superior Court Judge Michael Jeffery imposed the maximum term of 10 years of imprisonment. Ahvakana appeals to this court, arguing that the sentence is excessive. We remand.
On Sunday, October 24, 1999, Ahvakana called to invite his cousin over to his residence to drink. E.S. answered the phone and told Ahvakana that her brother was out of town but that she would come over to his place to drink. E.S. went over to Ahvakana's residence and drank a large quantity of alcoholic beverages while watching movies. According to Ahvakana, E.S. indicated an interest in sexual activity and pulled down her pants. She then passed out. Ahvakana stated that he believed that she had not really passed out and put his fingers into her vagina and rectum. Ahvakana felt blood but concluded that E.S. had started her menstrual cycle. At some point in the evening, Ahvakana went to sleep. In the morning, he discovered that E.S. was lying on the floor next to his bed dead. There was a significant amount of blood on and under her body. After several minutes of cleaning up the blood from E.S. and himself, Ahvakana called the police.
The police found multiple scratches and bruises on E.S. She had human bite marks on her back, buttocks, and inner thigh. She was lying in a pool of blood, which had come from the pelvic area of her body. The doctor who performed the autopsy found a massive tear to E.S.'s rectal and anal area and concluded that E.S. had died from bleeding related to the tear. He concluded that the initial tear had been caused by a foreign object.
The State charged Ahvakana with murder in the second degree and sexual assault in the second degree. Ahvakana ultimately entered a plea to criminally negligent homicide.
Ahvakana was thirty-seven years old at the time of sentencing. In 1990, he had been convicted of two counts of assault in the fourth degree, a class A misdemeanor, for physically abusing his daughters. Ahvakana was sentenced to a year suspended sentence, and the convictions were set aside in 1994. In 2000, Ahvakana was convicted of sexual abuse of a minor in the second degree, a class B felony, for having sexual intercourse with a minor under the age of sixteen. The court sentenced Ahvakana to 5 years with 2 years suspended on this offense. Ahvakana was on release on this offense at the time he committed the homicide. But because he had not been convicted of the sexual abuse of a minor charge at the time he had committed the homicide, Ahvakana was a first felony offender for purposes of presumptive sentencing. Ahvakana's sentence for criminally negligent homicide is consecutive to his sexual abuse of a minor sentence.
Criminally negligent homicide is a class B felony with a maximum sentence of 10 years' imprisonment. The presumptive term for a second felony conviction is 4 years and the presumptive term for a third felony conviction is 6 years. Judge Jeffery found that four aggravating factors applied to Ahvakana's offense: (1) that Ahvakana "employed a dangerous instrument in furtherance of the offense" (Ahvakana conceded that E.S.'s injuries, whether caused by a fist or another object, were sufficiently serious to imply that a dangerous instrument was used); (2) that Ahvakana should have known that E.S. was particularly vulnerable; (3) that "the conduct constituting the offense was among the most serious conduct included in the definition of the offense;" and, (4) that Ahvakana was on release on another felony charge.
In sentencing Ahvakana, Judge Jeffery concluded that Ahvakana had committed a particularly serious criminally neglig
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