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Jury convicts man on two of three felony sex crimes

Frank W. Lee, 61, to be sentenced in December

Posted: September 12, 2013 - 11:00pm  |  Updated: September 13, 2013 - 12:07am
Frank W. Lee, 60, left, and Assistant Public Defender Eric Hedland look toward audible reactions in the public seating area in Juneau Superior Court Thursday after the jury found Lee guilty on two of three felony sex crimes. Paralegal Thea Howard is in the background. Lee stood trial for allegedly sexually assaulting a woman who was sleeping over at his house after his 60th birthday celebration last year.  Michael Penn | Juneau Empire
Michael Penn | Juneau Empire
Frank W. Lee, 60, left, and Assistant Public Defender Eric Hedland look toward audible reactions in the public seating area in Juneau Superior Court Thursday after the jury found Lee guilty on two of three felony sex crimes. Paralegal Thea Howard is in the background. Lee stood trial for allegedly sexually assaulting a woman who was sleeping over at his house after his 60th birthday celebration last year.

A jury on Thursday convicted a 61-year-old Juneau man on two of three felony sex crimes for reportedly performing sex acts on a younger family member while she was sleeping.

The 12 jurors deliberated for about seven hours over two days before finding Frank W. Lee guilty on two counts of second-degree sexual assault and not guilty on one count of first-degree sexual assault.

The audience in the courtroom could see Lee’s jaw drop and his head tilt to the side in an expression of disbelief as the jury foreperson announced the verdict a little after 2 p.m. in Juneau Superior Court. Lee and his attorney had argued the woman had fabricated the allegations.

The announcement prompted audible sobs of relief from the victim’s stepmother, who was sitting in the public seating area in the back of the courtroom. She rushed out the door to call her stepdaughter with the news.

“We were both crying,” she said in an interview afterward. “I could barely keep my composure I was so happy.”

Prosecutors said Lee performed oral sex on the victim as she was sleeping at Lee’s apartment during his 60th birthday celebration last September. The woman testified at trial she awoke during the assault, and it was reported to police shortly afterward. The Empire is not disclosing the woman’s name or how she is related to Lee in order to protect her identity. The two, however, are not related by blood.

The state’s case largely hinged on incriminating statements police obtained from Lee in a phone call they recorded the day after the incident. Police were able to record the call without Lee’s knowledge with the authorization of a Glass warrant.

Juneau District Attorney James Scott described the case as a “difficult, if not a close” one given the lack of DNA evidence, which the defense argued should have been present if the allegations were true. The defense established, through expert witnesses such as the director of the forensic science program at Michigan State University, that Lee’s saliva should have been found on the woman but it wasn’t.

“We’re extremely thankful for the service of the jury in what we know was a difficult, if not a close case,” Scott told the Empire in an interview after court adjourned.

Before the jury was excused, Scott requested the judge poll the jurors individually to ensure the verdict read aloud was their “true and correct” verdict. Each of the eight women and four men confirmed it was. Scott was filling in for Assistant District Attorney Amy Williams who prosecuted the case but had to leave her office before the verdict was reached.

After the jury was excused, Assistant Public Defender Eric Hedland made a lengthy plea to the court to acquit his client regardless of the verdict. Hedland pored over much of the evidence presented throughout the weeklong trial, including the fact that the DNA samples were collected within hours of the report of the assault, the integrity of the samples were uncompromised and the DNA analyst from the state crime lab in Anchorage testified Lee’s DNA was not found on the alleged victim’s body and vice versa.

“The question before the court ... is whether the DNA evidence, with the DNA evidence, if a reasonable juror could still find beyond a reasonable doubt that Mr. Lee committed the offense,” Hedland said.

Hedland argued that if emotions are set aside and if the facts and DNA evidence are analyzed in “a mechanical way,” a reasonable juror would not have been able to convict Lee.

“We’re in a precarious place in this field, from my perspective, a sort of very disillusioned place if DNA evidence can only be evidence of guilt,” Hedland added. “It’s not a 50-50 proposition.”

Judge Louis Menendez denied the motion and upheld the jury’s findings. He said he was not disputing the forensic evidence put forth by the expert witnesses, but he thought the state still presented sufficient evidence that allowed the jury to convict in spite of the high legal standard of “beyond a reasonable doubt.” The judge noted that the Glass warrant conversation likely played a “critical” role in the jury’s decision making process.

Prosecutors argued at trial that Lee made admissions during the Glass warrant phone call as well as revealed that he sexually penetrated the woman digitally, which they said the victim was previously unaware of. In the recording, portions of which were played for the jury a number of times, Lee is heard saying that if the alleged victim were to “come here right now,” he would still do it.

Hedland attempted to combat the “emotional power,” as he put it, in that statement by asking the jury to focus on the forensic evidence in the case, which he described as exonerating. He also argued Lee did not make admissions during the phone call so much as prosecutors inferred he did. Lee never admitted the woman was asleep or that it was not consensual, both of which are elements the state has to prove, Hedland pointed out.

Lee is scheduled to be sentenced in early December. The maximum possible penalty he could be facing for the two convictions, which are class ‘B’ felony sex offenses, is 99 years in prison. He is presumptive to serve five to 15 years for each count.

The count for which Lee was found not guilty, first-degree sexual assault, is an unclassified felony that carries the same maximum possibly penalty of 99 years but a higher presumptive term.

The first- and second-degree sexual assault statutes contain different language in state statutes. The first-degree charge entails a defendant knowingly engaging in sexual penetration with the victim without consent. The second-degree charge entails a defendant knowingly engaging in sexual penetration with a victim knowing the victim was “incapacitated or unaware that a sexual act was being committed.” Prosecutors in this case charged Lee with two counts of second-degree to account for both the oral and digital penetration.

Despite the two guilty verdicts, Lee’s family remains convinced on his innocence.

“I’m just in shock, you know?” Lee’s sister Mable Lee said, choking up during in an interview in the courtroom lobby. “It’s not real.”

Another one of his sisters, Fran Warden, said she was surprised to hear the jury’s decision, in light of the lack of DNA evidence.

“I mean, if I was sitting on the jury and they told me there was absolutely nothing on both of them, I would be, like, well, duh,” she said.

Meanwhile, the victim’s stepmother said she feels as if justice has been served. The Empire is not disclosing her name in order to protect the identity of her stepdaughter.

“I am just elated,” she said. “I had a calmness that came over me this morning that I knew the right decision was going to be made. I just felt calm. The whole week I’ve been just all jittery, jittery coming to court. When I got up this morning, I thought about it and I prayed about it and, of course, a calmness came over me that said justice is done.”

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

 

 

•••

 

 

Original article appears below:

 

A jury on Thursday convicted a 61-year-old Juneau man on two of three felony sex crimes for reportedly performing sex acts on a younger family member while she was sleeping.

The 12 jurors deliberated for about seven hours over two days before finding Frank W. Lee guilty on two counts of second-degree sexual assault and not guilty on one count of first-degree sexual assault.

The audience in the courtroom could see Lee’s jaw drop and his head tilt to the side in an expression of disbelief as the jury foreperson announced the verdict a little after 2 p.m. in Juneau Superior Court. Lee and his attorney had argued the woman had fabricated the allegations.

The announcement prompted audible sobs of relief from the victim’s stepmother, who was sitting in the public seating area in the back of the courtroom. She rushed out the door to call her stepdaughter with the news.

“We were both crying,” the stepmother said in an interview afterward. “I could barely keep my composure I was so happy.”

Prosecutors say Lee engaged in oral and digital penetration of the victim as she was sleeping over at Lee’s apartment during his 60th birthday celebration last September. The woman testified at trial she awoke during the assault, which was reported to police shortly afterward.

The maximum possible penalty Lee could be facing for the two convictions is 99 years in prison. He will be sentenced in December.

This is a developing story. Check back for updates.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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