Appeals court judge denies rape appeal

PALMER — A state court slapped down the appeal of a man convicted in 2007 of raping and cutting his girlfriend.

Aric Tolen, 26, raised three points: Superior Court Judge Eric Smith shouldn’t have referred to his girlfriend as a “victim;” Smith shouldn’t have told the jury that her drug and alcohol use wasn’t relevant; and he also argued his sentence of 85 years in prison with 15 suspended for 70 to serve was excessive.

“We agree with Tolen that it was error for Judge Smith to refer to (the girlfriend) as ‘the victim.’ Whether (the girlfriend) was a victim was an issue for the jury to determine. But we conclude that the error was harmless,” state Appellate Court Judge Robert Coats wrote in the ruling. “We conclude that Judge Smith did not err in instructing the jury that any drug or alcohol use by (the girlfriend) was not relevant to the decision in this case.”

Coats wrote that Smith’s sentence for Tolen was also not excessive.

The case began with a 911 call on New Year’s Day 2007. Tolen and his family had his parents and sister over for a celebration.

“At around 9 to 10 p.m., the gathering disbanded, leaving Tolen, S.C., and the children alone in the trailer. Tolen continued to drink and became very drunk,” Coats wrote.

Over the course of the evening and into the wee morning hours, Tolen got progressively angrier with his girlfriend, accusing her of cheating on him. The girlfriend testified that he raped her and cut her with a knife as he interrogated her about her alleged infidelity.

“Each time he asked a question, Tolen would cut her with the knife. He told her that if she did not tell the truth, he would push down harder on the knife,” Coats wrote.

“At one point, Tolen put the knife to her neck and made cuts across her neck. At another point, he put the tip of the knife against her neck and said, ‘I should just push it through and end it now, huh?’ (The girlfriend) begged him not to do that,” Coats wrote.

Eventually the woman managed to escape the trailer and ran, partially clothed, to a neighbor’s trailer to summon help.

“At trial, Tolen took the stand in his own defense. He claimed (his girlfriend) had inflicted the knife wounds on herself. He also claimed that (she) had consented to … sex. The jury convicted Tolen of all counts,” Coats wrote.

Coats cited other cases in which an accuser was referred to as a victim in open court to slap down Tolen’s first claim. All of them found that it was not OK to use the word “victim,” but nearly all of them also found it wasn’t a “reversible error” — the legal way of describing a big enough problem to overturn a conviction.

“In general, courts have only found reversible error where the term was used multiple times and/or was coupled with other prejudicial error or misconduct,” Coats wrote.

He dismisses the drug and alcohol claim quicker, saying Tolen didn’t bring it up at trial or offer any evidence that his accuser was drunk or high at the time.

As for the sentence, Coats goes to the sentencing guidelines in statute, finding that while Tolen got near the maximum for his crimes, there was a reason for that.

“In sentencing Tolen, Judge Smith generally observed that, in his allocution prior to sentencing, Tolen never accepted any responsibility for his actions, but blamed everyone else.

He concluded that Tolen’s failure to accept responsibility raised questions about Tolen’s potential for rehabilitation,” Coats wrote.

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.