Opinion
Court of Appeals No. A-8746.
March 29, 2006.
Appeal from the Superior Court, Second Judicial District, Barrow, Michael Jeffery, Judge. Trial Court No. 2BA-03-288 CR.
David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Màrquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Vincent G. Bodfish was convicted of sexual assault in the second degree for sexually penetrating K.A. while she was incapacitated. As a special condition of probation, the court prohibited Bodfish from being employed or performing volunteer work where he would be in contact with girls under the age of sixteen. On appeal Bodfish argues that the evidence of K.A.'s incapacitation was insufficient to support his conviction, and that the trial court erred when it imposed the special condition of probation. We uphold Bodfish's conviction, but vacate the special condition of probation and direct the superior court to reconsider whether the evidence supports that condition.
Why we conclude that the evidence was sufficient to support Bodfish's conviction
An offender commits the crime of sexual assault in the second degree if he engages in sexual penetration with a person whom he knows is incapacitated or unaware that a sexual act is being committed. The jury convicted Bodfish under two separate theories of sexual assault in the second degree: that he engaged in sexual penetration with a person he knew was incapacitated and that he engaged in sexual penetration with a person he knew was unaware that a sexual act was being committed. Judge Jeffery merged the two convictions.
AS 11.41.420(a)(3).
AS 11.41.420(a)(3)(B).
AS 11.41.420(a)(3)(C).
Evidence is sufficient to support a conviction when fair minded jurors, exercising reasonable judgment and taking the evidence in the light most favorable to the government, could find that the government had met its burden of establishing the defendant's guilt beyond a reasonable doubt. Bodfish essentially concedes that he engaged in sexual penetration with K.A. There is substantial evidence to support Bodfish's concession, including eyewitness testimony, evidence that K.A.'s DNA was found on Bodfish's penis, and evidence of injuries to K.A.'s vaginal area.
Ashley v. State, 6 P.3d 738, 743 (Alaska App. 2000).
There was also substantial evidence from which the jury could find that K.A. was incapacitated and "unaware that a sexual act was being committed." Alaska Statute 11.41.470(2) defines "incapacitated" to mean "temporarily incapable of appraising the nature of one's own conduct or physically unable to express unwillingness to act[.]" "The question of whether a victim was incapacitated for purposes of a second-degree sexual assault prosecution is equivalent to the question of whether the victim was temporarily incapable of understanding that they were engaged in sexual penetration with the defendant."
See Ragsdale v. State, 23 P.3d 653, 657-58 (Alaska App. 2001).
Id. See also King v. State, 978 P.2d 1278, 1280 (Alaska App. 1999).
Viewing the evidence in the light most favorable to upholding the jury's verdict, the evidence presented shows that K.A. was extremely intoxicated when she and Bodfish engaged in sexual intercourse. K.A. and Bodfish started drinking in the early morning around 2:00 a.m. and continued into mid-morning until approximately 7:30 a.m. By her own account, and that of others as well, K.A. appeared to be very drunk, both before and after the sexual penetration took place. K.A. testified that she was in a "black out" state and could not remember anything that had happened throughout the early to mid-morning. K.A. testified that she did not remember having sex with anyone that night and that she had not given anyone permission to have sex with her. A test conducted at around 11:00 a.m. indicated that K.A.'s breath alcohol content was .173. Other witnesses testified that, based on their observations, K.A. did not know what she was doing that night.
Viewing this evidence in the light most favorable to upholding the verdict, the jury could reasonably conclude that K.A. was incapable of appraising the nature of her conduct — that is, given her level of intoxication, she was incapable of understanding that she was engaged in sexual penetration with Bodfish.
We also conclude that a reasonable jury could find that Bodfish was aware of a substantial probability that K.A. was incapacitated and unaware that Bodfish was sexually penetrating her.
In Ragsdale v. State, we stated that to prove sexual assault in the second degree under the theory that the defendant knew that their sexual partner was incapacitated, the State had to show:
That the defendant knew that their sexual partner was incapacitated or, alternatively, that the defendant was aware of a substantial probability that their sexual partner was incapacitated and the defendant did not actually believe otherwise ( i.e., did not actually believe that their sexual partner was capable of understanding that they were engaged in sexual penetration).
Id. (emphasis in original).
Alaska law states that a person who is unaware of a circumstance (such as a sexual partner's incapacity) because of intoxication acts knowingly if he would have been aware of the circumstance if he was not intoxicated. When we consider the evidence in the aggregate, viewed in the light most favorable to the State, we conclude that reasonable jurors could find that Bodfish was aware of a substantial probability that K.A. was incapacitated and unaware that she was engaging in sexual penetration. As mentioned above, Bodfish is held to the standard of what a sober person under the circumstances would know.
AS 11.81.900(a)(2).
Id. See also Hutchison v. State, 27 P.3d 774, 780-81 (Alaska App. 2001) (voluntary intoxication is not a defense to a crime that requires proof that defendant acted knowingly).
We therefore conclude that, evaluating the evidence in the light most favorable to the State, a reasonable jury could find Bodfish guilty beyond a reasonable doubt.
Why we vacate the trial court's probation condition limiting Bodfish's contact with girls under the age of sixteen
As a special condition of probation, Judge Jeffery prohibited Bodfish from being employed or performing volunteer work in which he would be in contact with girls under the age of sixteen. Bodfish objected to this condition on the ground that the probation condition was not sufficiently related to his offense. Bodfish contends that the probation condition severely limits his possibility of employment because most jobs would put him in contact with girls under the age of sixteen. He argues that there is no support for this probation condition because the record does not show that he engaged in any sexual activity with girls who were under the age of sixteen, the legal age of consent.
A sentencing judge has broad authority to impose special probation conditions on a defendant. However, conditions of probation must be "reasonably related to the rehabilitation of the offender and the protection of the public and . . . not be unduly restrictive of liberty." When a condition of probation restricts a fundamental constitutional right, we subject the probation condition to special scrutiny to determine whether the restriction serves the goals of rehabilitation and public safety.
Thomas v. State, 710 P.2d 1017, 1019 (Alaska App. 1985).
Roman, 570 P.2d 1235, 1240 (Alaska 1977); Edison v. State, 709 P.2d 510, 511 (Alaska App. 1985).
Roman, 570 P.2d at 1241 (quoting United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975)).
In imposing the condition of probation, Judge Jeffery noted that Bodfish was thirty-one years of age, while K.A. was seventeen years old, just over the age of consent. He also considered an incident that was reported in the presentence report. According to the report, Bodfish is the father of the child of a seventeen-year-old girl, E.A. It is unclear from the record whether E.A. was fifteen or sixteen years old at the time that she became sexually involved with Bodfish. But the presentence report concluded "that Mr. Bodfish may have a pattern of choosing girls within the 14 to 17 age range to have sex with." Based upon this conclusion, the presentence report recommended the probation condition.
In imposing the probation condition, Judge Jeffery conceded that he had inadequate information to determine whether Bodfish had engaged in any criminal conduct with E.A. because he could not determine how old E.A. was when she had sex with Bodfish. But he nevertheless imposed the probation condition.
The record does not establish that Bodfish engaged in any criminal conduct with underage girls. Yet the probation condition appears to place a stringent condition on Bodfish's opportunities for employment. Many jobs would place a person, at least occasionally, in contact with girls under the age of sixteen. We conclude that, at this point, the record does not establish a sufficient basis to impose the probation condition. We accordingly vacate the probation condition, and direct the superior court to reconsider whether the evidence supports that condition.
The conviction is AFFIRMED. The probation condition is VACATED and this case is REMANDED to the superior court. We retain jurisdiction of this appeal pending completion of the proceedings on remand. If Judge Jeffery concludes that the condition of probation is justified, he shall make findings supporting the condition. If he concludes the condition of probation is not justified, he may delete or modify the condition. The superior court shall forward the findings to this court within ninety days. The parties have until thirty days after the superior court enters its findings on remand to submit supplemental briefing addressing those findings.