Opinion
Court of Appeals No. A-9728.
December 31, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-05-1654 Cr.
Douglas Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
The question presented in this appeal is whether a supplemental jury instruction, given during deliberations in response to a question from the jury, misled the jurors concerning the elements of the crime of attempted first-degree sexual assault.
The defendant, Lyndon V. Pasilan, was charged with attempted first-degree sexual assault under AS 11.41.410(a)(1). That is, he was charged with attempting to engage in sexual penetration with another person — a woman named A.R. — "without consent of that person".
The evidence at trial showed that Pasilan and A.R. were among a group of people who were drinking one evening at a party. According to A.R., she drank a lot of alcohol and then fell asleep. (A breath test administered to A.R. after the police arrived showed that she had a blood alcohol level of .340 percent, more than four times the legal limit.) The next thing A.R. remembered was waking up with Pasilan on top of her. A.R. had no clothing on her lower body, and Pasilan was trying to have sex with her.
A friend who was present in the apartment at this time testified that A.R. told Pasilan, "No, no. Stop." Another man then pulled Pasilan off of A.R. and told him to leave the residence.
But according to Pasilan, A.R. made sexual advances toward him, and she then consented to have sexual relations with him. Pasilan testified that he never heard A.R. say "no" or give any other indication that she did not consent.
During jury deliberations, the jurors sent the following question to the trial judge: "What degree of mental awareness does a person have to have to give consent [to sexual relations?]"
The trial judge interpreted this question as an inquiry into A.R.'s mental capacity at the time she awoke to find Pasilan trying to have sex with her. The judge declared that "[the jurors] need to have the legal definition as to when a person is incapable of making the decision to consent" so that they could evaluate "whether or not [A.R.] was consenting at the time she discovered [that] a sexual act was being perpetrated on her."
Pasilan's attorney objected to the court's proposed action. The defense attorney argued that, if the court answered the jury's inquiry by providing the jurors with a definition of what constitutes incapacitation (for purposes of the sexual offenses defined in AS 11.41), this would invite the jurors to find Pasilan guilty on the theory that A.R. was incapacitated, rather than on the theory charged by the State — i.e., the theory that Pasilan had attempted to engage in sexual penetration without A.R.'s consent.
Despite the defense attorney's objection, the trial judge answered the jurors' question with the following supplemental instruction: "In order for a person to have the mental awareness to consent [to sexual activity,] a person must be capable of appraising the nature of [her] own conduct or physically able to express her willingness or unwillingness to act."
After receiving this instruction, the jury deliberated further and ultimately convicted Pasilan of attempted first-degree sexual assault.
The problem with this instruction, as the defense attorney pointed out, is that it encouraged the jurors to convict Pasilan if they believed that A.R. was too drunk to meaningfully consent to sexual activity. In the context of the jurors' question, the supplemental instruction suggested that sexual activity can be viewed as "without consent" if the victim is too intoxicated to meaningfully consent. But this is mistaken.
Under Alaska law, it is indeed a crime to engage in sexual penetration with a person who is incapacitated (whether by intoxication or for some other reason) — but that crime is second-degree sexual assault, not first-degree. Compare AS 11.41.-410(a)(1) with AS 11.41.420(a)(3). First-degree sexual assault, on the other hand, requires proof that the sexual penetration was "without consent" as that phrase is defined in AS 11.41.470(8).
A juror might interpret the phrase "without consent" as encompassing any and all situations where the victim did not subjectively consent to the sexual activity.
But this interpretation would be wrong to the extent that it could include situations where the victim was too intoxicated or otherwise mentally incapacitated to give meaningful consent, or where the victim was otherwise unaware that sexual activity was occurring. This is because, under AS 11.41.470(8), the phrase "without consent" is defined in a special way. We explained this in Miller v. State:
In everyday usage, the phrase "without consent" might be interpreted to include situations in which the victim failed to give their consent because they were insensible and thus unaware of the sexual penetration. But . . . the legislature defined "without consent" in a specialized way. . . . According to [the] statute,
"without consent" means that a person
(A) with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of imminent death, imminent physical injury, or imminent kidnapping to be inflicted on anyone; or
(B) is incapacitated as a result of an act of the defendant.
. . . Thus, the definition of first-degree sexual assault does not encompass sexual penetration with an insensible victim. Instead, the legislature has made this conduct a lesser crime: second-degree sexual assault under AS 11.41.420-(a)(3)(B)-(C).
Miller, 44 P.3d 157, 159 (Alaska App. 2002).
As the above-quoted portion of the Miller opinion acknowledges, sexual penetration of a person who is incapacitated can be first-degree sexual assault if the State proves that the victim's incapacitation was caused by the defendant. But this was not the State's theory of prosecution in Pasilan's case. Rather, the State prosecuted Pasilan under the first clause of the definition of "without consent" — the clause that requires the State to prove that the victim was coerced, either by force or threat.
(Indeed, Pasilan's jury was not even apprised of the second part of the definition of "without consent" — the clause dealing with victims who are incapacitated as a result of the defendant's act. Pasilan's jury was only informed of the first part of definition.)
For these reasons, it was error for the trial judge to respond to the jury's question in a way which suggested that Pasilan could properly be convicted of attempted first-degree sexual assault if the jurors concluded that A.R. was too intoxicated to give meaningful consent to the sexual activity. Because the jurors were given this supplemental instruction, there is a significant possibility that the jurors convicted Pasilan of attempted first-degree sexual assault without requiring the State to prove an essential element of the offense: that the attempted sexual activity was "without consent" as that phrase is defined in AS 11.41.470(8).
The judgement of the superior court is REVERSED, and this case is remanded to the superior court for a new trial.