Opinion
A-13018
12-08-2021
TIMOTHY PAUL WALUNGA, Appellant, v. STATE OF ALASKA, Appellee.
Callie Patton Kim (opening brief), and George W.P. Madeira Jr. (reply brief), Assistant Public Defenders, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-14-05074 CR Michael D. Corey, Judge.
Callie Patton Kim (opening brief), and George W.P. Madeira Jr. (reply brief), Assistant Public Defenders, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
WOLLENBERG JUDGE
Following a jury trial, Timothy Paul Walunga was convicted of third-degree sexual assault for touching the genitals of an incapacitated woman, F.Y. The jury also found an aggravating factor - that Walunga's conduct was among the most serious included within the definition of the offense.
Former AS 11.41.425(a)(1)(B) (2014). The jury also found Walunga guilty of attempted third-degree sexual assault based on the same incident. The trial court merged the verdicts into a single conviction.
AS 12.55. I55(c)(IO).
Walunga raises two claims on appeal. First, he argues that the trial court erred in ruling that, if he testified at trial, the prosecutor could introduce evidence of his prior sexual assault conviction for impeachment purposes. We conclude that Walunga did not preserve this claim because he did not testify, and the jury therefore never heard evidence of his prior conviction.
Walunga also argues that the trial court erred in failing to grant his motion for a judgment of acquittal on the "most serious" aggravating factor. We agree with Walunga that the State's evidence was insufficient to support this aggravating factor. Since the trial court did not rely on the aggravating factor at sentencing and instead imposed a sentence within the presumptive range, we ordinarily would conclude that this error was moot. However, the trial court's sentencing remarks suggest that it may have found a mitigating factor-that Walunga's conduct was among the least serious within the definition of the offense - if the court had not been bound by the jury's contrary finding on the aggravating factor. Accordingly, we vacate the finding on the aggravating factor and remand this case for further consideration of Walunga's proposed mitigating factor.
See Allen v. State, 56 P.3d 683, 685 (Alaska App. 2002). The trial court also found another, non-Blakely aggravator - AS 12.55.155(c)(7) (more serious prior felony conviction) - that would have authorized it to exceed the high end of the presumptive range.
Background facts and procedural history
In June 2014, a group of three friends saw a woman, F.Y., who appeared to be unconscious, lying on the front steps of a building. According to one of the friends, a man - later identified as Timothy Walunga - was sitting next to F. Y. with his hand down the front of her pants. When a second member of the group called out to Walunga, Walunga stood up and walked away. The group decided to call the police and trailed after Walunga in a car.
When the police arrived, F.Y. was asleep in the fetal position. She was heavily intoxicated and drifted in and out of consciousness as an officer transported her for a sexual assault examination. A nurse and a detective determined that she was too intoxicated to undergo the examination but later collected buccal swabs from her.
Meanwhile, another officer caught up with Walunga and stopped him. Walunga's speech was slurred, and he offered nonsensical responses to questions. The officer took him into custody, and a detective later swabbed his hands and fingers to collect DNA.
Forensic testing confirmed the presence of F.Y.'s DNA on both of Walunga's hands. As a lab analyst from the Alaska Scientific Crime Detection Laboratory would later testify, the amount of the DNA was more consistent with a "wet source" transfer than a "dry source" transfer - i.e., consistent with contact with F.Y's bodily fluids.
Walunga was indicted on charges of attempted second-degree sexual assault (attempted sexual penetration with a person the defendant knows is incapacitated or unaware that a sexual act is being committed) and third-degree sexual assault (sexual contact with a person the defendant knows is incapacitated or unaware that a sexual act is being committed). F.Y. passed away before the case went to trial.
Former AS 11.41.420(a)(3)(B)-(C) (2014) & AS 11.31.100(a), and former AS 11.41.425(a)(1)(B)-(C) (2014), respectively. Walunga initially faced an additional charge of second-degree sexual assault for engaging in sexual penetration with an incapacitated person. Before trial, however, the trial court dismissed this charge, finding that the evidence presented to the grand jury-which consisted solely of the testimony of a police officer and a single eyewitness, and did not include the subsequent DNA results - was insufficient to establish penetration.
Walunga was tried twice.
The first jury found Walunga guilty of attempted second-degree sexual assault and third-degree sexual assault, as charged. Following the trial, the court ordered a new trial based on improper statements by the prosecutor.
At the second trial, Walunga argued that there was insufficient evidence to convict him because the sole eyewitness who testified at trial only briefly saw the incident, and the DNA evidence was consistent with non-criminal conduct. Walunga also suggested that he was too intoxicated to form the intent to penetrate F.Y., and he requested-and received-an instruction informing the jury that voluntary intoxication could negate specific intent.
The jury acquitted Walunga of attempted second-degree sexual assault, but found him guilty of the lesser included offense of attempted third-degree sexual assault. The jury also found Walunga guilty of the separate count of third-degree sexual assault.
Because the State submitted a notice of intent to seek aggravating factors, the trial proceeded into a second phase, and the jury considered whether Walunga's conduct was among the most serious conduct included within the definition of third- degree sexual assault. The State relied on a single theory for why Walunga's conduct was among the most serious: that Walunga had penetrated F.Y.'s genitals, not merely touched her genitals, so he had actually committed the greater offense of second-degree sexual assault.
AS 12.55. 155(c)(10).
Walunga moved for a judgment of acquittal on this aggravating factor, arguing that there was insufficient evidence of penetration to submit the issue to the jury. The trial court took the motion under advisement and allowed the jury to render a decision. The jury ultimately found the aggravating factor beyond a reasonable doubt. Despite Walunga's prompting, the trial court never ruled on the motion for judgment of acquittal.
At sentencing, the trial court declined to find any of Walunga's proposed mitigating factors, including that his conduct was among the least serious included in the definition of third-degree sexual assault. The court found that the jury's verdict on the most serious aggravating factor was "mutually exclusive" with a finding that Walunga's conduct was among the least serious. However, the court indicated that, but for the jury's contrary finding, it may have found the least serious mitigating factor. The court ultimately imposed an active term of imprisonment at the bottom of the presumptive range.
AS 12.55.155(d)(9).
Walunga failed to preserve his objection to the admissibility of his prior conviction
Shortly before the State presented its final witness in Walunga's second trial, the prosecutor informed the court that Walunga had a prior conviction for attempted first-degree sexual assault, and sought permission to cross-examine Walunga using this evidence if Walunga testified. Walunga's attorney objected, arguing that the prior conviction was dissimilar to the charged conduct and remote in time - and thus, was more prejudicial than probative under Alaska Evidence Rule 403. The trial court ruled that the State could use the conviction to impeach Walunga, erroneously concluding that Evidence Rule 403 had no bearing on its admissibility.
See Alaska R. Evid. 404(b)(3) (providing, in pertinent part, that "[i]n a prosecution for a crime of attempt to commit sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible").
See Bingaman v. State, 76 P.3d 398, 416 (Alaska App. 2003) ("Because of the danger posed by proving a defendant's character through evidence of specific acts, we conclude that whenever the government offers evidence of a defendant's other bad acts under Evidence Rules 404(b)(2), (b)(3), or (b)(4), trial judges must conduct a balancing under Evidence Rule 403 and must explain their decision on the record." (emphasis in original)); see also Wagner v. State, 347 P.3d 109, 113 (Alaska 2015) ("[A]ll evidence must pass Alaska Evidence Rule 403 's probative/prejudicial balancing test.").
Walunga ultimately elected not to testify, and the jury never heard evidence of his prior conviction.
On appeal, Walunga acknowledges that under the United States Supreme Court's decision in Luce v. United States, adopted by the Alaska Supreme Court in State v. Wickham, a defendant ordinarily must testify in order to preserve a challenge to proposed impeachment by a prior conviction. As the Alaska Supreme Court has explained, Luce identified four concerns that counsel against the review of impeachment rulings in the absence of a defendant's testimony: (1) such rulings are preliminary, contingent on the defendant's testimony, and may be reconsidered as the trial progresses; (2) a defendant's decision whether to testify turns on many factors, so a reviewing court cannot be confident that an adverse ruling was the sole reason a defendant chose not to testify; (3) a reviewing court cannot know whether the State ultimately would have introduced the impeachment evidence; and (4) almost any error would require automatic reversal, creating the potential for "windfall" reversals, since a reviewing court would be unable to assess the effect of an erroneous impeachment ruling on the record as a whole.
See Luce v. United States, 469 U.S. 38, 43 (1984) (holding that "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify"); State v. Wickham, 796 P.2d 1354, 1357-58 (Alaska 1990) (adopting Luce as a rule of state criminal procedure and holding that "a defendant must testify to preserve for review a claim of improper impeachment by prior conviction").
Wagner v. State, 347 P.3d 109, 111-12 (Alaska 2015) (quoting and citing Luce, 469 U.S. at 41-42).
Walunga urges us to recognize an exception to the LucelWickham rule based on what he characterizes as the "unique procedural history of this case." He points to two aspects of his case, which he believes distinguish it from Luce.
First, Walunga notes that the State made its application to introduce his prior conviction mid-trial, shortly before concluding its case-in-chief, rather than in a pretrial motion. While it is true that the State's mid-trial application in Walunga's case was made closer in time to Walunga's decision to testify than a typical pretrial request, this does not alleviate the concern that the trial court's ruling was preliminary and subj ect to reconsideration. After the ruling, the State presented additional evidence, including testimony from the officer who first contacted Walunga and Walunga's statements to the police and from his first trial. If Walunga had elected to testify after the admission of this additional evidence, the trial court would have had an opportunity to reevaluate its ruling in light of the entirety of the State's case, just as the prosecutor would have had an opportunity to decide ultimately whether to impeach Walunga by means of his prior conviction.
See Alaska R. Crim. P. 42(k) (recognizing the court's power to reconsider a ruling at the request of a party or on the court's own motion).
See Wagner, 347 P.3d at 113 (recognizing that evidence admitted as trial progresses may lead the trial court to reconsider a preliminary ruling on impeachment evidence, and that the availability of other modes of impeachment may cause the State to abandon its plan to use the contested evidence in favor of other means of impeachment carrying a lower risk of reversal on appeal).
Second, Walunga notes that he testified at his first trial, and he asks us to infer that his decision not to testify at his second trial was the direct result of the trial court's ruling on the impeachment evidence. But we decline to speculate as to whether the trial court's ruling was the sole reason that Walunga chose not to testify at his second trial. As Walunga appears to acknowledge, we cannot be sure that his testimony at the first trial would have matched his testimony at the second. Any inconsistencies may have given the State additional grounds for impeachment, and we cannot know what sort of cross-examination the State would have conducted if he took the stand for a second time.
See Wickham, 796 P.2d at 1358 (explaining that it was not possible to conduct harmless error review of impeachment ruling from defendant's proffered testimony because reviewing court could not know how damaging State's cross-examination would be).
Moreover, when the trial court asked Walunga whether he wished to testify, he was silent as to whether the impeachment ruling had an effect on his decision. It may be that Walunga chose not to testify because of the impeachment ruling, but it is equally plausible that the State's introduction of his former testimony made it unnecessary for him to take the stand for a second time. (Based on that testimony,
Cf. Wagner, 347 P.3d at 113-14 (finding it "significant," although not conclusive, that the defendant failed to mention a challenged ruling when the court inquired about whether he wished to testify).
Walunga's attorney was able to argue - as he did at the first trial - that the State's eyewitness was mistaken about the placement of Walunga's hand, because he observed Walunga for only "a second or two," and that F.Y.'s DNA was on Walunga's hands because the two had shared a bottle of alcohol.) Luce cautions against this sort of speculation, and Alaska courts have subsequently rejected similar invitations on more robust records.
See Wickham, 796 P.2d at 1358 (rejecting suggestion that it was possible to review the challenged impeachment ruling when the defendant did not testify, even though the defendant disclosed his proposed testimony in a detailed offer of proof); Sam v. State, 842 P.2d 596, 598-99 (Alaska App. 1992) (concluding that Luce and Wickham applied even though the defendant had contemporaneously declared that his decision was the result of the trial court's ruling).
The fact that this Court would have to resort to conjecture about Walunga's motives, as well as the effect the impeachment evidence may have had on Walunga's testimony, implicates the same concerns raised in Luce and Wickham. Just as in those prior cases, "the factual vacuum caused by the absence of [Walunga's] testimony creates an unacceptable level of speculation."
Wickham, 796 P.2d at 1358; see also Wagner, 347 P.3d at 113.
The procedural history of Walunga's case does not negate the speculation that would be required to resolve his claim on appeal. We conclude that, under Luce and Wickham, Walunga failed to preserve his claim of error with regard to the impeachment evidence by declining to testify.
There was insufficient evidence to support the State's theory that Walunga's conduct was among the most serious
Walunga also argues that the evidence was insufficient to support the jury's finding of aggravating factor AS 12.55. l55(c)(10) - i.e., that Walunga's conduct was among the most serious included within the definition of third-degree sexual assault. In order to explain our decision on this issue, we need to provide additional procedural background.
Following the return of the jury's verdicts during the guilt phase at Walunga's second trial, the State sought to prove to the jury the "most serious" aggravator with respect to the third-degree sexual assault conviction. The State did not intend to present any additional evidence in support of the aggravating factor, but rather announced its intent solely to present arguments to the jury.
The State recommended giving the jury a basic instruction that tracked the statutory language of the "most serious" aggravator without any further elaboration.Although the trial court expressed reservations about how the jury would decide whether Walunga's conduct was among the most serious without additional guidance, the court agreed to the State's proposal. The court gave the following instruction on the aggravator:
See AS 12.55.155(c)(10).
TIMOTHY PAUL WALUNGA, the defendant in this case, was convicted of Sexual Assault in the Third Degree. You must now determine if the following aggravating factor is proved beyond a reasonable doubt as to this charge. To prove this aggravating factor, the State must prove beyond a reasonable doubt the following with respect to Charge II:
The conduct constituting the offense was among the most serious conduct included in the definition of the offense.
If you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, then you shall find the aggravating factor proved and mark the findings form YES. If, on the other hand, you find
from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt, then you shall find the aggravating factor not proved and mark the findings form NO.
Your decision concerning his aggravating factor must be unanimous.
There were no additional substantive instructions on the aggravator.
Prior to arguments, Walunga's attorney moved for a judgment of acquittal on the aggravator. The attorney argued that there was insufficient evidence to establish that Walunga had sexually penetrated F. Y. He also argued that there were insufficient additional aggravating circumstances to establish the "most serious" aggravator. The court reserved decision on the motion.
In argument, the prosecutor asserted that Walunga's conduct "constitute[d] something more" than third-degree sexual assault - that it was second-degree sexual assault because, according to the State, Walunga had actually penetrated F.Y.
See Benboe v. State, 698 P.2d 1230, 1231 n.2 (Alaska App. 1985) ("Where the person's conduct in fact amounted to commission of a greater offense, the court may find that the conduct was among the most serious conduct included in the definition of the offense."). Compare former AS 11.41.425(a)(1) (2014) ("An offender commits the crime of sexual assault in the third degree if the offender... engages in sexual contact with a person who the offender knows is (A) mentally incapable; (B) incapacitated; or (C) unaware that a sexual act is being committed[.]") with former AS 11.41.420(a)(3) (2014) ("An offender commits the crime of sexual assault in the second degree if... the offender engages in sexual penetration with a person who the offender knows is (A) mentally incapable; (B) incapacitated; or (C) unaware that a sexual act is being committed[.]").
When Walunga objected that this argumentwas inconsistent with the jury's verdict, the court expressed significant concern that the prosecutor was attempting to relitigate Walunga's underlying guilt - or, at the very least, that the jury would view it that way and be confused about what it was being asked to consider. The court initially stated that it intended to instruct the jury that "they are not permitted to revisit their prior verdicts." But, for reasons that are unclear from the record, the court changed its mind and instead told the jurors to disregard any of the parties' arguments that deviated from the instructions or the evidence - a general instruction that made little sense in this factual context.
The prosecutor then completed his argument, stating that a "robust, wet source transfer" of F.Y.'s DNA onto "both of [Walunga's] index fingers" indicated penetration, not mere contact.
In response, Walunga's attorney contended that there had been no penetration-and that the sexual contact in which Walunga had engaged was not among the most serious included in the definition of third-degree sexual assault. In particular, Walunga argued that the jury should not find the most serious aggravated because he had not engaged in sexual penetration, the conduct was short in duration, F.Y. was not otherwise injured, and there was no evidence that the conduct had occurred more than once.
Following further deliberations, the jury found the most serious aggravated.
On appeal, Walunga raises several challenges to the jury's finding of the most serious aggravator. First, Walunga argues that the court plainly erred in submitting the legal component of the most serious aggravator to the jury. In particular, Walunga relies on the Alaska Supreme Court's decision in Michael`v. State, in which the supreme court held that the finding of an aggravator involves a mixed question of law and fact.Walunga notes that, under Blakely, only factual findings that alter a defendant's potential maximum sentence must be submitted to a jury, and he therefore contends that it was error for the court to ask the jury to find whether the facts amounted to the most serious aggravator as a matter of law.
Michael v. State, 115 P.3d5l7, 519 (Alaska 2005).
Blakely v. Washington, 542 U.S. 296, 301-04 (2004).
But the Alaska legislature has passed a statute that specifically states that the "most serious" aggravator under AS 12.55.I55(c)(IO) "shall be presented to a trial jury. " Moreover, in this particular case, where the State argued that Walunga's conduct constituted a higher degree of offense, a factual finding by the jury that Walunga actually committed the higher offense was tantamount to making the legal finding that his conduct was "among the most serious." We therefore cannot find, in the absence of an objection, that the judge committed plain error in submitting the ultimate legal determination of the aggravator itself to the jury.
AS 12.55.155(f)(2).
See Benboe, 698 P.2d at 1231 n.2 (recognizing that the "most serious" aggravating factor can be established through evidence that the defendant's "conduct in fact amounted to commission of a greater offense"); see also Joseph v. State, 2006 WL 2988551, at *3 (Alaska App. Oct. 19, 2006) (unpublished) (recognizing that where the defendant pleaded guilty to a lesser offense, but conceded that his conduct nonetheless constituted a higher degree of offense, the "most serious" aggravator applied as a matter of law).
See Whitman v. State, 2008 WL 2697765, at *6 (Alaska App. July 9, 2008) (unpublished) (explaining that reasonable judges could conclude that the legislature acted within its authority when it granted decision-making power to juries over the (c)(10) aggravator).
Second, Walunga argues that the court's decision to instruct the jury with the bare statutory language of the aggravator provided little guidance to the jury as to what conduct could comprise the most serious aggravator as a factual matter.
We generally agree with Walunga that a jury being asked to determine the most serious aggravator should be instructed on the requisite factual findings upon which the State is asking the jury to base its verdict. Here, the State's sole theory of prosecution for the aggravator was that Walunga had engaged in sexual penetration. The jury should therefore have been instructed on the elements of the higher offense, second-degree sexual assault, and been asked to make an explicit finding of whether Walunga knowingly engaged in penetration. This would have facilitated review of the jury's legal conclusion that Walunga's conduct was among the most serious - and alleviated potential concerns about whether the jury had reached inconsistent verdicts.
That said, Walunga did not object to the instructions given by the court, so he has to establish that the court committed plain error in failing to give additional instructions to the jury. We need not decide whether he has met this test because we agree with his remaining argument - that the trial court erred in failing to grant his motion for judgment of acquittal on the most serious aggravator.
When we review a claim of insufficiency, we view the evidence - and all reasonable inferences from that evidence - in the light most favorable to the jury's verdict. We then ask whether a reasonable juror could have concluded that the defendant was guilty (or here, that the aggravator was established) beyond a reasonable doubt.
Phornsavanh v. State, 481 P.3d 1145, 1156 (Alaska App. 2021).
Id.
We have previously held that "[w]here the person's conduct in fact amounted to commission of a greater offense, the court may find that the conduct was among the most serious conduct included in the definition of the offense." In order to prove the greater offense in this case - i.e., the crime of second-degree sexual assault - the State had to establish that Walunga knowingly penetrated another person, knowing that the other person was incapacitated or unaware of the sexual act. Sexual penetration is defined in relevant part as "an intrusion, however slight, of an object or any part of a person's body into the genital or anal opening of another person's body[.]"
Benboe, 698 P.2d at 1231 n.2.
Former AS 11.41.420(a)(3)(B)-(C) (2014).
AS 11.81.900(b)(62)(A).
The sole theory of "most serious" presented by the prosecutor was that Walunga actually engaged in sexual penetration of F.Y., thus committing the higher degree of offense. But there was no direct evidence of penetration, and little evidence from which it could be inferred. F.Y. did not testify, and thus there was no first-hand account of what had occurred. The single eyewitness who testified at trial could not say whether Walunga penetrated F.Y.; he testified only that he saw Walunga's hand in the front of F.Y.' s pants for "a second or two." And because F.Y. did not undergo a forensic examination, there was no evidence of physical injuries to the vaginal canal.
Early on in this case, a grand jury indicted Walunga for second-degree sexual assault for sexually penetrating F.Y. The court dismissed this count of the indictment based on its conclusion that the State had presented insufficient evidence of penetration. The court noted that the only eyewitness to testify at the grand jury had expressed concern that some form of "sexual abuse" had occurred when Walunga put his hand in the front of F.Y.' s pants, but did not testify to penetration. The court also noted that one of the responding officers testified that it was impossible to tell if the abuse had included penetration, and that there was no evidence of tearing or bruising because F. Y. had not undergone a forensic examination.
However, at the time of the court's ruling dismissing the second-degree sexual assault count, the DNA test results were not yet available. So the key question is whether the addition of the DNA results rendered the evidence sufficient to show penetration beyond a reasonable doubt.
Like the other evidence, the DNA results lacked any specific indicators of penetration. According to the State's crime lab analyst, it was not possible for her to determine the particular bodily source of F. Y.' s DNA; she expressly acknowledged that, with the kind of DNA testing done by the crime lab, one "do[es] not know where the cells came from." Nor could she say how the DNA was transferred onto Walunga's hands. Although the State argued in closing that the crime lab found F.Y.'s DNA specifically on Walunga's index fingers, neither the test results nor the analyst's testimony appear to support this level of specificity. Instead, the analyst's testimony and the lab results reflect the presence of F.Y.'s DNA on Walunga's fingers collectively.
Beyond this, the analyst opined that, given the strength of the sample of F.Y.'s DNA on Walunga's fingers, the sample reflected either "a really fresh collection," "rigorous contact," or "a wet source of contact" (i. e., contact with bodily fluids). But she declined to offer an opinion as to whether the sample was actually a "wet source" transfer and further explained that a wet source transfer does not require much wetness - it could include, for instance, saliva from a can or a cigarette butt. Indeed, given the recency of the eyewitness's report, there seems little doubt that the sample was the result of a "fresh" collection.
For these reasons, we conclude that, even with the addition of the DNA results, the totality of the evidence remained too nebulous and speculative to support a finding of penetration beyond a reasonable doubt.
See Augustine v. State, 355 P.3d 573, 590 (Alaska App. 2015) (noting that "there are occasional cases where, even if the jury finds the State's evidence credible, that evidence is still so nebulous, confused, or speculative that it is not sufficient to support a reasonable conclusion that the government has proved the defendant's guilt beyond a reasonable doubt").
In reviewing challenges to the sufficiency of the evidence, appellate courts must credit every reasonable inference that can be drawn in the verdict's favor, deferring to the jury's assessment of witness credibility and its assessment of the weight of the evidence. But, as the Second Circuit has explained, "[a]n inference is not a suspicion or a guess. It is a reasoned, logical decision to conclude that a disputed fact exists on the basis of another fact that is known to exist." To survive a motion for a judgment of acquittal, the State therefore "must do more than introduce evidence at least as consistent with innocence as with guilt."
Phornsavanh, 481 P.3d at 1156; see also United States v. Pauling, 924 F.3d 649, 656 (2d Cir. 2019).
Pauling, 924 F.3d at 656 (quoting Siewe v. Gonzales, 480 F.3d 160, 168 (2d Cir. 2007)).
Id. (quoting United States v.D'Amato, 39 F.3d 1249, 1256 (2d Cir. 1994)).
Here, there is no fact upon which to predicate a finding, beyond a reasonable doubt, that Walunga engaged in penetration. Testimony that the DNA recovered was consistent with a wet source transfer does no more than generate speculation about whether penetration occurred.
We reached a similar conclusion in our unpublished decision in Paul v. State. In Paul, we held that evidence that the defendant had touched the victim in the area of her vagina, that the victim told her mother that the defendant had "used his fingers," and that the defendant had told the victim that she was "wet" was insufficient to establish sexual penetration, although it was sufficient to establish sexual contact.In doing so, we stated that "a criminal conviction cannot rest on nebulous statements and speculation."
Paul v. State, 2020 WL 7238379 (Alaska App. Dec. 9, 2020) (unpublished).
Id. at *4.
Id. (citing Augustine v. State, 355 P.3d 573, 589-90 (Alaska App. 2015) (holding that a child victim's testimony that it had hurt when the defendant touched her genitals with his finger was insufficient to establish penetration)).
In Walunga's case, we similarly conclude that there was insufficient evidence to establish beyond a reasonable doubt that penetration occurred - and thus to establish the "most serious" aggravator on this basis.
Our concern about the insufficiency of the evidence to support the aggravator is heightened by the risk that the jury did not fully understand the higher degree of offense and may have found the aggravator based on conduct that would not rise to that level. As we explained, the State urged the jury to find the aggravating factor based on the theory that Walunga's conduct involved penetration, as opposed to mere sexual contact - i.e., that his conduct factually amounted to the greater offense of second-degree sexual assault. But during the guilt phase of the trial, the jury rejected the contention that Walunga committed an offense involving penetration when it acquitted him of attempted second-degree sexual assault and found him guilty only of the lesser included offense of attempted third-degree sexual assault.
See Benboe v. State, 698 P.2d 1230, 1231 n.2 (Alaska App. 1985).
Compare former AS 11.41.420(a)(3)(B)-(C) (2014) with former AS 11.41.-425(a)(1)(B)-(C) (2014).
The State argues that the jury may have acquitted Walunga of attempted second-degree sexual assault based on a failure of proof of an element other than penetration. Specifically, the State postulates that the jury might have concluded that Walunga's state of intoxication rendered him incapable of forming the necessary intent to commit an attempt, or that F.Y. was not sufficiently intoxicated to render her incapacitated.
But such reasoning is generally inconsistent with the jury's other verdicts. The jury found Walunga guilty of third-degree sexual assault, so it necessarily concluded that Walunga knowingly engaged in sexual contact with F.Y. and that he knew she was incapacitated. The jury also found Walunga guilty of attempted third-degree sexual assault (as a lesser included offense of attempted second-degree sexual assault), thereby rejecting the argument that Walunga was too intoxicated to form intent. The only element distinguishing the acquittal on attempted second-degree sexual assault from the remaining verdicts was the element of penetration. In short, at the guilt phase, the jury appears to have found that the evidence was insufficient to establish that Walunga intended to penetrate F.Y.
Given this understanding of the verdicts, it would have been difficult for the jury to simultaneously conclude that Walunga "in fact... commi[tted] [the] greater offense" of second-degree sexual assault. Second-degree sexual assault requires an act of knowing penetration, so an act of accidental, or even reckless, penetration would not suffice. In order to conclude that Walunga actually committed second-degree sexual assault-but did not commit attempted second-degree sexual assault-the jury would have had to find not just that Walunga knowingly penetrated F.Y. without intending to do so, but also that he did not do so accidentally or recklessly. This excludes all but a narrow group of circumstances that, while not impossible, is so remote as to preclude a finding that Walunga's conduct was among the most serious included within the definition of third-degree sexual assault.
Benboe, 698 P.2d at 1231 n.2.
See AS 11.81.610(b)(1); Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983) (recognizing that sexual assault offenses require proof that the defendant knowingly committed an act of penetration or sexual contact).
For these reasons, we conclude that the State failed to present sufficient evidence to support a finding that Walunga's conduct was among the most serious included in the definition of the offense, and that the trial court should have granted Walunga's motion for a judgment of acquittal on this aggravating factor. In doing so, we note (and discuss in the next section) that the court affirmatively found that Walunga's conduct was on "the lower end of the scale."
We remand this case for reconsideration of mitigating factor AS 12.55.155(d)(9)
Finally, Walunga argues that the trial court erred in rejecting his proposed mitigating factor - that his conduct was among the least serious included within the definition of third-degree sexual assault.
AS 12.55.155(d)(9).
The trial court declined to consider the mitigating factor because of the jury's finding that Walunga's conduct was among the most serious. But the court's sentencing comments suggested that, if not for the jury's finding, it would have concluded that the mitigating factor applied. In particular, during its analysis of the Chaney criteria, the court stated that, while all sexual assaults are serious, "the conduct that Mr. Walunga was engaged in was among the least serious of that type of offense." The court further stated, "I know that puts me a bit at odds with the jury, but I do think that within the classification of offense, that Mr. Walunga's conduct was at the lower end of the scale."
Since we are reversing the jury's finding that Walunga's conduct was among the most serious, we remand this case for the trial court to consider in the first instance whether Walunga can establish the mitigating factor by clear and convincing evidence.
AS 12.55.155(f)(1).
Conclusion
We REVERSE the jury's finding that Walunga's conduct was among the most serious included within the definition of third-degree sexual assault, and we REMAND this case to the superior court for consideration of whether Walunga has established the mitigating factor that his conduct was among the least serious. If the court finds the mitigating factor that Walunga's conduct was among the least serious, the court shall resentence Walunga.
In all other respects, the judgment of the superior court is AFFIRMED. We do not retain jurisdiction.