Opinion
No. 5938
04-10-2013
JUNIOR ANTENOR, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Andrew James Klugman, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
Court of Appeals No. A-10968
Trial Court No. 3AN-09-8655 CR
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge.
Appearances: David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Andrew James Klugman, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
ALLARD, Judge
Junior Antenor was charged with four counts of first-degree sexual assault arising from a series of sexual acts between Antenor and the victim S.M. that occurred in the early morning of July 17, 2009 in S.M.'s apartment. The jury convicted Antenor of one count and acquitted him of the other three. On appeal, Antenor argues that there was insufficient evidence to support the conviction. We conclude that the evidence was sufficient, and we therefore affirm Antenor's conviction.
Underlying facts
Because Antenor contends that the evidence presented at his trial was insufficient to support his conviction, we present that evidence in the light most favorable to upholding the jury's verdict.
See, e.g., Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
On July 17, 2009, S.M. was awakened at 2:40 in the morning by the sound of her dog baying. She went downstairs and discovered Junior Antenor, a man she had met a few days before, knocking on her door. In their previous exchange, Antenor had been flirtatious and kissed S.M., but Antenor was still "a stranger" to S.M.
When S.M. opened the door, Antenor made his way into S.M.'s apartment. S.M. did not immediately feel threatened by Antenor, but she told him to leave because she was tired. Instead of leaving, Antenor picked up S.M. and carried her upstairs to her bedroom where he kissed her and put his hands down her pants, touching her vagina. S.M. told him to stop and to leave and pushed Antenor's hands away. Antenor said he was thirsty and S.M. offered him a drink to get him out of the bedroom. Once downstairs, Antenor picked up S.M., put her on the kitchen counter, and performed cunnilingus on her. S.M. tried to push Antenor away, but Antenor pushed back. Antenor stopped after a few minutes and returned upstairs.
When S.M. would not join him upstairs, Antenor came back downstairs, picked S.M. up, and again carried her to the bed, kissing her, taking off her pajama bottoms, and digitally penetrating her. S.M. did not fight, but told Antenor to stop, to get out, and to get off of her. Antenor found a condom and penetrated S.M. with his penis. S.M. later testified that she felt if she resisted it would do no good, so she "just laid there." The condom broke and Antenor stopped. He said, "You're lucky I don't have sex without a condom." S.M. told Antenor to leave and to stop.
Antenor told S.M. he had "blue balls" and that she needed to take care of them. When S.M. refused, Antenor straddled S.M. and masturbated. He tried to force S.M. to perform oral sex on him by pulling her hair. But when she would not open her mouth, he rubbed his penis between her breasts. Becoming frustrated, Antenor got off S.M. and paced back and forth and said "we're just going to do what adults do." He grabbed S.M.'s legs, swung her around, and said, "I'm just going to fuck you." S.M. tried to close her legs, but Antenor pulled them apart and penetrated her without a condom.
Antenor was charged with four counts of sexual assault in the first degree for digital penetration, oral penetration, the first penile penetration (with a condom), and the later penile penetration (without a condom). At trial, Antenor admitted that he engaged in sexual acts with S.M., but he denied that the sex was without S.M.'s consent. He also asserted that he had not acted recklessly with regard to any lack of consent.
The jury found Antenor guilty of sexual assault in the first degree for the penile penetration without a condom, but found Antenor not guilty of the other three counts. Superior Court Judge Jack Smith sentenced Antenor to 25 years with 10 years suspended.
This appeal followed.
Discussion
To prove that Anterior was guilty of sexual assault in the first degree, the State had to prove beyond a reasonable doubt that (1) Antenor knowingly engaged in sexual penetration with S.M., (2) the sexual penetration was without the consent of S.M., and (3) Antenor recklessly disregarded S.M.'s lack of consent. Antenor contends that the evidence presented at trial was insufficient to prove the last two elements.
AS 11.41.410(a)(1); Hess v. State, 20 P.3d 1121, 1124 (Alaska 2001); Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983).
We review a claim of insufficiency by viewing the evidence, and all reasonable inferences drawn from that evidence, in the light most favorable to upholding the jury's verdict. We do not weigh the evidence or determine the credibility of witnesses: those "are matters for the jury to consider in reaching a verdict, not for the reviewing court to decide in ruling on the legal sufficiency of the evidence."
Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).
Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990).
Sexual contact is "without consent" when "a person[,] with or without resisting, is coerced by the use of force against a person or property, or by express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone." Force "means any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement." Here, there was sufficient evidence from which a fair-minded juror could conclude that Antenor's sexual penetration of S.M. without a condom was without her consent, i.e., without her subjective consent and coerced through bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement. Likewise, there is little question that a fair-minded juror could conclude that Antenor "was aware of and consciously disregarded, a substantial and unjustifiable possibility" that the sexual penetration without the condom was being conducted without S.M.'s consent.
AS 11.41.470(8); Ritter v. State, 97 P.3d 73, 76 (Alaska App. 2004).
AS 11.81.900(b)(27).
AS 11.41.470(8); Ritter, 97 P.3d at 76.
Ritter, 97 P.3d at 78; AS 11.81.900(a)(3).
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Conclusion
The judgment of the superior court is AFFIRMED.