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holding that "sexual penetration" includes an intrusion into the labia majora
Summary of this case from Bartman v. StateOpinion
Court of Appeals No. A-9896.
November 5, 2008.
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins and Larry R. Weeks, Judges, Trial Court No. 1JU-06-00598 CR.
Renee McFarland, 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 Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Charles L. Littlefield of sexual abuse of a minor in the first degree and sexual abuse of a minor in the second degree. These offenses were merged for purposes of sentencing. Superior Court Judge Patricia A. Collins sentenced Littlefield to 35 years of imprisonment with 10 years suspended. On appeal, Littlefield argues two claims of error: (1) that the trial court improperly instructed the jury on the definition of sexual penetration, and (2) that the trial court erred in denying Littlefield's proposed mitigating factor — that Littlefield's conduct was "among the least serious conduct included in the definition of the offense." We affirm Littlefield's conviction and sentence.
AS 11.41.434(a)(1).
AS 11.41.436(a)(2).
AS 12.55.155(d)(8).
Factual and procedural background
At Littlefield's trial, ten-year-old A.B. testified that she and her half-sister, D.L., were alone at the Driftwood Hotel in Juneau with D.L.'s father, Littlefield. A.B. was nine years old when the incidents in question took place. While A.B. was watching television and wrestling with D.L., Littlefield held A.B.'s hands behind her back so that D.L. could tickle her. A.B. testified that Littlefield pulled her hand so that it was "on his private [and] started rubbing it around." A.B. testified that, later in the evening, Littlefield rubbed her "private and [her] bottom" and kissed her neck. A.B. answered affirmatively that her private is "where [she] go[es] pee-pee." When asked if she understood the difference between the words inside and outside, A.B. indicated that one can "look inside a book, but when you shut the book, that's the outside of the book." She testified that Littlefield touched the inside of her with his left hand. She stated that it did not hurt when Littlefield was touching her back, but that it did hurt when Littlefield touched her "private" and her "bottom." She testified, "I guess he was sticking his finger up, but then it felt all worse because it . . . because it hurted once he — I think he sticked his finger up there. I couldn't tell because I never felt that before." She testified that after Littlefield stopped touching her, she went to the bathroom and noticed that she had blood in her stool and "kind of in [her] pee." She testified that she had never seen blood before while she was going to the bathroom.
Also at trial, twelve-year-old D.L. testified. D.L. testified that she had been at the Driftwood Hotel with her father and A.B. D.L. testified that she and A.B. were playing in the room, and that at some point A.B. was on Littlefield's lap while D.L. tickled her. D.L. testified that A.B.'s hands were behind her back around "the lower part" of Littlefield's stomach. D.L testified that she had earlier told someone that A.B.'s hands "were down by [Littlefield's] private." D.L. testified that, later in the evening, she fell asleep but woke up to use the bathroom and noticed that A.B. was lying down sleeping with her hands between her legs. D.L. testified that normally A.B. sleeps with her hands under her head.
After additional witnesses and closing arguments, the case was submitted to the jury. Jury Instruction Number 14 defined "sexual penetration" as follows:
"Sexual penetration" means genital intercourse, cunnilingus, fellatio, anal intercourse, or 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. But "sexual penetration" does not include acts performed for the purpose of administering a recognized and lawful form of treatment that is reasonably adapted to promoting the physical health of the person being treated. Each party to any of the acts defined as "sexual penetration" is considered to be engaged in sexual penetration.
During deliberations, the jury submitted the following note to the judge:
Does sexual penetration mean intrusion of an object etc. inside the labia but not necessarily inside the vaginal opening? Is touching the clitoris penetration?
After receiving this question from the jury, Superior Court Judge Larry R. Weeks (standing in for Judge Collins, who had been assigned the case during the trial) held a hearing with counsel and Littlefield present. Over Littlefield's objection, Judge Weeks instructed the jury as follows:
The female genital opening is not limited to the vaginal opening. The female genitalia also includes the vulva including the labia majora, labia minora and the clitoris and vestibule of the vagina.
It is for you to decide whether there was penetration, however slight, into any part of the genital opening.
The jury returned verdicts of guilty for both first-and second-degree sexual abuse of a minor.
Judge Weeks did not err in instructing the jury
A person commits the crime of sexual abuse of a minor in the first degree "if being 16 years of age or older, the offender engages in sexual penetration with a person who is under 13 years of age." The term "sexual penetration" includes "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."
AS 11.41.434(a)(1).
AS 11.81.900(b)(59)(A).
On appeal, Littlefield argues that Judge Weeks erred when he responded to the jury's question regarding penetration. Littlefield contends that Judge Weeks's answer was "too broad." Littlefield asserts that "[a]natomically, the labia minora enclose an area that can be penetrated, that is, an area where an object can intrude." He argues, therefore, that Judge Weeks erred when he included the entire vulva and, explicitly excluded the labia majora, in his definition of "genital opening."
Why we conclude that the challenged jury instruction adequately explained sexual penetration
[When] the jury appears to be confused about a legal issue, and the resolution of the question is not apparent from an earlier instruction, the trial judge has a "responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria. When a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy."
Des Jardins v. State, 551 P.2d 181, 190 (Alaska 1976) (quoting Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S. Ct. 402, 405, 90 L. Ed. 350 (1946)).
Here, the jury expressed confusion as to whether the legal definition of "genital opening," as mentioned in their jury instructions, was the same or different from the vaginal opening.
In Mason v. State, an unpublished opinion, this court distinguished between "vaginal penetration" as opposed to penetration into the "genital opening." In making this distinction, this court relied on People v. Quintana, a case from the California Court of Appeals. Quoting from Quintana, this court noted,
Alaska App. Memorandum Opinion and Judgment No. 4885 (June 23, 2004), 2004 WL 1418694.
Id. at 5, 2004 WL 1418694 at *2.
108 Cal. Rptr. 2d 235 (Cal.App. 2001).
[A] "genital" opening is not synonymous with a "vaginal" opening as appellant's argument assumes. The vagina is only one part of the female genitalia, which also include inter alia the labia majora, labia minora, and the clitoris. . . . Thus, "genital" opening does not necessarily mean "vaginal" opening. . . . The external female genitalia are referred to as the "vulva" and "include the labia majora, labia minora, clitoris and vestibule of the vagina." . . . Accordingly, contact with . . . the clitoris and other genitalia inside the exterior of the labia majora constitutes "sexual penetration."
Mason, Memorandum Opinion and Judgment No. 4885 at 5 n. 10, 2004 WL 1418694 at *2 n. 10 (alterations in original) (quoting Quintana, 108 Cal. Rptr. 2d at 239, 242).
Under this definition, any contact inside the labia majora constitutes sexual penetration. Therefore, Littlefield's argument that intrusion between the labia majora is merely "sexual contact" (as opposed to "sexual penetration") fails.
This definition of sexual penetration is consistent with definitions from other states. For example, in Seales v. State, the Alabama Supreme Court held that any penetration of the victim's "pudendum" or "vulva" constituted sexual penetration because these terms "include parts of the external genital organs of the human female such as the labia majora, labia minora, and the vaginal orifice." In Short v. State, the Indiana Court of Appeals held that penetration of the female victim's "external genitalia" was sufficient to support an unlawful sexual intercourse conviction. In State v. Anderson, the Louisiana Court of Appeals held that "any penetration, however slight, of the aperture of the female genitalia, even its external features, is sufficient" to establish sexual penetration for purposes of rape.
581 So. 2d 1192 (Ala. 1991).
Id. at 1197 (citing H ENRY G RAY, G RAY'S A NATOMY, 1328-29 (C.M. Goss ed., 28th ed. 1966)).
564 N.E.2d 553 (Ind.App. 1991).
Id. at 559.
499 So. 2d 1252 (La.App. 1986).
Id. at 1253 (citing State v. Bertrand, 461 So. 2d 1159 (La.App. 1984)).
In conclusion, Judge Weeks's definition of "female genitalia" was legally correct. In particular, to the extent that the jury interpreted Judge Weeks's instructions to mean that sexual penetration includes an intrusion into the labia majora, this interpretation was legally correct.
We accordingly conclude that Judge Weeks did not err in answering the jury's question.
Judge Collins did not err in denying Littlefield's proposed mitigating factor
Littlefield argues that Judge Collins erred in denying his proposed mitigating factor: that Littlefield's conduct was "among the least serious conduct included in the definition of the offense." The defendant has the burden of proving a proposed mitigating factor by clear and convincing evidence. We review de novo whether, under the facts found by the sentencing judge, the defendant's conduct falls within the statutory standard of "among the least serious conduct included in the definition of the offense."
AS 12.55.155(d)(8).
AS 12.55.155(f)(1).
AS 12.55.155(d)(8); Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
On appeal, we are to accept Judge Collins's factual findings unless they are clearly erroneous. In making her factual findings, Judge Collins pointed out that the legislature defines sexual abuse of a minor in the first degree as occurring when a person who is sixteen years old or older knowingly engages in sexual penetration with a person under the age of thirteen. Judge Collins noted that Littlefield was thirty-two or thirty-three years old at time of the offense, whereas A.B. was only nine years old. Judge Collins emphasized that A.B. was four years under the statutory cutoff of thirteen. Judge Collins also found, based on her observation of A.B.'s demeanor and testimony at trial, that A.B. was "a very immature nine."
Michael, 115 P.3d at 519.
Judge Collins found that the evidence was unclear as to whether A.B. suffered physical injury beyond the act of touching and penetration that is already included within the nature of the offense. In favor of Littlefield, she noted that this abuse did not involve years, weeks, or even days of continued sexual contact. Judge Collins did note, however, that the behavior was also not a single isolated impulsive event — as shown by the fact the jury brought back a guilty finding for both charges: the abuse in the living room while A.B. and D.L. were playing and the abuse later in the bedroom. In addition, Judge Collins found that Littlefield was placed in a position of trust because he was "acting as a babysitter at the time." Judge Collins also noted that A.B. testified that Littlefield had threatened her not to tell anyone about the abuse.
Judge Collins placed no weight, one way or the other, on the fact that Littlefield denied the offense. She also found no evidence regarding whether or not Littlefield had a long-term plan to engage in the abuse. Lastly, she placed no weight on the fact that Littlefield had been drinking at the time of the offense except to note that Littlefield has a history of engaging in criminal behavior when he is drinking alcohol.
Taking all of the above factors into consideration, Judge Collins found that Littlefield had not shown by clear and convincing evidence that this conduct was "among the least serious conduct included in the definition of the offense."
Littlefield argues that Judge Collins's finding that the conduct was not a single, isolated event was clearly erroneous. In addition, Littlefield argues that Judge Collins erred in finding that Littlefield was in a position of special trust as A.B.'s babysitter.
Judge Collins's factual findings are not clearly erroneous. Judge Collins specifically noted that Littlefield's conduct did not take place over a period of years, weeks, or even days. However, she noted that the abuse took place both in the living room and, later, in the bedroom. This finding is consistent with A.B.'s testimony that Littlefield held A.B.'s hands behind her back and rubbed them on his penis in the living room and that later in the bedroom Littlefield rubbed his hand on her "private" area. Thus, Judge Collins's finding that the abuse took place at two different times in one evening was not clearly erroneous.
In addition, Judge Collins did not err in finding that Littlefield had been placed in a position of trust. She did not state that Littlefield was A.B.'s parent or stepparent; she found that he was A.B.'s babysitter. Littlefield was the father of D.L., A.B.'s half-sister. D.L. and A.B. were both left in Littlefield's care by their mother. Littlefield engaged in the sexual abuse of A.B. while his own daughter was located in the same hotel room. Considering these facts, Judge Collins's factual finding that Littlefield had been placed in a position of trust was not clearly erroneous.
Since Judge Collins's factual findings as to the nature of Littlefield's conduct were not clearly erroneous, we must now determine whether Littlefield established by clear and convincing evidence that his conduct was "among the least serious conduct included in the definition of the offense." We conclude that he did not. Even if Judge Collins had found that Littlefield's offense was an isolated incident, this would not by itself establish the "least serious conduct" mitigating factor. In Littlefield's case, Judge Collins noted that A.B. was only nine years old, four years younger than the age set by the legislature in the statute. Littlefield was thirty-two years old at the time of the offense, a mature offender. In addition, Littlefield was in a position of trust — he took advantage of the fact that he was A.B.'s babysitter. Under these circumstances, Littlefield did not establish the mitigating factor by clear and convincing evidence.
Id.
Kosbruk v. State, 820 P.2d 1082, 1087 (Alaska App. 1991).
The judgment of the superior court is AFFIRMED.