Opinion
Court of Appeals No. A-10093, No. 5519.
September 23, 2009.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred J. Torrisi, Judge, Trial Court No. 3DI-07-252 Cr.
Josie Garton, 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
Andrew Wyagon appeals his conviction for second-degree sexual assault under AS 11.41.420(a)(1) (non-consensual sexual contact). He asserts that the trial judge committed error when the judge refused Wyagon's request to instruct the jury on the lesser offense of fourth-degree assault.
Wyagon was charged with second-degree sexual assault based on an incident that occurred when Wyagon and the victim, N.O., were hired to clean up garbage from their village and take it to the dump. To perform this job, they used a four-wheeler with a trailer hitched to the back. Wyagon and N.O. made several trips to the dump and back to the village on the four-wheeler, with Wyagon driving and N.O. riding behind him.
According to N.O.'s testimony, during one of their trips, Wyagon began "talking dirty" to N.O.; he suggested that they engage in sexual intercourse. While they were at the dump on their third trip, Wyagon walked up behind N.O. and pressed his groin against her hip. He told her that he was "getting hard". Wyagon also told N.O. that he would come to her house later, when everyone was asleep, and have sex with her.
During their final trip back to the village on the four-wheeler, Wyagon reached back and touched N.O.'s genitals through her clothing twice. (N.O. pushed Wyagon's hand away both times.) Based on this conduct, Wyagon was charged with second-degree sexual assault.
At the beginning of the trial (before the evidence was presented), Wyagon's attorney told the trial judge, Superior Court Judge Fred J. Torrisi, that she would be asking for a jury instruction on the lesser offense of fourth-degree assault, AS 11.41.-230(a). In conjunction with this announcement, the defense attorney submitted a proposed jury instruction on fourth-degree assault.
This proposed instruction dealt with fourth-degree assault as defined in subsection (a)(3) of AS 11.41.230: recklessly placing another person, by either words or conduct, in fear of imminent physical injury.
However, when Judge Torrisi and the attorneys discussed jury instructions at the end of Wyagon's trial (after the evidence had been presented), the defense attorney announced that she was withdrawing her request for an instruction under subsection (a)(3) of the statute, and that she instead wanted the jury to be instructed on fourth-degree assault under subsection (a)(1) of the statute: recklessly causing physical injury to another person.
Judge Torrisi declined to instruct the jury on fourth-degree assault under subsection (a)(1) of the statute, because he concluded that there was no evidence to support a finding that N.O. suffered physical injury during the sexual assault. (For purposes of Alaska's criminal code, "physical injury" is defined as "physical pain or an impairment of physical condition". AS 11.81.900(b)(46).)
However, the judge concluded that the jury should be instructed on the lesser offense of second-degree harassment under AS 11.61.120(a)(5): subjecting another person to offensive physical contact.
The jury convicted Wyagon of the charged offense — second-degree sexual assault.
On appeal, Wyagon renews his claim that the jury should have been instructed on fourth-degree assault. However, Wyagon's brief is addressed solely to the question of whether the jury should have been instructed on the theory codified in subsection (a)(3) of the fourth-degree assault statute: recklessly placing another person, by either words or conduct, in fear of imminent physical injury. This issue was not preserved for appeal.
As we just explained, Wyagon's trial attorney initially asked Judge Torrisi to instruct the jury on the "fear of imminent physical injury" theory of fourth-degree assault, but then she withdrew this request and instead asked Judge Torrisi to instruct the jury on fourth-degree assault under subsection (a)(1) of the statute: recklessly causing physical injury to another person.
We direct the parties' attention to pages 157 to 163 of the transcript — and, in particular, to page 158, where Wyagon's attorney told Judge Torrisi:
We [proposed] the "fear" assault [instruction] . . . because of [N.O.'s] statements to the police . . . as [to] how afraid she was from the incident. But we'd like to amend that just to do the regular fourth-degree assault.
See also page 160 of the transcript, where the prosecutor noted — without objection or other comment from the defense attorney — that "they [have now] switched from the `fear' assault to . . . the reckless [infliction of] physical injury."
In other words, Judge Torrisi never ruled (and was never asked to rule) on the question of whether the jury should receive a fourth-degree assault instruction under subsection (a)(3) of the statute. Rather, Judge Torrisi's ruling dealt with Wyagon's amended request — the request for a jury instruction under subsection (a)(1) of the statute.
In his brief, Wyagon does not challenge (or even address) this ruling. Rather, Wyagon addresses a speculative question that Judge Torrisi was never asked to decide: whether the jury should have been instructed under subsection (a)(3) of the statute. We note that the State's brief is also addressed entirely to this same speculative question.
Because the issue addressed in Wyagon's brief was not preserved in the trial court, and because Wyagon's brief fails to address the pertinent judicial ruling made at his trial, the judgement of the superior court is AFFIRMED.