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Jimmy v. State (5/8/2009) ap-2214

Jimmy v. State (5/8/2009) ap-2214

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


RAYMOND J. JIMMY, )
) Court of Appeals No. A-9852
Appellant, ) Trial Court No. 3HO-03-00405 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2214 May 8, 2009
)
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Homer, Charles  T.  Huguelet,
          Judge.

          Appearances:  David Reineke, Assistant Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender,   for   Appellant.    Terisia    K.
          Chleborad, Assistant Attorney General, Office
          of    Special   Prosecutions   and   Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          COATS,  Chief Judge.

          Raymond J. Jimmy was convicted of sexual assault in the
first degree1 and sexual assault in the second degree2 at a  jury
trial  conducted  by  Superior Court Judge Charles  T.  Huguelet.
Jimmy  appeals, arguing that there was insufficient  evidence  to
          support his conviction for sexual assault in the first degree.
He  also  argues that his convictions for sexual assault  in  the
first  degree  and  sexual assault in the  second  degree  should
merge.   We conclude that the State presented sufficient evidence
for  the  jury  to convict Jimmy of sexual assault in  the  first
degree.  But we conclude that his two convictions should merge.

          Factual Background
          At Jimmys trial, S.H., who was 16 years old at the time
of the offense, testified that she was in bed asleep when she was
awakened  by  something, but did not realize what was  happening.
She  then realized that someones fingers were inside her  vagina.
The  person was pushing his fingers in and out.  She saw  someone
kneeling next to her bed.  In response, she pulled her legs away,
shut  her  legs, and pulled the covers over her.  When  her  eyes
were  able  to focus, she saw that the person molesting  her  was
Raymond  Jimmy.  Jimmy kept trying to reach under  the  blankets,
but  S.H.  apparently  prevented him from touching  her  further.
According to S.H., Jimmy left a short time later.
          The  following day, S.H. was examined by a nurse at the
hospital  in Homer.  S.H. told the nurse that when she was  first
awakened, she tried to pretend that she was asleep so that  Jimmy
would go away.

          Why   we   conclude   that  the  State   presented
          sufficient  evidence to convict  Jimmy  of  sexual
          assault in the first degree
          
          Jimmy  argues that the evidence presented at trial  was
insufficient  to  establish that he penetrated S.H.  without  her
consent.   In  order  to  establish S.H.s lack  of  consent,  the
question  is  not  whether [the victim] protested  or  physically
resisted,  but rather whether [the defendant] was aware  of,  and
consciously   disregarded,   a  substantial   and   unjustifiable
possibility that his sexual contact with [the victim]  was  being
conducted without [her] consent.3  In the present case, S.H.  was
asleep  in  her own bed when an intoxicated Jimmy, who was  twice
her  age  and  married to one of S.H.s relatives in the  village,
molested  her.   After  S.H. was first  awakened,  she  tried  to
pretend that she was asleep so that Jimmy would go away.  A  jury
could  reasonably  conclude that Jimmy acted at least  recklessly
with  regard  to  the  possibility that this sexual  conduct  was
without her consent.

          Why  we  conclude  that Jimmys convictions  should
          merge
          
          Jimmy  next  argues  that  his convictions  for  sexual
assault  in  the  first  degree (for  sexually  penetrating  S.H.
without  her  consent4) and sexual assault in the  second  degree
(for  sexually penetrating S.H. knowing that she was unaware that
a  sexual act [was] being committed5) should merge because  Jimmy
engaged  in  a  single  continuous act  of  penetration  and  the
societal  interests in protecting S.H. were the same  under  both
          statutes.
          In  Moore  v.  State,6 the defendant was  convicted  of
attempted  sexual  assault  in the second  degree  and  attempted
sexual  assault in the first degree based on a single  continuing
course  of  conduct.7   We held that the two  convictions  should
merge because the societal interest protected by the two statutes
is  fundamentally the same, protecting an individual from  sexual
penetration  achieved  without the individuals  consent,  whether
there  was  a lack of consent from a conscious victim or  whether
there  was no consent because the victim was incapacitated.8   We
concluded  that  separate sentences could not be imposed  because
there  was no difference between the defendants intent or conduct
in the two crimes in relation to the societal interests protected
by both ... .9
          The   State  points  out  that,  in  Moore,   the   two
convictions  were  for attempted conduct, not completed  conduct.
We  conclude  that  this distinction is immaterial  and  that  we
should  follow  Moore.  The statutes underlying both  convictions
advanced the same societal interest:  to protect S.H. from sexual
penetration without her consent.  Jimmys intent and conduct  with
respect  to  the two offenses were essentially the  same.   Under
these circumstances, the convictions must merge.

          Conclusion
          Because   we   have   concluded  the  State   presented
sufficient  evidence to convict Jimmy of sexual  assault  in  the
first  degree, we AFFIRM Jimmys conviction.  But we  REMAND  this
case  to  the superior court, where the court shall merge  Jimmys
convictions  for  sexual assault in the first degree  and  sexual
assault  in the second degree and shall resentence the defendant.
We do not retain jurisdiction of this case.
_______________________________
     1 AS 11.41.410(a)(1).

     2 AS 11.41.420(a)(3)(C).

3 Ritter v. State, 97 P.3d 73, 78 (Alaska App. 2004).

     4 AS 11.41.410(a)(1).

     5 AS 11.41.420(a)(3)(C).

     6 123 P.3d 1081 (Alaska App. 2005).

     7 Id. at 1093.

     8 Id.

     9 Id. at 1093-94.

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