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Jackson v. State (12/26/2014) ap-2439

Jackson v. State (12/26/2014) ap-2439

                                                        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 @ akcourts.us
  



                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



WILBURN D. JACKSON,                                      )  

                                                         )            Court of Appeals No. A-10835 

                                      Appellant,         )             Trial Court No. 1SI-09-84 CR  

                                                         ) 

                  v.                                     )                         O P I N I O N  

                                                         )  

STATE OF ALASKA,                                         )  

                                                         ) 

                                      Appellee.          )            No. 2439 - December 26, 2014  

                                                         )  



                   Appeal from the Superior Court, First Judicial District, Sitka,  

                   Patricia A. Collins, Judge.  



                   Appearances:  Kelly R. Taylor, Assistant Public Defender, and  

                                                                            

                   Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                   Tamara  E.  de  Lucia,  Assistant  Attorney  General,  Office  of  

                                                                                           

                   Special Prosecutions and Appeals, Anchorage, and Michael C.  

                                                 

                   Geraghty, Attorney General, Juneau, for the Appellee.  



                   Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                           

                   District Court Judge.*  

                                                  



                   Judge ALLARD.  



     *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                   Wilburn Dean Jackson was convicted of first-degree sexual assault and  



fourth-degree assault for physically assaulting L.D., his girlfriend, and forcing her to  

                                 



have sexual intercourse.  Jackson appeals his sexual assault conviction, arguing that the  

                                                                                                         



superior court erred in failing to give the jury a proper unanimity instruction on that  



charge.  



                   Because we conclude that the failure to properly instruct the jury on the  



need for unanimity constituted  plain error in this case, we reverse Jackson's sexual  

                                                



assault conviction and remand for a new trial.  



          Factual and procedural background  



                   Jackson and L.D. lived together and were in a sexual relationship for six  

                                       



years.  On March 2, 2009, they went to a local bar and had several drinks.  L.D. became  

                                                             



too  intoxicated  to  drive  and  took  a  cab  back  to  the  trailer  she  shared  with  Jackson.  



Jackson  returned  to  the  trailer  sometime  later  that  night.    Although  L.D.  could  not  

              



remember the specific details of Jackson's arrival, she recalled that he pulled her by the  

                                            



hair and dragged her to the trailer door.  (This conduct formed the basis of the fourth- 



degree assault conviction that Jackson is not challenging on appeal.)  



                    The next morning, L.D. woke to find Jackson lying next to her.  Jackson  

                                                                                                            



apologized for putting his fingers in her vagina the night before, an action L.D. did not  

                                                                      



remember happening. Later in the morning, Jackson grew upset about misplaced money  

                                          



and  began  throwing  things  around  the  trailer  and  breaking  furniture.    Eventually,  



however, he calmed down and lay down on a couch in the living room, and L.D. lay  

                                                                   



down on the living room floor.  



                   L.D. testified that, at that point, Jackson yelled at L.D. to get her "ass in the  



air."    She  initially  did  not  respond,  but  when  Jackson  repeated  his  command,  L.D.  



                                                              2                                                        2439
  


----------------------- Page 3-----------------------

refused.  L.D. testified that Jackson then "flew" off the couch and held her down with his              



body.  She said that while Jackson was holding her down from behind, she could feel his       



penis in her vagina and then in her anus. Once the assault was over, L.D. called 911; the        



police arrived and took Jackson into custody.  



                    Jackson gave a recorded interview to the police.  The interview was played  

                                                                        



at trial, and the jury was also provided with a transcript.  During the interview, Jackson  

                                                                                     



admitted that he stuck two fingers into L.D.'s vagina the previous night and that he  

                                           



apologized to L.D. because she had not liked the way he did it.  



                    Jackson also claimed in the interview that the vaginal sex with L.D. the next  

                                                                            



morning was consensual.  He stated that L.D. had allowed him to lie down next to her  



on the living room floor and eventually also to put his penis into her vagina.  Jackson  

                                                                                                   



stated that although L.D. may not have affirmatively wanted to have sex, he believed that  

                                                  



she "didn't mind" and was willing to go along with it.  Jackson explained that, after a  

                                                                        



few thrusts, his penis fell out of L.D.'s vagina, and when he attempted to reenter, he  



accidently put his penis in her anus.  Because L.D. and Jackson had previously discussed  



that they would not have anal sex, Jackson immediately withdrew and stopped having  



sex with L.D.  



                    Based on this conduct, the State charged Jackson with one count of first- 

degree sexual assault.1  



                                                                                     

                    At trial, Jackson's defense was consistent with his taped statement.  He  



asserted that the vaginal penetration was consensual and that the anal penetration was  



accidental.  He also asserted that he had not acted in reckless disregard of any lack of  



consent  on  L.D.'s  part  because  it  was  reasonable  for  Jackson  to  believe  L.D.  had  



     1    AS 11.41.410(a)(1).  



                                                                3                                                            2439  


----------------------- Page 4-----------------------

consented to vaginal intercourse that morning based on past experiences and the long-                             



standing dynamics of Jackson's and L.D.'s relationship.  



                     In support of this latter theory, the defense called a clinical psychologist to  



testify about Jackson's and L.D.'s relationship and the communication patterns that had  

                                                                                                              



developed between Jackson and L.D. The expert opined that Jackson and L.D. had spent  

                                                                                              



their lives together in a perpetual state of misunderstanding.  The defense also elicited  

                                   



testimony from L.D. that, on past occasions, she would sometimes consent to intercourse  

                                                                                                                  



even though she did not want to have sex.  In addition, when Jackson first asked her for  

                                                                   



sex that morning, she did not say no and instead told him she "would get there."  



                     Following the close of evidence, the jury was instructed to find Jackson  

                                                                                              



guilty of first-degree sexual assault if it found that (1) Jackson had knowingly engaged  

                                                                                                  



in sexual penetration of L.D., (2) the sexual penetration was without her consent, and (3)  

                                      

Jackson acted in reckless disregard of that lack of consent.2  

                                                                                            The jury was instructed that  



                                                                                                             

"sexual penetration" meant "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."3  



                                                                                             

                     The jury was not instructed that it needed to be unanimous as to the specific  



act  or  acts  of  penetration.    No  objection  was  made  to  the  lack  of  a  jury  unanimity  



instruction.  



                     The jury subsequently convicted Jackson of first-degree sexual assault on  



a general verdict form.  This appeal followed.  



     2    See Alaska Criminal Pattern Jury Instruction for AS 11.41.410(a)(1) (rev. 2002).  



     3    AS 11.81.900(b)(60)(A).  



                                                                  4                                                               2439  


----------------------- Page 5-----------------------

             The  jury unanimity requirement under Alaska law  



                        The  due  process  clause  of  the  Alaska  Constitution  protects  a  criminal  



defendant's  right  to  have  the  jurors  unanimously  agree  on  the  specific  act  or  acts  

constituting the offense.4  



                        Under Alaska law, a defendant can be separately convicted and punished   

for each distinct type of sexual penetration that occurs during a single episode.                                                             5  

                                                                                                                                                 Thus,  



                                             

when the State charges a  single count of sexual assault based on the allegation that  



multiple types of penetration occurred during one episode, the State must either elect the  



 specific type of sexual penetration upon which it will rely for conviction or, if the State  

                                                                                                                                    



chooses not to elect, the jury must be instructed that to convict the defendant, all twelve  



jurors must be in agreement as to which specific act (or acts) of sexual penetration the  

defendant committed.6  



                        The failure to properly instruct the jury on this unanimity requirement is  



                                                             7 

                

error of constitutional magnitude,  and reversal is required unless the error is harmless  

beyond a reasonable doubt.8  



                        Here, the indictment charged Jackson with one count of first-degree sexual  



                                                                                                             

assault "for sexually penetrating L.D. without her consent."  But the indictment did not  



                                                 

 specify which act or acts of sexual penetration formed the basis of that charge.   At  



      4     Khan v. State , 278 P.3d 893, 899 (Alaska 2012) (citing                                      State v. James, 698 P.2d 1161,  



 1167 (Alaska 1985)).  



      5     See Iyapana v. State, 284 P.3d 841, 852 (Alaska App. 2012); Yearty v. State, 805 P.2d   



987, 995 (Alaska App. 1991).  



      6      Covington v. State, 703 P.2d 436, 440 (Alaska App. 1985).  



      7     Anderson v. State , 337 P.3d 534, 537 (Alaska App. 2014).  



      8     Khan , 278 P.3d at 900-01.  



                                                                             5                                                                     2439
  


----------------------- Page 6-----------------------

Jackson's trial, the jury heard evidence of three distinct sexual penetrations:  the digital- 



vaginal penetration that occurred in the night and the penile-vaginal and penile-anal  



penetrations that took place the following morning.  



                    The State contends that the jury understood that the conviction had to be  

                                                                     



based on one or both of the penile penetrations that occurred that morning (rather than  



on  the  digital  penetration  that  occurred  the  night  before)  because  the  prosecutor's  



arguments for conviction were focused exclusively on the penile penetrations.  We note,  

                                                                                                                   



however, that both the parties and the court recognized that this issue needed to be  

                                                                                             



clarified  for the jury  in  the jury  instructions, but then  no  clarifying  instruction  was  

                                                                                                         



actually provided.  



                    In any case, even if we were to accept the State's contention that the jury  

                                                                              



understood that the conviction had to be based on penile penetration, we would still be  

                              



left with the problem that the jury was never instructed on the need for unanimity as to  

               



which act or acts of penile penetration formed the basis for its verdict.  The State argues  

                                                         



that, given the manner in which the case was argued by the prosecutor - i.e., the lack  

                                                      



of differentiation in the prosecutor's arguments regarding the vaginal and anal penile  



penetrations - the jury was likely unanimous as to both acts.  



                    The problem with this argument is that the defense clearly did differentiate  

                                                      



between the vaginal and anal penetrations, asserting that the vaginal penetration was  



consensual and that the anal penetration was accidental.  



                    On appeal, Jackson concedes that because his attorney never requested a  

                                                                       

jury unanimity instruction from the trial court, he must now prove plain error. 9  

                                                                                                                      "Plain  



     9    See State v. Covington , 711 P.2d 1183, 1184 (Alaska App. 1985).  



                                                               6                                                           2439  


----------------------- Page 7-----------------------

error is an error that (1) was not the result of intelligent waiver or a tactical decision not                         

to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial." 10  



                                                                                                                                   

             Was Jackson's failure to request a jury unanimity instruction the result of  

             intelligent waiver or a tactical decision?  



                                                                                                                                  

                         The State argues that Jackson cannot meet the first prong of the test because  



the defense attorney may have made the decision not to bring the jury unanimity problem  



to the attention of the court out of concern that raising this issue could lead to amendment  

                                                             



of the indictment to add charges against Jackson.  



                        We agree that this might be a legitimate concern prior to trial when the  



 State could potentially move to reindict or to otherwise amend the indictment to separate  

                                                                                                                

the duplicitous count into separate charges.11                                                                                       

                                                                                  But we do not agree that this is a legitimate  



concern once trial has already begun.  



                        Alaska Criminal Rule 7(e) permits an indictment to be amended without  

                                                                                                                              



reindictment at any time before a verdict is returned only "if no additional or different  

offense is charged and the substantial rights of the defendant are not prejudiced."12 

                                                                                                                                                   Here,  



                                                           

amending Jackson's indictment in the middle of trial to add a second first-degree sexual  



                                                                                                      

assault charge would violate this rule, not only because it would add a new charge, but  



       10   Adams v. State , 261 P.3d 758, 764 (Alaska 2011).  



       11   See   Khan  v.  State ,  2013  WL  6576722,  at  *8-9  (Alaska  App.  Dec.  11,  2013)  



(unpublished) (Mannheimer, C.J., concurring) (noting that an attorney could have a tactical       

reason not to object to a duplicitous indictment during trial proceedings that occurred                                                           before  

jeopardy attached).  



       12   See  Bell  v.  State,  716  P.2d  1004,  1005  (Alaska  App.  1986)  (reversing  a  possibly  

                                                                                                                        

duplicitous assault conviction for violating Criminal Rule 7(e)).  



                                                                              7                                                                     2439
  


----------------------- Page 8-----------------------

also because that new charge, if it resulted in a conviction, would require a partially   

consecutive sentence under Alaska law.13  



                         We recognize that we have previously suggested in dicta that a defense  



attorney might refrain from drawing attention to the lack of a unanimity instruction even  

                                                                                      



after trial has begun due to a "credible risk" that the trial court would allow the State to  

                                                    



                                                                                                    14  

charge a second count of driving under the influence.                                                               

                                                                                                         After reviewing the law on this  



                                                                                                                     

issue  more  thoroughly,  however,  we  acknowledge  that  we  did  not  speak  carefully  



enough in these prior decisions.  



                         As a general matter, a defendant's failure to timely object to a duplicitous  



                                                                                                                              

indictment - that is, an indictment that includes multiple charges in a single count -  



                                                                                                                                  15  

                                                                  

waives any future objection to the defective nature of the indictment.                                                                 This is true, in  



part, because prior to trial, the State has the ability to cure the defective indictment by  



       13    Alaska Statute 12.55.127(c)(2)(E) requires at least one-fourth of the presumptive term  



specified  for  first-degree  sexual  assault  to  be  served  consecutively  when  a  defendant  is  

sentenced for two or more crimes against a person, such as first-degree sexual assault.    



       14    See  Hicks  v.  State ,   2013  WL  203264,  at  *4  n.17  (Alaska  App.  Jan.  16,  2013)  



(unpublished) (citing Anderson v. State , 289 P.3d 1, 4-5 (Alaska App. 2012), Miles v. State ,  

2012 WL 3870841, at *5-6 (Alaska App. Sept. 5, 2012) (unpublished),                                                           Hilburn v. State , 765  

P.2d 1382, 1387 (Alaska App. 1988), and Potts v. State , 712 P.2d 385, 388 n.1 (Alaska App.   

 1985)).  



       15    Wayne R. LaFave  et al., 5  Criminal Procedure   19.3(c) (3d ed. 2007); see also  



Alaska R. Crim. P. 12(b)(2), (e) (objections based on defects in the indictment not raised  

                                                                                                                 

prior to trial are waived unless the court grants relief from the waiver for cause); Leitzell v.  

                                                                                                

State, 1983 WL 807796, at *1 n.1 (Alaska App. April 20, 1983) (unpublished) (noting that  

any error in allowing the case to go to the jury on duplicitous theories without special verdict  

                                                                                  

forms was waived by defendant's failure to object).  



                                                                                 8                                                                        2439
  


----------------------- Page 9-----------------------

separating  the  duplicitous    count  into  separate  counts  and,  if  necessary,  seeking  



                            16                                                                                                                                                     17 

                                                                                                                               

reindictment.                    But this remedy is no longer available once the trial has commenced.  



                                                                                

                            Instead,  once  trial  has  begun,  the  remedy  for  a  duplicitous  count  is  



                                                                                                                                                         

essentially limited to (1) permitting the State to elect the act on which it will seek a  



conviction; or (2) instructing the jury on the need to reach unanimous agreement as to  

the act or acts on which it convicts the defendant.18  

                                                                                                            Some courts have also adopted the  

remedy  of  dividing  the  charges  into  separate  jury  verdict  forms. 19  

                                                                                                                                                     But  a  mid-trial  



amendment of an indictment to add new counts is not permitted.  



       16     See LaFave, supra note 15,  19.3(c), at 286 n.188 (noting that some states allow  



severance of a duplicitous indictment into separate counts).  



       17     See id.; see also Alaska R. Crim. P. 7(e) (permitting amendment of an indictment at  



any time before a verdict only if no additional or different offense is charged).  



       18      1A   Charles Alan Wright & Andrew D. Liepold, Federal Practice and Procedure:  



Criminal  145, at 94-95 (4th ed. 2008); LaFave, supra note 15,  19.3(c) (duplicitous count  

can be cured mid-trial with a corrective jury instruction);                                                     see also United States v. Lloyd , 462  

F.3d 510, 514 (6th Cir. 2006) (duplicitous indictment may be cured through jury instruction                          

particularizing a distinct offense); United States v. Hughes                                                       , 310 F.3d 557, 561 (7th Cir. 2002)   

(duplicitous indictment cured by corrective jury instructions); United States v. Karam , 37  

F.3d 1280, 1286 (8th Cir. 1994) (duplicitous indictment cured by corrective jury instruction);                                  

                                                                                                                                                        

 United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir. 1981) (duplicitous indictment may  

be cured by corrective jury instruction or government election to rely on one charge within  

a count);  United States v. Browning, 572 F.2d 720, 726 (10th Cir. 1978) (remanding with   

instructions to direct government election if the lower court finds count duplicitous);                                                                                    Reno  

v. United States, 317 F.2d 499, 502 (5th Cir. 1963) (duplicitous indictment may be cured by                                     

government election).  



       19     See,  e.g.,  People  v.  Smith ,  568  N.E.2d  482  (Ill.  App.  1991)  (finding  unanimity  



requirement satisfied in prosecution charging three counts of aggravated sexual assault by  

                                                                                     

oral, vaginal, and anal penetration, where jury was provided with "guilty" and "not guilty"  

forms for each of the specified forms of penetration).  



                                                                                          9                                                                                2439
  


----------------------- Page 10-----------------------

                        We therefore reject the State's argument that Jackson's attorney could have             



made a legitimate tactical decision to waive Jackson's right to jury unanimity out of   



concern that raising the issue would result in a mid-trial amendment of the indictment  



and the addition of a second first-degree sexual assault charge.  



             Was the failure to give the jury a unanimity instruction harmless beyond  

                                                                          

            a reasonable doubt in this case?  

                        In  State  v.  Covington,20  

                                                                                 

                                                                         we   affirmed  the  defendant's  sexual  abuse  



convictions  despite  the  absence  of  a  proper  jury  unanimity  instruction  because  we  



concluded that the defendant was not prejudiced by the lack of this instruction, given the  

                                                                    

nature  of  his  defense.21  

                                               At  trial,  Covington  did  not  distinguish  between  any  of  the  



alleged incidents of sexual abuse, claiming instead that the victim lied about everything  

                                                                                                    

and that nothing sexual had ever happened.22  

                                                                                      We concluded that, given this all-or- 



nothing defense and the specific manner in which the case was litigated to the jury, the  

                                                                                                                                              



jury was left to choose between two stark choices - either the victim was telling the  

                                                                                                   



truth about everything or the victim was lying about everything, and that therefore a  

           

unanimity instruction would have made no difference in the jury's verdict.23  



                        But, as we recently explained in Anderson v. State,24 our harmlessness  



                                                                                                               

analysis in Covington was based on a plain error standard that has since been superseded  



      20    711 P.2d 1183 (Alaska App. 1985). 
 



      21    Id. at 1185.
  



      22    Id.
  



      23    See id.
   



      24    337 P.3d 534 (Alaska App. 2014).  



                                                                             10                                                                    2439
  


----------------------- Page 11-----------------------

                                                                                   25                            26 

by the Alaska Supreme Court decisions in Adams v. State                                and Khan v. State .           In those  



cases, the Alaska Supreme Court held that even when a claim of constitutional error is  

                



raised for the first time on appeal (i.e., when it is raised as a claim of plain error), the  



"harmless beyond a reasonable doubt" test continues to govern the question of whether  

                                                                                



the error requires reversal of the defendant's conviction.  



                    Therefore,  in  resolving  Jackson's  case,  we  must  apply  the  "harmless  



beyond  a  reasonable  doubt"  test  set  forth  in  Adams   and  Khan ,  rather  than  the  

                                                      



"appreciably affected the verdict" test that we applied in Covington.  That is, we must  

                                                                      



determine  whether  there  is  no  reasonable  possibility  that  the  verdicts  reached  by  



Jackson's jury would have been different if the jury had been properly instructed on the  

                                                                       

need for unanimity.27  



                    We  conclude  that  this  standard  cannot  be  met  in  this  case.    Unlike  in  



Covington,  Jackson's  defense  was  not  an  all-or-nothing  defense.    As  we  explained  



earlier, Jackson argued at trial that the vaginal intercourse was consensual and, in the  

                                        



alternative, that he reasonably believed, based on his past interactions and dysfunctional  

                                                                                     



communication  with  L.D., that L.D. had  consented  to  the  vaginal intercourse.    He  

                                                                                                        



acknowledged, however, that L.D. would not have agreed to anal penetration and that  

                                                                



he was aware of that fact. But he claimed that the anal penetration was purely accidental.  

                                       



                    Thus,  depending  on  the  individual  jurors'  assessment  of  Jackson's  



credibility  and  L.D.'s  credibility,  different  members  of  the  jury  may  have  come  to  

                                                                                            



     25   261 P.3d 758, 773 (Alaska 2011).  



     26   278 P.3d 893, 901 (Alaska 2012).  



     27   See id.; Adams, 261 P.3d at 773.  



                                                               11                                                           2439  


----------------------- Page 12-----------------------

different conclusions regarding which penile penetration constituted the sexual assault  

                                                



in this case.  



                    Some jurors may have concluded that Jackson should not be convicted for  

                                                                            



the vaginal penetration (either because the jurors had a reasonable doubt as to whether  

                                    



this  vaginal  penetration  occurred  without  L.D.'s  consent  or  because  they  had  a  



reasonable doubt as to whether Jackson acted with reckless disregard of L.D.'s lack of  

                                                                                                                      



consent), but that Jackson should be convicted of the anal penetration (because they  



rejected his assertion that the anal penetration was accidental).  



                    Conversely,  some  jurors  may  have  concluded  that  Jackson  should  be  



convicted for the vaginal penetration (because they concluded that L.D. did not consent  

                                      



to  this  penetration  and  that  Jackson  acted  recklessly  with  regard  to  L.D.'s  lack  of  

                                                                                   



consent), but that Jackson should not be convicted of the anal penetration (because they  



concluded there was a reasonable possibility that this penetration was accidental, as  



Jackson claimed).  



                    And,  of  course,  some  jurors  may  have  concluded  that  Jackson  was  



criminally liable for both acts of penetration - i.e., that both acts of penetration were  



done knowingly, that they occurred without L.D.'s consent, and that Jackson acted in  

                                                                                                        



reckless disregard of L.D.'s lack of consent as to both of them.  



                    Thus, because different members of the jury may have found different parts  

                                                                                                   



of Jackson's defense persuasive, and because the jury was never instructed on the need  

                                                  



to  be  unanimous,  there  is  a  reasonable  possibility  that  the  jurors  convicted  Jackson  

                                                                                    



without ever reaching consensus on which act (or acts) they were convicting him on.  We  

                                                                    



                                                              12                                                        2439
  


----------------------- Page 13-----------------------

therefore cannot conclude that the failure to instruct the jury on unanimity was harmless     

beyond a reasonable doubt.28  



         We do not reach Jackson's other claims of error  



                  Because   we   are   reversing   Jackson's   sexual   assault   conviction   and  



remanding for a new trial, we do not reach Jackson's other claims of error.  



         Conclusion  



                  We REVERSE Jackson's conviction for first-degree sexual assault.  



    28   Khan , 278 P.3d at 901.  



                                                        13                                                     2439  

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