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State of Alaska v Thomas A. Mayfield (5/3/2019) ap-2643

State of Alaska v Thomas A. Mayfield (5/3/2019) ap-2643

                                                     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  



STATE OF ALASKA,  

                                                                    Court of Appeals No. A-12534  

                                    Appellant,                   Trial Court No. 4FA-15-02245 CR  



                           v.  

                                                                               O P I N I O N  

THOMAS A. MAYFIELD,  



                                    Appellee.  

                                                                       No. 2643 - May 3, 2019  



                                           

                  Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                  Fairbanks, Michael A. MacDonald, Judge.  



                  Appearances: Diane L. Wendlandt, Assistant Attorney General,  

                                                                                         

                  Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,  

                               

                  Attorney General, Juneau, for the Appellant. Renee McFarland,  

                                                                            

                  Assistant   Public   Defender,   and   Quinlan              Steiner,   Public  

                                                                             

                  Defender, Anchorage, for the Appellee.  



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

                                                       

                  Superior 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-----------------------

                    Thomas A. Mayfield was indicted by a Fairbanks grand jury for attempted  

                                                                                                                      



second-degree sexual assault.   Mayfield's attorney moved to dismiss the indictment,  

                                                                                                                   



arguing that the evidence presented to the grand jury was legally insufficient to establish  

                                                                                                                        



attempted second-degree sexual assault.  The superior court granted this motion.  The  

                                                                                                                               



State now appeals.  

                 



                    For the reasons explained here, we affirm the superior court's dismissal of  

                                                                                                                                  



the indictment.  

       



          Background facts and prior proceedings  

                                                       



                    On September 27, 2015, fourteen-year-old H.R. went to the Regal Cinema  

                                                                                                                         



in Fairbanks with her younger sister and her friend.  The three girls sat at the end of a  

                                                                                                                                   



row toward the back of the theater. The seat next to H.R. was empty. Twenty-one-year- 

                                                                                                          



old Mayfield was sitting in the seat next to this empty seat.  Mayfield was at the theater  

                                                                                                                          



with two of his friends.  

                         



                    After the girls sat down, H.R.'s sister noticed that Mayfield was staring and  

                                                                                                                                



smiling at them. H.R.'s sister told H.R.; H.R. ignored Mayfield. A short time later, after  

                                                                                                                              



the movie started, H.R. glanced over and realized that Mayfield had moved into the  

                                                                                                                                



empty seat next to her.  H.R. also saw that Mayfield had put his hand, palm-side up, in  

                                                                                                                                  



the gap between the seats, so that his hand was resting close to her knee.  H.R. thought  

                                                                                                                         



this was "weird," and Mayfield's proximity "freaked [her] out."  

                                                                                           



                    H.R. scooted over in her seat so that she was further away from Mayfield  

                                                                                                                       



and closer to her sister.  When H.R. glanced back at Mayfield, she saw Mayfield slowly  

                                                                                                                           



moving his hand upwards.  H.R. then felt "a push on [her] hip," and "the force started  

                                                                                                                          



going down and he was trying to put his hand in my pants."  

                                                                                  



                    At the grand jury hearing, the prosecutor asked H.R. to describe exactly  

                                                                                                                          



what happened:  

         



                                                              - 2 -                                                         2643
  


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

                                                                                      

          Prosecutor :          Okay.        And  when  you  said  you  felt  

                                                                                       

something on your hip, do you know what that was you felt  

              

on your hip?  



                                                                                         

          H.R. :  His hand, because when I looked down I saw it.  



                                                                           

          Prosecutor :          Okay.       And  then  you  said  something  

                                                                              

about his hand in your pants, what happened after that?  



                                                                  

          H.R. :  I jumped.  I looked over, and I said - I yelled  

     

at him.  



                                                                                   

          Prosecutor : Okay. So let's talk about why you yelled  

                                                                              

at him. What is it that he did that made you yell at him?  



                                     

          H.R. :  Touching me.  



                                                                               

          Prosecutor :  Okay.  So you said you felt his hand on  

                                                                                 

your hip, right?  Okay.  Did something happen after that?  



                                                                                    

          H.R. :  What do you mean?  Like, he pushed his hand.  

                                            

Like, he got, like, under my sweats.  



                                                                                    

          Prosecutor :   Okay.   So did he put his hand in your  

pants?  



                                                                                      

          H.R. :   He got his fingertips in my pants, but I had  

                              

leggings on, so -  



                               

          Prosecutor :  Okay.  



                     

          H.R. :  Right.  



                                                                                        

          Prosecutor :  Where did he put his hand?  Was it -  

                                                                         

when he was trying to put his hand down your pants, was it  

                                                     

in the front or back or somewhere else?  



                                                

          H.R. :  It was just on the side.  



                                                

          Prosecutor :  Just on the side.  



                                  

          H.R. :  Like -  



                                          -  3 -                                                       2643
  


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

                                    Prosecutor :    Okay.    And when he did that, how did                                       

                        you react?   



                                    H.R. :    It scared me, so I jumped, and I - I said -                                         

                        yelled at him.     



                                    Prosecutor :   And you yelled at him?                      



                                    H.R. :   Well, not yelled, but I said something.               



                                    Prosecutor :   Do you remember what you said?                                 



                                    H.R. :   Yeah.   I said, "Don't f-ing touch me." . . .                                  [1]  



                                    Prosecutor :  Okay.  After you did that, what did you  

                                                                                                                                

                         do next?  

                               



                                    H.R. :  I leaned over and told my friend that we should  

                                                                                                                           

                         go.  



                                    Prosecutor :  Okay.  

                                                             



                                    H.R. :   Actually I said he just touched me.   He just  

                                                                                                                                

                        touched me.  I was, like, he just grabbed my butt.  Like, just  

                                                                                                                                

                         like, I was so scared, I just said, and then, like, then we got up  

                                                                                                                                   

                         and left.  

                                 



                         The girls got out of their seats and called H.R.'s foster mother, who told the  

                                                                                                                                                          



girls to tell the theater manager. The theater manager contacted the police, and Mayfield  

                                                                                                                                               



was arrested when he left the theater.  

                                                       



                        Mayfield was originally arrested for assault in the fourth degree, a class A  

                                                                                                                                                            

misdemeanor,2  harassment in the second degree, a class B misdemeanor,3  

                                                                                                                                       and violating  

                                                                                                                                               



      1     H.R. then explained to the jury that she used an expletive for "f-ing."  



      2     AS 11.41.230(a)(3), (b).  



      3     AS 11.61.120(a)(5), (b) (subjecting a person to offensive physical contact  with the  



                                                                                                                                       (continued...)  



                                                                           - 4 -                                                                     2643
  


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

                                                                               4  

conditions of release, a class B misdemeanor.                                     The assault charge was subsequently         



                                                                                                                 5  

elevated to attempted second-degree sexual assault, a class C felony.                                                                        

                                                                                                                    Mayfield was then  



                                                                                                                                             

indicted on that charge, with a separate information charging him with harassment and  



                                         

violating conditions of release.  



                                                                                                                                             

                       Mayfield's attorney filed a motion to dismiss the indictment, arguing that  



                                                                                                                                               

the  evidence  presented  to  the  grand  jury  was  insufficient  to  establish  the  crime  of  



                                                                                             

attempted second-degree sexual assault.  The defense attorney argued specifically that  



                                                                                                                                 

the State had not shown that Mayfield used or threatened any force against H.R.  



                                                                                                                                           

                       In response, the prosecutor argued that the State was not required to show  



                                                                                                                                         

that Mayfield intended to use or threaten the use of force in attempting to have sexual  



                                                                                                                                                

contact with H.R.  Instead, the prosecutor contended that the State was only required to  



                                                                                                                                    

 show that Mayfield intended to engage in sexual contact with H.R. and that Mayfield  



                                                                            

acted in reckless disregard of H.R.'s lack of consent.  



                                                                                                                                             

                       The  superior  court  dismissed  Mayfield's  indictment.                                         Relying  on  our  



                                                                       6  

                                                                                                                                               

unpublished opinion in State v. Townsend,  the court concluded that "[e]vidence that the  



                                                                                                                                             

defendant engaged in or attempted to engage in unwanted contact with H.R. is not  



                                                                                                                                          

enough."  Instead, the court concluded that "[t]here must be evidence before the grand  



                                                                                                                                           

jury that the defendant attempted to coerce sexual contact with H.R. by the use of force  



                                                                                                                                                     

or threats."  Because there was no such evidence, the court dismissed the indictment.  



                                                 

                       The State now appeals.  



      3     (...continued)  



intent to harass or annoy that person).  



      4     AS 11.56.757(a), (b).  Mayfield was on bail release from a disorderly conduct charge                            



at the time of the incident.  



      5     AS 11.41.420(a)(1) & AS 11.31.100(a); AS 11.31.100(d)(4).  



      6     State v. Townsend, 2011 WL 4107008 (Alaska App. Sept. 14, 2011) (unpublished).  



                                                                      -  5 -                                                             2643
  


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

                  The elements of the completed crime of second-degree sexual assault                                                                                                  



                                    The dispute in this case primarily turns on a question of law:  What does   



the State need to prove in order to establish that a defendant is guilty of attempted                                                                                                                      



 second-degree sexual assault? We begin our discussion by reviewing the elements of the                                                                                                                                        



completed crime of second-degree sexual assault, and we then discuss the elements that                                                                                                                                      



must be proven to establish attempted second-degree sexual assault.                                                                                               



                                    Under AS 11.41.420(a)(1), a defendant commits the completed crime of                                                                                                                        



 second-degree sexual assault if the defendant (1)                                                                                        engages in                      "sexual contact" with                          



                                                                                                                                                                     7  

another person, and (2) the sexual contact is "without consent."                                                                                                                                                               

                                                                                                                                                                         In Reynolds v. State we  



                                                                                                                                                                                                                    

interpreted the statute to require an additional element: (3) that the defendant acts in  



                                                                                                                                                                                                                            8  

                                                                                                                                                                                                   

reckless disregard of the circumstance that the sexual contact is "without consent." 



                                                                                                                                                                                                                  

                                    The first element of the crime is that the defendant engages in "sexual  



                                                                                                                                                                                                                    

contact" with another person.   Under AS 11.81.900(b)(60), "sexual contact" means  



                                                                                                                                                                                                                    

"knowingly touching, directly or through clothing, the victim's genitals, anus, or female  



                                                                                                                                                                                                   

breast" or "knowingly causing the victim to touch, directly or through clothing, the  



                                                                                                                                                                                                               

defendant's or victim's genitals, anus, or female breast."  Touching another person's  



         7        See Alaska Criminal Pattern Jury Instruction 11.41.420(a)(1) (2002).   



         8  

                                                                                                                                                                                 

                  See Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983).  In Reynolds, we read  

                                                                                                                                                                                                                               

this recklessness mens rea requirement into the sexual assault statute in recognition of the  

                                                                                                                                                        

fact  that,  in  eliminating  the  common  law  requirement  of  resistance,  the  legislature  had  

                                                                                          

"substantially enhanced the risk of conviction in ambiguous circumstances" and increased  

                                                                                                                                                                                                                              

the likelihood that a defendant could be unfairly convicted of sexual assault even if the  

                                                                                         

defendant honestly and reasonably believed that the sexual contact was not without consent.  

Id. at 624-25.  



                                                                                                             -  6 -                                                                                                    2643
  


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

                                                                                                               9  

buttocks does not constitute "sexual contact" under Alaska law.                                                    However, touching   

another person's buttocks may constitute the crime of harassment.                                                 10  



                                                                                                                                      

                       The second element of the crime is that the sexual contact is "without  



                                                                                                                                          

consent."            This  term  has  a  specialized  legal  meaning  under  Alaska  law.                                                 Under  



                                                                                                                                        

AS 11.41.470(8)(A), "without consent" means that the victim of the sexual contact,  



                                                                                                                                                  

"with or without resisting, is coerced by the use of force against a person or property, or  



                                                                                                                                                 

by the express or implied threat of death, imminent physical injury, or kidnapping to be  



                                     11  

                      

inflicted on anyone." 



                                                                                                                                           

                       Thus, coercion by the use or threat of force is a central element of sexual  



                                                                                                                                          

assault under Alaska law.  The criminal code broadly defines "force" as "any bodily  



                                                                                                                                                  

impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or  



                         12  

                                                                                                                                                

confinement."                 But to prove the use of "force" in the context of sexual assault, the  



      9    See  Reakoff   v.   State,  1998  WL  224919,  at  *4  (Alaska  App.  May   6,  1998)  



(unpublished) (citing Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996) (noting that  

the touching of another person's buttocks is not "sexual contact")).  



      10   See  AS 11.61.118(a)(2) ("A person commits the crime of harassment in the first  

                                                                                                               

degree if . . . the person violates AS 11.61.120(a)(5) and the offensive physical contact is  

                                                                                                      

contact  by the  person  touching  through  clothing  another  person's  genitals,  buttocks,  or  

                                                                                    

female breast."); AS 11.61.120(a)(5) ("A person commits the crime of harassment in the  

                                                                                                                        

second degree if, with intent to harass or annoy another person, that person . . . subjects  

                                                                                                                                       

another person to offensive physical contact.").  



      11   A sexual act is also "without consent" if the person is "incapacitated as a result of an  

                                                                                                                                                  

act of the defendant."  AS 11.41.470(8)(B).  This portion of the definition is not at issue in  

                                                                                                    

this case.  



      12   AS 11.81.900(b)(28).  



                                                                      -  7 -                                                               2643
  


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

bodily impact or restraint must be more than simply the bodily impact or restraint                                                                                 

inherent in the charged act of sexual penetration or contact.                                                               13  



                                                                                                                                                                         

                            As the statutory definition makes clear, coercion can be established either  



                                                             14  

                                                                                                                                                                        

                                                                  Resistance by the victim is not required. Instead, sexual  

by force or the threat of force. 



                                                                                                                                                                                 15  

                                                                                                                                                                                       

                                                                                                                                                              

activity can be coerced even if the victim acquiesces or submits without resisting. 



Moreover, the question of coercion is evaluated under the totality of the circumstances,  

                                                                                                                                                      

from the perspective of the victim who is subjected to the unwanted sexual activity.16  

                                                                                                                                                              



       13     See Inga v. State, ___ P.3d ___, 2019 WL 989309 (Alaska App. Mar. 1, 2019);  see  



also Townsend, 2011 WL 4107008, at *7-8 (Mannheimer, J., concurring); Inga v. State , 2004  

WL 719626, at *5 (Alaska App. Mar. 31, 2004) (unpublished).                                                                       The requirement that the  

bodily impact, restraint, or confinement be more than simply the bodily impact or restraint                                                      

inherent in the charged act of sexual penetration or contact derives from the common law and                                                 

remains the law in the majority of jurisdictions.                                             See State v. Jones, 299 P.3d 219, 228 (Idaho  

2013) ("The extrinsic force standard is the traditional view and 'is still the most commonly  

adopted.'").  See generally 2 Wayne R. LaFave, Substantive Criminal Law  17.3(a), (b), at  

841-50 (3d ed. 2017) (discussing extrinsic force requirement and collecting cases).  



       14     AS 11.41.470(8)(A).  



       15     See, e.g., Ritter v. State, 97 P.3d 73, 77-78 (Alaska App. 2004); Nicholson v. State,  

                                                                                                                                                

656 P.2d 1209, 1213 (Alaska App. 1982).  



       16     See, e.g., Maslin v. State , 718 N.E.2d 1230, 1235 (Ind. App. 1999), rev'd on other  

                                                                   

grounds by Ludy v. State, 784 N.E.2d 459 (Ind. 2003) (noting that it is from the rape victim's  

                                                                                                                                                     

perspective, not the assailant's, that the presence or absence of forceful compulsion is to be  

                                                                                                                              

determined, and that this is a subjective test that looks to the victim's perception of the  

                                                                                                                                                                               

surrounding circumstances); People v. Texidor, 71 A.D.3d 1190, 1193 (N.Y. App. Div. 2010)  

                                                                                                                                                      

(stating that the element of forcible compulsion must be viewed through "the state of mind  

                                                                                                                                                                           

produced  in  the  victim  by  the  defendant's  conduct,"  considering  "all  relevant  factors  

                                                         

including the age of the victim, the relative size and strength of the defendant and the victim,  

                                                                                                                             

and the nature of the defendant's relationship to the victim") (internal citations omitted). See  

                                                                                                                                                                               

generally 2 Wayne R. LaFave, Substantive Criminal Law   17.3(a), (b), at 841-50 (3d ed.  

                                              

2017).  



                                                                                     -  8 -                                                                              2643
  


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

                         However, the defendant's perspective is important to the third element of                                                            



second-degree sexual assault. Under this Court's decision in                                                    Reynolds v. State               , the State     



must prove that the defendant recklessly disregarded the circumstance that the sexual                                                                 



                                                            17 

                                                                                                                                

activity was "without consent."                                 That is, the State must prove that the defendant was  



                                                                                                                                                              

subjectively aware of a substantial and unjustifiable risk that the victim was coerced by  



                                                                                                                                                            

the use of force or threat of force - or that the defendant would have been aware of this  



                                                                                               18  

                                                                        

risk but for the defendant's voluntary intoxication. 



                                                                                                                                                                

                         (As defined in AS 11.81.900(a)(3), a "substantial and unjustifiable risk" is  



                                                                                                                                                         

a risk "of such a nature and degree that disregard of it constitutes a gross deviation from  



                                                                                                                                    

the standard of conduct that a reasonable person would observe in the situation.")  



                                                                                                                                                            

                         In our past cases, we have often used a shorthand when describing the  



                                                                                                                                                                

element of "without consent."   We have sometimes declared, for example, that in a  



                                                                                                                                               

prosecution  for  sexual assault,  the State is required to  show that (1)  the defendant  



                                                                                                                                            

knowingly engaged in the sexual act, and that (2) the defendant recklessly disregarded  



                                                                                                                                                  

the victim's "lack of consent."  But this shorthand description of the "without consent"  



                                                                                                                                                    

element is potentially misleading because the phrase "lack of consent" could be misread  



                                                                                                                                                    

as referring only to the fact that the sexual activity was unwanted, without the element  



                                                                                                                            

of coercion also required to establish sexual assault under Alaska law.  



                                                                                                                        

             The elements of attempted second-degree sexual assault  



                                                                                                                                       

                         Having reviewed the elements of the completed crime of second-degree  



                                                                                                                                                                    

sexual assault, we now address the elements of attempted second-degree sexual assault.  



                                                                                                                                                              

Under AS 11.31.100(a), a person is guilty of an attempt to commit a criminal offense if,  



       17   Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983). 
 



       18   Id. at 625, 627; see AS 11.81.900(a)(3); AS 11.81.900(b)(35). 
 



                                                                            -  9 -                                                                     2643
  


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

"with intent to commit a crime, the person engages in conduct which constitutes a                                                                                                                                                    



substantial step toward the commission of that crime."                                                                                              Thus, to convict a defendant of                                                



attempted second-degree sexual assault, the State needs to prove that (1) the defendant                                                                                                                       



intended to commit the crime of second-degree sexual assault, and (2) the defendant took                                                                                                                                     



a   substantial   step   toward   the   commission   of   this   crime.     (This   is   similar   to   the  

formulation used in other states to define attempted sexual assault crimes.                                                                                                                            19)  



                                                                                                                                                                                                                      

                                    But this definition is far from self-explanatory.   As the present appeal  



                                                                                                                                                                                                                                   

illustrates, substantial uncertainty has arisen as to exactly what the State must prove to  



                                                                                                                                                                                                                                           

show that a defendant "intended to commit the crime of second-degree sexual assault."  



                                                                                                                                                                                                                         

The parties to this case also disagree regarding what elements of the completed crime  



                                                                                                                                                                                                                           

must be present in order for the defendant's actions to constitute a "substantial step"  



                                                                                                                                                                                                   

toward the commission of the completed crime of second-degree sexual assault.  



         19       See, e.g., People v. Dixon, 75 Cal.App.4th 935, 942, 89 Cal.Rptr.2d 602, 607 (Cal.   



App.  1999)  ("Attempted  sexual  battery   requires  (1)  an  intent   to  and  (2)  a  direct  but  

ineffectual act in an attempt to, touch an intimate part of the body (contact with the victim's                                                                         

skin) of a victim unlawfully restrained (by force or fear), without the victim's consent, for                  

the purpose of sexual arousal, sexual gratification, or sexual abuse.");                                                                                                       State v. Allen, 237 P.3d  

 14, 16 (Idaho 2010) ("An attempt consists of:    '(1) an intent to do an act . . . which would in  

law amount to a   crime; and (2) an act in furtherance of that intent which, as it is most   

commonlyput, goes beyond mere preparation.'" (quoting                                                                                            State v. Grazian, 164 P.3d 790, 796  

(Idaho 2007)));  State v. Rick, 463 S.E.2d 182, 188 (N.C. 1995) ("In order to prove an attempt  

to commit an offense, the State must show defendant intended to commit the offense and  

made an overt act, going beyond mere preparation, for that purpose, but falling short of the   

completed  offense.").     See  generally  2 Wayne                                                                            R.  LaFave,  Substantive  Criminal  Law    

 11.3(a), at 293-98 (3d ed. 2017) (noting that the mental state required for the crime of attempt   

is the intent to commit the relevant crime, though the defendant need not intend criminality  

per se).  



                                                                                                             -  10 -                                                                                                     2643
  


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

                      We partially addressed these questions in two prior decisions:                                           Guertin v.   



        20                                  21  

State                                                                                                                                    

            and Sergie v. State.                 In Guertin, the defendant argued that there was no such  



                                                                                                                                  

crime  as  "attempted  second-degree  sexual  assault"  because  (according  to  Guertin)  



                                                                                                                                      

"attempt" crimes could only exist for specific-intent offenses - that is, offenses where  



                                                                                                                                    

a mens rea of "intentionally" is attached to a specific result.  In other words, Guertin  



                                                                                                                                       

argued that it was logically impossible for a person to "intentionally" commit a crime  



when that crime was defined by the person's reckless disregard of the victim's lack of  



              22  

consent.                                                                                                                       

                  Guertin also argued that the jury instructions in his case failed to adequately  



                                                                                                                                             

inform the jury that the State had to prove that Guertin actually intended to engage in  



                                                                                                                                 

sexual contact with the victim, rather than simply creating a substantial risk that such  



                                              23  

                                    

sexual contact might occur. 



                                                                                                                                      

                      We rejected both arguments, concluding that the crime of attempted sexual  



                                                                                                                                     

assault existed and that the crime required proof that the defendant "attempted to engage  



                                                                                                                                             24  

                                                                                                                                                  

                                                                                                                               

in sexual contact with another person without regard to that person's lack of consent." 



                                                                                                                                        

We also found that the jury instructions, when read in a common-sense fashion, were  



                                  

adequate to convey the State's obligation to prove that the defendant's conscious goal  



                                                                              25  

                                                                  

was to engage in the prohibited sexual contact. 



                                                                                                                                          

                      This Court's ruling in Guertin became the basis for a jury instruction that  



                                                                                                                                           

was challenged more than ten years later in Sergie v. State, where we addressed the  



      20   Guertin v. State, 854 P.2d 1130 (Alaska App. 1993). 
 



      21   Sergie v. State, 105 P.3d 1150 (Alaska App. 2005). 
 



      22   Guertin, 854 P.2d at 1131.   



      23   Id. at 1133.  



      24  

                  

           Id.  



      25  

                 

           Id.  



                                                                   -  11 -                                                             2643
  


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

                                                                                         26  

elements of attempted first-degree sexual assault.                                             Sergie   involved   an intoxicated   



husband who physically assaulted his wife, pushing her down to the floor multiple                                                       

times.27                                                                 

               Sergie then began removing his wife's shirt and bra and trying to remove her  



                                                                           28  

                                                                                                                                      

                                                                               Sergie's attack on his wife was witnessed  

pants, telling his wife to "spread [her] legs." 



                                                                                                                                                        

by his sister and another family member, and was eventually stopped by the sister's  



                              29  

                                                                                                                                                   

calling the police.                At trial, the jury was instructed (in accordance with Guertin) that to  



                                                                                                                                             

convict Sergie of attempted first-degree sexual assault, the State was required to prove  



                                                                                                                                               

beyond a reasonable doubt that Sergie "intended to engage in sexual penetration with  



                                                                                                               30  

                                                                                               

another person without regard to that person's lack of consent." 



                                                                                                                                                   

                       On appeal, Sergie argued that the mens rea of "intentionally" applied to  



                                                                                                                                                   

both the phrase "sexual penetration with another" and the phrase "that person's lack of  



                31  

                                                                                                                                                   

consent."            In other words, Sergie argued that a defendant could only be found guilty of  



                                                                                                                                           

attemptedfirst-degreesexual assault ifthedefendant'sconsciousobjectivewas to engage  



                                                                                                                                  

in sexual penetration with a victim that he knew was unwilling - and that a defendant's  



                                                                                                                                                  

willingness to proceed with the sexual penetration regardless of the victim's lack of  



                                                                                                                                                 

consent was not enough.  We rejected this claim, concluding that it was enough for the  



      26    Sergie, 105 P.3d at 1153. 
 



      27   Id. at 1152-53. 
 



      28   Id.
   



      29   Id. at 1152. 
 



      30   Id. at 1153.
  



      31   Id. 
 



                                                                      -  12 -                                                               2643
  


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

State to prove that "Sergie intended to engage in sexual penetration with [his wife]                                                      

whether she consented or not                      ."32  



                                                                                                                                        

                       As the parties in the current case both point out, our discussion in Sergie  



                                                                                                                                              

was not as complete as it could have been, because the decision says very little about the  



                                                                                                                                       

coercion element of "without consent."  Instead, the language of our decision focuses  



                                                                                                                                             

primarily  on  the  victim's  subjective  willingness  or  unwillingness  to  engage  in  the  



                                                                                                                                   

attempted  sexual  activity.                      Sergie  did  not  directly  address  the  issue  of  coercion,  



                                                                                                                                          

presumably because the defendant's willingness to use force was already apparent under  



                            

the facts of this case.  



                                                                                                                                    

                       The failure of either Sergie  or  Guertin to directly address the coercion  



                                                                                                                                     

element of "without consent" leads Mayfield to argue that these cases were wrongly  



                                                                                   33  

                                                                                                                                             

                                                                                         The State argues that Sergie  and  

decided and should be overruled by this Court. 



                                                                                                                                           

Guertin should be clarified rather than overruled. We agree with the State that our prior  



                                                                                                                                    

caselaw  is  potentially  misleading  and  that  additional  clarification  of  the  "without  



                                                   

consent" coercion element is required.  



                                                                                                                                  

                       As has been recognized in other jurisdictions, to be guilty of attempted  



                                                                                                                                             

sexual assault, a defendant must intend - or at least conditionally intend - to use  

"whatever force is required to commit the sexual act against the victim's will."34  That  



      32   Id. at 1155 (emphasis added).  



      33   See Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 2004)  



                                                                                       

("We will overrule a prior decision only when clearly convinced that the rule was originally  

                                                                                                           

erroneous or is no longer sound because of changed conditions, and that more good than  

harm would result from a departure from precedent.") (internal quotations omitted).  



      34    United States v. Bolanos-Hernandez, 492 F.3d 1140, 1147 n.5 (9th Cir. 2007) (internal  

                                                                                                                                       

citations omitted). See generally Laurie L. Levenson & Alex Ricciardulli, The Rutter Group,  

                                

California  Criminal  Law    7:12  (2018-2019  ed.)  ("The  specific  intent  required  for  a  

                                                                                                                             (continued...)  



                                                                    -  13 -                                                              2643
  


----------------------- Page 14-----------------------

is, the defendant must be willing to use force or threat of force to the extent necessary to                                                                           



achieve the desired sexual contact.                  



                          As a general matter, the law views a qualified or conditional intent as just                                                             



                                                                           35  

                                                                                                                                                                      

as culpable as an unconditional intent.                                         Thus, if a defendant attempts to carry away an  



                                                                                                                     

item of property not knowing whether it belongs to him or is simply a similar-looking  



                                                                                                                                                                  

item, and if the defendant intends to keep the item no matter to whom it belongs, then  



                                               36  

                                                                                                                                                                  

this  is  attempted  theft.                            Likewise,  if  a  defendant  is  aware  of  a  substantial  and  



                                                                                                                                                                    

unjustifiable risk  that a victim is  unwilling to engage in  sexual contact, and  if the  



                                                                                                                                                         

defendant intends to use force or threat of force if necessary to effectuate their intended  



                                                                                                                                                              

goal of sexual contact, then the defendant is guilty of attempted second-degree sexual  



assault.  



                                                                                                                                                                     

                          How the State proves such an intent or conditional intent will depend on  



                                                                                                                                                                      

the circumstances of the specific case.  Proof that the defendant actually used force or  



                                                                                                                                                 

threat of force in an attempt to achieve the unwanted sexual contact will, of course, be  



                                                                                                                                                                     

legally sufficient to prove the defendant's willingness to use force or threat of force for  



                                                                                                                                                                     

purposes of defeating a motion for judgment of acquittal or a motion to dismiss an  



                                                                                                                                                                 

indictment based on insufficiency of the evidence. Butthe defendant's "substantial step"  



                                                                                                                                                                    

toward commission of the completed crime need not necessarily involve the actual use  



                                                                                                                                                                     

of force or threat of force to survive such motions or to support a conviction. Rather, the  



                                                                                                                                                       

question is whether, given all the circumstances, the State has proved that the defendant  



                                                                                                                                                           

intended or conditionally intended to use force or threat of force if necessary to achieve  



       34    (...continued)  



conviction for attempted sexual assault has been described as the intent to use whatever force  

is required to complete the sexual act against the victim's will.").  



       35    See Rollin M. Perkins and Ronald N. Boyce, Criminal Law, 640 (3d ed. 1982).  



       36    Id.   



                                                                               -  14 -                                                                         2643
  


----------------------- Page 15-----------------------

the sexual contact.                       In other words, although a defendant's "substantial step" toward                                                             



committing the sexual assault need not necessarily include an active use of force or the                                                                                       



threat of force, the defendant's actions must still be "strongly corroborative" of the                                                                                         



defendant's willingness to use force or threat of force if necessary to effectuate the                                                                                         

intended sexual contact.                           37  



                                                                                                                                                                      

                            In sum, to prove that a defendant committed the crime of attempted second- 



                                                                                                                                                          

degree sexual assault under AS 11.41.420(a)(1), the State must establish that:  



                                                                                                                                                    

              (1) the defendant intended to engage in sexual contact with the victim;  



                                                                                                                                                                

              (2) the defendant recklessly disregarded a substantial and unjustifiable risk  

                                                                                                                              

              that the victim was unwilling to engage in the sexual contact;  



                                                                                                                                                                    

              (3) the defendant intended to use force or threat of force if necessary to  

                                                                                 

              achieve the sexual contact; and  



                                                                                                                                                                 

              (4)  the  defendant  took  a  substantial  step  toward  achievement  of  the  

                                      

              completed crime.  



                                                                                             

              Application of this law to the current case  



                                                                                                                                                                

                            Under AlaskaCriminal Rule 6(q), "[t]he grand jury shallfindan indictment  



                                                                                                                                                                      

when all the evidence taken together, if unexplained or uncontradicted, would warrant  



                                                                                                                                                                

a conviction of the defendant."  In making the determination of whether an indictment  



       37     See Avila v. State, 22 P.3d 890, 893-94 (Alaska App. 2001) (noting that although the  



Alaska criminal code does not explicitly define "substantial step," Alaska generally follows  

                                                                                                                                                                       

the  approach  taken  by  the  Model  Penal  Code:                                                    to  qualify  as  a  "substantial  step,"  the  

                                                                                                                                                                 

defendant's act must be "strongly corroborative of the actor's criminal purpose." (quoting  

                                                                                                                              

Alaska Criminal Code Revision, Tentative Draft, Part II at 72-73 (1977))); Iyapana v. State ,  

284 P.3d 841, 848 (Alaska App. 2012); Beatty v. State, 52 P.3d 752, 755-56 (Alaska App.  

2002).  



                                                                                     -  15 -                                                                              2643
  


----------------------- Page 16-----------------------

was proper, the court must draw all legitimate inferences from the evidence in favor of                                                                      

the indictment, and determine whether there exists a "probability of guilt."                                                               38  



                                                                                                                                                              

                         In the current case, the superior court found that the evidence presented to  



                                                                                                                                                       

the grand jury was insufficient to establish that Mayfield intended to use force or threat  



                                                                                

of force if necessary to achieve the sexual contact.  



                                                                                                                                                        

                         On appeal, the State criticizes this ruling, arguing that the superior court  



                                                                                                                                                           

erroneously  required  the  State  to  prove  that  the  "substantial  step"  underlying  the  



                                                                                                                                                            

attempted sexual assault included the active use of force or threat of force.  We read the  



                                                                                                                                           

superior  court's order  differently.                               Although  the State is correct that a defendant's  



                                                                                                                                                   

"substantial step" need not involve the active use of force or threat of force, the conduct  



                                                                                                                                                       

must still be "strongly corroborative" of the defendant's willingness to use force or threat  



                                                                                            39  

                                                                              

of force to effectuate the intended sexual contact. 



                                                                                                                                                         

                         Here, the evidence showed that Mayfield engaged in physical contact with  



                                                                                                                                                        

H.R. - contact that alarmed and frightened her.  Mayfield put the fingertips of his hand  



                                                                                                                                                           

on H.R.'s hip between her pants and leggings - an action that H.R. described to her  



                                                                                                                                                

friends as Mayfield "grabb[ing] her butt."   But there is no indication that Mayfield  



                                                                                                                                                    

reached  toward  H.R.'s  genitals,  or  that  his  intent  was  to  have  contact  with  H.R.'s  



                                                                                                                                                

genitals.  Nor is there any indication that Mayfield intended (or conditionally intended)  



                                                                                             

to use force or the threat of force to touch H.R.'s genitals.  



                                                                                                                                                              

                         In its briefing on appeal, the State compares this case to Nicholson v.  



           40  

State,                                                                                                                                                        

               and argues that similar reasoning should apply here.  But the circumstances in  



                                                                                                                                                               

Nicholson were materially different from those presented here.  Nicholson involved a  



      38     Sheldon v. State, 796 P.2d 831, 836-37 (Alaska App. 1990).  



      39     See Avila       , 22 P.3d at 893-94; Iyapana , 284 P.3d at 848; Beatty, 52 P.3d at 755-56.  



      40    Nicholson v. State, 656 P.2d 1209 (Alaska App. 1982).  



                                                                           -  16 -                                                                    2643
  


----------------------- Page 17-----------------------

defendant who broke into a house in the early morning hours and proceeded to take his                                                               



                                                                                                                                41  

clothes off and climb into bed with the sleeping fifteen-year-old victim.                                                                     

                                                                                                                                     The victim  



                                                                                                                                                      42  

                                                                                                                                                           

awoke to find the naked defendant in her bed, fondling her breasts and kissing her. 



                                                                                                                                                      43  

                                                                                                                                                           

                                                                                                                                             

Taken by surprise, she hesitated for a moment, and then jumped up, waking her sister. 



                                                                                                                                                      44  

The two girls fled downstairs, where they armed themselves with butcher knives.                                                                            

                                                                                                                                          



Nicholson was later convicted of second-degree sexual assault, as a lesser included  

                                                                                                                                          

charge of the charged attempted first-degree sexual assault.45  

                                                                                             



                        On appeal, Nicholson argued that there was insufficient evidence to indict  

                                                                                                                                                



him for attempted first-degree sexual assault, arguing that his conduct only supported an  

                                                                                                                                                      



inference that he wished to fondle the breast of the victim, not that he intended sexual  

                                                                                                                              

penetration.46  

                                                                                                

                          We rejected this argument, concluding that:  



                                                                                                                              

                        a  jury  could  reasonably  infer  that  Nicholson  intended  to  

                                                                                                             

                        "penetrate"  K.R.  and  that  entering  her  bed  naked  and  

                                                                                                                      

                        uninvited and fondling her were "substantial steps" toward  

                                                                                                                          

                        the commission of that crime.  We are satisfied that a jury  

                                                                                                                      

                        could conclude that if Nicholson had intended only sexual  

                                                                                                                         

                        contact  [as  opposed  to  penetration],  he  would  not  have  

                                                                                                                            

                        undressed  before  entering  her  bed  and  that  if  he  did  not  

                                                                                                                        

                        intend to coerce her he would not have entered her home  



      41    Id. at 1210. 
 



      42    Id.
   



      43    Id.
  



      44    Id.
  



      45    Id.
  

                  



      46    Id. at 1211-12. 
 



                                                                       -  17 -                                                                 2643
  


----------------------- Page 18-----------------------

                       uninvited in the early morning hours when a jury could find                                   

                       that he knew her parents would be gone.                             47  



                                                                                                                                        

                       The circumstances of Mayfield's case are far more ambiguous as to the  



                                                                                                                                             

defendant's intent to use or threaten force to engage in sexual contact.  Although the  



                                                                                                                                         

 State refers to Mayfield "putting his hand down H.R.'s pants," the testimony at the grand  



                                                                                                                                               

jury was that Mayfield put his fingertips between H.R.'s pants and leggings, and that he  



                                                                                                                                              

touched her only on her hip.  Contrary to the State's assertions on appeal, there is no  



                                                                                                                                            

indication that Mayfield's hand would have impeded H.R.'s ability to stand up or to pull  



                                                                                                                                               

away from the unwanted touching.  Nor is there any indication that Mayfield tried to  



                                                                                                                                             

continue to touch H.R. after she voiced her disapproval.  There is also no way to tell  



                                                                                                                                              

what the intended goal of the touching was.  H.R. herself apparently viewed it as an  



                                                                                                                                        

attempt to grab her "butt," and she initially described it as such to her sister and friend.  



                                                                                                                                         

                       Onappeal, theStatepoints out thepotentiallycoercivecircumstancesunder  



                                                                                                                                             

which the touching occurred, focusing in particular on H.R.'s age and the fact that the  



                                                                                                                                        

movie theater was dark.   We agree that such circumstances are relevant to a jury's  



                                                                                                                                                    

consideration of whether an intent (or conditional intent) to use force has been shown.  



                                                                                                                                             

Also relevant, however, is the fact that H.R. was in a public place, accompanied by her  



                                                                                                                                          

 sister and her friend, and surrounded by other moviegoers.  We also note that the State  



                                                                                                                                            

has not charged Mayfield with attempted sexual abuse of a minor or put forward any  



                                                                                                                                           

evidence suggesting that Mayfield was aware of H.R.'s age or that Mayfield viewed H.R.  



                                                                                                                                               

as particularly vulnerable.  And, as already noted, the State put forward no evidence as  



                                                                                                                              

to the intended goal of the touching, which was limited in nature (although undoubtedly  



                         

frightening to H.R.).  



      47   Nicholson, 656 P.2d at 1212.  



                                                                    -  18 -                                                              2643
  


----------------------- Page 19-----------------------

                              In   sum,   even   viewing   the   evidence   in   the   light   most   favorable   to   the  



indictment,   the   evidence   shows   that   Mayfield   engaged   in   offensive   and   unwanted  



touching of H.R. - touching that was frightening to her - but it does not show that                                                                                                       



Mayfield acted with the intent to force his hand down H.R.'s pants and touch her genitals                                                                                         



"without consent."   



                              A person cannot be indicted (or convicted) based on mere conjecture or                                                                                          



                           48  

speculation.                                                                                                                                                                              

                                  Because the evidence presented to the grand jury failed to show that  



                                                                                                                                            

Mayfield took a substantial step toward completing the crime of second-degree sexual  



                                                                                                                                                                                  

assault, we agree with the superior court that this evidence was insufficient to support  



                                                                                                                                                                                           

Mayfield's indictment.   Accordingly, we affirm the superior court's dismissal of the  



                                                                                                                                                                                              

indictment, and we remand this case to the superior court for further proceedings, as  

appropriate.49  



               Conclusion  



                                                                                                                                                                                              

                              The  judgment  of  the  superior  court  is  AFFIRMED,  and  this  case  is  



                                                                                                                                                                                                     

REMANDED to the superior court for further proceedings consistent with this decision.  



       48      See Alaska R. Crim. P. 6(q); Allen v. State , 420 P.2d 465, 467 (Alaska 1966).  



       49      The  record  on  appeal  indicates  that  Mayfield  has  already   pleaded   no   contest  to  



second-degree  harassment  and  violating  conditions  of   release,  and  he  has  already been   

sentenced on those charges.  



                                                                                           -  19 -                                                                                    2643  

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