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Aaron J. Fedolfi v State of Alaska (12/20/2019) ap-2664

Aaron J. Fedolfi v State of Alaska (12/20/2019) ap-2664

                                                    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  



AARON JAMES FEDOLFI,  

                                                                   Court of Appeals No. A-12586  

                                   Appellant,                    Trial Court No. 4BE-15-00780 CR  



                           v.  

                                                                           O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                   Appellee.                      No. 2664 - December 20, 2019  



                  Appeal from  the District Court, Fourth Judicial District, Bethel,  

                  Nathaniel Peters, Judge.  



                  Appearances: Laurence Blakely, Assistant Public Defender, and  

                                                                                 

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

                                                                                      

                  RuthAnne  B.  Bergt,  Assistant  Attorney  General,  Office  of  

                                                                         

                  Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney  

                  General, Juneau, for the Appellee.  



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

                                               

                  Senior Judge. *  

                                      



                  Judge MANNHEIMER.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


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

                    In 2015, while Aaron James Fedolfi was on duty as an officer of the Bethel  

                                                                                                                           



Police Department, he  saw an intoxicated woman walking  along the  side of  a road,  

                                                                                                                             



headed home from a party.  Fedolfi contacted this woman and offered her a ride home  

                                                                              



in his patrol car.  But instead of driving the woman to her home, Fedolfi drove her to  

                                                                                                                                  



another location, where he exposed his erect penis and used his hands to try to direct the  

                                                                                                                                 



woman's head toward his penis.   The woman pushed Fedolfi away and ran  into the  

                                                                                                                                



bushes,  where  she hid  until  Fedolfi  got  back  into  his  patrol  car  and  drove  away.  

                                                                                                                                      



                    Based on this episode, Fedolfi was charged with two offenses:  attempted  

                                                                                                                      



third-degree sexual assault and official misconduct.  

                                                                                  



                     Count I charged Fedolfi with  attempting to  commit third-degree  sexual  

                                                                                                                           



assault as defined in AS  11.41.425(a)(4).  This  statute makes  it a crime for a police  

                                                                                                                           



officer to engage in sexual penetration with a person who is in the officer's custody or  

                                                                                                                                  



apparent custody.  

                              



                     Count II charged Fedolfi with official misconduct as defined in AS 11.56.- 

                                                                                                                          



850(a)(1).  This statute makes it a crime for a public servant to perform an act relating  

                                                                                                               



to the public servant's office, knowing that the act constitutes an unauthorized exercise  

                                                                                                                         



of the public servant's official functions. According to the charging document, Fedolfi's  

                                                                                                                        



unauthorized  exercise of his police  functions was his  attempt to  sexually assault the  

                                                                                                                                



woman who was in his custody - i.e., Fedolfi's commission of the crime charged in  

                                                                                                                     



Count I.  

                



                    Fedolfi  ultimately  pleaded  no  contest  to  both  charges.   At  sentencing,  

                                                                                                                   



Fedolfi's attorney argued that these two offenses should merge into a single conviction  

                                                                                                                     



under the Alaska Supreme Court's decision in  Whitton v. State, 479 P.2d 302 (Alaska  

                                                                                                                         



 1970).  However, the  district court concluded that the  sexual assault statute and the  

                                                                                                                                



official misconduct statute protected distinct societal interests, so the court ruled that  

                                                                                                                               



each of the two counts would support a separate conviction.  

                                                                                               



                                                               - 2 -                                                          2664
  


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

                    In   this   appeal,   Fedolfi   renews   his   argument   that the   two   counts   should  



merge  into  a  single  conviction.   We  agree.    



                    Fedolfi  was c   harged with  attempted  sexual  assault  under  a  subsection  of  



AS  11.41.425  that  applies  specifically  to  peace  officers.   This  subsection,  (a)(4),  does  not  



require   proof   that   the   officer  committed   an   "assault"   as   that   term   is   commonly  



understood.    Rather,   subsection   (a)(4)   applies   even   when   the  person   in the   officer's  



custody  ostensibly  consents  to  the  sexual  penetration.   



                    As  the   chair   of   the   Senate   Judiciary   Committee   explained   during   the  



Committee's  consideration  of  subsection  (a)(4),  the  purpose  of  this  subsection  was  to  



"basically   [tell]  police   officers that  they   can't  have   sex  with  people  who   are   in  their  



custody.   Period.   ...   [There  is]  no  question  of  consent.   ...   [That  person]  cannot  consent  



                                   1  

to  have  sex  with  you."     



                                                                                                                  

                    When a defendant pleads no contest to a criminal charge, the defendant's  



                                                                                                                      

plea  "is an admission  [for purposes  of conviction and sentencing] of every essential  



                                                                                               2  

                                                                                                                         

                                                                                                 But the charge against  

element of the offense well-pleaded in the charging document."  



                                                                                                                             

Fedolfi  (attempted  sexual  assault  under  subsection  (a)(4)  of  the  statute)  did  not  



                                                                                                                          

encompass an allegation that Fedolfi attempted to coerce the woman to engage in sexual  



                                                                                                                          

penetration, nor did it encompass an allegation that Fedolfi attempted to engage in sexual  



                                                                                              

penetration with the woman when she was too intoxicated to effectively consent to an  



                                                                                                                                 

act of sexual penetration - two types of conduct that would have been criminal even if  



                                                     

Fedolfi were not a police officer.  



     1    Audio recording of the proceedings of  the Senate Judiciary  Committee on April 13,  



2011 @ 1:46 - 1:47 p.m. (statement of Senator Hollis French concerning House Bill 127).  



     2    Jones v. State , 215 P.3d 1091, 1100 (Alaska App. 2009).  



                                                              - 3 -                                                         2664
  


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

                    Rather,  by  pleading  no  contest,  Fedolfi  admitted  only  that  he  was  engaged  



in  his  police  duties,  that  he  knew  (or  disregarded  a  substantial  and  unjustifiable  risk)  that  



the  woman  was  in  his  custody,  and  that  he  attempted  to  engage  in  sexual  penetration  with  



her.   



                   And  as  we  have  already  explained,  the  official  misconduct  charge  against  



Fedolfi  -  the  charge  of  committing  an  unauthorized  act  pertaining  to  his  official  duties  



-   was based   solely   on   the   fact   that   Fedolfi   engaged   in   attempted   sexual   assault   as  



defined  in  subsection  (a)(4).   That  is,  Fedolfi  was  charged  with  official  misconduct  only  



because  he  was   a  police   officer  who   attempted   to   engage   in   sexual  penetration  with  



someone  who  was  in  his  custody.    



                    Thus, given  the  way  this  case  was charged, the two criminal charges  against  



Fedolfi protected  the  same  societal  interest  -  the  legislature's  policy  of  not  allowing  



police  officers  to  engage  in  any  sexual activity with  a  person  who  is  in  their  custody,  



even   if  that   sexual   activity   is  not   coerced  by   force   or  threat   of   force,   and   even   if  the  



person  in  custody  is  otherwise  capable  of  consenting  to  the  sexual  activity.    



                    We  therefore  conclude  that,  under  the  double  jeopardy  test  announced  by  



our   supreme   court   in   Whitton   v.   State,   Fedolfi's   two   offenses   will   support   only   one  



criminal  conviction.    Whitton,  479  P.2d  at  312.     



                                                                                                                     3  

                    We  note  that  both  of  Fedolfi's  offenses  are  class  A  misdemeanors.    That  



                                                                                                              

is, the legislature has classified them with the same degree of seriousness.  Because of  



                                                                                                                          

this, when Fedolfi's case returns to the district court for amendment of the judgement and  



                                                                                                                             

re-sentencing,  the  State can  elect  whether  Fedolfi's  two  offenses  will  merge  into  a  



     3    Third-degree sexual assault is a class C felony, see  AS 11.41.425(c), so an attempt to  



commit this offense is a class A misdemeanor, see  AS 11.31.100(d)(5).  Official misconduct  

is likewise a class A misdemeanor, see AS 11.56.850(b).  



                                                            - 4 -                                                       2664
  


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

conviction   for  attempted   third-degree   sexual   assault   or   a   conviction   for   official  



                   4  

misconduct.     



                    The  district  court's  double  jeopardy  decision  is  REVERSED,  and  this  case  



is  remanded  to  the  district  court  for  amendment  of  the  judgement  and  re-sentencing.   We  



do  not  retain  jurisdiction  of  this  case.   



     4    See   Douglas   v.   State,  215  P.3d  357,  365  (Alaska  App.  2009)  ("[I]n  [Whitton]  



situations where it is not clear which offense the defendant should stand convicted of, Alaska  

case law suggests that the State should be able to choose the offense for which the court   

enters judgement and sentences the defendant.").  



                                                              - 5 -                                                          2664
  

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