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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Johnson v. State (6/27/2014) sp-6920

Johnson v. State (6/27/2014) sp-6920

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                        

         corrections@appellate.courts.state.ak.us.  



                    THE SUPREME COURT OF THE STATE OF ALASKA  



NATHAWN KATURL JOHNSON,                                 )  

                                                        )        Supreme Court No. S-14557  

                            Petitioner,                 )        Court of Appeals No. A-10467  

                                                        )  

         v.                                             )        Superior Court No. 3AN-07-07506 CR  

                                                        )  

STATE OF ALASKA,                                        )        O P I N I O N  

                                                        )  

                            Respondent.                 )        No. 6920 - June 27, 2014  

                                                        )  



                   Petition for Hearing from the Court of Appeals of the State of  

                                                                                             

                   Alaska, on appeal from the Superior Court of the State of  

                                              

                   Alaska, Third Judicial District, Anchorage, Michael Spaan,  

                   Judge.  



                   Appearances:  Renee McFarland, Assistant Public Defender,  

                   and   Quinlan   Steiner,   Public   Defender,   Anchorage,   for  

                   Petitioner.  Tamara E. de Lucia, Assistant Attorney General,  

                                                       

                   Office of Special Prosecutions & Appeals, Anchorage, and  

                   Michael       C.    Geraghty,       Attorney       General,       Juneau,      for  

                                                                      

                   Respondent.  



                   Before:  Fabe, Chief Justice, Winfree, Stowers, and Maassen,  

                                                                        

                   Justices.  [Bolger, Justice, not participating.]  



                   FABE, Chief Justice.  



I.       INTRODUCTION  



                   Nathawn Katurl Johnson was convicted of and sentenced for, among other  

                                                                               



crimes, two counts of sexual assault in the first degree relating to his rape of S.S.  One  

                                                                              


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

                                                                                                         

count resulted from Johnson's penetration of S.S.'s mouth without her consent, and the  



                                                                                                  

other count resulted from Johnson's penetration of S.S.'s vagina without her consent.  



                                                                        

Johnson never argued to the superior court that the two counts must merge on double- 



                                                                 

jeopardy grounds.  After Johnson made the double-jeopardy argument for the first time  



                                  

on appeal, the court of appeals held that Johnson had not preserved his merger argument  



for appeal and that the superior court did not commit plain error by failing to merge the  



counts sua sponte.  



                    On petition, Johnson argues that the court of appeals erred by denying his  



                                                                                                            

late-raised double-jeopardy argument full appellate review on the merits. We agree, and  



                                                                            

we review Johnson's double-jeopardy claim on its merits.  Johnson also argues that his  



separate convictions on two counts of sexual assault in the first degree violate the state  



and  federal  prohibitions  on  double  jeopardy.    Because  we  conclude  that  Johnson's  



separate convictions and sentences did not violate the constitutional prohibitions on  



double jeopardy, we affirm.  



II.       FACTS AND PROCEEDINGS  



                    On  July  11,  2007,  Nathawn  Katurl  Johnson  kidnapped  and  sexually  



                                                                                                      

penetrated  S.S.  without  her  consent.                  After  luring  her  to  a  trailer  park  with  a  false  



              

promise of a job interview, forcing her inside an abandoned trailer at knife point, and  



                                                                             

holding a knife at her temple once they were inside, Johnson forced S.S. to perform oral  



sex.    Johnson  then  ordered  S.S.  to  lie  down  and  remove  her  clothing,  and  Johnson  



                                                                                                      

proceeded to have non-consensual vaginal intercourse with S.S. while continuing to hold  



the knife to her temple.  



                                                              -2-                                                       6920
  


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

                       A grand jury indicted Johnson on four counts stemming from the events of  

                                                                                                       

that day, including one count of kidnapping,1 one count of assault in the third degree,2  



                                                                                           3  

                                              

and two counts of sexual assault in the first degree.   The two counts of sexual assault  



were based on Johnson's non-consensual sexual penetration of S.S.'s mouth and vagina.  



A  jury  convicted  Johnson  of  all  four  counts.    Johnson  was  sentenced  to  a  total  



                                                                     

consecutive  term  of  imprisonment  of  fifty-seven  years,  five  months,  and  two  days,  



                                                                     

followed by fifteen years of probation. This sentence included separate punishments for  



the two counts of sexual assault in the first degree.  



                       Johnson never explicitly argued in the trial court that the sexual assault  



                                                                                       4  

counts must merge on double-jeopardy grounds.   Instead, Johnson argued that "the  



                              

Court . . . could have the discretion to merge . . . the two sex assaults."  The superior  



court responded, "I don't think I have any authority at all to merge the second sexual  



              

assault with the first sexual assault" under the relevant statute.  Johnson responded,  



                                                                                                                                                

"[O]bviously I'd have to make the argument that [that] statute's unconstitutional."  This  



            1          AS  11.41.300(a)(1)(C)   ("A   person  commits  the  crime  of  kidnapping  



if . . . the person restrains another   with intent to . . . sexually assault the restrained  

person . . . .").  



            2          AS 11.41.220(a)(1)(A) ("A person commits the crime of assault in the third  



                                                                

degree if that person . . . recklessly . . . places another person in fear of imminent serious  

physical injury by means of a dangerous instrument."). 



            3  

                                                                                                                       

                        AS 11.41.410(a)(1) ("An offender commits the crime of sexual assault in  

the first degree if . . . the offender engages in sexual penetration with another person  

without consent of that person.").  



            4  

                                                                   

                       See Alaska Const. art. I,  9 ("No person shall be put in jeopardy twice for  

the same offense."); see also U.S. C 

                                                              ONST . amend. V ("[N]or shall any person be subject         

for the same offence to be twice put in jeopardy of life or limb . . . ."); U.S.                                                           CONST .  

amend. XIV,  1 ("[N]or shall any State deprive any person of life, liberty, or property,  

                                                                                      

without due process of law . . . .").  



                                                                         -3-                                                                   6920
  


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

exchange never mentioned double jeopardy, and Johnson's reference to the statute's  



                                                            

potential unconstitutionality may have referred to his earlier argument that a sentence of  



                                                 

close to 60 years imprisonment would violate the constitutional prohibition on cruel and  



unusual punishment.  In contrast, Johnson expressly advanced several other double- 



                                                    

jeopardy claims, arguing that the count of assault in the third degree should merge with  



the sexual assault counts, and that the court could not revise its initial sentence and  



                                                                            

increase the total incarceration time.  The superior court gave Johnson ample opportunity  



                                                                                                                                

to raise these and other objections, stating "I understand why you have to make this . . .  



                                                                                                       

record."  The superior court asked at the close of the sentencing hearing, "[I]s there  



                                               

anything you want to put on the record?" to which Johnson's response was, "I have  

nothing to add that . . . I didn't raise a[l]ready."5  



                     Johnson appealed his conviction to the court of appeals, arguing that "his  



                                                                                                                  6  

two sexual assault convictions should be merged into a single conviction."   The court  



of appeals first concluded that Johnson had forfeited his double-jeopardy argument by  



                                                          

failing to raise it in the superior court.  It reasoned that although Johnson had argued that  



the  superior  court  "had  the  discretion  to  merge"  Johnson's  convictions,  Johnson's  



                                                            

argument that the court was "required to merge these two counts" was presented for the  



          5          The State, on the other hand, made explicit arguments for why the two  



counts  of  sexual  assault  should  not  merge  and  why  they  should  be  punished  with  

                                                                      

consecutive  sentences,  stating  "the  Court  should  impose  [a  second  punishment  of  

                                      

additional incarceration] because it didn't stop with just violating her once.  It's further  

                                                                                                                    

by humiliating her, forcing that fellatio on her."  



          6  

                                                                                                                            

                    Johnson  v.  State , Mem. Op. &  J. No. 5764, 2011  WL  5507037, at  *1  

(Alaska App., Nov. 9, 2011).  



                                                                -4-                                                         6920
  


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

first time on appeal and could not be reviewed unless the court's "failure to merge the   

two counts constituted 'plain error.' "7  



                        The  court  of  appeals  further  concluded  that  the  superior  court  did  not  



commit  error,  plain  or  otherwise,  by  failing  to  merge  the  sexual  assault  counts  sua  



                                                               

sponte.  Rather, the superior court "follow[ed] governing precedent on the issue before  



                   8                                                                                                                                       9  

                      The court of appeals characterized two of its prior cases - Yearty v. State  

                                                                                                                                               

the court." 

and Erickson v. State10 - as holding that "when a defendant perpetrates distinct types  



of  sexual  penetration  upon  a  victim  during  a  single  episode  of  sexual  assault,  the  



defendant can be convicted of separate counts for each type of penetration" without  



                                                                                               11  

                                                                                                      If  Johnson  had  presented  his  

running  afoul  of  Alaska's  double-jeopardy  clause.                                                                              



double-jeopardy argument in the superior court, he would have been required to ask that  



                                                                                

court to "declare[] that Yearty and Erickson were wrongly decided" and to "decline[] to  



                                                                                 12  

follow the precedent set in those two cases."                                        But the court of appeals concluded that  

following governing precedent can never be plain error.13  Moreover, the court of appeals  



                                                                                                                      

reasoned that even if Yearty and Erickson were wrongly decided, "the matter is no more  



            7           Id. at *3-4 (emphasis in original).
  



            8           Id. at *4.
  



            9           805 P.2d 987, 995 (Alaska App. 1991).
  



            10          950 P.2d 580, 587 (Alaska App. 1997).  



            11          Johnson, 2011 WL 5507037, at *4.  



            12          Id.  



            13          Id.  



                                                                            -5-                                                                     6920
  


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

than debatable.  And when a legal matter is no more than debatable, there is no plain  

error."14  



                    We  partially  granted  Johnson's  petition  for  hearing   in   this  court  and  



requested argument on several issues, including what a party must do in the trial court  

                                                                                                            



to preserve the right to argue that controlling precedent should be overturned, what scope   



of appellate review should apply to unpreserved double-jeopardy claims, and what the  



result should be on the merits of Johnson's double-jeopardy claim.  



III.      STANDARDS OF REVIEW  



                                                                                                 

                    The  proper  extent  of  appellate  review  for  an  unpreserved  claim  of  



                                                                                                  15  

                                                                                                      Under the de novo  

constitutional error is a question of law that we review de novo. 

review standard, we exercise our independent judgment,16 and our "duty is to adopt the  

                                                                                                      

rule of law that is most persuasive in light of precedent, reason, and policy."17  



                    Whether two convictions should merge on double-jeopardy grounds is a  



                                                  18  

mixed  question  of  law  and  fact.                     The  ultimate  legal  question  of  merger  under  the  



double-jeopardy clause is reviewed de novo, while the questions of fact underlying the  



          14        Id. at *5.  



          15         Cf.  Adams v. State , 261 P.3d 758, 764 (Alaska 2011) (considering de novo     



the question of the scope of plain error review).  



          16        See, e.g., State, Dep't of Health & Soc. Servs. v. Planned Parenthood of  



Alaska, Inc. , 28 P.3d 904, 908 (Alaska 2001).  



          17         Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979) (first announcing this  

                                                                                                    

verbal formulation); see also Casey K. v. State, Dep't of Health & Soc. Servs., Office of  

                                                                                                                       

Children's Servs., 311 P.3d 637, 643 (Alaska 2013).  



          18  

                            

                    See State v. Stone, 924 A.2d 773, 778 (R.I. 2007).  



                                                               -6-                                                         6920
  


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

conviction for the specific counts of statutory violations are reviewed for clear error.19  



Here,  Johnson  does  not  challenge  any  of  the  superior  court's  findings  of  fact.  



Accordingly, we address de novo the purely legal question of whether the two sexual  



assault counts should merge under the state and federal constitutions.  



IV.	      DISCUSSION  



          A.	       An Unpreserved Double-Jeopardy Claim Is A Claim Of Fundamental  

                    Error That Warrants Full Appellate Review On The Merits.  



                                                                                                           

                    Typically, a litigant or defendant must raise an objection in the trial court  



                                                                       20  

                                                                                                  

in  order to  preserve that argument for appeal.                             This general preservation  rule  is  a  



prudential  gate-keeping  doctrine  adopted  by  the  courts  to  serve  important  judicial  



          19        See  Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's     



Servs., 204 P.3d 1013, 1018 (Alaska 2009) ("When reviewing mixed questions of law               

and fact, we review factual questions under the clearly erroneous standard and legal  

questions using our independent judgment."); see also Michael v. State , 115 P.3d 517,  

                                                                                    

519 (Alaska 2005) (concluding that "[a]ny factual findings made by the court regarding  

                                                       

the nature of the defendant's conduct are reviewed for clear error, but whether those facts  

                                                                                         

establish that the conduct [qualifies as an aggravating or mitigating factor under the  

terms of a sentencing statute] is a legal question").  



          20        Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc. , 32  



                                             

P.3d 346, 355 (Alaska 2001) ("As a general rule, we will not consider arguments for the  

first time on appeal.").  



                                   

                    We have occasionally referred to the failure to preserve an argument for  

                                                                                                        

appeal as "waiver" of that argument.  See, e.g., David S. v. Jared H. , 308 P.3d 862, 873  

(Alaska 2013) ("[The appellant] has waived this claim because he failed to raise it in the  

superior court.").  But this terminology fails to distinguish between two types of cases:  

                                                                        

those involving a mere failure to object, and those involving the knowing and willful  

                                                                                                                  

relinquishment of a right.  Charles v. State, 287 P.3d 779, 781 (Alaska App. 2012).  We  

                                                                  

will refer to the former as a "failure to preserve" while we will refer to the latter as  

"waiver."  This case implicates only the former.  



                                                               -7-	                                                        6920
  


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

             21  

                                                                                                           

                               

policies:       ensuring that there is "a ruling by the trial court that may be reviewed on  

                                                                                                                         22 and  

appeal, . . . afford[ing] the trial court the opportunity to correct an alleged error," 



creating a sufficient factual record so "that appellate courts do not decide issues of law  

                                                                                                     

in a factual vacuum."23  



                                                                                                    

                    But  the  general  preservation  rule  is  not  absolute,  and  it  is  subject  to  

                                                                                 24  We held in Adams v. State that  

                                                                                     

prudential exceptions, such as the plain error doctrine. 



we will review unpreserved claims for plain error and reverse the trial court where there  



          21        See    Massaro   v.   United   States ,   538    U.S.   500,   504   (2003)   ("The  



procedural-default rule is neither a statutory not a constitutional requirement, but it is a  

doctrine  adhered  to  by  the  courts"  on  prudential  grounds  to  serve  certain  judicial  

policies.).  



          22        Alexander v. State , 611 P.2d 469, 478 (Alaska 1980).  



          23        Pierce v. State , 261 P.3d 428, 433 (Alaska App. 2011).  



          24        See, e.g., Adams v. State ,  261 P.3d 758, 764 (Alaska 2011) (describing the  



plain  error  doctrine  allowing  for  some  appellate  review  despite  failure  to  preserve  

argument  in  trial  court);  Hoffman  Constr.  Co.,  32  P.3d  at  355  (applying  another  

                

exception to the general preservation rule, holding that in a civil case "[w]e will consider  

                                                                                                       

arguments not raised explicitly in the trial court . . . if the issue is 1) not dependent on  

                                                                 

any new or controverted facts; 2) closely related to the appellant's trial court arguments;  

                                                                         

and 3) could have been gleaned from the pleadings" (omission in original)).  



                    In announcing and defining these exceptions to the general preservation  

rule, we have explained that  they are  intended  to provide us with an opportunity to  

                                                                                                             

review  certain  types  of  errors  that  we  will  not  allow  to  go  unreviewed  despite  the  

                                                        

appellant's failure to preserve the argument for appellate review.  See, e.g., Dorman v.  

                                                                                                                   

State, 622 P.2d 448, 459 (Alaska 1981) ("The plain error doctrine is specifically intended  

                               

'to  mitigate  .  .  . the  harsh  effects  of  a  rigid  application  of  the  adversary  method  of  

                                                                                                   

trial . . . .' " (first omission in original) (quoting Bargas v. State , 489 P.2d 130, 133  

                             

(Alaska 1971) and 8A J. M 

                                        OORE , FEDERAL PRACTICE  52.02(2), at 52-4 (2d ed. 1970))).  

We tailor the boundaries  of  our prudential preservation requirement in light of the values  

that  doctrine  serves  and  competing  interests  in  reviewing  certain  types  of  even  

                                                                              

unpreserved error.  See, e.g., Raphael v. State , 994 P.2d 1004, 1015 (Alaska 2000).  



                                                               -8-                                                         6920
  


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

                                                                                                      

was obvious and prejudicial error below affecting substantial rights that did not result  



                                                                                           25  

                                                                                                           

from "intelligent waiver or a tactical decision not to object."                                 In our order partially  



granting Johnson's petition, we asked the parties to brief the applicability of the plain  



error doctrine and the holding in Adams to the facts of this case.  



                                                                                                    

                    Johnson argues that "a valid double jeopardy claim is a plain error" per se,  



                                                                                                                

regardless of any case-by-case analysis under the Adams factors.  (Emphasis in original.)  



He argues that Adams does not define the entirety of the plain error doctrine, and he  



                                                                                                                  

further argues for flexibility even within the Adams  framework for cases where  the  



obviousness  of  an  error  is  irrelevant  to  the  question  whether  that  error  should  be  

reviewed on appeal for plain error even if unpreserved.26  



                                    

                    The State argues that Adams "defined plain error" and that the multi-factor  



test set out in Adams is the comprehensive and exclusive test for when we will review  



          25        261 P.3d at 764.  



          26        Johnson also argues that "full review of double jeopardy cla[i]ms properly   



preserves the separation of powers" because "[t]he legislature defines crimes" and "when  

a court convicts and sentences a defendant twice for conduct the legislature has deemed  

                                                                                          

one crime, the court acts contrary to legislative intent."  We disagree.  The prohibition  

                                                                                     

on  double  jeopardy  in  Alaska's  Constitution,  article  I,  section  9,  is  a  constitutional  

limitation that is independently enforceable by the courts regardless of any legislative  

intent to abridge the right.  To be sure, the federal courts have interpreted the federal  

constitutional prohibition on double jeopardy as applying in cases of alleged multiple  

                                        

punishment to ensure only "that the sentencing discretion of courts is confined to the  

                                                                                                       

limits established by the legislature."  Ohio v. Johnson, 467 U.S. 493, 499 (1984).  We  

                                                                                                                           

have  rejected  this  approach  to  interpreting  the  Alaska  Constitution's  prohibition  on  

double jeopardy in cases of alleged multiple punishment.  See, e.g., Whitton v. State, 479  

P.2d 302, 306, 308, 312 (Alaska 1970) (asking first whether the legislature intended to  

                                     

prescribe  multiple  crimes  for  the  defendant's  behavior  but  then  engaging  in  an  

independent determination of whether such multiplicity of punishment violates the state  

constitutional prohibition on double jeopardy); see also State v. Dunlop, 721 P.2d 604,  

                                                                                    

606 (Alaska 1986) ("We must first determine both the legislature's intent in authorizing  

                             

multiple sentences and whether such an authorization was within its power.").  



                                                              -9-                                                        6920
  


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

unpreserved claims of error for plain error.  The State further argues that the Adams  



                                                                           

factors, including the obviousness factor, are not flexible and that there should be no per  

se plain error rule for unpreserved double-jeopardy claims.27  



                                                                              

                     But we do not need to address how or whether an unpreserved double- 



                                                                      

jeopardy claim would fit within the rubric of plain error.  A claim of a double-jeopardy  



                                                                                                               

violation, even if unpreserved in the trial court, may be raised for the first time on appeal  



                                              

and will always be given full appellate consideration on the merits because the claimed  



error, if meritorious, would qualify as fundamental error.  



          27         The State also argues that the obviousness prong of the Adams test cannot  



be met where the trial court's actions were supported by existing precedent or where the  

                                                                  

propriety of the trial court's actions was "merely debatable."  Similarly, the court of  

appeals noted in dicta that "where a legal matter is no more than debatable, there is no  

                                                                                                                     

plain error."  Johnson v. State , Mem. Op. & J. No. 5764, 2011 WL 5507037, at *5  

                                                   

(Alaska App., Nov. 9, 2011).  We note that this view of obviousness is clearly incorrect.  

                                                                                                            

The fact that reasonable people could disagree about a proposition would not prevent a  

                                                                                                                 

trial  court's  actions  contrary  to  that  proposition  from  constituting  plain  error.    See  

Johnson v. United States , 520 U.S. 461, 467-68 (1997) (holding that an error could be  

                                                                                      

"plain" where "near-uniform precedent both from [the United States Supreme Court] and  

from the [federal] Courts of Appeals held that [the trial court's] course [of action was]  

                                                                                                   

proper" at the time of trial but the United States Supreme Court later overturned the  

relevant precedent after trial); Charles v. State, __ P.3d __, Op. No. 6897 at 19, 2014 WL  

                                                                                                                       

 1663365, at *8 (Alaska, Apr. 25, 2014) (clarifying that the obviousness prong of the  

                                                                                        

Adams test for plain error is not a categorically necessary component of plain error and  

                                                                                                               

stating  that  "the  core  of  our  plain  error  analysis"  looks  to  "egregious  conduct"  that  

             

"undermine[s] the fundamental fairness of the trial and contribute[s] to a miscarriage of  

                                                                               

justice." (quoting Adams , 261 P.3d at 764)).  Thus, the obviousness prong of the Adams  

                                                                               

plain error standard is very different from the test in an action pursuant to 42 U.S.C.  

                                             

  1983 for whether a state actor violated "clearly established" law.  See Prentzel v. State,  

                                                                                                            

Dep't  of  Pub.  Safety ,  169  P.3d  573,  586  (Alaska  2007)  ("  'The  law  is  "clearly  

established" if the contours of the right are sufficiently clear that a reasonable official  

would understand that his actions violate that right.' " (quoting Crawford v. Kemp, 139  

P.3d 1249, 1255 (Alaska 2006))).  



                                                               -10-                                                         6920
  


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

                     In cases of fundamental error, we have long recognized an exception to the  



                                                                

general preservation rule.  For example, we have repeatedly held for over 40 years that  



                                  

                                                                                          

a criminal defendant may raise the unconstitutionality of a criminal prohibition for the  



                     

first time on appeal and receive full appellate review without needing to preserve the  



                                       28  

                                                              

issue by objecting below.                  Early in the life of this doctrine, we characterized it as fitting  



                               

within the doctrine of plain error, concluding that where a person is convicted pursuant  



                                                                                                                            29  

                                                                                                                                But  

to an unconstitutional criminal prohibition, any error would necessarily be plain. 

                                     30 we clarified that unpreserved challenges to a conviction based  

in Gudmundson v. State 



on a claim that the statutory basis for the conviction is unconstitutional will receive full  

                              



appellate  review,  not  because  the  error  is  plain  but  because  any  error  would  be  



                                                                     31  

                                                                                                                           

fundamental or "jurisdictional in character."                            We agreed with and quoted the court of  



                                                                                                    

appeals' opinion in that case, which stated that "[s]uch a claim may be brought at any  



           28        See   Gudmundson  v.  State,  822  P.2d  1328,  1331  (Alaska  1991)  (citing  



 Crutchfield v. State for the proposition that "unconstitutionality of regulation or statute  

can be raised  for  the  first time on appeal");  Crutchfield v. State, 627 P.2d 196, 199  

                                    

(Alaska  1980)  ("If  the  regulation  is  unconstitutional  [for  vagueness],  Crutchfield's  

conviction, to the extent that it is based on the regulation, constitutes plain error . . . .  We  

                                                                                                                             

shall therefore consider the issue, although it was not brought to the attention of the trial  

                                                                                                

court.");  Tarnef v. State, 512 P.2d 923, 928 (Alaska 1973) ("[I]f the statute under which  

                                                                                                    

Tarnef  was  charged  is  unconstitutional  [due  to  the  absence  of  a  criminal  intent  

requirement], the resulting indictment and conviction would constitute plain error . . . .");  

                                                                                                                                 

Harris v. State , 457 P.2d 638, 640 (Alaska 1969) ("[I]f the statute under which appellant  

                                                                                           

was indicted is unconstitutional [due to vagueness], it follows that the indictment and  

judgment  of conviction would be vitiated and we should reverse under the plain error  

                 

rule . . . .").  



           29  

                            

                     See Crutchfield, 627 P.2d at 199; Tarnef, 512 P.2d at 928; Harris , 457 P.2d  

at 640.  



           30        822 P.2d 1328.  



           31        Id. at 1331.  



                                                                -11-                                                          6920
  


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

                                                                                                                                  32  

                                                                                                    

time  because  it  involves  a  claim  that  the  complaint  'does  not  charge  a  crime.'  " 



                        

Because of the fundamental requirement that a criminal conviction be made pursuant to  



                                                             

a valid law, we have long granted full appellate review to all late-raised claims that a  

criminal prohibition is unconstitutional.33  



                     Similarly,  we  recently  held  in  Charles  v.  State  that  we  will  review  an  



                                                                                                    

unpreserved ex post facto challenge on the merits regardless of whether it constitutes  



                 34  

                                                                     

plain  error.         In that case, we quoted with approval the view of the Texas Court of  



                                                                                     

Criminal Appeals that "because ex post facto challenges attack the legislature's authority  



                                                                                                                

to criminalize conduct, 'defendants should not be permitted to waive the protections of  



                                                                                         

the ex post facto clause "any more than they may consent to be imprisoned for conduct  

                                     35  We noted that "we would ordinarily review the [unpreserved]  

                                                                      

which is not a crime." ' " 



          32        Id.  (quoting  Gudmundson   v.  State,  763  P.2d  1360,  1361  (Alaska  App.  



1988), adhered to on reh'g, Mem. Op. & J. No. 1838, 1989 WL 1595088 (Alaska App.,  

June 28, 1989)).  



          33        Accordingly, the doctrine of fundamental error permits full appellate review  



of unpreserved objections based on the fundamentality of the rule that the appellant  

                                                                                            

claims was not followed in the trial court; unlike the doctrine of plain error, the size and  

                                                                 

nature of the deviation from the claimed requirements are irrelevant to whether we will  

                                                                                         

review for fundamental error.  That is, "fundamental" modifies the claimed right, not the  

size or nature of the error deviating from that claimed right.  In this way, fundamental  

error is different from plain error, where the size or nature of the error deviating from the  

                                                                                            

claimed  right  is  a  factor  we  consider  when  determining  whether  to  review  an  

unpreserved claim of error for plain error.  



          34  

                                                                                                                

                    __ P.3d __, Op. No. 6897 at 17-20, 2014 WL 1663365, at *7-8 (Alaska,  

Apr. 25, 2014).  



          35  

                                                                                                    

                    Id. at *7 (quoting Ieppert v. State , 908 S.W.2d 217, 220 (Tex. Crim. App.  

1995)).  



                                                               -12-                                                         6920
  


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

                                                     36  

challenge  only  for  plain  error,"                     but  found  the  application  of  that  doctrine  to  be  



unnecessary because the protection against ex post facto conviction was so fundamental  



                                                                                                               37  

as to merit full appellate review of even unpreserved claims of error.                                             Moreover, we  



                                                                  

agreed with the conclusion of the court of appeals in Charles that the unpreserved ex  



post facto challenge should be reviewed because Charles "st[ood] convicted of violating  

a criminal statute which, under our state constitution, can not apply to him."38  



                     Although we have not had a chance to address the existence of other claims  



                                                                                        39  

                                                                                                  

of fundamental error necessitating full appellate review,                                  we hold that double-jeopardy  



                                                                            

claims are also claims of fundamental error that may be raised for the first time on appeal  



                                                                                   

and will be reviewed on the merits in full, regardless of whether the claimed errors would  



qualify as plain under the plain error doctrine.  The constitutional prohibition on double  



                                                                                   

jeopardy is a bulwark of the criminal justice system, "implicat[ing] the very power of the  



               

 State  to  prosecute  a  particular  defendant  for  a  particular  crime  and  serv[ing]  as  an  



                                                                                                                          

important check on the potential power of the State"; it "is fundamental not only to the  



                                                                                                      

process of criminal justice, but to our system of government itself"; and it, like the  



longstanding  line  of  Gudmundson  cases,  is  "a  doctrine  with  obvious  jurisdictional  



           36        Id.  



           37        Id. at *8.  



           38        Id. (quoting Charles v. State, 287 P.3d 779, 790 (Alaska App. 2012)).  



           39         We note that the nature of certain other rights has caused us to allow for full                  



appellate review of an unpreserved claim of error.                             See, e.g., McKinnon v. State , 526 P.2d  

 18, 23-24 (Alaska 1974) (stating that the constitutional rights to counsel and effective   

assistance of counsel are "basic" and that "it is . . . well-established that a conviction       

based  on  a  plea  [of  nolo  contendere]  made  without  the  benefit  of  counsel  may  

subsequently be challenged" and that "a plea of guilty does not foreclose a later attack  

                                                                              

upon a conviction on the ground that the plea was entered with the ineffective assistance  

of counsel" (footnotes and citations omitted)).  



                                                                  -13-                                                            6920
  


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

                  40  

overtones."             We  agree  with  our  sister  states  that  have  held  that  because  the  



                                                                                                 

constitutional prohibition on double jeopardy is " 'fundamental to the American scheme  



                                                                                                               

of  justice[,]'  .  .  .  this  right  must  be  enforced  whenever  a  violation  is  determined  to  

exist."41  



                                                                                             

                     Our holding is in accord with a line of cases from the court of appeals  



                    

dating back 32 years, which recognizes that unpreserved double-jeopardy claims may  



                                                           42  

                                                                                   

be brought for the first time on appeal.                       Our opinion today confirms full reviewability  



          40        People v. Michael , 394 N.E.2d 1134, 1136 (N.Y. App. 1979).  



          41         State v. Millanes, 885 P.2d 106, 109 (Ariz. App. 1994);                               see also  State v.  



Johnson , 483 So. 2d 420, 422 (Fla. 1986); Dixon v. Commonwealth , 263 S.W.3d 583,  

593 n.50 (Ky. 2008); Michael , 394 N.E.2d at 1136 ("There exist certain narrowly drawn  

                                                                                          

exceptions to the general rule that a timely objection or request is necessary to create a  

                                                      

question of law reviewable by this court, for certain principles of law are deemed so  

fundamental to our criminal justice system that a claimed violation of those principles  

creates  a  question  of  law  despite  the  failure  to  timely  raise  that  claim  in  the  courts  

                                          

below . . . ." (citation omitted)); Ramirez v. State , 36 S.W.3d 660, 666 (Tex. App. 2001)  

("Ordinarily, this initial lapse in preservation would end our discussion," but "because  

                                                                                        

of the fundamental nature of double jeopardy protections, a double jeopardy claim may  

                                                                                         

be raised for the first time on appeal or for the first time on collateral attack."); cf. also  

                                              

Ex  parte  Trawick ,  972  So.  2d  782,  783  (Ala.  2007)  (stating  that  "because  multiple  

                                                          

punishments  for  the  same  offense  constitute  a  sentence  that  exceeds  the  maximum  

allowed by law and an illegal sentence affects the trial court's jurisdiction," a person  

bringing a successive petition for post-conviction relief "is not barred from asserting in  

this successive . . . petition the violation of his double jeopardy rights" that was not  

raised in an earlier petition. (quoting Ex parte Robey , 920 So. 2d 1069, 1071-72 (Ala.  

2004))).  



          42  

                                                                                        

                     See Ward v. State, Mem. Op. & J. No. 5502, 2009 WL 2342014, at *2 n.18  

                                                              

(Alaska App., July 29, 2009);  Weaver  v. State, Mem. Op. & J. No. 4488, 2001 WL  

                                      

 1388901, at *5 (Alaska App., Nov. 7, 2001); Haynes v. State , Mem. Op. & J. No. 3818,  

 1998 WL 238563, at *2 n.2 (Alaska App., May 13, 1998) (recognizing that double- 

                                                         

jeopardy claims requiring only legal determinations may be decided for the first time on  

                                                                                                                (continued...)  



                                                               -14-                                                         6920
  


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

of unpreserved double-jeopardy claims on appeal and clarifies that this holding is rooted  

                                                                                                  

in the doctrine of fundamental error.43  



          42(...continued)  



 appeal); Harvey v. State , Mem. Op. & J. No. 3489, 1996 WL 658501, at *5 n.8 (Alaska  

                                                                   

App., Nov. 13, 1996); Erickson v. State , Mem. Op. & J. No. 3289, 1995 WL 17221317,  

                                                            

 at *4 (Alaska App., Nov. 22, 1995);  Yearty v. State, 805 P.2d 987, 993 (Alaska App.  

 1991); Ellis v. State, Mem. Op. & J. No. 1942, 1990 WL 10513294, at *2 n.3 (Alaska  

                                                                                

App., Jan. 10, 1990); Machado v. State , 797 P.2d 677, 686 n.2 (Alaska App. 1990);  

Newsome v. State , 782 P.2d 689, 691 (Alaska App. 1989);  Clifton v. State, 758 P.2d  

 1279, 1285 (Alaska App. 1988); Horton v. State , 758 P.2d 628, 632 (Alaska App. 1988);  

                                                                                      

Lemon v. State , 654 P.2d 277, 280 (Alaska App. 1982); Tookak v. State, 648 P.2d 1018,  

                                                                                                          

 1022 (Alaska App. 1982).  



          43        We asked Johnson and the State to brief the additional question whether  



                                                            

Alaska should adopt a futility doctrine that would preserve for full appellate review a  

                                                                   

claim  of  error  that  would  have  been  futile  to  raise  in  the  trial  court  due  to  directly  

                                                                                  

controlling precedent.  At least seven of our sister states have adopted a futility exception  

                                                                                  

to the general preservation rule, reasoning that none of the purposes behind the general  

preservation rule are served by requiring an objection to a trial court's action that is  

                                                                                  

mandated by binding rules of law and that the law does not require futile acts.  See, e.g.,  

State v. Goodyear, 413 P.2d 566, 567-68 (Ariz. 1966); People v. Sandoval , 161 P.3d  

 1146, 1153 n.4 (Cal. 2007); Commonwealth v. Mendes, 974 N.E.2d 606, 611 (Mass.  

2012); People v. Fike , 577 N.W.2d 903, 906 (Mich. App. 1998); St. Pierre v. State, 620  

                                                                                                              

P.2d 1240, 1243 (Nev. 1980); State v. Brown, 644 A.2d 1082, 1084 (N.H. 1994); Ex  

                           

parte  Hathorn ,  296  S.W.3d  570,  572  (Tex.  Crim.  App.  2009).    The  United  States  

 Supreme Court rejected the futility exception to the general preservation rule in federal  

                                                                    

 court in Johnson v. United States , 520 U.S. 461, 465-68 (1997), and Bousley v. United  

                                                                         

States, 523 U.S. 614, 623 (1998), see generally Brent E. Newton, An Argument for  

                                                                                                           

Reviving  the  Actual  Futility  Exception  to  the  Supreme  Court's  Procedural  Default  

Doctrine , 4 J. A 

                       PP .  PRAC .  &  PROCESS 521, 543 (2002).  Because we hold that Johnson's  

double-jeopardy  argument  is  subject  to  full  appellate  review  under  the  doctrine  of  

 fundamental error, we do not address whether we should adopt a futility exception to the  

                                  

general preservation rule.  



                                                             -15-                                                       6920
  


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

          B.        Johnson Did Not Invite The Alleged Error He Raises On Appeal.  



                    The State argues that Johnson's double-jeopardy claim runs afoul of the  



invited error doctrine.  The stakes are high when invited-error review is on the table,  



                                                                                                                            

because "[w]hen an error is invited, an appellate court examines the error [only] to see  



                                                                                  

if there is an 'exceptional situation' where reversal is necessary to preserve the integrity  



                                                                                             44  

of the judicial process or to prevent a miscarriage of justice."                                  The State reasons that  



                                                                           

"Johnson arguably invited the very error he now complains of" when his attorney stated  



                                                                                                                      

at sentencing that the superior court had discretion to merge the sexual assault counts but  



did not argue that the superior court must merge those counts.  



                                                                                   

                    We conclude that Johnson did not invite the error he now complains of on  



appeal.  We have defined invited error as occurring "when a party urges a lower court  



                                                                                           45  

to do something that [the party] later appeals as erroneous."                                  This case fails to satisfy  



       

the traditional requirement that the narrow scope of invited-error review applies only  



                                                                                                                        46 

                                                                                                                            Here,  

when "the court takes erroneous action at the express request of the defendant." 



                                       

Johnson never urged the superior court to refrain from merging the sexual assault counts  



                             

but  rather  argued  for  merger.    Without  an  invitation,  there  can  be  no  invited  error.  



                                   

Because of the harsh consequences of invited-error review, we decline to expand its  



                                                                        

scope to cases in which appellants fail to object or in which they identify a different legal  



basis for their arguments to the trial court than they raise in an appellate court.  



          44        Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp.                              , 189 P.3d 1032,  



1038 (Alaska 2008).  



          45        Johnson v. State , 224 P.3d 105, 108 n.11 (Alaska 2010).  



          46  

                                                                                                    

                    Barrett v. State , 772 P.2d 559, 568-69 n.10 (Alaska App. 1989) (emphasis  

added).  



                                                               -16-                                                         6920
  


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

          C.	       Johnson's Double-Jeopardy Claims Fail On The Merits.  



                    The Alaska Constitution, article I, section 9, provides, in pertinent part, "No  



                                                         

person shall be put in jeopardy twice for the same offense."  The federal Constitution has  



a  similar  provision  in  the  Fifth  Amendment  (applicable  to  the  states  through  the  

Fourteenth Amendment47) which states, in pertinent part, "nor shall any person be subject  



for the same offence to be twice put in jeopardy of life or limb."48  



                    The constitutional protection against double jeopardy conveys three distinct  



rights:  "It protects against a second prosecution for the same offense after acquittal.  It  

                                                                           



protects against a second prosecution for the  same offense after conviction.  And it  

                                                                        



                                                                                            49  

protects against multiple punishments for the same offense."                                    This case implicates the  

                                                            



third category.  



                                                                         

                    Johnson claims that his conviction and punishment for two counts of sexual  



                                                                                 

assault  in  the  first  degree  for  vaginally  and  orally  penetrating  S.S.  fall  afoul  of  the  



constitutional prohibitions on double jeopardy found in both the Alaska Constitution and  



the federal Constitution.  We disagree.  



                     1.	      Johnson's double-jeopardy claim under the federal Constitution  

                               fails on the merits.  



                                                    

                    In cases of alleged  multiple punishment for a single course of criminal  



conduct, the United States Supreme Court has interpreted the federal double-jeopardy  



          47        U.S.   CONST . amend. XIV,  1 ("[N]or shall any State deprive any person                       



of life, liberty, or property, without due process of law . . . .");                          Benton v. Maryland , 395  

U.S. 784, 794 (1969) ("[W]e today find that the double jeopardy prohibition of the Fifth                            

Amendment represents a fundamental ideal in our constitutional heritage, and that it  

should apply to the States through the Fourteenth Amendment.").  



          48        U.S.  CONST . amend. V.  



          49        N.  Carolina  v.  Pearce,  395  U.S.  711,  717  (1969)  (citations  omitted),  



overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989).  



                                                               -17-	                                                        6920
  


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

                                                                                                      50  

clause to authorize courts to enforce the will of the legislature.                                         Where the legislature  



intends to apportion its punishment for a single course of conduct across multiple crimes,       



the high court will find no double-jeopardy problem under the federal Constitution where  



                                                 51  

                                                                        

there are multiple convictions.                       But where the legislature intended to punish only once  



                                                                                                               

despite the potential applicability of multiple statutes or counts, the high court will find  



                                                                                                                           

a double-jeopardy violation under the federal Constitution if a defendant is convicted of  



                                               52  

multiple   crimes   or   counts.                        Legislative   intent   is   "dispositive"   of   the   federal  

constitutional question.53  



                      We conclude that Johnson's right under the federal Constitution to avoid  

                                                                                                                                 



double jeopardy was not infringed by separate conviction and punishment for separate  

                                                                                                       



counts of sexual assault in the first degree arising out of Johnson's single course of  

                                                             



criminal conduct.  Nothing in the criminal statute or the legislative history indicates that  

                                                                      



the Alaska legislature intended to punish only once for a course of criminal conduct that  



involved non-consensual sexual penetration of multiple orifices on the victim's body.  



Indeed, the definition of "sexual penetration" adopted by the legislature indicates the  



                                                                                        

legislature's  intent  to  punish  each  distinct  type  of  sexual  penetration  individually:  



Alaska Statute 11.81.900(b)(60) defines "sexual penetration" as "genital intercourse,  



                                                                                                                                     

cunnilingus, fellatio, anal intercourse, or an intrusion, however slight, of an object or any  



                 

part  of  a  person's body into the genital or anal opening of another person's body."  



                                 

Moreover,  "in  the  years  since"  the  court  of  appeals  adopted  the  rule  that  multiple  



punishments could lie for multiple types of non-consensual sexual penetration, "the  



           50         See, e.g.,  Whalen v. United States, 445 U.S. 684, 688-89 (1980).  



           51         Id.  



           52         Id.  



           53         Id. at 689.  



                                                                    -18-                                                              6920
  


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

                                                                             

Alaska  Legislature  has  taken  no  action  to  indicate  its  disagreement  with  [that]  .  .  .  



                        54  

conclusion."                  In  short,  there  are  indications  that  the  legislature  intended  to  permit  



                                                                                                                                       

multiple punishment for multiple types of sexual penetration, and there is no contrary  



                                                                                                                                   

indication.             The  intent  of  the  Alaska  legislature  to  permit  multiple  punishment  for  



multiple types of non-consensual sexual penetration is dispositive of the double-jeopardy  



issue under the federal Constitution.  



                         2.	         Johnson's double-jeopardy claim under the Alaska Constitution  

                                     fails on the merits.  



                                                                                                                                  

                                     a.	          Whitton           establishes              the       fundamental                 principles              for  

                                                                                                                                        

                                                  determining   whether   a   criminal   course   of   conduct  

                                                                                             

                                                  constitutes the "same offense" or "multiple offenses" for  

                                                                              

                                                 the  purposes  of  all  double-jeopardy  claims  under  the  

                                                 Alaska Constitution.  



                                                                                             

                         In  Whitton v. State, we held that in order to determine whether multiple  



                                                               

punishment  violates  the  Alaska  Constitution,  a  court  must  first  look  to  the  intent,  



conduct, and societal interests at stake in the multiple offenses (or multiple counts of a  



                                                                                               55  

                                                                                                         

single offense) that were defined by the legislature.                                               A court must then independently  



determine  whether  the  differences  among  these  purposes  underlying  the  multiple  



offenses or counts are great enough that multiple punishments for the criminal conduct  



                   56  

should lie.              



            54	          Erickson v. State , 950 P.2d 580, 587 (Alaska App. 1997).  



            55	          479 P.2d 302, 312 (Alaska 1970).  



            56           Id.   We also rejected the federal test for multiplicity, set out in                                            Blockburger  



v.   United States, 284 U.S. 299 (1932), which states:  "The applicable rule is that, where       

the same act or transaction constitutes a violation of two distinct statutory provisions, the                         

test to be applied to determine whether there are two offenses or only one, is whether   

each provision requires proof of a fact which the other does not."                                                       Id. at 304 (rejected in  

                                                                                                                                        (continued...)  



                                                                             -19-	                                                                     6920
  


----------------------- Page 20-----------------------

                   A brief exploration of our prior application of the                       Whitton test illustrates  



how Whitton established the fundamental principles for determining whether a criminal  



course of conduct constitutes the same offense or multiple offenses for purposes of all  



                                                                                

double-jeopardy claims under the Alaska Constitution, and why that same test continues  



to govern such cases today and applies in this case.  



                                                                                                    

                   Soon after announcing the  Whitton test, we noted that "we would indeed  



have  difficulty  in  upholding"  multiple  charges  of  assault  under  the  same  statute  for  



                                                                                                                57 

                                                                                                                   but we  

"every movement of a rifle barrel toward or away from a prospective victim," 



                                                                                                                 

upheld a conviction for both burglary and larceny arising out of the same series  of  



                                                        

criminal actions because "the conduct punished as well as the societal interests protected  



                                                                                                             

by  the  two  statutes  differ  sufficiently  to  permit  consecutive  punishment  under  both  

             58   We concluded in Thessen v. State that it would violate our double-jeopardy  

statutes."                                                                  



clause to permit multiple convictions on multiple counts of violating a single criminal  



                                                                                                        

prohibition where harm was caused to multiple victims through a single criminal act (in  



                                                                                  59  

that case arson) without intent to harm multiple victims.                             But in State v. Dunlop, we  



                                                                             60  

recognized that our ruling in Thessen was erroneous.                             Our error in  Thessen stemmed  



                                                                                                         

from recognizing that the defendant's intent and conduct were identical for each count  



of manslaughter but ignoring the difference in the consequences of each count - the  



                                            

death of a distinct person - as being one of the societal interests that the offense of  



          56(...continued)  



Whitton, 479 P.2d at 312).  



          57       Mill v. State , 585 P.2d 546, 552 n.4 (Alaska 1978).  



          58       Mead v. State , 489 P.2d 738, 740, 743 (Alaska 1971).  



          59       508 P.2d 1192, 1195 (Alaska 1973).  



          60       721 P.2d 604, 608-09 (Alaska 1986).  



                                                            -20-                                                      6920
  


----------------------- Page 21-----------------------

                                                                       61  

                                                                           

manslaughter was designed to guard against.                                And in Dunlop we clarified that Thessen  



                                                                                                          

misapplied  Whitton:  When applying the Whitton test courts must consider not only the  



                                                                                                           

intent and conduct of the perpetrator but also the consequences of his actions, and that  



                                                                                                        

the "gravamen of the offense of manslaughter" is the death of a distinct person, not  



                                                                                      

people in general, such that the sufficiently important differences in the identity of each  

                                                                                 62  Our case law thus makes clear that  

victim justified multiple punishment under Whitton.  



 Whitton is the sole test for multiple punishment of the same offense under the Alaska  

Constitution.63  



                                                               

                     The  parties  in  this  case  purport  to  identify  multiple  tests  for  multiple  



                                                                   

punishment emanating from our case law and dispute which test should apply here.  For  



       

the reasons described above, we hold that Whitton establishes the fundamental principles  



for determining whether a criminal course of conduct constitutes the same offense or  



           61        508 P.2d at 1195.  



           62        721 P.2d at 608-09.  



           63        In Rofkar  v.  State , 273              P.3d   1140   (Alaska  2012),  we  mischaracterized  



Dunlop as establishing a new test applicable in cases in which "one statute has been     

violated by a single course of conduct that results in multiple deaths or injuries," and we   

incorrectly asserted that the distinct Whitton test "would otherwise continue to apply" in  

other types of cases involving multiple statutory violations.  Id. at 1143.  It is clear from  

                                                                                                                       

reading Dunlop and Whitton that they apply the same test - the Whitton test - and that  

                                                      

the  Whitton test applies equally well in cases of multiple statutes, multiple counts of  

                                                                                                             

violating a single statute, and multiple victims or lone victims.  We do not read Rofkar  

as relying on any distinction between Whitton and Dunlop , and we disavow the dicta in  

                                                                                                      

Rofkar  that  indicates  that  different  tests  for  multiple  punishment  apply  in  different  

             

contexts.  



                                                                  -21-                                                            6920
  


----------------------- Page 22-----------------------

multiple  offenses  for  purposes  of  all  double-jeopardy  claims  of  multiple  charges,  

convictions, or punishments under the Alaska Constitution.64  



                                                     

                               b.	       Under          Whitton,         Johnson's            non-consensual               sexual  

                                         penetration   of   S.S.'s   vagina   and   mouth   constitutes  

                                         multiple  offenses  such  that  multiple  punishment  is  not  

                                                                  

                                         prohibited by the Alaska Constitution's prohibition on  

                                         double jeopardy.  



                                                                                                      

                    Applying the test from Whitton to determine whether Johnson's conviction  



                                                                            

and     punishment           for     two     counts       of    sexual       assault      in    the    first    degree        were  



unconstitutionally  multiple,  we  must:    (1)  identify  the  societal  interests  at  stake  in  



charging, convicting on, and punishing multiple counts of sexual assault in the first  



                                                                             

degree, including differences in Johnson's intent and conduct and the consequences of  



his actions; and (2) independently determine whether those societal interests are great  



          64         The State argues that           Dunlop should apply to the exclusion of Whitton, but  



as we explain above, Dunlop applied  Whitton.  



                     Johnson argues that neither Dunlop nor  Whitton  should apply in this case   

and that we should adopt another test for cases involving one perpetrator, one victim, and         

multiple  counts  of  a  single  crime:  whether  there  was  a  "sufficient  break  in  time  or  

circumstance" between the conduct leading to each count to sustain separate convictions.  

                                                                                        

But Whitton establishes the fundamental test for whether criminal conduct constitutes the  

                                                                    

same offense or multiple offenses, and we decline to create a new test.  We rejected a  

                                                                                              

sufficient-break test in  Whitton when we rejected a "same-transaction test" that would  

                          

allow "only one punishment if a number of separate statutory violations arise out of a  

                                                                                                                          

single criminal act or transaction."  Whitton v. State, 479 P.2d 302, 307 (Alaska 1970).  

                                                                                                        

We continue to conclude that the criminal's intent and conduct, the consequences of his  

                                                                                                                              

actions, and the societal interests implicated in permitting separate punishment are more  

                                                                                         

relevant constitutional factors than a narrow focus on the time and location of a series of  

                                                         

criminal acts, which ultimately would leave the boundaries between crimes in the hands  

of the criminal rather than the legislature and the courts.  Although breaks in the time and  

                        

circumstances between conduct leading to separate charges, conviction, and punishment  

may be relevant within the  Whitton factors in some cases,  Whitton continues to provide  

the sole test for multiple punishment under the Alaska Constitution.  



                                                               -22-	                                                         6920
  


----------------------- Page 23-----------------------

enough that multiple punishments for the criminal conduct should lie or whether multiple  

                                                                                                        

                                                65  We hold that Johnson's double-jeopardy right under  

punishment is unconstitutional.     



the Alaska Constitution was not violated by multiple punishment for his multiple crimes.  

                                                                                                   



                    The  criminal  prohibition  on  rape  has  as  its  goal  preventing  the  loss  of  

                                                                                                                    



autonomy, dignity, free will, and bodily integrity that comes with non-consensual sexual  

                                                                                 



penetration.    We  have  stated  that  "[t]he  reason  [rape]  is  most  serious  is  because  it  

                                                                 



amounts to a desecration of the victim's person which is a vital part of her sanctity and  

                                                                                           

                                         66   The United States Supreme Court has noted that "[rape] is  

dignity as a human being."  

                                                                                                       



highly  reprehensible,  both  in  a  moral  sense  and  in  its  almost  total  contempt  for  the  

                                                                             



personal  integrity  and  autonomy  of  the  .  .  .  victim  and  for  the  latter's  privilege  of  

                                                                        



choosing  those  with  whom  intimate  relationships  are  to  be  established.    Short  of  

                                              

homicide, it is the 'ultimate violation of self.' "67  

                                                                            



                    These consequences of sexual assault are revisited upon the victim with  



each distinct type of non-consensual sexual penetration in the course of the criminal  

                                                                                                                  



episode.  In this case, for example, S.S. protested Johnson's command to perform fellatio  

                         



before  complying  at  knife  point,  but  she  raised  a  new,  distinct  protest  to  Johnson's  

                              



command  (again, at knife point) that she submit to vaginal intercourse.  S.S. experienced  



a difference in the nature, not just the degree, of the harm she had already suffered and  

                                                                       

the additional harm Johnson sought to inflict.68  



          65         Whitton, 479 P.2d at 312.  



          66        Newsom v. State , 533 P.2d 904, 911 (Alaska 1975).  



          67         Coker v. Georgia, 433 U.S. 584, 597 (1977).  



          68        We do not imply that a victim must mount a distinct protest to each type of   



non-consensual sexual penetration in order to render separate conviction constitutionally  

permissible.  The fact that S.S. did raise a distinct protest only illustrates what is true in  

                                                                                                                

                                                                                                                (continued...)  



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                    We hold that the harms from non-consensual sexual penetration of distinct  



                                                                               

orifices of the victim's body are so independently significant that multiple counts of  



                                                                                              

sexual assault are permissible under the Alaska Constitution to vindicate the societal  



interest in preventing those harms and punishing the conduct that led to it.  Our sister  



                                                                                                         69  

                                                                                                              We agree with  

states appear to be nearly unanimous in reaching the same conclusion.  



one of the leading cases in this area that "[r]epeated acts of forcible sexual intercourse  



                

are not to be construed as a roll of thunder - an echo of a single sound rebounding until  



                                                                                                              

attenuated.  One should not be allowed to take advantage of the fact that he has already  



committed one sexual assault on the victim and thereby be permitted to commit further  



assaults  on  the  same  person  with  no  risk  of  further  punishment  for  each  assault  



          68(...continued)  



every case: each distinct type of non-consensual sexual penetration constitutes a distinct  

                                                                                                                      

harm.  



          69        See, e.g., State v. Jackson, 410 S.W.3d 204, 218 (Mo. App. 2013); State v.  



 Ware, 372 N.E.2d 1367, 1368 (Ohio App. 1977), aff'd, 406 N.E.2d 1112 (Ohio 1980);  

                                                         

State v. Cates, 632 N.W.2d 28, 33 (S.D. 2001); State v. Phillips, 924 S.W.2d 662, 665  

                                           

(Tenn. 1996) ("Each act, in our opinion, is capable of producing its own attendant fear,  

            

humiliation, pain, and damage to the victim. . . . [A]n accused may be convicted of more  

                                                                   

than one offense when the rape involves separate acts of sexual penetration." (internal  

quotation  marks  omitted));  State  v.  Tili,  985  P.2d  365,  371  (Wash.  1999)  ("Each  

penetration in this case clearly constitutes an independent unit of prosecution.  Each  

                                                                                                      

penetration was an independent violation of the victim's personal integrity."); State v.  

Carter, 282 S.E.2d 277, 280-81 (W. Va. 1981); State v. Eisch, 291 N.W.2d 800, 805  

                                                                                                  

(Wis.  1980)  ("Each  of  these  methods  of  bodily  intrusion  is  different  in  nature  and  

character."); Hamill  v.  State ,  602  P.2d  1212,  1216  (Wyo.  1979).   But  see  Sanchez- 

                                                                                                                     

Rengifo v. United States , 815 A.2d 351 (D.C. 2002) (indicating in dicta that in at least  

some cases that court would be willing to depart from the consensus among the other  

                                                                                    

states and hold that "repeated acts of forced sexual intercourse, if committed in a single  

                                                                                                                        

course of conduct, will not be converted into separate rapes," id. at 356, but holding in  

                                          

the case before it that the multiple acts of rape could be separately charged, id. at 359).  

              



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                 70  

committed."          As the Wisconsin court of appeals recognized, "Each act is a further  

denigration of the victim's integrity and a further danger to the victim."71  



V.       CONCLUSION  



                  For these reasons, we REVERSE the court of appeals' decision denying full  



                                                                                                  

appellate review on the merits of Johnson's double-jeopardy claims but AFFIRM the  



superior court's conviction and sentencing of Johnson for separate counts of sexual  



assault  in  the  first  degree  as  not  violating  the  constitutional  prohibitions  on  double  



jeopardy.  



         70       Harrell v. State , 277 N.W.2d 462, 469 (Wis. App. 1979).  



         71       Id.  



                                                      -25-                                                    6920  

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