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George v. State (12/18/2015) sp-7072

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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@akcourts.us.  



                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



KELSEY  P.  GEORGE,                                          )  

                                                             )          Supreme  Court  No.  S-15618  

                     Petitioner,                             )          Court  of  Appeals  No.  A-11028  

                                                             )  

                                                                                                                                      

          v.                                                 )          Superior Court No. 3GL-09-00231 CR  

                                                             )  

                    

STATE OF ALASKA,                                                                           

                                                             )          O P I N I O N  

                                                             )  

                                                             )                                                   

                     Respondent.                                        No. 7072 - December  18, 2015  

                                                              

_______________________________ )  



                                                                                                              

                     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, Glenallen, Eric Smith, Judge.  



                                                                                                            

                     Appearances:  Dan S. Bair, Assistant Public Advocate, and  

                                                                                                            

                     Richard  Allen,  Alaska  Public  Advocate,  Anchorage,  for  

                                                                                                    

                     Appellant.  Timothy W. Terrell, Assistant Attorney General,  

                                                                                                   

                     Anchorage,  and  Craig  W.  Richards,  Attorney  General,  

                                                        

                     Juneau, for Appellee.  



                                                                                                      

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

                                                                      

                     Justices.  [Winfree, Justice, not participating.]  



                                                   

                     STOWERS, Chief Justice.  



I.        INTRODUCTION  



                                                                                                                             

                     Kelsey P. George was convicted of four counts of sexual abuse of a minor  



                                                                                                                                

in the first degree, three counts of sexual abuse of a minor in the second degree, and one  



                                                                                                                       

count  of  attempted  sexual  abuse  of  a  minor  in  the  first  degree.                               George  appealed,  



                                                                                                                       

challenging one of the first-degree sexual abuse counts (Count Ten) and the attempted  


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

sexual abuse count (Count One).                          The court of appeals affirmed his convictions on both                               



            1  

counts,                                                                                                                              

              and George filed a petition for hearing regarding the sufficiency of the evidence  



                                                                                                      2  

                                                                                         

supporting the conviction on Count Ten, which we granted. 



                                                                                                                                          

                       We conclude that the evidence was insufficient to convict George on Count  



                                                                                                                                              

Ten.  Therefore, we reverse the court of appeals' decision in part, and we remand this  



                                                                                                                              

matter to the superior court for entry of a judgment of acquittal on Count Ten.  



                                      

II.	       FACTS AND PROCEEDINGS  



           A.	         Facts  



                                                                                                                                          

                       George was indicted in December 2009 on one count of attempted sexual  

                                                            3 and three counts of sexual abuse of a minor in the  

                                                                                                                                               

abuse of a minor in the first degree 

second degree.4  These charges involved two victims, T.E. and M.G. In November 2010  

                                                                                                                                            



the grand jury indicted George on five new counts of sexual abuse of a minor in the first  

                                                                                                                                              

degree.5         These new counts all involved  one victim,  A.M.                                           George's petition  only  

                                                                                                                                            



involves the allegations related to A.M.  

                                                           



                       The State charged George with three different types of sexual abuse of  

                                                                                                                                                



A.M. occurring during two different time periods.  The charges were as follows:  

                                                                                                                            



                       *	         Count  Five:             Sexual  penetration,  fellatio,  between  

                                                                                                              

                                  September 2005 and May 2006;  

                                                                                



           1	          George v. State           , No. A-11028, 2014 WL 2937874 (Alaska App. June 25,                                          



2014).  



           2           George v. State, No. S-15618 (Alaska Supreme Court Order, Oct. 1, 2014).  

                                                                                                                                          



           3           AS 11.41.434(a)(1).  

                              



           4           AS 11.41.436(a)(1).  

                              



           5           AS 11.41.434(a)(1).  

                              



                                                                       -2-	                                                                7072
  


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

                            *	           Count   Six:     Sexual   penetration,   penis   to   vagina,  

                                         between September 2005 and May 2006;                                     



                            *	           Count Seven:                    Sexual penetration, penis to vagina,                         

                                         between September 2005 and May 2006;                                     



                            *	           Count Eight:  Sexual penetration, digital penetration,   

                                         between September 2005 and May 2006; and                                              

                                                                 6   Sexual penetration, digital penetration,  

                            *	           Count Ten:                                                                           

                                         between September 2004 and May 2005.  

                                                                                                                  



The only count at issue in this appeal is Count Ten, which charged George with digitally  

                                                                                                                                                                 



penetrating A.M. during her third-grade year when she was between eight and nine years  

                                                                                                                                                                       



old.  Supporting George's indictment on Count Ten was A.M.'s testimony before the  

                                                                                                                                                                           



grand jury that George had abused her by digital penetration when she was in third  

                                                                                                                                                                       



grade.  



              B.	          George's Trial  

                                                 



                           The  State  introduced  three  main  pieces  of  evidence  at  trial  regarding  

                                                                                                                                                             

George's  abuse  of  A.M.:                                 A.M.'s  live  testimony,  A.M.'s  forensic  interview,7                                                        and  

                                                                                                                                                                         



George's interview.  

                     



                           A.M.  testified  that  she frequently  stayed  with  her  aunt,  Marina,  when  

                                                                                                                                                                      



A.M.'s grandparents (with whom A.M. lived) went out of town.   George lived with  

                                                                                                                                                                        



Marina.  A.M. stated that she last stayed with Marina when A.M. was in fourth grade or  

                                                                                                                                                                             



              6            The   indictment   did   not   contain   a   ninth   count.     However,   the   jury  



instructions, judgment, and parts of the trial refer to Count Nine.                                                                     These references to                  

Count Nine correspond to Count Ten in the indictment and this opinion.                                                              



              7            The forensic interviewer also testified that A.M. had stated in the interview  

                                                                                                                                                               

that the abuse "started when she was in Head Start, and . . . ended when she moved to  

                                                                                                            

Anchorage [in the fourth grade], except for that one incident in Anchorage which was  

                                                                                           

fourth grade."  Because the interviewer was merely recounting what A.M. stated in the  

                                                                                                                                                                           

interview,  we  rely  only  on  A.M.'s  interview  itself  and  not  on  the  interviewer's  

                                                                                                                                                     

recollection of what A.M. said during the interview.  

                                                                                       



                                                                                      -3-	                                                                             7072
  


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

                                                                                                                           

when A.M. was nine or ten years old.  A.M. testified that she could not recall if she had  



                                                      

stayed with Marina during the third grade.  



                                                                                                                      

                    A.M. indicated that George would come into her room when she stayed  



                                                                                                                         

with Marina and that when George came into her room "[h]e would touch [her]."  She  



                                                                                                                          

stated that he first touched her when she was four.  The prosecutor then asked her, "Do  



                                                                                                                          

you remember him touching you when you were in the fourth grade?"  A.M. stated that  



                                                                                                                      

she did,  and she proceeded  to  describe George abusing  her  by  engaging in  digital  



                                                                                                                         

penetration. The prosecutor then changed focus, asking if George had touched her with  



                                                                                                                             

anything other than his hands.  A.M. testified that George had also made her engage in  



                     

fellatio.  She stated,  



                                                                                          

                    A:	      (Pause) He would make me put it in my mouth.  



                                                                                                 

                    Q:	      He'd put his - he'd make you put it in your mouth?  



                    A:	      (Pause)  



                                                                              

                    Q:	      Okay.  And was that in the third grade?  



                                          

                    A:	      (Pause) (Indiscernable).  



                                                                

                    Q:	      Or was that the fourth grade?  



                                                    

                    A:	      Third grade, I think.  



                                                                                                    

                    Q:	      Third grade.  Did that also - did that happen in the  

                                                     

                             fourth grade as well?  



                                          

                    A:	      (Pause) Hmmm.  



                    Q:	      Yeah?  



                    A:	      (Pause)  



                                               

                    Q:	      Was that a yes?  



                    A:	      No.  



                                                                  

                    Q:	      No, okay.  Just the third grade?  



                    A:	      (Pause)  



                                                             -4-	                                                       7072
  


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

                                                                                                                           

After the prosecutor attempted to refresh A.M.'s recollection by showing her the grand  



                                                                     

jury transcript, the following exchange took place:  



                                                                                                     

                     Q:	      And so did that happen in the fourth grade as well?  



                                                                                                     

                    A:	        (Pause) It was the fourth grade but like - it wasn't  

                                                                               

                               quite the year didn't quite start yet.  



                                                                                                                              

A.M. then testified that George had engaged in penis-to-vagina penetration with her  



                                      

during her fourth-grade year.  



                                                                                                                         

                    The State also introduced portions of A.M.'s forensic interview.  During  



                                                                                                                              

this interview A.M. stated that George would touch her "every night" when she was  



                                                                                                                             

"little," clarifying later that she meant when she was five or six years old.   She also  



                                                                                                                                 

indicated that "every night" she was at Marina's, George would make her engage in  



                                                                                                                           

fellatio and penis-to-vagina penetration.  Although A.M. initially stated that the abuse  



                                                                                                                             

stopped when she moved to Anchorage in or right after the fourth grade,  she later  



                                                                                                                               

recalled an incident that occurred after the move to Anchorage.  But she stated that she  



                                                                                                                                

could not "remember . . . well" if George "[did] anything with his fingers when he  



                                                                                                                              

touche[d] [her] crotch."  She also testified regarding one incident where George was  



                                                                                                                                  

found "holding [her] crotch and [her] boobs," and she stated he was told "not to do it  



                                 

again but he still did it."  



                                                                                                                          

                    The jury also heard an edited version of George's police interview. During  



                                                                                                                              

George's interview he claimed that A.M. had him engage in digital penetration with her.  



                                                                                                                               

George claimed that this contact occurred when A.M. was ten and in Anchorage.  He  



                                                                                                                       

also admitted to an incident when A.M. was four.  George claimed that A.M. was "the  



one that actually did everything to [him]," and that the sexual abuse of A.M. occurred  



                                           

"when [he] was living with Marina."  



                                                                                                                           

                    The State also introduced a December 2009 interview with T.E. T.E. stated  



                                                                                                                        

that George attempted to put his hands down her underwear and that there was skin-to- 



                                                                -5-	                                                       7072
  


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

skin contact but that George did not touch her "private parts."                                                                                                                                At trial, T.E. confirmed                   



that George put his fingers under her clothing, and she marked on a diagram indicating                                                                                                                                                     



that she felt George touch her groin.                                                        



                                         Relevant to George's abuse of A.M., T.E. was asked in her 2009 interview                                                                                                                            



if she believed that anyone else had been abused.                                                                                                                 T.E. indicated that she believed                                            



George had also abused A.M. in 2007 or possibly earlier.                                                                                                   



                                         The jury found George guilty on all but one count, and Superior Court                                                                                                                                         



Judge Eric Smith sentenced George to a total of 56 years' imprisonment with 22 years                                                                                                                                                                     



suspended.   On Count Ten, George received a sentence of eight years with two years to                                                                                                                                                                              

                                                                                                                     8  and the remainder to be served concurrently.  

be served consecutively to Count One                                                                                                                                                                                      



                     C.                  George's Appeal To The Court Of Appeals  

                                                                                                                                                           

                                                                                                                                                                    9  arguing in part that the evidence  

                                         George appealed to the court of appeals,                                                                                                                                                             

                                                                                                                                           



was insufficient to support a conviction for digital penetration during A.M.'s third-grade  

                                                                                                                                                                                                                                        



               10  

year.                  The court of appeals reviewed the record and concluded that "it appears (1) that  

                                                                                                                                                                                                                                                              



the prosecutor was under a misimpression about the timing of the offense, and (2) that  

                                                                                                                                                                                                



A.M.'sensuing testimony was actually aboutevents thatoccurred during her third-grade  

                                                                                                                                                                                                                                       

year."11  

                          



                                         The court of appeals summarized the facts as follows:  

                                                                                                                                                                                     



                     8                   Count One was attempted sexual abuse of a minor in the first degree.                                                                                                                                                              



George received a sentence of thirty years with ten years suspended.                                                                                                            



                     9                   George v. State, No. A-11028, 2014 WL 2937874, at *1 (Alaska App.  

                                                                                                                                                                                                                                                          

June 25, 2014).  

                            



                     10                  Id. at *4.  

                                                           



                     11                  Id. (emphasis in original).  

                                                                                            



                                                                                                                                 -6-                                                                                                                      7072
  


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

                                     George was living with A.M.'s aunt.                                                                   A.M. testified that her                               

                                     aunt used to babysit her . . . from the time she was quite                                                                                            

                                     young until her fourth[-]grade year . . . .                                                             



                                     A.M.  further testified that, on the nights when she would stay                                                                                           

                                     at her aunt's house, George would come into her bedroom                                                                                     

                                     and   touch   her.     According   to   A.M.,   this   touching   started  

                                     when she was four years old and continued until she reached                                                                                    

                                     the   fourth   grade .      .   . .       A.M.   testified that, when                                                                          George  

                                     touched her, he would sometimes reach inside her vagina.                                                                                   



                                     The prosecutor's mistake about the time frame of this sexual                                                                                       

                                     activity was clarified later in A.M.'s testimony, when she                                                                                                 

                                     described how George would make her engage in fellatio.                                                                                                               

                                     The prosecutor asked A.M. if this had happened when she                                                                                                    

                                     was   in  the   fourth   grade,   but   A.M.   repeatedly   told   the  

                                     prosecutor   that   it   happened   when   she   was   in   the   third  

                                     grade.[12]  



The court of appeals then quoted the same testimony we have quoted above13  and held  

                                                                                                                                                                                                                                  



that  

            



                                     A.M. declared that the sexual abuse occurred when she was  

                                                                                                                                         

                                     in the third grade . . . .  Thus, viewing A.M.'s testimony as a  

                                                                                                                                                                                                       

                                     whole, and in the light most  favorable to the verdict, the  

                                                                                                                                                                                                

                                    jurors could reasonably conclude that George engaged in  

                                                                                                                                                                                                   

                                     digital penetration of A.M. during . . . (September 2004 to  

                                                                                                                                                                                                    

                                     May 2005).[14]  

                                                   

                                     The court of appeals thus affirmed George's conviction on Count Ten.15  

                                                                                                                                                                                                                                                



George petitioned for hearing, and we granted the petition.  

                                                                                                                                            



                   12               Id.  at *4-5.   



                   13  

                                                                    

                                     See  II.B, supra.  



                   14  

                                                                                                                           

                                     George, 2014 WL 2937874, at *5.  



                   15               Id.  



                                                                                                                   -7-                                                                                                          7072
  


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

III.         STANDARD OF REVIEW                 



                         "When   we   review   the   sufficiency   of   the   evidence   to   support   these  



convictions, we view the evidence in the light most favorable to the verdict and ask                                                                       



whether a reasonable juror could have concluded that the defendant was guilty beyond                                                                



                                      16  

a reasonable doubt."                                                                                                                                         

                                           "The question . . . is whether the finding of guilt is supported by  



                                                                                                                                                               

substantial evidence, that is, such relevant evidence which is adequate to support a  



                                                                                                                       

conclusion by a reasonable mind that there was no reasonable doubt as to appellant's  

guilt."17  



IV.         DISCUSSION  



                                                                                                                                                           

                         Georgecontendsthat theevidencepresentedwasinsufficient to convicthim  



                                                                                                                                                   

of  digitally  penetrating  A.M.  during  her  third-grade  year.                                                       The  court  of  appeals  



                                                                                                                                                            

nevertheless affirmed George's conviction on this count.  The State concedes that the  



                                                                                                                                               

court of appeals' reasoning is problematic, but the State argues that George's conviction  



                                                                                                                                                         

can be sustained on a continuing course of conduct theory.  We consider both the court  



                                                                                                                                            18  

                                                                                                                                                          

of appeals' decision and the State's continuing course of conduct theory.                                                                         We find  



                                

neither rationale persuasive.  



             16          Iyapana v. State              , 284 P.3d 841, 848-49 (Alaska App. 2012).                             



             17          Walker v. State, 652 P.2d 88, 97 (Alaska 1982) (quoting Beck v. State, 408  

                                                                                                                                                           

P.2d 996, 997 (Alaska 1965)).  

                                            



             18          The State's decision not to rely on the court of appeals' opinion does not  

                                                                                                                                                  

relieve this court of our duty to consider the court of appeals' reasoning.  See Marks v.  

                                                                                                                                                               

State, 496 P.2d 66, 67 (Alaska 1972) ("Although a confession of error by the Attorney  

                                                                                                                                                 

General is entitled to great weight, it does not relieve this court of the obligation to  

                                                                                                                                                              

perform [its] judicial function.").  

                                         



                                                                              -8-                                                                       7072
  


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

              A.	            The Evidence On Which The Court Of Appeals Relied Is Insufficient                                                                  

                             To Support George's Conviction On Count Ten.                                                         



                             The court of appeals advanced two reasons supporting its conclusion that                                                                             



the   evidence   was   sufficient   to   support   George's   conviction   on   Count   Ten:   the  



                                                                                                                                 19  

prosecutor's "misimpression about the timing of the offense"                                                                                                                

                                                                                                                                     and the belief that A.M.'s  



                                                                                                                                                                            

testimony regarding digital penetration "was actually about events that occurred during  



                                                 20  

                                                                                                                                                                              

her  third-grade year."                                 We have carefully reviewed all of the evidence that could  



                                                                                                                                                                        

support George's conviction on Count Ten in conjunction with the court of appeals'  



                                                                                                                                                                                   

analysis, and we conclude that the evidence does not support George's conviction on that  



count.  



                                                                                                                                                               

                                First, we conclude that the court's characterization of the prosecutor's  



                                                                                                                                                                        

misimpression regarding when the offense occurred has little bearing on our analysis.  



                                                                                                                                                                                      

Moreover, we are not convinced that the prosecutor was confused.  The State needed to  



                                                                                                                                                                           

elicit testimony regarding digital penetration during A.M.'s fourth-grade year to support  



                                                                                                                                                                                 

a conviction on Count Eight. The State's initial question regarding the fourth-grade year  



                                                                                                                                                                                  

appears intended to bring out exactly that information.  But the State failed to ask any  



                                                                                                                                                                              

follow-up questions about digital penetration during A.M.'s third-grade year.  In either  



                                                                                                                                                                          

case, the prosecutor's misunderstanding of the timing of events does not matter. Instead,  



                                                                                                                                                                                  

what matters is "whether a reasonable juror could have concluded that the defendant was  



                                                                           21  

                                                            

guilty beyond a reasonable doubt." 



                               Turning to the court of appeals' characterization of A.M.'s testimony  

                                                                                                                                                                     



regarding digital penetration as being about events that occurred during her third-grade  

                                                                                                                                                                   



               19            George, 2014 WL 2937874, at *4.                                     



              20            Id.  (emphasis in original).         



              21            Iyapana, 284 P.3d at 848-49.                   



                                                                                          -9-	                                                                                 7072
  


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

 year, we find that the structure of the questions and responses in A.M.'s testimony does                                                                                                                                                                                                                                   



 not support the court of appeals' interpretation.                                                                              



                                                    The State began eliciting testimony regarding the individual acts of abuse                                                                                                                                                                                          



 by asking A.M. if she remembered how old she was the first time George touched her.                                                                                                                                                                                                                                            



 A.M.  testified that she was four at the time.                                                                                                                       The prosecutor then asked "Four, okay. Do                                                                                                                   



 you remember himtouching you                                                                                                when you were                                             in the fourth grade                                                    ?" (Emphasis added.)                                



 In response, A.M. described George digitally penetrating her.                                                                                                                                                                  



                                                    The State next asked if George "use[d] anything else to touch [A.M.'s]                                                                                                                                                                                  



 body with."                                     A.M. described George forcing her to engage in fellatio.                                                                                                                                                                          The State then                            



 addressed the question of timing, asking, "Okay.  And was that in the third grade? . . .                                                                                                                                                                                                                                                         



 Or was that in the fourth grade?" A.M. responded that this conduct happened in the third                                                                                                                                                                                                                                    



 grade.  



                                                    The central question in interpreting A.M.'s testimony is what the word                                                                                                                                                                                               



 "that" refers to                                              in   the State's question.                                                                        We read the court of appeals'                                                                                                  decision as   

 interpreting "that" as referring to both digital penetration and fellatio.                                                                                                                                                                                                  22  



                                                    The State concedes that the court of appeals' interpretation was erroneous.  

                                                                                                                                                                                                                                                                                                                                                  



 In its brief, the State agreed with George that "the court of appeals' interpretation of the  

                                                                                                                                                                                                                                                                                                                                   



jury's verdict on Count [Ten] suffers from . . . flaws" and "that the court's interpretation  

                                                                                                                                                                                                                                                                                           



 of the record was based on a strained and unnatural reading of the trial testimony." Thus,  

                                                                                                                                                                                                                                                                                                                        



 the State does not rely on the court of appeals' interpretation of A.M.'s testimony in its  

                                                                                                                                                                                                                                                                                                                                     



 argument that this court should uphold George's conviction on Count Ten.  

                                                                                                                                                                                                                                                                                



                                                    We also cannot agree with the court of appeals' interpretation.   A.M.'s  

                                                                                                                                                                                                                                                                                                                



 testimony differentiated between time periods and types of abuse.   She was initially  

                                                                                                                                                                                                                                                                                                               



 asked about touching in the fourth grade, and she described digital penetration. She was  

                                                                                                                                                                                                                                                                                                                                



                           22  

                                                                                                                                                                             

                                                     George, 2014 WL 2937874, at *4-5.  



                                                                                                                                                                -10-                                                                                                                                                                        7072  


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

then asked about other acts, and she described fellatio. After describing George forcing  

                                                                                                                         



her to perform fellatio, she was asked when "that" had occurred, and she replied that it  

                                                                                                                                  



occurred in third grade.  We cannot endorse reading "that" as a reference to both digital  

                                                                                                                          



penetration  and  fellatio.              It  is  clear  from  A.M.'s  testimony  that  she  was  digitally  

                                                                                                                      



penetrated in the fourth grade.   Immediately following A.M.'s testimony regarding  

                                                                                                                     



fellatio, the prosecutor asked her when "that" happened, and she indicated that this  

                                                                                                                              



conduct happened in third grade.  

                                          



                    T.E.'s testimony regarding George's abuseof A.M. is similarly insufficient  

                                                                                                                   



to support George's conviction on Count Ten.  T.E. was asked if she knew of anyone  

                                                                                                                         



else "that this happened to."  Presumably "this" referred to the type of abuse T.E. had  

                                                                                                                              



described - inappropriate touching under T.E.'s clothes that did not involve digital  

                                                                                                                          



penetration. But even if the testimony is interpreted more broadly as indicating that T.E.  

                                                                                                                             



believed George had sexually  abused  A.M.  in other  ways, such  vague language is  

                                                                                                                                 



insufficient when multiple types of sexual abuse have been charged and the specific type  

                                                                                                                             



of abuse the testimony refers to is unclear.  

                                                     



                    Viewing all of this evidence together in the light most favorable to the  

                                                                                                                               



verdict, we conclude that the State's concession of error is well taken, and we hold that  

                                                                                                                              



it was error for the court of appeals to affirm George's conviction on Count Ten.  

                                                                                                                    



          B.	       The  Evidence  Is  Insufficient  To  Support  George's  Conviction  On  

                                                                                                                              

                    Count Ten Under The State's Continuing Course Of Conduct Theory.  

                                                                                                                       



                    Though the State concedes that the court of appeals' analysis is erroneous,  

                                                                                                                    



it offers an alternative ground upon which the conviction for Court Ten may be affirmed:  

                                                                                                                                     



The State argues that "the jury could . . . conclude that George [digitally penetrated A.M.  

                                                                                                                            



during her third-grade year] based on A.M.'s description of a continuing course of  

                                                                                                                                



conduct that started before she was in third grade and continued until after she got out  



of fourth grade."  The State points to various pieces of evidence to argue that the jury  

                                                                                                                             



                                                              -11-	                                                        7072
  


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

 could have reasonably concluded that George digitally penetrated A.M. during her third-                                                                                                                                                                                                                                                                                                   



 grade year.                                             And the State notes that other courts have upheld convictions when the                                                                                                                                                                                                                                                                      



 victim testified to a pattern of abuse.                                                                                                     



                                                                George responds that this is not a continuing                                                                                                                                                                                     course of conduct case.                                                                                              



 George   argues   that   a   sexual   abuse   course   of   conduct   case   requires   "evidence  



  showing . . . a particular type of sexual conduct occurred within a time frame."                                                                                                                                                                                                                                                                                             George  



 notes that "there was no testimony or statements that A.M. was digitally penetrated at all                                                                                                                                                                                                                                                                                                              



 during the relevant time frame for Count [Ten]."                                                                                                                                                                                        George also argues that while A.M.                                                                                                                



 testified to inappropriate touching, she "did not testify that any of that consisted of digital                                                                                                                                                                                                                                                                                       



 penetration."   George argues that the State is trying to convict him "based solely on                                                                                                                                                                                                                                                                                                                



 propensity" evidence.   



                                                               When reviewing a conviction based on an alleged continuing course of                                                                                                                                                                                                                                                                      



 conduct theory, we agree with the California Supreme Court that the evidence before the                                                                                                                                                                                                                                                                                                               



jury  



                                                               must   describe   the   kind  of   act   or   acts   committed   with  

                                                                sufficient specificity, both to assure that unlawful conduct                                                                                                                                                                                    

                                                               indeed has occurred and to differentiate between the various                                                                                                                                                                                         

                                                               types                               of                  proscribed                                                  conduct                                         (e.g.[,]                                  lewd                              conduct,  

                                                               intercourse,   oral   copulation   or   sodomy).     Moreover,   the  

                                                               victim must                                                describe   the   number   of   acts   committed   with  

                                                                sufficient certainty to support each of the counts alleged in                                                                                                                                                                                                               

                                                               the . . . indictment (e.g., "twice a month" or "every time we                                                                                                                                                  

                                                               went camping").                                                                 Finally, the victim must be able to describe                                                                                                                     

                                                                the general time period                                                                                          in which these acts occurred (e.g.,                                                                                                         

                                                                "the summer before [] fourth grade," or "during each Sunday                                                                                                                                                                                        

                                                               morning after he came to live with us") to assure the acts                                                                                                                                                                                                          

                                                               were committed within the applicable limitation period.                                                                                                                                                                                                              [23]  



                                23                             People v. Jones                                                          , 792 P.2d 643, 655-56 (Cal. 1990) (en banc) (emphasis in                                                                                                                                                                                                          



 original).   Jones  indicated that                                                                                                             the victim                                      must testify to these facts, but we believe this                                                                                                                                                   

                                                                                                                                                                                                                                                                                                                                                       (continued...)  



                                                                                                                                                                                                  -12-                                                                                                                                                                                        7072
  


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

                                                                         Here, A.M. sufficiently described digital penetration and differentiated it   



from the other acts of sexual abuse George committed.                                                                                                                                                                                                                                                          But the State failed to provide  



 sufficient evidence regarding the frequency and timing of the digital penetration such                                                                                                                                                                                                                                                                                                                                                                       



that   a   reasonable   jury   could   conclude   beyond   a   reasonable   doubt   that   George   had  



digitally penetrated A.M. during her third-grade year (the time period relevant to Count                                                                                                                                                                                                                                                                                                                                                              



Ten) as opposed to her fourth-grade year (the time period relevant to Count Eight).                                                                                                                                                                                                                                                                                                                                            



                                                                         A.M.'s statement that George "touched [her]" between the ages of four and                                                                                                                                                                                                                                                                                                                   



 six is insufficiently specific to conclude or even reasonably infer that George continued                                                                                                                                                                                                                                                                                                                                        



digitally   penetrating   her   through   her   third-grade   year.     T.E.'s statements regarding                                                                                                                                                                                                                                                                                                                             



George's abuse of A.M. are similarly vague because, even if they indicate that George                                                                                                                                                                                                                                                                                                                                                          



was abusing A.M. during A.M.'s third-grade year, they do not reference, directly or                                                                                                                                                                                                                                                                                                                                                                                        



indirectly, the specific type of abuse involved.                                                                                                                                                                                                                       And George's statements during his                                                                                                                                                             



interview do not provide any additional specificity regarding the frequency of his abuse                                                                                                                                                                                                                                                                                                                                                                



of A.M. by digital penetration.                                                                      



                                                                         In A.M.'s forensic interview, she was asked to think of one time when she                                                                                                                                                                                                                                                                                                                   



was abused and to "tell . . . everything you know about that or everything you can                                                                                                                                                                                                                                                                                                                                                                                 



remember about that."                                                                                                            In response A.M. described penis-to-vagina penetration and                                                                                                                                                                                                                                                                       



fellatio.   A.M. then testified that George "would do that every night."                                                                                                                                                                                                                                                                                                                    A.M. stated that                                                       



the abuse stopped "[w]hen [she] moved to Anchorage."                                                                                                                                                                                                                                                                     A.M. was later asked if she                                                                                                                



could remember if George touched her any other time or at any other place.                                                                                                                                                                                                                                                                                                                                                    Only then   



did A.M. disclose that abuse occurred after the move to Anchorage (after she completed                                                                                                                                                                                                                                                                                                                                         



                                     23(...continued)  



                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

to be too strict a rule.  If another witness is able to testify to the necessary facts, we see  

                                                                                                                                                                                                                                                                                                                      

no reason to deem that testimony insufficient to support a conviction.  



                                                                                                                                                                                                                                  -13-                                                                                                                                                                                                                        7072
  


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

third grade) and describe acts that preceded the digital penetration to which she testified                                                            

before the jury.             24  



                          In sum, we conclude that there is nothing in the record that would allow a  

                                                                                                                                                                    



reasonable juror to find that George engaged in a continuing course of conduct that  

                                                                                                                                                              

involved digital penetration with the requisite level of frequency to support Count Ten.25  

                                                                                                                                                           



The State argues that other courts have relied on a theory similar to the continuing course  

                                                                                                                                                          



of conduct theory it advances in this case.   But the cases it cites are distinguishable  

                                                                                                                                        



because in those cases there was evidence from which the jury could reasonably infer  

                                                                                                                                                             

that the specified conduct occurred during the relevant period.26  

                                                                                                          



             24           During her interview, A.M. could not recall if George had engaged in                                                                    



digital penetration. Before the jury, she clearly testified to digital penetration during her                                                                   

fourth-grade year.   



             25           The State notes that Alaska law does not make the date of an offense an  

                                                                                                                                                                 

element of the crime that need be proven beyond a reasonable doubt.  This is generally  

                                                                                                                                                    

accurate, though when an offense occurred may be important in a sexual abuse case to  

                                                                                                                                                                  

establish the victim's and the defendant's ages. See AS 11.41.434. But the problemhere  

                                                                                                                                                              

is thatGeorge was charged with engaging in digital penetration during both A.M.'s third- 

                                                                                                                                                            

grade year and fourth-grade year.  The dates were necessary to distinguish between the  

                                                                                                                                                                

different counts with which George was charged.  A.M.'s testimony clearly supported  

                                                                                                                                                   

the count related to digital penetration in the fourth grade.  It is the evidence regarding  

                                                                                            

digital penetration during the third grade that is lacking.  



             26          Jones, 792 P.2d at 659 (affirming conviction on certain counts where the  

                                                                                                                                                                

victim  testified  to  specific  acts  of  abuse  and  the  frequency  with  which  they  were  

                                                                                                                                                            

committed, which encompassed the relevant time period); Young v. State, 106 So. 3d  

                                                                                                                                                         

811, 814, 821-22  (Miss. App. 2012) (affirming a conviction where an expert testified  

                                    

to evidence of three different types of penetration and the victim stated she was abused  

                                                                                                                                                         

"a lot at [her] house" during the relevant time period); State v. Sexton, 929 S.W.2d 909,  

                                                                                                                                                              

917 (Mo. App. 1996) (affirming a jury's conviction because the victim testified that a  

                                                                                                                                                                    

specific act of abuse occurred "continually over a number of years" including the years  

                                                                                                                                                            

relevant  to  the  charge).  The  State  also  cites  Anderson  v.   State ,  289  P.3d  1  

                                                                                                                                                                  

                                                                                                                                            (continued...)  



                                                                               -14-                                                                         7072
  


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

                                                The State failed to provide this type of evidence with respect to Count Ten.                                                                                                                                                                           



 The State introduced ample evidence that George digitally penetrated A.M. during her                                                                                                                                                                                                                      



 fourth-grade year, but it provided neither evidence demonstrating a specific instance of                                                                                                                                                                                                                      



 digital   penetration  during   A.M.'s   third-grade year                                                                                                                                   nor   evidence   demonstrating   that  



 George engaged in a course of sexual abuse encompassing A.M.'s third-grade year that                                                                                                                                                                                                                    



regularly involved digital penetration. Without evidence of the frequency of the specific                                                                                                                                                                                                  



 act charged, the State's continuing course of conduct theory cannot support George's                                                                                                                                                                                                



 conviction on Count Ten.                                                   



V.                       CONCLUSION  



                                                For the reasons stated above, we REVERSE George's conviction on Count                                                                                                                                                                            



 Ten and REMAND this matter to the superior court for its entry                                                                                                                                                                                        of a judgment of                                       



 acquittal on Count Ten.                                             



                        26(...continued)  



                                                                                                                                                                                                                                                                                                    

 (Alaska App. 2012) modified on reh'g Anderson v. State, 337 P.3d 534 (Alaska App.  

                                                                                                                                                                                                                                                                                          

2014).  We recognize that the court of appeals endorsed a continuing course of conduct  

                                                                                                                                                                                                                                                                          

theory in that case.  But its decision is not binding on this court because in Anderson  

                                                                                                                                                                                                                                                                                                               

there was testimony that Anderson abused one of his victims "often during his visits to  

                                                                                                                                                                                                                                                                                                                          

her mother's house" and the visits began and continued through the relevant time period.  

                                                                                                                                                                                                                                                                                                       

Id . at 9. In addition, the counts on which Anderson was convicted involved the same type  

                                                                                                                                                                                                                                                                                                 

 of abuse, unlike this case, which involves at least three different types of abuse.  Id.  



                                                                                                                                                    -15-                                                                                                                                             7072
  

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