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Iyapana v. State (9/14/2012) ap-2375

Iyapana v. State (9/14/2012) ap-2375


        The text of this opinion can be corrected before the opinion is published in thePacific 

        Reporter.   Readers are encouraged to bring typographical or other formal errors to 

        the attention of the Clerk of the Appellate Courts. 

                               303 K Street, Anchorage, Alaska  99501

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ROMEO IYAPANA,                                   ) 

                                                 )       Court of Appeals No. A-10693 

                            Appellant,           )      Trial Court No. 3AN-07-10136 CR 


             v.                                  ) 

                                                 )               O P I N I O N 

STATE OF ALASKA,                                 ) 


                            Appellee.            ) 

                                                 )       No. 2375 - September 14, 2012 

                Appeal     from    the  Superior    Court,   Third   Judicial   District,

                Anchorage, Patrick J. McKay and Jack Smith, Judges.

                Appearances: Hanley Rebecca Smith, Assistant Public Defender,

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

                Tamara de Lucia, Assistant Attorney General, Office of Special

                Prosecutions      and  Appeals,    Anchorage,     and   John   J.  Burns,

                Attorney General, Juneau, for the Appellee.

                Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

                BOLGER, Judge.

                MANNHEIMER, Judge, concurring.

                Romeo Iyapana beat and sexually assaulted T.S., his mother's long-term 

boyfriend.     Iyapana    was    convicted    of  first-degree    sexual   assault   for  forcible   oral 

penetration, attempted first-degree sexual assault for attempted anal penetration, and 

second- and fourth-degree assault. On appeal, Iyapana argues that the prosecutor failed 

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

to present exculpatory evidence to the grand jury on the attempted anal penetration count. 

We decline to address this argument because it was not presented to the superior court. 

Iyapana also claims that the trial judge erred when he gave a jury instruction that contained 

several examples of what constitutes a "substantial step" as that term is used in the attempt 

statute. We conclude that this instruction was legally correct and not misleading. 

                Iyapana also argues that there was insufficient evidence to support his sexual 

assault convictions, but we conclude that both convictions are adequately supported by 

T.S.'s testimony and substantial circumstantial evidence. Iyapana also argues that the 

sentencing judge should have merged his sexual assault convictions to comply with the 

double jeopardy clause. But we conclude that the judge's decision was justified by our 

prior decisions allowing separate convictions for different types of sexual penetration, 

even when they occur during a single incident. 


                Iyapana lived with his sister, Charlene, and her boyfriend, Robert. Iyapana's 

mother, Helen Iyapana, and her long-term partner, T.S., lived at the Brother Francis 

Shelter and homeless camps in Anchorage. 

                One   day,   Charlene,   Robert,   Helen,   and   T.S.   began   drinking   alcohol   at 

Charlene's apartment. Iyapana eventually joined the group and began "helping himself 

to a few drinks." Charlene and Helen attempted to stop Iyapana from drinking, but Iyapana 

was determined to "get[] what he want[ed]." 

                T.S. attempted to break up an argument between Iyapana and Charlene, and 

Iyapana became angry at T.S. Iyapana pushed T.S. to the ground and dragged him across 

the   floor.   Charlene,   Helen,   and   Robert   ran   out   of   the   apartment   because   they   were 

frightened by Iyapana. 

                                                  - 2 -                                            2375

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

               Iyapana punched T.S. and choked him, causing T.S. to slip in and out of 

consciousness. At one point, T.S. realized that he could not breathe because Iyapana's 

penis was in his mouth. T.S. later woke to find that Iyapana was "doing it to [his] ... butt" 

and "making love to [him]." At trial, T.S. clarified that he felt Iyapana's "penis in [his] 

behind," but was not sure if Iyapana actually penetrated his anus. 

               Charlene returned to the apartment and found Iyapana drunk and naked. 

There was blood on the floor and walls and the apartment was in disarray. Charlene found 

T.S. in a bedroom, beaten up and bloody. Charlene then called the police. 

               When the police arrived, they found that T.S. had blood covering his face 

and his clothes. T.S. was wearing two pairs of pants and the outer layer was pulled down 

over his buttocks. Iyapana was initially cooperative and said that he did not know what 

happened to T.S. As time went on, however, Iyapana became increasingly combative and 

tried to intimidate the police. 

               Iyapana was tried at a jury trial conducted by Superior Court Judge Patrick 

J. McKay. The jury convicted Iyapana of one count of first-degree sexual assault (for the 

oral penetration),1 one count of attempted first-degree sexual assault (for the attempted 

anal penetration),2                                        3 

                     one count of second-degree assault,  and one count of fourth-degree 

assault.4 Superior Court Judge Jack Smith sentenced Iyapana to a composite sentence of 

thirty-two years and six months in prison. Iyapana now appeals. 

       1   AS 11.41.410(a)(1). 

       2   Id .; AS 11.31.100. 

       3   AS 11.41.210(a)(1). 

       4   AS 11.41.230(a)(1). 

                                            - 3 -                                        2375 

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


               Iyapana waived his grand jury challenge because he did not 

               file a pretrial motion to dismiss the indictment . 

               During the grand jury hearing, T.S. testified that he slipped in and out of 

consciousness during Iyapana's attack. T.S. regained consciousness at one point and 

realized his pants were pulled down and that Iyapana was trying to penetrate him from 

behind. T.S. stated that he did not know if Iyapana succeeded in penetrating his anus. T.S. 

explained that, when he regained consciousness at a later point, he realized that Iyapana's 

penis was in his mouth. 

               The prosecutor later asked whether Iyapana remembered telling the police 

that the anal assault did not occur: "Do you remember ever having some police ask you 

about these things about the sexual assault, the penis in your mouth and the anus, and you 

[said] that, no, that it didn't happen? Do you remember ever saying anything like that?" 

T.S. replied that he could not remember whether he made that statement. The following 

exchange then occurred between the prosecutor and T.S.: 

               Prosecutor : Do you remember why - let me just ask you if 

               you can - let's say that you did say to somebody that it didn't 

               happen. Do you know why you would have told somebody 

               that it didn't happen? 

                T.S.: Probably because I was so beaten up and wasn't thinking. 

               Prosecutor : Is this something that you talk to a lot of people 

               about ...? Or is this hard for you to talk about? 

                T.S.: You know, to be honest, I try to heal by myself. ... I think 

               it might be part of our culture, to not ... seek help. I know this 

               might sound - sound wrong, but in our culture, we tend to 

               try to - try to heal ourselves. And I think that's ... where I 

               went wrong. I did not really try to seek help. ... [P]eople gave 

               me information [on] where I can go to seek counseling and 

               help. But I ... did not utilize it. 

                                               - 4 -                                          2375

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

               Detective Bianca Cross did not testify at the grand jury proceeding. At trial, 

however, Cross testified about statements that T.S. made when she interviewed him at 

the hospital the day following the assault. She testified that T.S. was able to describe 

Iyapana's oral sexual assault. But when Cross asked T.S. whether Iyapana committed any 

other type of sexual assault, T.S. "started crying and putting his hand up, kind of, you 

know, looking away from me and going like - you know, kind of pushing away with 

his hand," and he said "nowhere else." Cross believed T.S. did not want to talk about the 

anal penetration, so she did not press him for further details. 

               Iyapana    argues   on   appeal  that  the  prosecutor   committed     prejudicial 

misconduct when he failed to inform the grand jury that T.S. denied the attempted anal 

penetration when speaking to Detective Cross. If Iyapana had asserted this argument in 

a pretrial motion, then we would have to determine whether the prosecutor had violated 

his responsibilities to the grand jury. Alaska Rule of Criminal Procedure 6(q) requires 

that prosecutors present exculpatory evidence during grand jury proceedings.5 But this 

duty "extends only to evidence that tends, in and of itself, to negate the defendant's guilt."6 

"The mere fact of inconsistency [between the grand jury presentation and other evidence] 

does not automatically convert all such evidence into exculpatory material."7 

               To properly raise this issue, however, Criminal Rule 12(b)(2) requires that 

a defendant file a motion to dismiss the indictment prior to trial. Criminal Rule 12(e) states 

that "[f]ailure by the defendant to raise defenses or objections or to make requests which 

must be made prior to trial ... shall constitute waiver thereof." It thus appears that Iyapana 

        5  Frink v. State , 597 P.2d 154, 164-65 (Alaska 1979). 

        6  Cathey v. State, 60 P.3d 192, 195 (Alaska App. 2002). 

        7  Preston v. State , 615 P.2d 594, 602 (Alaska 1980). 

                                              - 5 -                                         2375 

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

waived his claim of error by his failure to assert it in a pretrial motion to dismiss the 



                  We examined a similar situation many years ago in  Gaona v. State.  In 

Gaona, the defendant claimed that the prosecutor failed to provide exculpatory evidence 

to the grand jury and actively discouraged the grand jury from considering a potential 

self-defense argument.9 We held that these claims regarding the indictment and grand jury 

process were forfeited because they were not raised before trial. 10 

                  We explained that, if a valid attack on the indictment is filed in a timely 

manner under Criminal Rule 12, then the State will generally be able to cure the defect 

and reindict the defendant.11 But if we allow a defendant to challenge an indictment for 

the first time on appeal, "the prosecution would frequently be unfairly prejudiced" because 

"there would be a strong temptation for counsel to withhold these motions until appeal."12 

We ultimately held that an appellant who requests that we recognize a grand jury challenge 

as plain error "bears a heavy burden to convince us that we should depart from the normal 

rule that pretrial motions should be filed before trial and passed upon by the trial court." 13 

                  The Alaska Supreme Court approved the rationale of  Gaona in State v. 


                In Semancik, the defendant argued that the wording of his burglary indictment 

was defective because it failed to name the ulterior crime the defendant intended to commit 

         8   630 P.2d 534 (Alaska App. 1981). 

         9   Id. at 537. 

         10  Id .

         11  Id .

         12  Id . 

         13  Id . 

         14  99 P.3d 538 (Alaska 2004).

                                                       - 6 -                                                 2375

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

following his illegal entry.15 But the defendant did not make a motion to dismiss the 

indictment in the trial court; he raised the issue for the first time on appeal.16 The Supreme 

Court relied on Gaona and refused to consider the issue, stating, "It is simply against 

public policy to waste judicial resources by permitting defendants to knowingly refrain 

from challenging an indictment until after conviction."17 

                 We do not repudiate appellate review of grand jury error when the issue has 

been preserved in the lower court. In those circumstances, appellate review remains an 

important safeguard to remedy or police unprofessional behavior by the prosecutor, and 

to protect the grand jury's role as an independent institution.18 But when a defendant has 

not made any pretrial motion to dismiss the indictment, it is unlikely that the defendant 

can   show   the   kind   of   manifest   injustice   that   could   constitute   plain   error   warranting 

appellate review. A defendant generally can not show injustice, under these circumstances, 

because the trial verdict establishes that the defendant is guilty, despite any irregularities 

in the grand jury proceeding. Accordingly, when a defendant raises a grand jury challenge 

for the first time on appeal, we generally will not review the claim for plain error. 

                 There may be exceptions to this general rule. Policy considerations may 

require us to review a grand jury violation that is singularly egregious.19 And a defendant 

may be able to establish manifest injustice in a case where the grand jury violation is of 

         15  Id. at 539-40. 

         16  Id. 

         17  Id. at 543. 

         18  See    generally    Cameron      v.  State,   171   P.3d   1154,    1157-59     (Alaska    2007) 

(discussing the grand jury's protective role). 

         19  See Moreau v. State, 588 P.2d 275, 280 n.13 (Alaska 1978) (ruling that errors 

requiring the suppression of evidence may not be raised for the first time on appeal unless 

they are singularly egregious). 

                                                    - 7 -                                               2375

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

such a nature that the state would be unable to secure a new indictment in a renewed grand 

jury  proceeding.20 But, in the absence of such exceptional circumstances, we will not 

review a claim of grand jury error that is raised for the first time on appeal. 

                 In this case, Detective Cross's testimony was arguably inconsistent with the 

grand jury presentation, but it was not substantially favorable to Iyapana, and it does not 

negate   his   guilt.   Therefore,   this   testimony   does   not   establish   a   singularly   egregious 

violation that would require us to review this claim. And there is nothing in this record 

that would suggest that the State could not obtain another indictment if Iyapana had raised 

his objection in the superior court. We therefore decline to review this claim of error. 

                 The   jury    instruction   defining   "substantial   step"   was   not 

                 plainly erroneous . 

                 During deliberations, the trial jury sent a note to the court stating: "We have 

come to an agreement on 3 of the 4 [counts] but are split on the last. The [meaning of] 

 'substantial step' ... is what's causing the split. If we can't come to an agreement what 

will happen?" 

                 In response, the judge instructed the jury, "Is there anything the court can 

do to clarify [the meaning of 'substantial step'?] If not, please review [the instruction on 

juror deliberations] and try to reach a verdict. You should not concern yourselves with 

what may happen if you cannot reach a verdict on any of the counts." 

         20  See Ritter v. State , 16 P.3d 191, 193-94 (Alaska App. 2001); Ryan v. State , 899 

P.2d    1371,   1383    (Alaska    App.   1995)    (holding   that   an  attack  on   an  indictment   is   not 

dispositive for  Cooksey purposes unless a ruling in the defendant's favor would preclude 

reindictment); see also Shetters v. State, 751 P.2d 31, 36 (Alaska App. 1988); Wilson v. State, 

711   P.2d   547,   550   n.2   (Alaska    App.   1985)   (holding    that   when   a  claim   of   ineffective 

assistance   of   counsel is   based   on   the   defense   attorney's   failure   to   attack   the   grand   jury 

indictment, the defendant must not only show that the proposed attack on the indictment 

would have succeeded, but must also show that the state could not have obtained another 


                                                     - 8 -                                               2375 

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

                Then the jury sent another note that stated, "We need some examples of mere 

preparation versus substantial step - [the instruction on attempted first-degree sexual 

assault] doesn't seem to be enough." 

                Judge McKay then gave jury instruction 32, which clarified that a "person 

is guilty of an attempt if, with the intent to commit a crime, the person takes a 'substantial 

step' toward the commission of that crime." The instruction also provided examples of 

what constitutes a substantial step: 

                The law regarding attempts is intended to encompass a wide- 

                range of acts beyond mere preparation. Examples include: 

                lying in wait, searching for or following the potential victim, 

                enticing the victim to go [to] a contemplated place, possessing 

                materials for the commission of the offense, or any overt act 

                done towards its commission. To qualify as a "substantial 

                step", the defendant's act must be strongly corroborative of 

                the actor's criminal purpose. 

The instruction went on to   clarify that mere preparation is not in itself sufficient to 

constitute an attempt, but 

                acts of a person who intends to commit a crime will constitute 

                an attempt where they themselves clearly indicate a certain, 

                unambiguous   intent   to   commit   that   specific   crime,   and   in 

                themselves are an immediate and substantial step in the present 

                execution of the criminal design, the progress of which would 

                be completed unless interrupted by some circumstance not 

                intended in the original design. 

                Iyapana timely objected to the portion of the instruction that provided the 

jury with examples of what constitutes a "substantial step." On appeal, Iyapana argues 

that the court should have expressly warned the jury that the examples were not related 

to Iyapana's case. Iyapana also argues that the court should have provided examples of 

conduct that constitutes "mere preparation." 

                                                 - 9 -                                            2375

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

                 Iyapana did not ask the trial judge to include an additional admonishment 

to ensure that the jury understood that the examples were unrelated to his case. Because 

Iyapana's argument on appeal differs from his objection before the trial court, we review 

his claim for plain error.21 In the context of jury instructions, "an appellate court will only 

find plain error where the erroneous instruction or lack of instruction 'creates a high 

likelihood that the jury followed an erroneous theory[,] resulting in a miscarriage of 

justice.'" 22 

                 The term "substantial step" is not defined in AS 11.31.100 or elsewhere in 

Title 11. The legislative commentary to AS 11.31.100 explains that "mere preparatory 

conduct   is   not   sufficient   to   constitute   an   attempt."23 This   commentary   refers   to   the 

explanation   of   the   term,   "substantial   step,"   that   the   Alaska   Criminal   Code   Revision 

Subcommission included in its tentative draft.24 The tentative draft included a list of 

examples of substantial steps that might have been deemed "mere preparatory conduct" 

under former law.25 

                 In Beatty v. State , we referred to these examples to explain the meaning of 

the term "substantial step": 

                 The attempt statute is intended to encompass a wide-range of 

                 acts beyond mere preparation. Examples include: lying in wait, 

                 searching for or following the potential victim, enticing the 

         21  See Dobberke v. State, 40 P.3d 1244, 1247 (Alaska App. 2002). 

         22  Id . (quoting In re State of McCoy , 844 P.2d 1131, 1134 (Alaska 1993)). 

         23  Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 

at 5, 1978 Senate Journal 1399. 

         24  Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 

at 5, 1978 Senate Journal 1399 (referring to Alaska Criminal Code Revision, Part II, at 72-74 

(Tent. Draft 1977)). 

         25  See Avila v. State, 22 P.3d 890, 893-94 (Alaska App. 2001). 

                                                  -  10 -                                             2375 

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

                 victim to go to a contemplated place, possessing materials for 

                 the commission of the offense, or any overt act done toward 

                 its commission.26 

We explained that these examples were directly based on the tentative draft.27 

                 In Iyapana's case, the challenged portion of the jury instruction was a direct 

quote from Beatty , and the quote from Beatty appears to accurately reflect the examples 

provided in the tentative draft. The supplemental jury instruction, therefore, appears to 

be a correct statement of law. 

                 Moreover, the supplemental instruction did not appear to create a "high 

likelihood that the jury followed an erroneous theory."28 The jury instruction stated that 

these illustrations were merely examples. There was little risk that the jury would have 

followed an   erroneous theory based on these examples, since none of the examples 

resembled the circumstances of Iyapana's case. 

                 Iyapana also argues that the court should have provided examples of conduct 

that constituted "mere preparation." Iyapana concedes that there are no cases providing 

examples of what constitutes "mere preparation," but argues that the court should have 

gathered examples to illustrate cases where courts have found a lack of sufficient evidence 

to constitute a substantial step. 

                 Iyapana   did   not   ask   the   superior   court   to   include   examples   of   "mere 

preparation," so his argument must be reviewed for plain error. But, even in this appeal, 

Iyapana does not identify any examples of "mere preparation" that the superior court 

should have included. And the evidence did not suggest that Iyapana had committed some 

ambiguous       act   of  "mere    preparation";     T.S.'s   uncontradicted       testimony     suggested 

        26   52 P.3d 752, 755-56 (Alaska App. 2002). 

        27  Id . 

        28  Dobberke , 40 P.3d at 1247 (quoting In re State of McCoy , 844 P.2d at 1134). 

                                                  -  11 -                                             2375 

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

misconduct that was much closer to a completed act of anal penetration. We conclude 

that the lack of any instruction on this aspect of the attempt statute was not plain error. 

               There was sufficient evidence to support Iyapana's convictions 

              for first-degree sexual assault and attempted sexual assault . 

               At the close of the State's case, Iyapana moved for a judgment of acquittal 

on the charge of first-degree sexual assault (for penetrating T.S.'s mouth with his penis) 

and the charge of attempted first-degree sexual assault (for attempting to penetrate T.S.'s 

anus with his penis). Judge McKay denied Iyapana's   motion. Iyapana renews these 

arguments on appeal. 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 

a reasonable doubt.29 

               To prove first-degree sexual assault, the State was required to show that 

Iyapana used his penis to penetrate T.S.'s mouth without T.S.'s consent.30 On this charge, 

T.S. specifically testified that he regained consciousness at one point during the attack 

and realized that Iyapana's penis was in his mouth. In response, Iyapana claims that T.S. 

was intoxicated and not fully conscious. But when we review the sufficiency of the 

evidence, we do not weigh the evidence or assess witness credibility on appeal: these are 

questions for the trial jury.31 

               In addition to T.S.'s testimony, there was substantial circumstantial evidence 

from which a reasonable juror could infer that Iyapana forced T.S. to engage in fellatio. 

Anchorage police officers testified that, when they found T.S. in the bathroom of the 

       29  Morrell v. State , 216 P.3d 574, 576 (Alaska App. 2009). 

       30  See AS 11.41.410(a)(1). 

       31  Morrell , 216 P.3d at 576. 

                                            - 12 -                                        2375 

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

apartment, he was crying and informed the police that Iyapana forced his penis into his 

mouth. Detective Vandervalk testified that eighty to ninety percent of Iyapana's thighs 

were covered in T.S.'s blood. Dr. Bryan Wachter testified that there was bruising and 

swelling on the hard and soft palates on the inside of T.S.'s mouth, and that there was 

swelling in T.S.'s throat. Viewing this evidence in the light most favorable to the verdict, 

there was sufficient evidence from which a reasonable juror could conclude that Iyapana 

penetrated T.S.'s mouth without his consent. 

                 Iyapana   also   argues   that   there   was   insufficient   evidence   to   support   his 

conviction for  attempted first-degree sexual assault. To prove this charge, the State was 

required to show that, with the intent to forcibly penetrate T.S.'s anus, Iyapana engaged 

in conduct constituting a substantial step toward the commission of the offense.32 On this 

count, T.S. testified that Iyapana was "doing it to [his] ... butt" and "making love to [him]." 

T.S. later clarified that he felt Iyapana's "penis in [his] behind," but was not sure if 

Iyapana actually penetrated his anus. Iyapana again claims that T.S.'s statements were 

inconsistent and argues that we should            reweigh the credibility of T.S.'s testimony, but 

credibility was a question for the trial jury. 

                 There was also circumstantial evidence that supported T.S.'s testimony. 

When the police arrived, T.S. informed them that Iyapana had forced his penis into T.S.'s 

mouth and anus. There were stains on the waistband of T.S.'s pants and undershorts that 

appeared to be both blood and possibly fecal matter. And Iyapana's penis had chunky 

brown material and blood-tinged mucous on it. 

                 Viewed in the light most favorable to the verdict, this evidence was sufficient 

for a reasonable juror to conclude that Iyapana had, at the very least, attempted to anally 

penetrate T.S. without his consent. We conclude that Iyapana's convictions for first-degree 

        32  See AS 11.31.100(a); AS 11.41.410(a)(1). 

                                                  -  13 -                                            2375 

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

sexual assault and attempted first-degree sexual assault are both supported by sufficient 


                 The sentencing judge was not required to merge Iyapana's 

                 convictions for first-degree sexual assault and attempted first- 

                 degree sexual assault. 

                 Iyapana argues that the trial court should have merged his sentences for first- 

degree sexual assault (for penetrating T.S.'s mouth with his penis)  and attempted first- 

degree sexual assault (for attempting to penetrate T.S.'s anus with his penis). Iyapana 

claims that both sexual assault counts arose out of the same, continuous transaction, that 

there was no evidence that any time elapsed between these sexual assaults, and that both 

acts occurred as part of the same physical assault. 

                 The double jeopardy clause "protects against multiple punishments for the 

same offense."33 To determine whether separate convictions violate double jeopardy,we 

examine   whether   the   statutory   elements,   in   light   of   the     facts   of   the   case,   involve 

differences in intent or conduct.34 Separate convictions and sentences arising from a single 

criminal transaction are permissible "when the statutory provisions that have been violated 

protect societal interests that are significantly different."35 

                 In the   context of sexual assaults that occur as part of a single criminal 

episode,   "[s]eparate   convictions   for   multiple   acts   of   penetration   involving   different 

openings of the victim's or the defendant's body are permissible."36  The policy behind 

        33   Calder v. State, 619 P.2d 1026, 1028 (Alaska 1980) (quoting North Carolina v. 

Pearce , 395 U.S. 711, 717 (1969)). 

        34   State v. Dunlop , 721 P.2d 604, 608 (Alaska 1986). 

        35   Yearty v. State, 805 P.2d 987, 993 (Alaska App. 1991). 

        36  Johnson v. State , 762 P.2d 493, 495 (Alaska App. 1988) (citing Rodriquez v. State , 

741 P.2d 1200 (Alaska App. 1987)). 

                                                  -  14 -                                             2375 

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

this rule is that different types of penetration constitute different forms of indignity and 

violation, and therefore merit separate punishments.37 

                  For example, in Rodriquez v. State , Carlos Rodriquez was convicted of 

twenty-five offenses, primarily for lewd and lascivious acts toward children.38  One set 

of convictions related to an evening when Rodriquez performed fellatio twice on thirteen- 

year-old T.J.P., once in Rodriquez's living room and once in his sauna.39 After initially 

resisting, T.J.P. performed fellatio on Rodriquez in the sauna.40 Rodriquez then forcibly 

sodomized T.J.P.41 Another set of convictions related to Rodriquez's actions toward 

S.D.W.42 Rodriquez handcuffed S.D.W. and performed fellatio on S.D.W. against his 

will.43 S.D.W. then resisted while Rodriquez attempted to sodomize him.44 

                  Rodriquez first argued that his act of fellatio on T.J.P. should merge with 

the sodomy conviction.45 On appeal, this court held that "the fellatio performed on T.J.P. 

was not a necessary or inevitable predecessor to the later sodomy."46 We also concluded 

that   "the   later   sodomy      count   involved      a  complete     change     in  the   character     of   the 

interaction" since the fellatio count involved "reluctant cooperation" by T.J.P. and the 

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

         38  741 P.2d at 1202. 

         39  Id. 

         40  Id . 

         41  Id. 

         42  Id. at 1208. 

         43  Id. 

         44  Id. 

         45  Id. at 1207. 

         46  Id. 

                                                     - 15 -                                                 2375 

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

later sodomy involved the use of force.47 We accordingly concluded that the acts were 

sufficiently severable to allow for the entry of two convictions.48 

                  Rodriquez also claimed that the conviction related to the fellatio on S.D.W. 

should merge with the attempted sodomy conviction.49 This court concluded that "the 

attempted rape charge was not based on acts leading up to the subsequent rape charge."50 

The attempted rape "was not an initial step or an inherent part of the completed rape 

because the attempt followed the earlier completed rape."51 We therefore concluded that 

Rodriquez could be convicted for two separate offenses.52 

                  Similarly, in Yearty v. State, this court examined whether an act of completed 

fellatio should merge with an unsuccessful effort to engage in anal penetration.53 Richard 

Yearty confronted twelve-year-old J.L. near Goose Lake in Anchorage.54 Yearty then 

pulled J.L. off his bike and dragged him into the woods.55 Yearty pulled down J.L.'s pants 

and proceeded to perform fellatio on him.56 Yearty ultimately pulled his own pants down 

and unsuccessfully attempted to insert J.L.'s penis into his anus.57 Yearty was convicted 

         47  Id. 

         48  Id . 

         49  Id. at 1208. 

         50  Id. 

         51  Id. 

         52  Id. 

         53   805 P.2d at 993. 

         54  Id. at 989. 

         55  Id. 

         56  Id. 

         57  Id. 

                                                      - 16 -                                                 2375 

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of first-degree sexual assault and first-degree sexual abuse of a minor for performing 

fellatio on J.L., and attempted first-degree sexual assault and attempted first-degree sexual 

abuse of a minor for the attempted anal penetration.58 

                 Yearty argued that his convictions for attempted sexual assault and abuse 

should merge with his convictions for the corresponding completed offenses.59 But we 

concluded that the two attempt counts involved different conduct than the two completed 

offenses: two of the counts were for the completed act of fellatio and two of the counts 

were for Yearty's unsuccessful efforts at anal intercourse.60 We held that, "[b]ecause 

Yearty's attempt convictions were based on distinctly different types of sexual penetration 

than those involved in his sexual assault and abuse convictions, the attempts do not merge 

with the completed offenses."61 

                 In  Erickson   v.   State ,   Brian   Erickson   was   convicted   of   four   counts   of 

second-degree sexual abuse of a minor.62  The four counts involved one victim, but four 

different types of sexual penetration that occurred as part of a single incident.63 Erickson 

argued that the court should reverse the holding in Yearty that a defendant who perpetrates 

distinct types of sexual penetration during a single assaultive episode can be convicted 

separately for each type of sexual penetration.64 Erickson also argued that an appellate 

        58   Id. at 992. 

        59   Id. at 993. 

        60   Id. 

        61   Id. at 994. 

        62   950 P.2d at 581-82. 

        63   Id. at 582. 

        64   Id. 

                                                   - 17 -                                               2375 

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

court is not permitted to create double jeopardy rules that will govern all future cases that 

present the same double jeopardy issue.65 

                  This court noted that  Yearty established a rule of general application - 

specifically, Yearty held that distinct types of sexual penetration will support separate 

convictions for sexual assault.66 The court explained that, under the holding in  Yearty, 

"a separate offense of second-degree sexual abuse of a minor is committed whenever the 

defendant engages in a distinct form of sexual penetration with the victim."67 In Erickson's 

case, the jury found that he engaged in four distinct types of sexual penetration.68 When 

"several [distinct types of sexual penetration] occur in the course of a single incident, the 

offense   prohibited   by   the   statute   has   been   violated   several   times   over."69       The   court 

therefore held that Erickson was properly convicted of four counts of second-degree 

sexual abuse of a minor.70 

                  Iyapana relies on Oswald v. State71 for his argument that his convictions for 

first-degree sexual assault and attempted first-degree sexual assault should merge. In 

Oswald, the defendant digitally penetrated the victim's vagina and subsequently engaged 

in forced vaginal intercourse.72 The state conceded that the act of digital penetration was 

         65  Id.

         66  Id. at 583.

         67  Id. at 584.

         68  Id.

         69  Id. (quoting Dunlop , 721 P.2d at 609).

         70  Id.

         71  715 P.2d 276, 280 (Alaska App. 1986), overruled in part by Yearty, 805 P.2d at

995 n.3. 

         72  Id. at 280-81. 

                                                     -  18 -                                               2375 

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an initial step leading to the act of vaginal intercourse, and therefore could not support 

a separate conviction.73 We accepted the state's concession that only one conviction and 

sentence was appropriate.74 

                 The problem with Iyapana's argument is that, unlike Oswald, Iyapana's 

assault involved a forced penetration or attempted penetration of two different openings 

of T.S.'s body. In  Yearty, we noted that there was "a potential inconsistency between 

Rodriquez , which upheld separate convictions for different types of sexual penetration 

committed   during   a   single   episode,   and  Oswald   v.   State,   which   held   [that]   separate 

convictions       [were]   impermissible       for  a  single   episode    involving     an   act   of  digital 

penetration and an act of genital intercourse."75 We then overruled Oswald to the extent 

that the holding was inconsistent with our decision in Rodriquez , which allowed separate 

convictions for sexual penetration of different bodily openings during the same incident.76 

                 In this case, we conclude that the result is controlled by Erickson and Yearty. 

 Yearty established the general rule that distinct types of sexual penetration that occur as 

part of a single criminal event will support separate convictions for sexual assault.77 The 

jury verdicts in this case establish that Iyapana sexually penetrated T.S.'s mouth and 

seperately attempted to penetrate T.S.'s anus. We therefore hold that Iyapana was properly 

convicted of two separate offenses for these two different types of sexual penetration. 

         73  Id. at 280. 

         74  Id. 

         75  Yearty, 805 P.2d at 995 n.3 (citation omitted). 

         76  Id. 

         77  Id. at 994; Erickson , 950 P.2d at 583. 

                                                   - 19 -                                               2375 

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


       We therefore AFFIRM the superior court's judgment and sentence. 

                                   - 20 -                                      2375

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

MANNHEIMER, Judge, concurring. 

               I write separately to explain my understanding of the relationship between 

this Court's decisions in Oswald v. State, 715 P.2d 276 (Alaska App. 1986), Rodriquez 

v. State, 741 P.2d 1200 (Alaska App.1987), and Yearty v. State, 805 P.2d 987 (Alaska 

App. 1991). 

               In Oswald, this Court ruled that the defendant's digital penetration of the 

victim's    vagina,  followed   closely   by  a  penile  penetration   of  the  victim's  vagina, 

constituted only a single act of sexual assault.     This Court's discussion of this issue is 

fairly terse, but it appears that the Court's primary rationale for merging the two counts 

was that the act of digital penetration was essentially a preparatory act that immediately 

preceded, and led up to, the act of penile penetration. Here is this Court's entire discussion 

of this issue: 

                      The state concedes that Count I encompassed foreplay 

               leading to the act of sexual intercourse charged in Count II, 

               and consequently could not support a separate conviction. See 

               Tookak v. State, 648 P.2d 1018 (Alaska App. 1982). The state 

               asks that the conviction for Count I be vacated, and Oswald 

               joins in this request. We have carefully considered the record 

               and conclude that the parties' position is correct, and that the 

               first act of digital penetration in effect merged with the first 

               act of genital penetration.  Only one conviction and sentence 

               was therefore appropriate.   On remand, the trial court should 

               correct the judgment to reflect only one conviction on Counts 

               I and II. 

Oswald, 715 P.2d at 280. 

               The following year, in Rodriquez v. State , 741 P.2d at 1207-08, this Court 

held that a defendant can be separately convicted and sentenced for acts of sexual assault 

                                             - 21 -                                         2375

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

or sexual abuse involving different types of sexual penetration, even when those acts of 

penetration occur during the same criminal episode. 

                As this Court acknowledged in footnote 3 of the Yearty opinion, 805 P.2d 

at 995, there is a potential inconsistency between Rodriquez and Oswald. In Oswald, this 

Court appeared to say that any "preparatory" acts of sexual penetration will merge with 

a defendant's ultimate act(s) of sexual penetration. But in Rodriquez , this Court held that 

separate convictions are proper when the defendant's acts of sexual penetration involve 

different types of penetration, even though some of those acts of penetration might be 

viewed as "preparatory". 

                To resolve this potential inconsistency, the Yearty majority declared that 

Oswald was overruled "[t]o the extent that Oswald is inconsistent with our subsequent 

decision in Rodriquez".        Yearty, 805 P.2d at 995 n. 3. 

                It is important to note that Oswald has been overruled only to the extent that 

it   is   inconsistent   with  Rodriquez   -   that   is,   only   to   the   extent   that Oswald   would 

apparently require a merger of counts even when a defendant's preparatory act of sexual 

penetration involved a different type of penetration from the defendant's ultimate act of 

sexual penetration. 

                Thus, even after Rodriquez and Yearty, the result reached in Oswald remains 

correct: the defendant's preparatory act of penetrating the victim's vagina with his finger 

merged with the defendant's ensuing act of penetrating the victim's vagina with his penis 

- because the first penetration was preparatory to the second, and because both acts 

involved penetration of the same orifice. 

                                                 - 22 -                                             2375

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