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Richard Dorsey v State of Alaska (1/22/2021) ap-2689

Richard Dorsey v State of Alaska (1/22/2021) ap-2689

                                                               NOTICE
  

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

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

           errors to the attention of the Clerk of the Appellate Courts:  



                                         303 K Street, Anchorage, Alaska  99501
  

                                                      Fax:  (907) 264-0878
  

                                             E-mail:  corrections @ akcourts.us
  



                    IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



RICHARD DORSEY,  

                                                                                 Court of Appeals No. A-12468  

                                           Appellant,                         Trial Court No. 3AN-06-06987 CR  



                                v.  

                                                                                              O P I N I O N  

STATE OF ALASKA,  



                                           Appellee.                             No. 2689 - January 22, 2021  



                                                                   

                     Appeal  from  the  Superior   Court,  Third  Judicial  District,  

                                                                                                                  

                     Anchorage, Philip R. Volland, Patrick J. McKay, and Jack W.  

                      Smith, Judges.  



                     Appearances:             Marcelle         K.     McDannel,           Assistant         Public  

                     Advocate, and Chad Holt, Public Advocate, Anchorage, for the  

                     Appellant.          Elizabeth  T.  Burke,  Assistant  Attorney  General,  

                                                                                                         

                     Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,  

                                     

                     Attorney General, Juneau, for the Appellee.  



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

                                                          

                     Judges.  



                     Judge WOLLENBERG.  



                     Following a jury trial, Richard Dorsey was convicted of second-degree                          



sexual assault for making hand-to-genital contact with a woman in a grocery store in                                                    



Anchorage.  


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

                               On appeal, Dorsey raises three claims.                                   



                               First, Dorsey argues that the evidence presented at his trial was insufficient                                                                 



 to establish that the sexual contact was accomplished by the use of force, as required by                                                                                                        



 the second-degree sexual assault statute.                                                      But when we review a claim of evidentiary                                    



 insufficiency, we are required to view the evidence in the light most favorable to the                                                                                                         



                                 1  

jury's verdict.                                                                                                                                                                 

                                    Viewing the evidence in this light, we conclude that Dorsey's conviction  



                                                             

 is supported by sufficient evidence.  



                                                                                                                                                                                       

                               Second, Dorsey argues that the trial court erred in ruling that, if Dorsey  



                                                                                                                                                                                               

pursued his proposed involuntary intoxication defense, the court would instruct the jury  



        

 on the "guilty but mentally ill" verdict.  Following the court's ruling, Dorsey declined  



                                                                                                                                                                                         

 to pursue his involuntary intoxication defense, and he argues that the court's ruling  



                                                                                                                                                                        

 denied him due process by precluding him from presenting his defense.  



                                                                                                                                                                                             

                               The State concedes that the trial court erred  in ruling that,  if the jury  



                                                                                                                                                                                               

 accepted Dorsey's proposed involuntary intoxication defense, itwouldbeobliged to find  



                                                                                                                                                                                       

 Dorsey "guilty but mentally ill."  We agree.  We conclude, however, that the court's  



                                                                                                                                                                                           

 error was harmless because Dorsey failed, in the first instance, to articulate a valid  



                                                                                                      

 defense based on his purported involuntary intoxication.  



                                                                                                                                                                                                     

                               Finally, Dorsey argues that the trial court erred in declining to find, as a  



                                                                                                                                                                                         

 mitigating factor, that his conduct was "among the least serious conduct included within  



                                                                                                                               2  

                                                                                                                                                                                                 

 the definition of the offense" for purposes of sentencing.                                                                        We conclude that the court did  



                                                                                                                                                                                               

not apply  the proper  analysis,  and  we therefore remand  for  reconsideration  of this  



                          

 mitigating factor.  



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



        2       AS 12.55.155(d)(9).  



                                                                                              - 2 -                                                                                          2689
  


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

            Underlying facts   



                        Because Dorsey challenges the sufficiency of the evidence to support his                                                       



conviction, we present the following background facts in the light most favorable to                                                                     

upholding the jury's verdict.                       3  



                                                                                                                                                    

                        On the evening of July 3, 2006, S.W. was shopping in a Carrs grocery store  



                                                                                                                                                    

in Anchorage. While standing in an aisle looking at a book, S.W. suddenly felt the back  



                                                                                                                                              

of her skirt being lifted.   S.W. turned around, and a man, later identified as Dorsey,  



                                                                                                                                         

quickly apologized and told S.W. that he thought she was his ex-girlfriend.  



                                                                                                                                          

                        According to S.W.'s testimony, she turned back around and continued  



                                                                                                                                                       

reading, and she assumed Dorsey was walking away. But almost immediately, S.W. felt  



                                                                                                                                               

the back of her skirt being lifted for a second time.  When she turned around, Dorsey  



                                                                                                                                                 

started lifting the front of her skirt.  S.W. struggled with Dorsey to keep her skirt down,  



                                                                                                                                

while he tried to lift it up.  During this struggle, S.W. "felt [Dorsey's] fingers press up  



                                                                                                                                                         

against [her] vagina."  (S.W. was wearing underwear.)  At that point, S.W. yelled at  



                                                      

Dorsey, and he ran down the aisle.  



                                                                                                                                                   

                        The encounter between S.W. and Dorsey was captured by the store's video  



                                                                                                                                                   

surveillance system.                     The video  showed Dorsey  approaching S.W.  unnoticed  from  



                                                                                                                                                              

behind, lifting the back of S.W.'s skirt, and leaning down as if to look under her skirt.  



                                                                                                                                      

The video next showed S.W. turning around to face Dorsey, and Dorsey appearing to  



                                                                                                                                                   

speak to S.W.  The video then showed Dorsey and S.W. struggling, both bending down  



                                                                                                                                                      

with their hands near the hemline of S.W.'s skirt. The entire incident lasted between five  



                                                                                                                                                      

and six seconds, and the struggle between Dorsey and S.W. over S.W.'s skirt lasted two  



                                                                                   

video frames - approximately two seconds.  



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



                                                                          - 3 -                                                                     2689
  


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

                                                  As Dorsey fled, S.W. followed him out of the store, and she yelled that she                                                                                                                                                                                         



had been assaulted.                                                        Several bystanders came to her assistance, and S.W. (and others)                                                                                                                    



called   911.     One   bystander   followed   Dorsey   as   he   left   Carrs,   walked   to   a   nearby  



restaurant and tried to conceal himself behind some bushes outside the restaurant. When                                                                                                                                                                                                                     



the police arrived, Dorsey emerged from the bushes.                                                                                                                    



                                                  Dorsey waived his                                                     Miranda  rights and was interviewed by the police.                                                                                                                                              In  



the interview, which was later played at trial, Dorsey alternately said that he had simply                                                                                                                                                                                                               



bumped into S.W., that he had not touched her at all, and that he was not sure whether                                                                                                                                                                                                              



he had touched her.                                                        Dorsey suggested that he may have lost his balance, and then said,                                                                                                                                                                    



"I don't know if my leg hit her or her leg or her knee or what."                                                                                                                                                                           Although Dorsey gave                                                 



conflicting accounts as to whether he had made contact with S.W., he denied touching                                                                                                                                                                                  



her genitals.                                    When asked if he touched S.W.'s vagina, Dorsey responded, "Oh, no, I                                                                                                                                                                                                          



don't - no, that's too deep."                                                        



                                                  Agrandjury                                     indicted Dorseyfor second-degreesexual assault                                                                                                                                     forengaging   



                                                                                                                                                                                     4  

in sexual contact with S.W. without her consent.                                                                                                                                          



                         Proceedings  



                                                                                                                                                                                                                                                                                                     

                                                  Prior to trial, Dorsey filed a notice of his possible reliance on the defense  



                                                                                                                                                                                                                                                                                                                         

of involuntary intoxication.  He also filed a notice that, in support of this defense, he  



                                                                                                                                                                                                        

planned to call Dr. Paul Craig as an expert witness in neuropsychology.  



                                                                                                                                                                                                                                                                                                    

                                                  Dorsey  sought  to  argue  that  his  conduct  was  the  result  of  an  adverse  



                                                                                                                                                                                                                                                                                                              

reaction to the prescription muscle relaxant Zanaflex, which he asserted that he had taken  



                                                                                                                                                                                                                                                                                                                      

for the first and only time about two hours before the assault.  Dorsey claimed that the  



                                                                                                                                                                                                                                                                                                                          

Zanaflex put him in a state of "transient mild delirium," and rendered him unable to  



             4           AS 11.41.420(a)(1).  



                                                                                                                                                         - 4 -                                                                                                                                                    2689
  


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

conform his conduct to the requirements of the law.                                                                                                                   Dorsey submitted proposed jury                                                             



instructions in support of this defense.                                                      



                                          Ultimately, the court ruled that if Dorsey pursued this defense, the court                                                                                                                                          



would instruct the jury that, if the jury accepted the defense, it must find Dorsey "guilty                                                                                                                                                             



but mentally ill."                                       Dorsey elected not to pursue the defense, and the court precluded                                                                                                                     



Dorsey from presenting the testimony of Dr. Craig at trial.                                                                                                             



                                          At trial, Dorsey argued that, while he had lifted up S.W.'s skirt, he had not                                                                                                                                             



engaged in sexual contact, an assertion he maintained was supported by the surveillance                                                                                                                                                  



video.   The jury was unable to reach a unanimous verdict, and the court declared a                                                                                                                                                                                       



mistrial.    



                                          Several months later, Dorsey's case proceeded to a second jury trial, with                                                                                                                                            



a different judge presiding.                                                                Dorsey renewed                                           his  request to                                pursue his involuntary              



intoxication defense, but the court adopted the original judge's ruling that this defense                                                                                                                                  



                                                                                                                                                                                                                            5  

would trigger an instruction on the "guilty but mentally ill" verdict.                                                                                                                                                           Dorsey again  



                                                                                                                                                                                                                                                        

declined to pursue the defense. Dorsey argued that he had not engaged in sexual contact  



                                                                                                                                    

and had only intended to lift S.W.'s skirt.  



                                                                                                                                                                                                                                                                      

                                          The second jury found Dorsey guilty of second-degree sexual assault.  



                                                                                                                                                                                                                                                                        

                                          As a first felony offender, Dorsey faced a presumptive sentencing range of  



                                            6  

                                                                                                                                                                                                                                                                     

5 to 15 years.                                     Dorsey proposed three statutory mitigating factors, including that his  



           5         At  his  second  trial,   Dorsey   also  initially   sought  to  raise  a  voluntary   intoxication  



defense, in order to negate the intent element of   attempted second-degree sexual assault,  

which  the   State   decided  to  pursue  as  a  lesser  included  offense.    The  court  agreed  that  

intoxication could validly  negate the intent element of   the   attempt charge, but ruled that  

Dr. Craig would not be permitted to testify   to Dorsey's self-serving   hearsay   statements,  

absent a further evidentiary foundation.  Dorsey did not present Dr. Craig as a witness.  



           6         AS 12.55.125(i)(3)(A).  



                                                                                                                                - 5 -                                                                                                                            2689
  


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

                                                                                                                                                                                                                                          7  

conduct was among the least serious included within the definition of the offense.                                                                                                                                                            The  



court rejected all of Dorsey's proposed mitigators and imposed a sentence of 10 years'                                                                                                                                                   



imprisonment with 5 years suspended and a 10-year term of probation.                                                                                                            



                                       This appeal followed.              



                    Why we conclude that the evidence was sufficient to support Dorsey's                                                                                                                    

                   conviction  



                                       Dorsey   first   challenges   the   sufficiency   of   the   evidence   to   support   his  



conviction for second-degree sexual assault. To                                                                                          prove this charge, theStatewas                                                           required  



to establish that (1) Dorsey knowingly engaged in sexual contact with S.W., (2) the                                                                                                                                                              



sexual contact was "without consent" as that term is defined in AS 11.41.470(8), and (3)                                                                                                                                                          



Dorsey acted at least recklessly with respect to the circumstance that the sexual contact                                                                                                                                             



                                                                      8  

was "without consent."                                                                                                                                                                                                    

                                                                              Sexual contact includes "knowingly touching, directly  or  



                                                                                                                    9  

                                                                                        

through clothing, the victim's genitals." 



                                                                                                                                                                                                                                 

                                       Under AS 11.41.470(8)(A), an act of sexual contact is "without consent"  



                                                                                                                                                                                                                                     

if a person "with or without resisting, is coerced by the use of force . . . or by the express  



                                                                                                                                                                                                                            10  

                                                                                                                                                                                                                                                

or  implied  threat  of  death,  imminent  physical  injury,  or  kidnapping[.]"                                                                                                                                                      As  we  



                                                                                                                                                                                                                                                 

explained in Inga v. State, under this definition, the State must prove both "that the  



                                                                                                                                                                                                                                    

victim was not willing to engage in the sexual activity, and that the victim was coerced  



          7        AS 12.55.155(d)(9).  



          8        AS 11.41.420(a)(1); Inga v. State , 440 P.3d 345, 348 (Alaska App. 2019).  



          9        AS 11.81.900(b)(61)(A)(i).  



          10       Under AS 11.41.470(8)(B), "without consent" also includes "incapacitat[ion] as a  



result of an act of  the defendant."  That portion of the definition is not at issue in Dorsey's  

case.  



                                                                                                                       - 6 -                                                                                                                  2689
  


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

                                                                11  

by force or           by the threat of force."                        We further           explained   that the force that the                 



defendant uses or threatens to use "must be more than simply the bodily impact or                                                                

restraint inherent in the charged act."                         12  



                                                                                                                                  

                       On appeal, Dorsey does not dispute that the jury could have reasonably  



                                                                                                                                            

found that he engaged in sexual contact with S.W.  Rather, Dorsey argues that the State  



                                                                                                                                    

failed to present sufficient evidence that he used force beyond that which was necessary  



                                                                                                                                                 

to accomplish the sexual contact.  Specifically, he argues that "by the time S.W. had an  



                                                                                                                                           

opportunity to voice a protest to Dorsey's conduct, he had withdrawn his hand and begun  



                                                                                                                                          

to walk away."  Accordingly, Dorsey asserts that the "momentary contact with S.W."  



                                                                                      13  

                                                                                           

was accomplished "by surprise rather than force." 



                                                                                                                                        

                       But under our criminal code, "force" is defined as any "bodily impact,  



                                                                                                                                                

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



                         14  

confinement."                                                                                                                                

                             Viewing the evidence, and all reasonable inferences to be drawn from  



                                                                                                                                                  

that evidence, in the light most favorable to  the jury's verdict, we conclude that a  



                                                                                                                                             

reasonable juror  could conclude that Dorsey's act of touching  S.W.'s genitals was  



                                                                                                                                                  15  

                                                                                                                                  

"coerced by the use of force" for purposes of Alaska's definition of "without consent." 



      11   Inga , 440 P.3d at 349.  



      12   Id.  



      13    See   State  v.  Townsend,  2011  WL  4107008,  at  *4  (Alaska  App.  Sept.  14,  2011)  



(unpublished), in which a majority of this Court concluded that brief sexual contact (i.e., a  

man grabbing another man's penis in a crowded bar) that was accomplished by  surprise was  

not, as matter of law, sexual assault because the evidence was insufficient to establish that  

the victim   was "coerced by   the use of   force,"   as   required by   the definition of   "without  

consent."  



      14   AS 11.81.900(b)(28).  



      15   See Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012) ("When [this Court]  



                                                                                                                              (continued...)  



                                                                      - 7 -                                                                  2689
  


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

                                                                         In particular, according to S.W.'s testimony, after Dorsey lifted the back                                                                                                                                                                                                                                                                                                  



  of her skirt the second time, she turned around, and Dorsey attempted to lift the front of                                                                                                                                                                                                                                                                                                                                                                        



 her skirt.                                       S.W. testified that she was "struggling" and "fight[ing]" with Dorsey to keep                                                                                                                                                                                                                                                                                                                       



 her skirt down, while he was trying to lift it up.                                                                                                                                                                                                                        The police officer who viewed the                                                                                                                                                 



 grocery   store   surveillance   video   similarly   described   the   incident   as   involving   "an  



  obvious struggle that last[ed] several seconds." S.W. testified that, at some point during                                                                                                                                                                                                                                                                                                                                                



 that struggle, she felt Dorsey's "fingers press up against [her] vagina."                                                                                                                                                                                                                                                                                                                   The jury could                                      



 reasonably infer from the surveillance footage and testimony that S.W. was fighting to                                                                                                                                                                                                                                                                                                                                                                             



 keep Dorsey's hands out of her skirt and that, by the time the sexual contact occurred,   



  S.W. was aware of and actively resisting Dorsey's attempts to get his hands under her                                                                                                                                                                                                                                                                                                                                    



  skirt.    



                                                                         In   his   reply   brief,   Dorsey   acknowledges   S.W.'s   testimony   about   the  



  struggle, but challenges her credibility and argues that the "sliver of time" shown by the                                                                                                                                                                                                                                                                                                                                                                   



  surveillance video was not long enough "for anything more than a grope accomplished                                                                                                                                                                                                                                                                                                                



 by surprise rather than one committed after a struggle."                                                                                                                                                                                     



                                                                         But we are required to view the evidence in the light most favorable to the                                                                                                                                                                                                                                                                                                           



jury's verdict.  Even if the sexual contact was fleeting, the jury could have reasonably                                                                                                                                                                                                                                                                                                                            



  found that it was accomplished by force.                                                                                                                                                                                 Accordingly, we reject Dorsey's challenge to                                                                                                                                                                                              



 the sufficiency of the evidence supporting his sexual assault conviction.                                                                                                                                                                                                                                                           



                    15               (...continued)  



 review[s] the sufficiency of  the evidence to support . . . 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." (citation omitted)).  



                                                                                                                                                                                                                            - 8 -                                                                                                                                                                                                                        2689
  


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

          Thelitigation surroundingDorsey'srequestforaninvoluntaryintoxication  

                                                                                                         

          instruction and the court's ruling on Dorsey's request  

                                                                                   



                    As we mentioned earlier, prior to Dorsey's first trial, defense counsel filed  

                                                                                                                              



a notice of possible reliance on the defense of involuntary intoxication. Defense counsel  

                                                                                                                          



also filed a notice of expert, neurospychologist Dr. Paul Craig.  

                                                                                       



                    At several hearings outside the presence of the jury, Dorsey's attorneys  

                                                                                                                       



explained to the court that, if permitted to testify, Dr. Craig would offer his opinion that,  

                                                                                                                               



at the time Dorsey engaged in the charged conduct, Dorsey was experiencing a "mild  

                                                                                                                             



transient delirium" fromhis ingestion of the prescription muscle relaxant, Zanaflex. The  

                                                                                                                                



factual  basis  for  Dr.  Craig's  conclusion  was  Dorsey's  own  self-report,  during  his  

                                                                                                                                



evaluative interview with Dr. Craig, that he had ingested Zanaflex for the first time prior  

                                                                                                                              



to the charged incident. The attorneys further explained that Dr. Craig would testify that,  

                                                                                                                               



due to the resulting delirium, Dorsey "could not conform his conduct to the requirements  

                                                                                                                 



of the law."  

                    



                    Dorsey's attorneys specifically disclaimed any argument that Dorsey did  



not know what he was doing at the time of the charged conduct.  Rather, the attorneys  

                                                                                                                       



stated, Dr. Craig would testify that Dorsey was simply "a little bit more impulsive" and  

                                                                                                                                



"less inhibited" as a result of his ingestion of Zanaflex.  

                                                                       



                    Dorsey's  attorneys  pointed  the  court  to  the  defense's  proposed  jury  

                                                                                                                              



instructions, which further outlined  the contours of Dorsey's potential defense.   In  

                                                                                                                                  



particular,  Dorsey's  attorneys  proposed  instructing  the  jury  that  Dorsey  should  be  

                                                                                                                                 



absolved  of criminal liability  if he was involuntarily  intoxicated at the time of the  

                                                                                                                                



charged conduct, and if, as a result, he "lacked substantial capacity to appreciate that his  

                                                                                                                                 



conduct was criminal or wrong or lacked substantial capacity to conform his conduct to  

                                                                                                                                  



                                                               - 9 -                                                          2689
  


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

                                                    16  

the requirements of the law."                            Dorsey's attorneys proposed the following definition of                                          



involuntary   intoxication:     "intoxication  caused   by   substances   ingested   pursuant   to  



medical advice, or by substances the defendant did not know, nor should he have known,                                                          



                                                                     17  

had a tendency to cause intoxication."                                       



                        The State objected to Dorsey's involuntary intoxication defense and to  

                                                                                                                                                          



Dr. Craig's proposed testimony.  First, the State argued that "transient mild delirium"  

                                                                                                                                  



was  legally  insufficient  to  qualify  Dorsey  for  an  involuntary  intoxication  defense.  

                                                                                                                                                               



Second, the State argued that the theory that Dorsey had suffered from an adverse  

                                                                                                                                               



reaction to Zanaflex was based solely on Dorsey's own statements to Dr. Craig, which  

                                                                                                                                                  



the State argued were inadmissible hearsay.  

                                                                 



                        The  court  ultimately  ruled  that  an  adverse  reaction  to  prescription  

                                                                                                                                      



medication was a legally adequate basis for proceeding with an involuntary intoxication  

                                                                                                                                        



defense. But in the absence of a statutory provision specifically allowing the defense as  

                                                                                                                                                          



a form of excuse, the court concluded, based on the Alaska Supreme Court's decision  

                                                                                                                                



in Evans v. State, that Dorsey's proposed involuntary intoxication defense was a subset  

                                                                                                                                                  

of an insanity defense.18  

                          

                                                                                                                                                          

                                             The court reasoned that in Alaska, a person "is not absolved of  



                                                                                                                                                   

criminal responsibility" under AS 12.47.010 (Alaska's insanity defense statute) based  



                                                                                                                                                        

on the notion that the person cannot conform their conduct to the requirements of the  



      16    Dorsey based his proposed instructions, in part, on the Model Penal Code  2.08.  



      17    For this definition, Dorsey  cited the Model Penal Code  2.08(5)(b) (Am. Law Inst.,  



Proposed Official Draft 1962), defining "self-induced intoxication" as:  "intoxication caused  

by substances            that the actor knowingly i  ntroduces into his body, the tendency  of  which to  

cause intoxication he knows or ought to know, unless he introduces them  pursuant to medical  

advice or under such circumstances as would afford a defense to a charge of crime."  



      18    See Evans v. State, 645 P.2d 155 (Alaska 1982).  



                                                                         - 10 -                                                                      2689
  


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

                         19  

law.                              The court therefore ruled that it would instruct the jury that, if the jury accepted                                                                                                                                                                                                                                                                                                                          



Dorsey's involuntary intoxication defense, it was required to find Dorsey "guilty but                                                                                                                                                                                                                                                                                                                                                                                         



mentally ill" under AS 12.47.030.                                                                                                



                                                                           To preserve the record and informany specific rulings on admissibility, the                                                                                                                                                                                                                                                                                                                          



 court then took testimony from Dr. Craig outside the presence of the jury.                                                                                                                                                                                                                                                                                                                                                           Dr. Craig   



testified that he had conducted a two-day examination of Dorsey; this examination                                                                                                                                                                                                                                                                                                               



included neuropsychological testing                                                                                                                                                                                  as  well as an interview with Dorsey about his                                                                                                                                                                                                           



memory of the incident and his personal history.                                                                                                                                                                                                                             Dr. Craig testified, consistent with the                                                                                                                                                           



 defense attorney's proffer, that, on the day of the incident, Dorsey was suffering from an                                                                                                                                                                                                                                                                                                                                                                                         



 adverse reaction to Zanaflex, which Dorsey reported to have taken for the first time about                                                                                                                                                                                                                                                                                                                                                                       



two hours before the incident.                                                                                                                                           According to Dr. Craig, the Zanaflex put Dorsey into a                                                                                                                                                                                                                                                           



 "confusional"   and   "unusually   disinhibited"   state   that  Dr.  Craig   characterized   as  



 "transient mild delirium." This delirium, Dr. Craig testified, was "sufficient to disinhibit                                                                                                                                                                                                                                                                                                                                                



 [Dorsey] to the point that he engaged in [the charged] behavior."                                                                                                                                                                                                                                                                                                           



                                                                           Dr.    Craig    compared    Dorsey's    condition    to    intoxication    from    the  



 consumption of alcohol,which Dr. Craig also described                                                                                                                                                                                                                                                         asaformof                                                        "transient delirium."                                                                                               



Dr. Craig distinguished a "severe delirium," under which someone is "so drunk that                                                                                                                                                                                                                                                                                                                                                                                        



they're in a blackout state," with the "mild delirium" that Dorsey had suffered, which                                                                                                                                                                                                                                                                                                                                                                        



Dr. Craig likened to the disinhibition one might experience after drinking between two                                                                                                                                                                                                                                                                                                                                                                                      



 and four martinis.                                                                                  



                                                                           Dr. Craig testified that there was "no question" that Dorsey's behavior in                                                                                                                                                                                                                                                                                                                                 



the grocery store was purposeful - that Dorsey "was purposefully leaning over . . . and                                                                                                                                                                                                                                                                                                                                                                         



purposefully looking under [S.W.'s] skirt" - and that, if Dorsey did touch S.W., he                                                                                                                                                                                                                                                                                                                                                                                               



                    19               See Hart v. State, 702 P.2d 651, 654-58 (Alaska App. 1985) (explaining the removal  



of  the "irresistible impulse" or volitional prong from  the insanity  statute  to the "guilty  but  

mentally ill" statute).  



                                                                                                                                                                                                                                 - 11 -                                                                                                                                                                                                                                   2689
  


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

would  have  known  he  was  doing  so.                         Despite  Dorsey's  awareness  of  his  actions,  

                                                                                                                          



however, Dr. Craig claimed that Dorsey's state of delirium, when superimposed upon  

                                                                                                                              



his preexisting neuropsychological deficits, placed Dorsey in a condition in which he  

                                                                                                                                  



"lacked the substantial capacity to conform his behavior to the requirements of the law."  

                                                                                                                                       



                     Following Dr. Craig's testimony, and based on the court's prior ruling that  

                                                                                                                                 



a successful involuntary intoxication defense would trigger a "guilty but mentally ill"  

                                                                                                                                 



verdict, Dorsey declined to pursue his involuntary intoxication defense.  Dorsey's first  

                                                                                                                                



trial resulted in a mistrial.  

                            



                     At  Dorsey's  second  trial,  the  issue  of  involuntary  intoxication  and  

                                                                                                                               



Dr. Craig's testimony again arose. The judge presiding over the second trial agreed with  

                                                                                                                               



the prior judge's ruling that if the defense pursued involuntary intoxication, the jury  

                                                                                                                                



would be instructed on the verdict of "guilty but mentally ill."  Dorsey again elected not  

                                                                                                                                 



to pursue the defense, and he was convicted at his second trial.  

                                                                                           



           Why  we  conclude  that  the  trial  court  erred  in  ruling  that  Dorsey's  

                                                                                                             

          involuntary  intoxication  defense  triggered  the  need  for  a  "guilty  but  

                                                                                                                      

          mentally ill" verdict form, but that this error was harmless  

                                                                                        



                     On appeal, Dorsey argues that the trial court erred in ruling that, if Dorsey  

                                                                                                                           



pursued an involuntary intoxication defense, then the court would instruct the jury that,  

                                                                                                                                



if it accepted the defense, it must return a verdict of "guilty but mentally ill."  

                                                                                                                        



                     Under AS 12.47.030(a), a defendant is "guilty but mentally ill" if, at the  

                                                                                                                                 



time the defendant engaged in the criminal conduct, "the defendant lacked, as a result of  

                                                                                                                                   



a mental disease or defect, the substantial capacity either to appreciate the wrongfulness  

                                                                                                                 



of that conduct or to conform that conduct to the requirements of law." A defendant who  

                                                                                                                                



is found "guilty but mentally ill" is not relieved of criminal responsibility and is actually  

                                                                                                                          



subject to harsher consequences than a defendant who is simply found "guilty" of the  

                                                                                                                                 



                                                              - 12 -                                                          2689
  


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

                             20  

same offense.                     For example, although the Department of Corrections is required to                                                                              



provide mental health treatment to a "guilty but mentally ill" defendant during the term                                                                                     



of incarceration, the defendant is ineligible for parole or furlough while the need for                                                                                         



                                           21  

treatment continues.                            



                            Dorsey's attorneys suggested that Dr. Craig would testify that due to an  

                                                                                                                                                                                 



adverse  reaction  to  Zanaflex,  Dorsey  was  unable  to  conform  his  conduct  to  the  

                                                                                                                                                                              



requirements of the law, and the trial court appears to have relied on this information as  

                                                                                                                                                                                  



the basis for determining that AS 12.47.030 applied.  

                                                                                              



                            The  State  concedes  that  a  "guilty  but  mentally  ill"  verdict  form  was  

                                                                                                                                                                             



inappropriate  under  the  circumstances  of  Dorsey's  case.                                                                       We  conclude  that  this  

                                                                                                                                                                             

concession is well-founded.22  

                              



                                                                                                                                                                               

                            The insanity statute, the diminished capacity statute, and the "guilty but  



                                                                                                                                                                                 

mentally ill" statute - codified at AS 12.47.010 to AS 12.47.030 - are all premised on  



                                                                                                                                                                             

the notion that the defendant was suffering from a "mental disease or defect" at the time  



                                                                                                                                                                              

of the charged conduct.  This phrase has a specific definition under Alaska law.  For  



                                                                                                                                                                                 

purposes of AS 12.47, "mental disease or defect" is defined, in pertinent part, as "a  



       20     See  State  v.  Clifton,  315   P.3d   694,  702-04  (Alaska  App.  2013)  (discussing  the  



additional parole restrictions imposed on a person who is found "guilty but mentally ill").  



       21     See Palmer v. State, 379 P.3d 981, 988 (Alaska App. 2016) (discussing the conditions  



of a "guilty  but mentally ill" verdict, as set out in AS 12.47.050).  



       22     See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to  



independently  assess whether a concession of  error "is supported by  the record on appeal and  

has legal foundation").  



                                                                                     - 13 -                                                                                 2689
  


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

disorder of thought or mood that substantially impairs judgment, behavior, capacity to                 



                                                                                                                              23  

recognize reality, or ability to cope with the ordinary demands of life."                                                           



                                                                                                                                             

                        In  the  1982  commentary  accompanying  the  enactment  of  the  current  



                                                                                                                                              

insanity statute, the legislature explained that the statutory definition of "mental disease  



                                                                                                                                 

or defect" was "intended to include those major mental disorders such as schizophrenia,  



                                                                                                                                               

severe mood disorders, or profound organic mental disorders which substantially impair  



                                                                                           24  

                                                                                                                                         

a person's ability to perceive reality or adapt to it."                                         The legislature further explained  



                                                                                                                                                   

that "[t]here are many mental disorders defined in psychiatry . . . which, though they  



                                                                                                                                              

affect behavior, are not of the severity or magnitude necessary to qualify" as a mental  



                                                                               25  

                                                                                                                                                

disease or defect for purposes of AS 12.47.                                         Examples of these disorders are "drug  



                                                                                                                                        

addictions,  posttraumatic stress disorders,  conduct disorders, dissociative disorders,  



                                                                                                    26  

                                                                                 

psychosexual disorders, and impulse control disorders." 



                                                                                                                          

                        In this case, Dr. Craig opined that, at the time Dorsey engaged in sexual  



                                                                                                                                          

contact with S.W., he was experiencing a "mild transient delirium" from the ingestion  



                                                                                                                                            

of the prescription muscle relaxant, Zanaflex. Dr. Craig analogized this "mild" delirium  



                                                                                                                                                    

to the level of delirium that a person might experience after consuming between two and  



                                                                                                                                                        

four martinis.  The delirium was fleeting in nature and caused Dorsey to experience a  



                                                                                                                                                     

"clouding  of consciousness" and  to  behave in  a "disinhibited  manner."                                                              Given  the  



                                                                                                                                                      

legislature's  examples of what does, and does not,  qualify  as a "mental disease or  



      23    AS 12.47.130(5).  The term  "'mental disease or defect' also includes intellectual and  



developmental  disabilities  that  result  in  significantly   below  average  general  intellectual  

functioning that impairs a person's ability  to adapt to or cope with the ordinary  demands of  

life."  Id.  



      24    1982 House Journal Supp. No. 64 (June 2), at 8.  



      25    Id.  



      26    Id.  



                                                                        - 14 -                                                                    2689
  


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

defect,"   and   the   fact   that   this   definition   is   intended   to   include   only   "major   mental  



disorders," we agree with the parties that the "mild transient delirium" diagnosed by                                                                                                                                                                                                                                              



Dr. Craig does not meet the statutory definition.  We therefore conclude that the court                                                                                                                                                                                                   



erred in equating Dorsey's proposed involuntary intoxication defense with a "guilty but                                                                                                                                                                                                                                           



mentally ill" verdict.                            



                                                    But the court's error does not necessarily mean that Dorsey was entitled to                                                                                                                                                                                                        



present the defense he proposed.                                                                                                   Given the way Dorsey framed his defense, and the                                                                                                                                              



evidence he presented in support of it, we agree with the court that Dorsey's proposed                                                                                                                                                                                                                    



defense did not absolve Dorsey of criminal liability under our law, and he was therefore                                                                                                                                                                                                                   



not entitled to the jury instructions he proposed.                                                                                                                                          



                                                    The defense of involuntary intoxication is not codified in Alaska law, but                                                                                                                                                                                                   



both the Alaska Supreme Court and this Court have recognized it as a common law                                                                                                                                                                                                                                                



defense.   In 1982, in                                                            Evans v. State                                            , the Alaska Supreme Court wrote, "The case law                                                                                                                                    



is . . . clear that involuntary intoxication does constitute a valid defense.                                                                                                                                                                                                              This is most                    



clearly   shown   when   the   intoxication   is   the   result   of   the   force,  duress,   fraud,   or  

contrivances of another."                                                                         27  

                                                                                                                                                                                                                                                                                                                               

                                                                                                            Twenty years later, we cited Evans for the proposition that  



                                                                                                                                                                                                                                                                                 28  

                                                                                                                                                                                                                                                                                                                             

Alaska case  law recognizes the defense of involuntary intoxication.                                                                                                                                                                                                                          But we also  



                                                                                                                                                                                                                                                                                                                   

recognized that the contours of this defense have not been clearly defined under Alaska  

law.29  



                                                                                                                                                                                                                                                                                                   

                                                    Since  then,  we  have  addressed  claims  of  involuntary  (or  unwitting)  



                                                                                                                                                                                                                                                                                                                              

intoxication resulting from the ingestion of prescription or other medication in two  



                                  

 separate contexts.  



             27           Evans v. State, 645 P.2d 155, 159 (Alaska 1982) (citation omitted).
  



             28           State v. Simpson, 53 P.3d 165, 167 (Alaska App. 2002). 
 



             29           See id.  



                                                                                                                                                            - 15 -                                                                                                                                                            2689
  


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

                        One situation has arisen when the defendant claimed that his conduct was                                                        



involuntary - that is, that he did not consciously commit the                                                   actus reus          of the charged     



offense.    In   State v. Simpson                     , we recognized that the voluntariness of a defendant's                            



conduct   is   an   "implicit   element   of   all   crimes,"   and   if   it   "is   actively   disputed,  the  



                                                     30  

                                                                                                                                     

government   must   prove   it."                            This  requirement  is  "grounded  in  the  constitutional  



                                                                                                                                                           31  

                                                                                                                                              

requirement that the State prove all elements of a crime beyond a reasonable doubt," 



                                                                                                               32  

                                                                                                                    

for there can be no criminal liability without a voluntary act. 



                                                                                                                                       

                        Thus, in Wagnerv.State, wherethedefendant claimed that hisconsumption  



                                                                                                                                         

of zolpidem (a sedative sold under the brand name Ambien) caused him to sleep-drive,  



                                                                                                                                                  

we recognized the validity of Wagner's proposed involuntariness defense on the ground  



                                                                                                       33  

                                                                                                                                                   

that unconscious conduct negated the crime's actus reus.                                                   We held that Wagner would  



                                                                                                                                                            

have a valid defense to the charges of driving under the influence and driving with a  



                                                                                                                                              

revoked license if "(1) he took a prescription dose of zolpidem, (2) he was rendered  



                                                                                                                                                        

unconscious by this drug and engaged in sleep-driving, and (3) he neither knew nor had  



                                                                                                         34  

                                                                                            

reason to anticipate that the drug would have this effect." 



                                                                                                                                                       

                        A second situation has arisen when the defendant claimed that he was  



                                                                                                                                               

unaware of the intoxicating nature of the substance he ingested, negating a culpable  



                                                                                                                                                            

mental state associated with an essential element of the charged offense.  In Solomon v.  



      30    Id. at 169.  



      31    Palmer v. State, 379 P.3d 981, 989 (Alaska App. 2016).  



      32    AS 11.81.600(a) ("The minimal requirement for criminal liability  is the performance  



by  a person of  conduct that includes a voluntary  act or the omission to perform  an act that the  

person is capable of  performing."); State v. Hazelwood, 946 P.2d 875, 879 (Alaska   1997)  

("[I]t is always a defense to prosecution that the conduct was not voluntary.").  



      33     Wagner v. State, 390 P.3d 1179, 1182 (Alaska App. 2017).  



      34    Id.  



                                                                          - 16 -                                                                      2689
  


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

State, the defendant admitted that he drove while intoxicated but claimed that he had                                                        



                                                                                                                                               35  

ingested a substance that he did not know was an intoxicant (Nyquil cold medicine).                                                                 



                                                                                                                                                

We held that, in a prosecution for driving under the influence, a defendant is entitled to  



                                                                                                                                  

a jury instruction on involuntary intoxication if "there is evidence that the defendant  



                                                                                                                                              

unwittingly becameintoxicated becauseofareasonable,non-negligentmistakeabout the  



                                                                                                            36  

                                                                                           

intoxicating nature of the beverage or substance they ingested." 



                                                                                                                                            

                       As framed in the trial court, Dorsey's proposed defense did not fall into  



                                                                                    

either of these categories - i.e., negation of the actus reus due to an unconscious act,  



                                                                                                                                    

or negation of a mens rea requirement. Dorsey's expert, Dr. Craig, opined that Dorsey's  



                                                                                                                                                

conduct was "purposeful" - that Dorsey was aware of what he was doing and that, to  



                                                       

the extent he engaged in sexual contact, he did so knowingly.  In other words, Dorsey  



                                                                                                                               

was conscious throughout the incident.   As a result, Dorsey's attorney specifically  



                                                                                                                                   

disclaimed any argument that Dorsey acted involuntarily or did not possess thenecessary  



                                                                                                                                         

culpable mental state, stating that he most likely "knew what he was doing." And unlike  



                                                                                                                                             

in a driving under the influence case, where a defendant may defend on the ground that  



                                                                                                                                             

he  made  a  reasonable,  non-negligent  mistake  about  the  intoxicating  nature  of  the  



                                                                                                                                               

substance he consumed, the ingestion of an intoxicant is not an essential element of  



                                                     

second-degree sexual assault.  



      35   Solomon v. State, 227 P.3d 461, 462 (Alaska App. 2010).  



      36   Id.  at 468; see also Commonwealth v. Wallace, 439 N.E.2d   848,   853   (Mass. App.  



1982) (holding that "[t]he defendant, on a new trial, will be entitled to an instruction that he  

may  not be convicted" in a driving while intoxicated case "unless he knew or had reason to  

know of   the possible effects of   the drug on his driving   abilities"); cf. Commonwealth v.  

Smith, 831 A.2d 636, 640 (Pa. App. 2003) (holding that, where the defendant voluntarily  

consumed alcohol and prescription medication without regard for its "synergistic effect," the  

defendant  did  not  establish  an  involuntary   intoxication  defense  to   driving  under  the  

influence).  



                                                                    - 17 -                                                                 2689
  


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

                               In short, Dorsey did not argue that his involuntary intoxication called into                                                                                        



question any of the essential elements of the charged offense - either the                                                                                                   actus reus               or  



the applicable mental states.                                        



                               Instead, Dorsey essentially argued that, although he committed the conduct                                                                                 



with which he was charged, his behavior should be                                                                       excused  because, due to an adverse                               



reaction to prescriptionmedication,                                               hecould              not conformhisconductto therequirements                               



                         37                                                                                    38  

of the law.                                                                                                                                                                             

                               But as we recognized in Simpson,                                                     leading commentators in the criminal  



                                                                                                                                                                                                 

law have explained that the excuse form of the involuntary intoxication defense is only  



                                                                                                                                                                                   

available if the intoxication "puts the defendant in a state of mind which resembles  



                                                                                                                                               39  

                                                                                                                                                                                                 

insanity"  under  that  jurisdiction's  legal  test  for  insanity.                                                                                      Consistent  with  this  



                                                                                                                                                                                  

commentary, multiple jurisdictions have held that involuntary intoxication constitutes  



                                                                                                                                                                                                   

a defense (separate and apart from a claim that the defendant acted unconsciously or was  



        37      Cf.  Hart  v.  State,   702  P.2d  651,  655-56  (Alaska  App.  1985)  (distinguishing  the  



insanity  statute under AS 12.47.010 from  a claim  of unconscious                                                                                 or involuntary  action and  

a claim that the defendant could not form the culpable mens rea).  



        38      See State v. Simpson, 53 P.3d 165, 167 (Alaska App. 2002).  



        39      2  Wayne  R.  LaFave,  Substantive  Criminal  Law    9.5(g),  at   66  (3d  ed.  2017)  



("Involuntary  intoxication . . . does constitute a defense if  it puts the defendant in such a state  

of  mind, e.g., so that he does not know the nature and quality  of  his act or know that his act  

is wrong, in a jurisdiction which has adopted the M'Naghten test for insanity."); Rollin M.  

Perkins & Ronald N. Boyce,  Criminal Law, at 1005 (3d ed. 1982) ("[The defendant]  does  

not have criminal capacity  if  his mind is so deranged for  the  moment  that he is unable 'to  

know what he is doing and that it is wrong,' and if  the particular jurisdiction goes beyond the  

right-wrong  rule   in   dealing  with  insanity   it  should  do  likewise  in  cases  of   involuntary  

intoxication." (citations omitted)).  



                                                                                               - 18 -                                                                                            2689
  


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

unable to form the necessary                      mens rea        ) only when the intoxication placed the defendant                   

in a state of mind sufficient to meet that jurisdiction's test for insanity.                                              40  



                                                                                                                                            

                       The  problem  for  Dorsey  is  that  Alaska's  definition  of  insanity  under  



                                                                                                                                                   

AS 12.47.010 no longer includes those defendants who lack the substantial capacity to  



                                                                                                                                             

conform their conduct to the requirements of the law - the so-called "volitional" prong  



                                                                                                                        

of the American Law Institute's test for insanity in the Model Penal Code.  



                                                                                                                                                   

                       Under the A.L.I. "substantial capacity" test for insanity, a defendant is  



                                                                                                                                      

absolved of criminal liability if, as a result of a mental disease or defect, the defendant  



      40    United States v. F.D.L., 836 F.2d 1113,   1116-17 (8th Cir. 1988) (recognizing that  



courts  that  have  addressed  the  defense  of   involuntary   intoxication   have  defined  it  "in  

essentially  the same terms as insanity"); Brancaccio  v. State, 698 So.2d 597, 599 (Fla. App.  

 1997)    ("Generally    speaking,   an   accused   may    be   completely    relieved   of    criminal  

responsibility  if, because of  involuntary  intoxication, he was temporarily  rendered legally  

insane at the time he committed the offense.") (internal quotation omitted); Heyward v. State,  

470 N.E.2d 63, 64 (Ind. 1984) (holding that, to operate as a complete defense  excusing a  

criminal act, involuntary  intoxication "must have at least temporarily  put the accused into a  

 state of  mind which resembled insanity");  People v. Wilkins,  459 N.W.2d 57, 60 (Mich. App.  

 1990) (holding that "involuntary  intoxication is a defense included within the ambit of  the  

insanity   defense");  City of Minneapolis v. Altimus, 238 N.W.2d   851,   858 (Minn. 1976)  

(holding  that,  in  the  absence  of   an  express  statute  specifically   addressing  involuntary  

intoxication, the defense "should be allowed only  in case[s] where the defendant at the time  

of committing the alleged criminal act was laboring under such a  defect of reason because  

of  a mental deficiency  caused by  involuntary  intoxication as not to know the nature of  his act,  

or that it was wrong"); Jones v. State , 648 P.2d 1251, 1258 (Okla. App. 1982) ("Involuntary  

intoxication is a complete defense where the defendant is so intoxicated that he is unable to  

                                                                                                                                     

distinguish between right and wrong, the same standard as applied in an insanity defense.");  

                                                                                                                                   

State v. Mriglot, 564 P.2d 784, 786 (Wash. 1977) (en banc) ("Since involuntary intoxication  

                                                                                                                  

acts to excuse the criminality of an act, it must rise to the level of insanity, which in this  

                                                                                                                       

jurisdiction is determined by the M'Naghten test."), discussed in State v. Stacy, 326 P.3d 136,  

                                                                                    

 145 (Wash. App. 2014); but see People v. Garcia, 113 P.3d 775, 783 (Colo. 2005) (holding  

                                                                                         

that involuntary intoxication and insanity are legally separate and distinct defenses, where  

                                                

both were set out separately in Colorado statute).  



                                                                      - 19 -                                                                  2689
  


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

                                                      41  

falls within one of two prongs.                            The first prong is cognitive:                      that the defendant lacks          



                                                                                                                              42  

the substantial capacity to appreciate the wrongfulness of his conduct.                                                                     

                                                                                                                                   The second  



                                                                                                                                                   

prong is volitional:   that the defendant lacks the substantial capacity to conform his  



                                                                     43  

                                                              

conduct to the requirements of the law. 



                                                                                                                                              

                       Prior to 1982, Alaska's insanity statute codified both prongs of the A.L.I.  



                                              44  

                                                                                                                                          

"substantial capacity" test.                      But in 1982, the legislature dramatically narrowed Alaska's  



                                                                                                                                     

definition of insanity and created a new category of "guilty but mentally ill" defendants;  



                                                                                                                                 

this new category "includes everyone who previously would have been relieved from  



                                                                                          45  

                                                                                               

criminal responsibility by virtue of the A.L.I. test." 



                                                                                                                                                   

                       Accordingly, those defendants who satisfy the "volitional" prong of the  



                                                                                                                                                   

A.L.I.  test  -  i.e.,  those who,  as a result of a mental disease or  defect, lacked  the  



                                                                                                                                                    

substantial capacity to conform their conduct to the requirements of the law - are no  



                                                                                                              

longer absolved of criminal liability (and found not guilty by reason of insanity); they  



                                                                                                   46  

                                                                                             

instead fall into the category of "guilty but mentally ill." 



                                                                                                                                   

                       Here,  Dorsey  claimed  that  he  was  entitled  to  pursue  an  involuntary  



                                                                                                                                  

intoxication defense because he was unable to conform his conduct to the requirements  



      41    Model Penal Code  4.01 (Am. Law Inst., Proposed Official Draft 1962); see also  1  



Wayne R. LaFave, Substantive Criminal Law  7.5(a), at 755-58 (3d ed. 2017).  



      42    Model Penal Code  4.01(1).  



      43    Id.  



      44    See former AS 12.45.083(a) (pre-1982 version); Schade v. State, 512 P.2d 907, 912  



(Alaska 1973); Hart v. State, 702 P.2d 651, 657 (Alaska App. 1985).  



      45    Hart, 702 P.2d at 657 (citing AS 12.47.030).  



      46    See AS 12.47.030.   Only  those defendants who, as a  result of   a mental   disease or  



defect, are "unable .   . . to appreciate the nature and quality   of   [their criminal] conduct"  

qualify  for the insanity  defense under current law.  AS 12.47.010(a).  



                                                                       - 20 -                                                                   2689
  


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

of the law after he unwittingly became intoxicated from his ingestion of Zanaflex.                                                                                                                       This  



assertion may have been legally sufficient to claim involuntary intoxication before the                                                                                                                       



 1982 change in law, but the Alaska legislature has now determined that this type of                                                                                                                            



irresistible impulse - even when it stems from a mental disease or defect - does not                                                                                                     



absolve a defendant of criminal liability.                                                           And, despite the general view that the excuse                                                  



form of the involuntary intoxication defense relies on a jurisdiction's own legal test for                                                                                                                    



insanity, the Alaska legislature has not enacted a separate statute addressing this type of                                                                                                                     



involuntary intoxication defense in the wake of its statutory                                                                                               change to the insanity               

statute.47  



                                                                                                                                                                                                            

                                 We note that Dorsey's attorneys submitted proposed jury instructions that  



                                                                                                                                                                                                                

included the two prongs of the A.L.I. test for involuntary intoxication as set out in  



                                                                                                                                                                               

Section 2.08(4) of the Model Penal Code, and with those instructions, attached a copy  



                                                                                       48 

                                                                                                                                                                                                            

of Model Penal Code Section 2.08.                                                            But the Explanatory Note that accompanies this  



        47       Some states have enacted such statutes.  See, e.g., People v. Garcia, 113 P.3d 775, 780  



(Colo.  2005)  (recognizing  that  the   affirmative  defense  of   involuntary   intoxication  is  

expressly  set out in Colorado statute:  "A person is not criminally  responsible for his conduct  

if,  by  reason of i  ntoxication that is not self-induced at the time he acts, he lacks capacity  to  

conform   his conduct to the requirements of   the law." (quoting Colo. Rev. Stat.  18-1- 

804(3));  State  v.  Sette,  611  A.2d  1129,   1136  (N.J.  App.  1992)  (recognizing  that  the  

affirmative defense of  involuntary  intoxication is expressly   set out in New Jersey   statute:  

"Intoxication which (1) is not self-induced or (2) is pathological is an affirmative defense if  

by  reason of  such intoxication the actor at the time of  his conduct  did  not know the nature  

and quality of the act he was doing, or if he did know it, that he did not know what he was  

doing was wrong.") (quoting N.J. Stat. Ann. 2C:2-8d); see also Haw. Rev. Stat.  702-230;  

720 Ill. Comp. Stat. 5/6-3; Kan. Stat. Ann.  21-5205(a).  



        48      See   Model  Penal  Code    2.08(4)  (Proposed  Official  Draft  1962)  (providing  that  



intoxication  that  is  not   self-induced  is  an  affirmative  defense  "if   by   reason  of   such  

intoxication the actor at the time of  his conduct lacks substantial capacity  either to appreciate  

its criminality [wrongfulness] or to conform his conduct to the requirements of the law").  



                                                                                                   - 21 -                                                                                                 2689
  


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

section of the Model Penal Code states that the involuntary intoxication defense is                                                                        



intended to be "coextensive with the defense of irresponsibility by reason of mental                                                              



                                                                                                                        49  

disease or defect" set out in Section 4.01 of the Model Penal Code.                                                                               

                                                                                                                             This is the precise  



                                                                                                                                               

defense that our legislature has rejected for our own insanity statute. Given our rejection  



                                                                                                                                                       

of the A.L.I. test for insanity, Dorsey's proposed involuntary intoxication defense was  



                                                                       50  

                                                                

not a viable defense under Alaska law. 



                                                                                                                                                   

                         (See Mendenhall v. State, 77 S.W.3d 815, 817-18 (Tex. Crim. App. 2002),  



                                                                                                                                                         

where the Texas Court of Criminal Appeals reached a similar conclusion following the  



                                                                                                                                                           

Texas legislature's amendment of the insanity statute to exclude the volitional prong of  



                                  

the A.L.I. test for insanity.)  



                                                                                                                                                          

                         On appeal, Dorsey reframes his defense as a mens rea defense.  That is,  



                                                                                                                                                         

Dorsey contends that he was entitled to argue that his unwitting intoxication negated the  



                                                                                                                                      

culpable mental states for second-degree sexual assault - i.e., that he "knowingly"  



                                                                                                                                                  

engaged in sexual contact and "recklessly" disregarded S.W.'s lack of consent.  Dorsey  



                                                                                                                                                         

notes that, at one point, the trial court stated that under Alaska law, intoxication does not  



                                                                                                                                           

negate the mental state of "knowingly," and he argues that the court failed to distinguish  



                                                                                                                                                     

between voluntary intoxication and involuntary intoxication.   In response, the State  



      49    Model Penal Code  2.08(4), Explanatory  Note.  The Model Penal Code makes clear  



that "[i]ntoxication does not, in itself, constitute mental disease," within the meaning of  the  

defense of   irresponsibility   by   reason of   mental disease or defect - but that involuntary  

intoxication excuses a defendant's conduct "if the resulting incapacitation is as extreme as  

that which would establish irresponsibility had it resulted from mental disease."  Model Penal  

Code  2.08(3) & cmt. 3 (emphasis added).  



      50    See  Paul H. Robinson, 2  Criminal Law Defenses   176(c), at 341 (1984 & Supp.  

                                                                                                      

2020) ("If a person who suffers from a psychological disorder which does no more than to  

make lawful behavior difficult has no defense to [a] crime, an intoxicated person ought not  

to be in a better position even though his intoxication is involuntary.") (quoting M. Paulsen,  

Intoxication as a Defense to Crime , 1961 U. Ill. L.F. 1, 19 (1961)).  



                                                                          - 22 -                                                                      2689
  


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contends that evidence of intoxication - whether voluntary or involuntary - cannot                                                              



negate the mental states of "knowingly" and "recklessly."                         



                        There is no dispute that a defendant cannot rely on                                         voluntary  intoxication  



                                                                                                     51 

                                                                                                                                          

to negate a mental state of "knowingly" or "recklessly."                                                  But we have not previously  



                                                                                                                                                   

decided whether evidence of involuntary or unwitting intoxication can negate these  



                         52  

                              

mental states. 



                                                                                                                                            

                        We have no need to reach this issue here.  As we noted earlier, Dorsey's  



                                                                                                                                                       

proposed jury instructions and arguments in the trial court make clear that he was not  



                                                                                                                                                 

seeking to rely on involuntary intoxication to negate his mental state, but rather to excuse  



                         

his conduct.  



                                                                                                                                                      

                        We acknowledge that, at one point, one of Dorsey's attorneys asserted that  



                                                                                                                                                         

his proposed defense related to the culpable mental state.  But in context, this appears to  



                                                                                                                                                    

have been a reference to Dorsey's mental state generally, and not to any particular mens  



                                                                                                                                            

rea element of second-degree sexual assault.  For example, the same attorney conceded  



                                                                                                                                                   

that Dr. Craig would testify that Dorsey "knew what he was doing."  Indeed, Dr. Craig  



                                                                                                                                                    

himself  testified  (as  part  of  Dorsey's  offer  of  proof)  that  Dorsey's  conduct  was  



      51    See   AS  11.81.630  (providing  that  "[v]oluntary   intoxication  is  not  a  defense  to  a  



prosecution for an offense," although "evidence that the defendant was intoxicated may  be  

offered . . . to negate an element of  an offense that requires that the defendant intentionally  

cause a result" (emphasis added)).  



      52    In past cases, we have often specified "voluntary" intoxication when referring to the  



intoxication  preclusion  set  out  in  the  definitions  of   "knowingly"  and  "recklessly"  in  

AS 11.81.900(a).  See, e.g.,   Waterman v. State, 342 P.3d 1261,   1269 (Alaska App. 2015);  

Jager v. State , 748 P.2d 1172,   1178  (Alaska App. 1988);  Wright v. State,  656 P.2d 1226,  

 1227  (Alaska  App.  1983); see  also  Jeffries  v.  State,  169  P.3d  913,  920  (Alaska  2007)  

(recognizing  that  AS  11.81.900(a)(2)  "defines  the  culpable  mental  state  'knowingly'  to  

require a finding of  knowing conduct when the defendant's failure to perceive surrounding  

circumstances results from voluntary intoxication").  



                                                                         - 23 -                                                                     2689
  


----------------------- Page 24-----------------------

"purposeful" - that Dorsey was aware of what he was doing and that, to the extent he                                                                                                                                                                                                      



engaged in sexual contact, he did so knowingly.                                                                                                                    (Indeed, given Dr. Craig's testimony,                                                      



the   judge   who   presided   over   Dorsey's   first   trial   found   that   Dorsey's   purported  



intoxication was not relevant to negating the mental states of the charged offense.) And,                                                                                                                                                                                        



as noted above, the jury instructions proposed by Dorsey presented the excuse form of                                                                                                                                                                                                      



the defense.                                 Thus, any potential error                                                                   by   the   trial court in                                                ruling that involuntary                



intoxication cannot negate the mental states of "knowingly" and "recklessly" does not  



require reversal of Dorsey's conviction.                                                        



                                             In summary, the legislature's decision to move the volitional prong of the  

                                                                                                                                                                                                                                                                                        



A.L.I.  test from the insanity statute to the "guilty but mentally ill" statute contributed to                                                                                                                                                                                             



the trial court's ruling that Dorsey's involuntary intoxication defense, which he offered                                                                                                                                                                                 



as a form of excuse, would trigger a "guilty but mentally ill" jury instruction.  Because  

                                                                                                                                                                                                                                                                     



Dorsey  was  not  suffering  from  a  qualifying  "mental  disease  or  defect,"  this  was  

                                                                                                                                                                                                                                                                                   



incorrect. But the court was correct that Dorsey's defense, as presented, did not absolve                                                                                                                                                                               



him of criminal liability under existing Alaska law. We therefore conclude that the error  

                                                                                                                                                                                                                                                                                  

in the trial court's ruling was harmless beyond a reasonable doubt.53  

                                                                                                                                                                                                          



           53         Because of  our resolution of  this claim, we need not address the State's argument that  



Dorsey's  involuntary   intoxication  defense  improperly   rested  on  Dorsey's  inadmissible  

hearsay   statements to Dr. Craig that he had taken  Zanaflex for the first time   a few hours  

before the sexual assault.  



                                                                                                                                       - 24 -                                                                                                                                      2689
  


----------------------- Page 25-----------------------

                Why we conclude that we must remand for reconsideration of Dorsey's                                                                             

              proposed mitigating factor that his conduct was "among the least serious                                                                               

               conduct included in the definition of the offense"                                          



                              As a first felony offender, Dorsey faced a presumptive sentencing range of                                                                                       



                                                                                                                                            54  

5 to 15 years for his second-degree sexual assault conviction.                                                                                                                                 

                                                                                                                                                   He asked the court to  



                                                                                                                                                                                               

find that his conduct was "among the least serious conduct included in the definition of  



                                                                                                                                                                                                      

the offense" under AS 12.55.155(d)(9), but the court rejected this proposed mitigator.  



                                                                                                                                                                            

Because the court did not find any other mitigating factors, the court was not authorized  



                                                                                                                                                     55  

                                                                                                                                        

to impose a sentence below the low end of the presumptive range. 



                                                                                                                                                                                     

                              In  rejecting  the  "least  serious"  mitigator,  the  sentencing  court  found  



                                                                                                                                                                                  

"because the victim was a stranger and because [the incident] occurred in [the] daytime  



                                                                                                                                                                                           

in a location where people have a right to expect a certain amount of safety, that in fact  



                                                                                                                                                                                            

[Dorsey's act] was extremely serious conduct."  In addition, the judge (who did not  



                                                                                                                                                                                               

preside over either of Dorsey's trials) stated that he had reviewed the trial testimony to  



                                                                                                                                                               

get a sense whether he would consider Dorsey's conduct "not serious conduct."  



                                                                                                                                                                               

                              But as we explained in Simants v. State, application of the (d)(9) mitigator  



                                                                                                                                                                                  

to a particular sexual offense "does not mean that the [offense] is somehow 'not serious'  



                                                                                         56  

                                                                                                                                                                     

or that the victim has not been harmed."                                                      Instead, we explained that "the determination  



                                                                                                                                                                         

of the 'seriousness' of the defendant's conduct is a relative one - the defendant's  



                                                                                                                                                                                  

conduct is considered 'among the least serious' only in contrast to the range of conduct  



                                                                                                        57  

                                                                                    

included within the definition of the offense." 



        54     AS 12.55.125(i)(3)(A).  



        55     AS 12.55.155(a)(1).  



        56     Simants v. State, 329 P.3d 1033, 1036 (Alaska App. 2014).  



        57     Id.  



                                                                                           - 25 -                                                                                        2689
  


----------------------- Page 26-----------------------

                                 Here, the sentencing court did not conduct this analysis.                                                                                  That is, the court            



did   not compare Dorsey's conduct,                                                          and   the factual circumstances surrounding                                                                     that  



conduct, to the range of conduct included within the definition of the offense.                                                                                                                    



                                 The question was not, as the court suggested, whether Dorsey's conduct                                                                                           



was "not serious."                             The question was whether the conduct in this case - conduct that   



involved hand-to-genital contact in a public place over the course of several seconds -                                                                                                                         



was  among  the least serious when compared to the range of conduct included within the                                                                                                                        

definition of the offense.                                   58  



                                                                                                                                                                                                              

                                 Because the court did not employ the proper analysis when evaluating this  



                                                                                                                                                                                                  

mitigator, we remand Dorsey's case for reconsideration of whether Dorsey's conduct  



                                                                                                                                                                                                   

was, under AS 12.55.155(d)(9), among the least serious within the definition of second- 



                                                        

degree sexual assault.  



                 Conclusion  



                                                                                                                                                                                                               

                                 We AFFIRM Dorsey's conviction. We VACATE the court's denial of the  



                                                                                                                                                                                                              

AS 12.55.155(d)(9) mitigator at sentencing, and we REMAND Dorsey's case to the  



                                                                                                                                                                             

superior court for reconsideration of this mitigator.  We do not retain jurisdiction.  



        58      See Michael v. State, 115 P.3d 517, 521 (Alaska 2005) (Bryner, J., concurring) ("[B]y  



any  realistic measure, Michael's overall conduct ranks among  the least serious within the  

class of  defendants actually  convicted of  first-degree sexual assault.") (emphasis in original);  

 Voyles  v.  State,  2017  WL  2709730,  at  *5  (Alaska  App.  June  21,  2017)  (unpublished)  

(concluding that the defendant's "single, minimal act of  digital penetration . .  . . qualified as  

among the least serious conduct included in the definition of  first-degree sexual abuse of a   

minor") (emphasis in original).  



                                                                                                    - 26 -                                                                                                 2689
  

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