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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FRANK GUERTIN, )
) Court of Appeals No. A-4396
Appellant, ) Trial Court No. 4FA-91-2036
Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1299 - June 25, 1993]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Niesje J. Stein
kruger, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for Appel
lant. Richard W. Maki, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Frank Guertin appeals his conviction for attempted
second-degree sexual assault, AS 11.41.420(a)(1). Guertin
contends that there is no such crime as attempted second-degree
sexual assault. We find that there is, and so we affirm.
The crime of second-degree sexual assault, as defined
in AS 11.41.420(a)(1), is committed when a defendant
engages in sexual contact with another person
without consent of that person[.]
This crime requires proof that the defendant knowingly engaged in
sexual contact with another person (that is, knowingly touched
the other person's genitals, anus, or female breast - see AS
11.81.900(b)(53)), and proof that the defendant acted with
reckless disregard of the other person's lack of consent to the
sexual contact. AS 11.81.610(b); compare Reynolds v. State, 664
P.2d 621, 625 (Alaska App. 1983).1
Guertin was convicted, not of the completed crime of
second-degree sexual assault, but of an attempt to commit this
crime. Under AS 11.31.100(a), a person is guilty of an attempt
to commit a crime if,
with intent to commit a crime, the person
engages in conduct which constitutes a sub
stantial step toward the commission of that
crime.
Therefore, using the definition of second-degree sexual assault
found in AS 11.41.420(a)(1) and the definition of attempt found
in AS 11.31.100(a), Guertin would be guilty of an attempt to
commit second-degree sexual assault if, intending to engage in
sexual contact with another person without regard to that
person's lack of consent, Guertin took a substantial step toward
accomplishing this goal.
Guertin contends that this court's decision in Huitt v.
State, 678 P.2d 415 (Alaska App. 1984), precludes this definition
of attempted second-degree sexual assault. In Huitt, this court
held that there was no such crime as "attempted second-degree
murder". This result is premised on the following reasoning:
(1) Under AS 11.31.100(a), an attempt to commit a crime
requires proof that the defendant acted with the intent of
committing that crime.
(2) A defendant commits second-degree murder only when
the defendant's conduct causes someone's death.
(3) Thus, under AS 11.31.100(a), an attempt to commit
second-degree murder requires proof, not just that the
defendant tried to commit acts that he knew were life-threat
ening, but that the defendant fully intended to cause some
one's death.
A defendant who engages in life-endangering conduct but without
an intent to kill can be guilty of only a lesser crime (for
example, some degree of assault, some degree of criminal
mischief, or first-degree arson). Huitt, 678 P.2d at 419-420 &
nn. 3-4. Conversely, a defendant who unsuccessfully tries to
cause someone's death is guilty of attempted first-degree murder,
the higher degree of crime. Thus, the crime of "attempted second-
degree murder" is superfluous: anyone who engages in life-
threatening conduct with the requisite culpable mental state for
attempted murder (intent to kill) is necessarily guilty, not only
of "attempted second-degree murder", but also of attempted first-
degree murder. See W. LaFave & A. Scott, Substantive Criminal
Law (1986), 6.2(c)(1), Vol. 2, p. 25.
Guertin reads Huitt for a quite different proposition.
He asserts that the holding in Huitt (that there is no crime of
"attempted second-degree murder") is premised on the fact that
second-degree murder is not what the common law would call a
"specific intent" crime. Second-degree murder of course requires
proof of a result: human death. However, the defendant need not
act with the intent of causing this result; instead, the culpable
mental state that applies to that element is an extreme form of
recklessness ("extreme indifference to the value of human life").
Neitzel v. State, 655 P.2d 325, 333-34 (Alaska App. 1982).2 From
this, Guertin concludes that Huitt must stand for the rule that
Alaska law does not recognize an attempt to commit any crime
unless that crime (1) has a "result" element (2) to which the
culpable mental state of "intentionally" applies.
Guertin misunderstands Huitt and the law of attempt.
Alaska's attempt statute, AS 11.31.100(a), declares that a person
commits a punishable attempt when, "with intent to commit a
crime, the person engages in conduct [that] constitutes a
substantial step toward the commission of that crime". To be
guilty of attempt under this statute, the defendant must intend
to commit the target crime; however, AS 11.31.100(a) does not
purport to limit target crimes to offenses that require an
intended result. As we discussed earlier (in footnote 1), Alaska
law does not require every crime to have a "result" element, much
less a result that is intended. (In fact, under AS 11.81.610(b),
the culpable mental state that normally applies to a result is
"recklessly".)3
We have already explained that there is no crime of
"attempted second-degree murder" because, to be guilty of attempt
under AS 11.31.100(a), a defendant must act with the subjective
intent to accomplish the target crime. Accomplishing the target
crime of second-degree murder necessarily means causing someone's
death. But if a defendant acts with intent to accomplish this
result, he has acted with intent to kill, and thus his offense is
attempted first-degree murder. If, on the other hand, the
defendant does not act with intent to cause human death, then he
has not tried to accomplish the target crime of second-degree
murder.
In contrast, the target crime of second-degree sexual
assault requires proof of sexual contact and the defendant's
reckless disregard of the other person's non-consent to this
contact. There is no logical or legal flaw in asserting or
finding that a defendant has attempted to commit this crime - has
attempted to engage in sexual contact with another person without
regard to that person's lack of consent. Nothing in Huitt
precludes this conclusion. The fact that second-degree sexual
assault is not what the common law would call a "specific intent"
crime is irrelevant to this legal conclusion.4 We hold that the
crime of attempted second-degree sexual assault exists under
Alaska law.
Guertin also argues that, if the crime of attempted
second-degree sexual assault exists, the trial judge nevertheless
misinstructed the jury on the elements of this crime. To
establish the crime of attempted second-degree sexual assault,
one of the elements the State must prove is that the defendant
intended to engage in sexual contact with the victim (that is,
the defendant intended to touch the victim's genitals, anus, or
female breast). Compare Baden v. State, 667 P.2d 1275, 1278
(Alaska App. 1983). Guertin asserts that the jury instructions
in his case allowed the jury to convict him if they believed that
his conduct had created a substantial risk that sexual contact
would occur between him and the victim, even if they believed
that Guertin had not intended this.
We do not agree. The trial court's instruction on
attempted second-degree sexual assault correctly informed the
jury that the State had to prove that Guertin "intended to engage
in sexual contact with [the victim]". This concept was
reiterated in the court's instruction on the effect of voluntary
intoxication. That instruction told the jury (in pertinent
part):
Similarly, in the lesser included
offense of Attempted Sexual Assault in the
Second Degree, a necessary element is the
existence in the mind of the defendant of the
intent to engage in sexual contact with [the
victim] without her consent.
If the evidence shows that Mr. Guertin
was intoxicated at the time of the alleged
offense, the jury should consider his state
of intoxication in determining if Mr. Guertin
had the intent to engage in sexual contact
with [the victim] without her consent.
Finally, the court instructed the jury that a person does not act
"intentionally" unless "the person's conscious objective is to
cause that result". These instructions correctly and adequately
informed the jury that, to find Guertin guilty of attempted
second-degree sexual assault, they had to find that he intended
to engage in sexual contact with the victim, and that they should
consider Guertin's state of intoxication.
Guertin complains that the jury instructions were
confusing because they asked the jury to apply two different
culpable mental states to "sexual contact". Guertin points out
that, when describing the completed crime of second-degree sexual
assault, the instructions refer to "sexual contact" as the
proscribed conduct (to which the culpable mental state of
"knowingly" applies), but when describing attempted second-degree
sexual assault, the instructions refer to "sexual contact" as the
result (to which the culpable mental state of "intentionally"
applies).
This is not a confusion; it is correct. The completed
crime of second-degree sexual assault requires proof of conduct
(sexual contact) and a circumstance (the victim's lack of
consent). Because sexual contact is the "conduct" element of the
completed crime, the culpable mental state that applies to sexual
contact is "knowingly". On the other hand, attempted second-
degree sexual assault is an inchoate crime: by definition, the
prohibited non-consensual sexual contact has not occurred, and
the issue is whether the defendant's conduct constituted a
substantial step toward accomplishing the goal of sexual contact.
AS 11.31.100(a). In the context of an attempt, sexual contact is
a "result" - the conscious goal of a defendant's actions - and
the applicable culpable mental state is "intentionally".
To conclude: (1) attempted second-degree sexual
assault is a crime under Alaska law, and (2) the trial court's
instructions, read as a whole and in a common-sense manner,
accurately conveyed the legal concepts the jury needed to decide
Guertin's guilt or innocence of this crime. Alaska Criminal Rule
30(b).
The judgement of the superior court is AFFIRMED.
_______________________________
1 Guertin argues that every crime in Title 11 must have
three elements: a "conduct" element, a "circumstance" element,
and a "result" element. He cites Neitzel v. State, 655 P.2d 325,
333 (Alaska App. 1982), for this proposition. However, Neitzel
does not require that each crime contain elements of all three
types. Rather, Neitzel says merely that each element of any
crime can be classified as belonging to one of the three types:
either "conduct", "circumstance", or "result". Id. at 328-29,
333. See the legislative commentary to AS 11.81.900(a) found in
1978 Senate Journal, Supp. 47 (June 12), p. 140.
The crime at issue in Neitzel, second-degree murder under
AS 11.41.110(a)(2), has one element of each type. 655 P.2d at
333. However, the criminal code does not require every crime to
have elements of all three types, nor does it forbid the
legislature from defining a crime with more than one element of a
particular type.
Second-degree sexual assault has two elements: the conduct
of engaging in sexual contact, and the circumstance that the
recipient of the sexual contact does not consent to it.
2 Indeed, if the defendant had acted with the intent of
causing the victim's death, the defendant's crime would be first-
degree murder.
3 Conversely, some crimes require proof that a defendant
intended to achieve a particular result but do not require proof
that this result was actually accomplished. Theft and burglary
are two such crimes: they require proof, respectively, that the
defendant intended to permanently deprive someone of property or
intended to commit a crime inside a building. Yet the crime of
theft is complete even though the owner is only temporarily
deprived of the property, Coleman v. State, 846 P.2d 141, 143
(Alaska App. 1993), and the crime of burglary is complete even
though the burglar never commits the intended crime inside the
building. Mead v. State, 489 P.2d 738, 740-43 (Alaska 1971).
4 The common law recognized attempts to commit "general
intent" crimes - crimes that do not require proof that the
defendant intended to accomplish a particular result. For
example, at common law and under Alaska's former criminal code,
rape was a general intent crime: it required proof only of an act
of genital penetration and the victim's lack of consent.
Reynolds v. State, 664 P.2d 621, 623 (Alaska App. 1983), citing
Walker v. State, 652 P.2d 88, 91 (Alaska 1982). Nevertheless,
"attempted rape" was a recognized crime. See, for example,
Smiloff v. State, 439 P.2d 772 (Alaska 1968).
Similarly, under Alaska's present criminal code, a person
can be charged with attempting to commit a crime (like second-
degree sexual assault) that requires proof of conduct (sexual
contact) and a surrounding circumstance (the victim's lack of
consent) but does not require proof of a result.
