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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4324
Appellant, ) Trial Court No. 4BE-S91-444CR
)
v. )
) O P
I N I O N
BOYCE WILLIAMS, JR., )
)
Appellee. ) [No. 1301 - July 16, 1993]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Dale 0. Curda, Judge.
Appearances: Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecu-tions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellant. Myron Angstman, Law Office of
Myron Angstman, Bethel, and Walter Share,
Seattle, Washington, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
The state appeals an order entered by Superior Court
Judge Dale O. Curda dismissing, on grounds of collateral estoppel
and res judicata,1 an indictment charging Boyce Williams, Jr.
with sexual assault in the second degree and sexual abuse of a
minor in the second and third degrees. The substantive claim the
state seeks to raise -- the sufficiency of the evidence presented
before the grand jury that indicted Williams -- is relatively
straightforward. Nevertheless, Williams interposes a procedural
issue that necessitates a review of the decidedly less straight-
forward procedural history of this case.
FACTS AND PROCEDURAL HISTORY
1. Facts
The charges against Williams arose from two incidents
that occurred during April and May of 1991 in the village of
Kwethluk, where Williams taught high school. The incidents
involved two boys, fifteen-year-old A.A. and fourteen-year-old
R.M. During the spring of 1991, A.A. lived in Bethel
and attended school there. The previous year, however, he had
lived in Kwethluk; Williams had been his teacher. In mid-May of
1991, A.A. visited Kwethluk for several days. After returning to
Bethel, he reported that Williams had assaulted him during the
visit.
According to A.A., he and another boy went to Williams'
residence in Kwethluk to watch a video. Williams asked A.A. to
come into the bedroom, saying that he (Williams) needed to do
something about detentions that A.A. had received at school in
Bethel. Once in the bedroom, Williams wrestled A.A. down, forced
A.A.'s pants and underpants off, and spanked A.A., striking the
boy's buttocks with his hand. During the spanking, Williams
touched A.A.'s testicles; as he did so, he asked if A.A. was
"getting a hard-on." A.A. eventually managed to push Williams
away.
When interviewed by a trooper, Williams admitted
spanking A.A., claiming that he had done it as a form of
discipline, to make A.A. a better student.2 Williams claimed
that he did not recall touching A.A.'s testicles but acknowledged
that the touching might have occurred accidentally during the
spanking. During a subse-quent, surreptitiously monitored
telephone conversation with A.A., however, when A.A. mentioned
that Williams had asked if A.A. was "getting a hard-on", Williams
responded: "Yes, I did say that, and that was really stupid of
me to say. I'm very sorry that I said that." Williams also said
he wished that A.A. had come to him before contacting the
troopers.
While investigating A.A.'s report, the troopers learned
of a similar incident involving R.M., who was a resident of
Kwethluk and an eighth-grade student of Williams. According to
R.M., in mid-April of 1991, Williams accosted R.M. as R.M. came
out of the school shower, naked; Williams grabbed R.M.'s chest
and testicles, pulled the boy down over his knee, and spanked
him. Williams said nothing to R.M. to explain or justify this
conduct. R.M. later reported the incident to his brother-in-law.
Williams was reinterviewed by a trooper in connection
with R.M.'s report and admitted spanking R.M. Williams also
admitted grabbing R.M.'s testicles, telling the trooper that
this was just a -- sort of a move that he
[Williams] had, that he would use in an
effort to control somebody, that he grabbed
him with one hand by his testicles, other
hand by his chest, and just put him on his
lap and administered a spanking.
2. Procedural History
On May 31, 1991, after hearing testimony from A.A.,
R.M., and the trooper who had interviewed Williams, a grand jury
in Bethel indicted Williams for three counts of sexual abuse of a
minor in the second degree, three counts of sexual assault in the
second degree, and three counts of assault in the fourth degree.
Three of the nine counts related to the bedroom spanking incident
involving A.A.: for touching A.A.'s testicles, Williams was
charged with one count of second-degree sexual abuse of a minor
(engaging in sexual contact with a person under 16 years of age
over whom Williams occupied a position of authority in violation
of AS 11.41.436(a)(5)(B), and, alternatively, with one count of
second-degree sexual assault (engaging in nonconsensual sexual
contact in violation of AS 11.41.420(a)(1)); in addition,
Williams was charged with one count of fourth-degree assault for
spanking A.A. (recklessly causing physical injury to A.A. in
violation of AS 11.41.230(a)(1)).
For the shower room spanking of R.M., Williams was
charged with three similar counts -- second-degree sexual abuse
of a minor, second-degree sexual assault, and fourth-degree
assault. In addition, apparently due to a miscommunication, the
state mistakenly believed that R.M. had been the victim of
another, similar spanking incident in Williams' office. The
three remaining counts of the indictment addressed the purported
office spanking, paralleling the charges that dealt with the
bedroom and shower-room incidents.
Williams moved to dismiss all of the charges. Among
various other grounds, he alleged that the evidence presented to
the grand jury was insufficient to establish: 1) that sexual
contact had occurred, for purposes of the sexual assault and
sexual abuse charges; 2) that Williams occupied a position of
authority over A.A., for purposes of the second-degree sexual
abuse charge that stemmed from the bedroom spanking incident of
A.A.; 3) that physical injury had occurred, for purposes of the
fourth-degree assault charges; and 4) that any offenses at all
had occurred with R.M. in the alleged office incident.
Judge Curda agreed with Williams' claims of
insufficient evidence; in addition, the judge concluded that
Williams' grand jury hearing had been tainted by hearsay and
inadmissible evidence of other bad acts. For these reasons,
Judge Curda ordered Williams' indictment dismissed.
The state elected not to appeal the order of dismissal.
Instead, it re-presented Williams' case to the grand jury and
secured a second indictment. The indictment contained three
counts dealing with the bedroom spanking incident involving A.A.
For the touching of A.A.'s testicles, the indictment
alternatively alleged: one count of sexual abuse of a minor in
the third degree (for having sexual contact with A.A. when A.A.
was 13, 14, or 15 years of age in violation of AS
11.41.438(a)(1)), and one count of sexual assault in the second
degree (for nonconsensual sexual contact); a third count alleged
fourth-degree assault for A.A.'s spanking (recklessly causing
physical injury to A.A.).
The indictment also contained four counts dealing with
the shower room spanking incident involving R.M.: for the
touching of R.M.'s testicles, the indictment alternatively
alleged one count of sexual abuse of a minor in the second degree
(for engaging in sexual contact with R.M. when R.M. was under
sixteen years of age and when Williams occupied a position of
authority over him), one count of sexual assault in the second
degree (for nonconsensual sexual contact), and one count of
sexual abuse of a minor in the third degree (for having sexual
contact with R.M. when R.M. was 13, 14, or 15 years of age); the
remaining count alleged fourth-degree assault for R.M.'s
spanking.
Shortly after the issuance of the new indictment, the
state filed a notice of dismissal as to the two charges of fourth-
degree assault, leaving Williams with five counts: two
alternative counts relating to the touching of A.A.'s testicles
and three relating to the touching of R.M.'s testicles.
As reconfigured, the new charges avoided many of the
pitfalls the trial court had found in dismissing the first indict
ment. By dropping all charges relating to the office spanking of
R.M., which had never occurred, the new indictment resolved the
problems of hearsay and prior-misconduct evidence that Judge
Curda had originally found, as well as the problem of
insufficient evidence relating to the office spanking incident.
Furthermore, by replacing the original charge of second-degree
sexual abuse of a minor relating to A.A. (which had been based on
the theory that Williams occupied a position of authority over
A.A.) with a lesser charge of sexual abuse of a minor in the
third degree (which required no evidence of Williams' authority
over A.A.), the new indictment addressed the trial court's
finding that there was insufficient evidence of Williams'
authority over A.A., who was no longer a pupil of Williams' when
the alleged abuse occurred. Finally, by dismissing the fourth-
degree assault charges, the state rendered moot Judge Curda's
original finding that insufficient evidence of physical injury
had been presented.
The reconfigured charges nevertheless failed to resolve
one remaining aspect of Judge Curda's original dismissal order:
all remaining charges against Williams were based on the theory
that Williams' touching of A.A.'s and R.M.'s testicles amounted
to sexual contact. The evidence presented to the second grand
jury in support of these charges was substantially similar to the
evidence presented to the first grand jury; yet Judge Curda's
original order of dismissal had, in part, been based on the
conclusion that the evidence presented to the first grand jury
was insufficient to establish that Williams' touchings amounted
to sexual contact.
Williams moved to dismiss the second indictment. He
asserted, in relevant part, that, because the evidence presented
to the first and second grand juries on the issue of sexual
contact was essentially identical, and because the state had
failed to appeal the court's ruling that insufficient evidence of
sexual contact had been presented, relitigation of this issue was
barred by the doctrine of collateral estoppel.
After confirming that basically the same evidence of
sexual contact had been presented to the first and second grand
juries, Judge Curda adopted Williams' view, concluding that
collateral estoppel precluded the state from reopening the
question of whether sufficient evidence of sexual contact had
been presented. Relying exclusively on the original finding of
insufficient evidence, the judge ordered the second indictment
dismissed.
The state evidently believed that a direct appeal of
the second dismissal order was foreclosed because the order was
based on collateral estoppel rather than on the sufficiency of
the evidence before the second grand jury. See Kott v. State,
678 P.2d 386, 388-89 & n.4 (Alaska 1984). Accordingly, the state
filed with this court a "petition for review, or in the
alternative, motion to accept late notice of appeal." In its
petition, the state requested discretionary review by this court
of Judge Curda's application of the collateral estoppel doctrine,
or, alternatively, leave to file an untimely direct appeal from
the original order dismissing Williams' first indictment for
insufficient evidence. The state argued that its failure to file
a timely appeal from the original order of dismissal resulted
from its good faith efforts to resolve the evidentiary problems
that led to dismissal of the original indictment.
We construed the state's petition as a motion for this
court to determine whether this matter should be treated as a
petition for review or as an appeal, and we ordered Williams to
file a response on that issue. In his response, Williams argued
that the sole issue properly presented by Judge Curda's second
order of dismissal was the correctness of the judge's reliance on
collateral estoppel. In Williams' view, the judge's reliance on
that doctrine was legally sound, thereby rendering the
sufficiency of the evidence before the second grand jury immune
from appellate review, since that issue had been conclusively
determined by Judge Curda's order dismissing the first
indictment. Williams further asserted that the state's tactical
decision to forego a direct appeal of the first dismissal order
should preclude its belated efforts to file an untimely appeal.
After considering the state's petition and Williams'
response, this court issued an order holding that the state was
entitled to appeal Judge Curda's dismissal of the second indict
ment. In relevant part, we said:
Although both parties focus considerable
attention on the question of whether Judge
Curda properly applied collateral estoppel
and res judicata in this case, we find it
unnecessary to resolve the issue.
Technically speaking, Judge Curda's decision
to dismiss the second indictment without
reexamining the merits of the state's legal
claims might more readily be justified as an
application of the law of the case doctrine,
see, e.g., Wolff v. Arctic Bowl, 560 P.2d 361
(Alaska 1978), than as an application of res
judicata or collateral estoppel principles.
Res judicata and collateral estoppel apply
only when a party raises issues or claims
that are "precisely the same as" issues or
claims decided in prior litigation. Briggs
v. State, 732 P.2d 1078, 1081 (Alaska 1981).
Here, the issue involved in the motion to
dismiss the second indictment was the
sufficiency of the evidence presented by the
state at the second grand jury hearing; this
is arguably not precisely the same issue as
that adjudicated in the original order of
dismissal -- the sufficiency of the evidence
presented before the first grand jury.
Whatever formal label might be attached
to the underlying rationale for Judge Curda's
January 31 dismissal order, however, it ap
pears that, in substance, the order amounted
to a determination that the evidence support
ing the second indictment was insufficient
for the same reasons as the first. Because
the January 31 order was in substance a
determination of the sufficiency of the
evidence before the second grand jury, we
conclude that it qualifies as an appealable
order under AS 22.07.020(d) and Appellate
Rule 202(c), the pertinent portions of which
allow the state appeal in a criminal case "to
test the sufficiency of the indictment . . .
." See Kott v. State, 678 P.2d 386, 388-89 &
n.4 (Alaska 1984).
DISCUSSION
In its briefs on appeal, the state argues that the
evidence before the grand jury was sufficient to support the
charges against Williams. Williams, in contrast, adheres to the
position that Judge Curda properly applied the collateral
estoppel doctrine in dismissing the second indictment; he claims
that Judge Curda's reliance on collateral estoppel forecloses
substantive review of the sufficiency of the evidence presented
to the second grand jury. Williams urges this court to uphold
Judge Curda on the collateral estoppel issue and to go no
further. Alternatively, Williams maintains that the evidence
presented to the second grand jury was insufficient to establish
sexual contact.3
1. Collateral Estoppel
We first consider Williams' claim that collateral
estoppel bars review of the sufficiency of the evidence presented
to the second grand jury. It is well settled that the collateral
estoppel doctrine applies to criminal cases in Alaska. Briggs v.
State, 732 P.2d 1078, 1081-82 (Alaska 1987); DeSacia v. State,
469 P.2d 369, 379-80 (Alaska 1970); Boyles v. State, 647 P.2d
1113, 1116 (Alaska App. 1982). The doctrine precludes
relitigation of an issue that has been decided in previous
litigation. However, as the Alaska Supreme Court made clear in
Briggs, three prerequisites must be met before the doctrine
attaches: first, the issue decided in the prior litigation must
have been precisely the same as that presented in the current
litigation. Second, the prior litigation must have resulted in a
final judgment resolving the merits of the issue; and third,
there must be "mutuality" between the parties involved in the
prior and current actions. 732 P.2d at 1081.
In the present case, the superior court invoked
collateral estoppel as a basis for declining to consider the
sufficiency of the evidence presented to Williams' second grand
jury. Given the three prerequisites set forth in Briggs, we
conclude that the superior court's invocation of collateral
estoppel was improper. Specifically, we hold that the order
dismissing the first indictment did not constitute a final
judgment resolving, on its merits, the question of the
sufficiency of the evidence against Williams before the second
grand jury.
In dismissing the second indictment, Judge Curda
reasoned that, because the evidence of sexual contact presented
to Williams' second grand jury was essentially the same as that
presented to the first -- which the judge had already deemed
legally insufficient to support a finding of sexual contact
between Williams and A.A. or R.M. -- collateral estoppel barred
reconsideration of the point. Implicit in this reasoning is the
judge's recognition that a second indictment for the same
offenses would not have been barred had the state presented more
or different evidence on the issue of sexual contact.
The accuracy of this tacit recognition can hardly be
doubted, for the state's right to seek reindictment upon
dismissal of an initial indictment for insufficient evidence has
never been seriously questioned and has been uniformly upheld.
See, e.g., Taggard v. State, 500 P.2d 238, 244 (Alaska 1972).4
At the same time, however, the court's recognition that the state
would not have been barred from obtaining a reindictment on more
or better evidence -- and the court's concomitant belief that
collateral estoppel applied to Williams' case only because of the
similarity of evidence presented to the first and second grand
juries --reveals a fundamental flaw with the court's theory of
the collateral estoppel doctrine.
Collateral estoppel deals with relitigation of legal
issues, not re-introduction of similar evidence. The doctrine
bars
relitigation of a previously decided issue regardless of what
evidence the party seeking to relitigate the issue is prepared to
present. Once a legal issue has been finally decided on its
merits, a party cannot circumvent collateral estoppel's bar to
relitigation merely by presenting more or better evidence; to the
contrary, a primary purpose of collateral estoppel is to preclude
successive attempts to produce more evidence on an issue that has
already been decided.
It follows that, if the doctrine truly applied to a
dismissal order based on insufficient grand jury evidence, it
would necessarily bar the state from seeking reindictment for the
same offense, no matter how much better or stronger the
government's evidence might be upon seeking reindictment. In
other words, the doctrine would perform the same role at the
grand jury level that the double jeopardy clause performs at the
trial level. Yet, if so applied, the collateral estoppel
doctrine would run squarely counter to the prevailing rule,
which, as we have already noted (and as Judge Curda implicitly
recognized), leaves the state free to seek reindictment following
a dismissal for insufficient evidence.
In short, the prevailing rule allowing reindictment is
itself fundamentally incompatible with the notion that a
dismissal order based on insufficient evidence can collaterally
estop the state from attempting to reindict. This
incompatibility, in turn, suggests the conclusion that an order
dismissing an indictment simply does not constitute "a final
judgment on the merits" resolving the issue of the sufficiency of
evidence to support a prosecution. Briggs v. State, 732 P.2d at
1081.
Indeed, Williams cites no case, and we are aware of
none, in which an order of dismissal based on the factual
insufficiency of evidence before a particular grand jury has been
construed to be a final judgment resolving, on its merits, the
issue of the sufficiency of evidence against the accused.
Williams nevertheless offers two cases for the conclusion that
collateral estoppel should bar reindictment under the
circumstances of his case. The two cases are United States v.
Oppenheimer, 242 U.S. 85 (1916), and United States v. Cejas, 817
F.2d 595 (9th Cir. 1987). Upon careful scrutiny, however, both
cases support the conclusion that collateral estoppel is
inapplicable here.
In Oppenheimer, the United States Supreme Court upheld
a trial court's reliance on collateral estoppel to dismiss the
second indictment of a defendant whose original indictment had
been dismissed for violation of the statute of limitations. In
dismissing the original indictment, the trial court had relied on
the statute of limitations in the Bankruptcy Act. The government
did not appeal. Shortly thereafter, the United States Supreme
Court, in an unrelated but similar case, found the Bankruptcy
Act's statute of limitations inapplicable. This led the
government to reindict Oppenheimer.
The trial court dismissed the second indictment,
finding prosecution barred by collateral estoppel,
notwithstanding the intervening Supreme Court ruling on the
Bankruptcy Act's statute of limitations. The government
appealed, arguing that collateral estoppel was inapplicable in
criminal cases.
In upholding the trial court's use of collateral
estoppel, Justice Holmes wrote:
Upon the merits the proposition of the
government is that the doctrine of res
judicata does not exist for criminal cases
except in the modified form of the 5th
Amendment . . . ; and the conclusion is drawn
that a decision upon a plea in bar cannot
prevent a second trial when the defendant
never has been in jeopardy in the sense of
being before a jury upon the facts of the
offense charged. It seems that the mere
statement of the position should be its own
answer. It cannot be that the safeguards of
the person, so often and so rightly mentioned
with solemn reverence, are less than those
that protect from a liability in debt. It
cannot be that a judgment of acquittal on the
ground of the statute of limitations is less
a protection against a second trial than a
judgment upon the ground of innocence, or
that such a judgment is any more effective
when entered after a verdict than if entered
by the government's consent before a jury is
empaneled; or that it is conclusive if
entered upon the general issue, but if upon a
special plea of the statute, permits the
defendant to be prosecuted again.
United States v. Oppenheimer, 242 U.S. at 87 (citation omitted).
As a careful reading of this passage from Oppenheimer
will reveal, the Court deemed it of crucial significance that the
original dismissal had amounted to "a decision upon a plea in
bar," resulting in the entry of "a judgment of acquittal on the
ground of the statute of limitations." Id. Under the forms of
pleading in effect when Oppenheimer was decided, a plea in bar
was one that "would have the effect of putting an end to all
further prosecution." United States v. Cejas, 817 F.2d at 598.5
As is also apparent from the passage of Oppenheimer quoted above,
the granting of a plea in bar in favor of a defendant resulted in
the entry of a judgment of acquittal on the merits.
It was undisputed in Oppenheimer that a motion to
dismiss based on the statute of limitations amounted to a plea in
bar. Justice Holmes' opinion makes it clear beyond dispute that
collateral estoppel barred further prosecution in the case not
merely because the first indictment had been dismissed, but
rather because the dismissal had stemmed from a plea in bar,
which had resulted in the entry of a judgment of acquittal on the
merits:
Of course, the quashing of a bad
indictment is no bar to a prosecution upon a
good one, but a judgment for the defendant
upon the ground that the prosecution is
barred goes to his liability as a matter of
substantive law, and one judgment that he is
free as a matter of substantive law is as
good as another. A plea of the statute of
limitations is a plea to the merits, and
however the issue was raised in the former
case, after judgment upon it, it could not be
reopened in a later prosecution.
United States v. Oppenheimer, 242 U.S. at 87 (citation omitted).
The second case offered by Williams, United States v.
Cejas, simply follows Oppenheimer's lead in an even more obvious
procedural context. Cejas was indicted on a federal conspiracy
charge in Arizona. The indictment alleged a complex, multi-state
conspiracy, charged numerous other defendants, and recited 265
overt acts committed in furtherance of the conspiracy.
Cejas moved to dismiss on grounds of double jeopardy,
claiming that he had previously been convicted of a federal
conspiracy charge in Florida that involved the same conspiracy
alleged in the Arizona indictment. In support of his claim,
Cejas pointed out that several of the overt acts charged in the
Arizona indictment overlapped overt acts that had been charged in
the Florida case for which he had been convicted.
After finding that the Arizona indictment and the
earlier Florida indictment involved the same conspiracy, the
trial court granted Cejas' motion and dismissed the case,
concluding that further prosecution was barred by double
jeopardy.
Instead of appealing, the government reindicted Cejas
in Arizona for the same conspiracy, but amended the indictment to
delete the overt acts that had been included in his original
Florida indictment. Cejas again moved to dismiss. In response,
the government argued, and apparently convinced a new judge, that
the Arizona indictment did not involve the same conspiracy as the
Florida conspiracy for which Cejas had already been convicted.
The trial court denied Cejas' motion to dismiss.
Cejas appealed, contending that the argument the
government prevailed on before the trial court -- that the
Florida and Arizona indictments involved different conspiracies -
- was barred by collateral estoppel, since the issue had already
been decided by the judge who dismissed his initial Arizona
indictment on double jeopardy grounds. Cejas, 817 F.2d at 596-
97.
The court of appeals in Cejas, relying in large part on
Oppenheimer, reversed the trial court's denial of Cejas' motion
to dismiss the second Arizona indictment, finding that collateral
estoppel barred relitigation of the double jeopardy claim that
led to the dismissal of Cejas' initial Arizona indictment. In
relevant part, the court stated:
[A] ruling on a motion to dismiss under
[Federal Criminal] Rule 12 will have
different effects depending upon the nature
of the defense raised. The granting of a
motion to dismiss based upon double jeopardy,
which would [under old forms of pleading]
have been raised by a "plea in bar," would
have the effect of putting an end to all
further prosecution.
It has . . . been recognized that
collateral estoppel could be raised as a
pretrial defense to an indictment, which
would bar further prosecution. Thus, the
dismissal of an indictment on the ground that
further prosecution is barred by double
jeopardy can preclude trial on a reindictment
for the same charge.
Cejas, 817 F.2d at 598 (citation omitted).
In sharp contrast to Oppenheimer and Cejas, Williams'
original indictment was dismissed on grounds that did not bar
reindictment. The original order of dismissal addressed, in
relevant part, the sufficiency of the evidence presented to the
first grand jury. A dismissal motion based on this ground is not
tantamount to a "plea in bar" such as a violation of the statute
of limitations or a claim of double jeopardy which would preclude
all further prosecution; to the contrary, as we have already
indicated, reindictment following a dismissal for insufficient
evidence has traditionally been allowed.
Similarly, the original order dismissing Williams'
indictment did not "go[] to his liability as [a] matter of
substantive law," Oppenheimer, 242 U.S. at 87; it did not amount
to a "judgment that he is free as [a] matter of substantive law,"
id.; nor did it in any way place Williams in the position of "a
man once . . . acquitted on the merits." Id., 242 U.S. at 88.
For this reason, we hold that the original order of
dismissal in this case did not amount to "a final judgment on the
merits," Briggs v. State, 732 P.2d at 1081, for purposes of the
collateral estoppel doctrine, and we conclude that the superior
court erred in relying on collateral estoppel to order Williams'
second indictment dismissed.6
2. Sufficiency of Evidence Before the Grand Jury
We turn next to the sufficiency of the evidence
presented to the second grand jury on the issue of sexual
contact.7 The grand jury is empowered to indict when all of the
evidence taken together, if unexplained or uncontradicted, would
warrant a conviction. Alaska Criminal Rule 6(q); Lupro v. State,
603 P.2d 468, 473 (Alaska 1979); Newsom v. State, 533 P.2d 904,
906 (Alaska 1975). In challenges to the sufficiency of the
evidence before a grand jury, every legitimate inference that may
be drawn from the evidence must be drawn in favor of the
indictment. State v. Ison, 744 P.2d 416, 418 (Alaska App. 1987).
The evidence is sufficient if, viewed in this manner, "it is
adequate to persuade reasonable minded persons that if
unexplained or uncontradicted it would warrant a conviction of
the person charged with an offense by the judge or jury trying
the offense." State v. Parks, 437 P.2d 642, 644 (Alaska 1968)
(footnote omitted).
When Williams' second indictment was dismissed, five
charges remained, each based on the allegation that Williams had
unlawfully engaged in sexual contact by touching either A.A.'s or
R.M.'s testicles. Of the various grounds Judge Curda had relied
on in dismissing the original indictment, only one remained
pertinent when he dismissed the second indictment: that "[t]here
was not sufficient evidence of sexual contact or sexual intent"
to support the charges.
"Sexual contact" is defined in AS
11.81.900(b)(53)(A)(i) (formerly AS 11.81.900(b)(52)(A)(i)), to
include "knowingly touching . . . the victim's genitals". The
same statute specifies, however, that sexual contact "does not
include acts that may reasonably be construed to be normal
caretaker responsibilities for a child, interactions with a
child, or affection for a child; or [acts] performed for the
purpose of administering a recognized and lawful form of
treatment . . . ." AS 11.81.900(b)(53)(B)(i) & (ii).
Both A.A. and R.M. testified before the second grand
jury that Williams touched their testicles. Although neither
child stated specifically that the touching was knowing, rather
than accidental, reasonable minded persons, viewing the totality
of the evidence in the light most favorable to the state, could
certainly draw this conclusion.
Williams' claim that the evidence did not establish
sexual arousal or gratification on his part is beside the point,
since "specific intent is no longer an element of sexual abuse of
a minor." Boggess v. State, 783 P.2d 1173, 1177 (Alaska App.
1989). See also Van Meter v. State, 743 P.2d 385, 389-91 (Alaska
App. 1987).
It is conceivable, of course, as Williams argues, that
a jury considering the evidence after Williams has been afforded
an opportunity to explain or contradict the charges at trial
might find a reasonable doubt as to whether the alleged touchings
occurred accidentally or amounted to acts within the scope of
normal caretaker functions. Unexplained and uncontradicted,
however, and viewed in the light most favorable to the state, the
grand jury evidence would permit reasonable jurors to find that
Williams had knowingly touched A.A.'s and R.M.'s testicles, and
that these touchings were unrelated to any normal caretaker
function he was authorized to perform.
Nothing more was required for the grand jury evidence
to be sufficient to establish "sexual contact" as defined in AS
11.81.900(b)(53). Since sufficient evidence was presented to
Williams' second grand jury to support the disputed charges, we
conclude that the superior court erred in ordering Williams'
second indictment dismissed.8
CONCLUSION
For the foregoing reasons, the order of dismissal is
REVERSED.
_______________________________
1. Judge Curda's order of dismissal, the parties'
pleadings below, their briefs on appeal, and the various
authorities cited therein, refer alternatively to collateral
estoppel and res judicata. In the context of the present case,
any distinction between these two doctrines is immaterial; for
the sake of simplicity, we refer hereinafter only to collateral
estoppel.
2. Williams also admitted that he had spanked other boys.
Although he declined to name anyone, he stated that he would be
willing to admit or deny individual spankings if asked about
specific people.
3. Both the state and Williams also devote considerable
effort to argument on the issue of whether sufficient evidence
was presented to establish physical injury, a necessary element
of the fourth-degree assault charges that were initially included
in the second indictment. Since the state dismissed the fourth-
degree assault charges shortly after the second indictment was
issued, and since physical injury is not a necessary element of
any of the charges that remained pending when Judge Curda
dismissed the second indictment, the issue of physical injury now
seems moot. It is not clear to us why the parties have persisted
in arguing the physical injury issue, unless, perhaps, it is by
oversight. In any event, as matters currently stand, we see no
need to address it.
4. In contrast to the rule that applies when the court
dismisses an indictment that has already been issued, if the
grand jury itself determines that insufficient evidence has been
presented and, on that basis, issues a no true bill, then the
state is barred from seeking to reindict unless it applies for
and secures the approval of the superior court. See AS
12.40.080.
5. See also Black's Law Dictionary 1037 (4th ed. 1979),
which defines "plea in bar" as: "A plea which goes to bar the
plaintiff's action; that is, to defeat it absolutely and
entirely."
6. We do not mean to suggest that the state was entitled
to receive, or that the superior court was required to give,
plenary reconsideration to the issues it had already decided in
the context of the first indictment. As we indicated in our
order of April 13, 1992, Judge Curda's decision to dismiss the
second indictment without fully reexamining the merits of the
state's legal claims might have been justified as an application
of the law of the case doctrine. Cf. Wolff v. Arctic Bowl, 560
P.2d 758 (Alaska 1977). As Williams recognizes, however, the
distinction between collateral estoppel and law of the case has
procedural significance. As an application of the law of the
case doctrine -- which is a rule of judicial convenience rather
than a rule of law, id. at 763 n.5, -- the dismissal order would
technically amount to a determination of the insufficiency of the
second indictment, allowing the state a direct appeal on the
issue of insufficiency. If the order were based on a proper
application of the collateral estoppel doctrine -- a rule of law
rather than a rule of judicial convenience -- the dismissal would
technically have been entered without litigating the issue of
sufficiency, and the sufficiency of the evidence presented to the
second grand jury would thus not properly be open to appellate
review.
7. Since the superior court did not purport to rule on the
sufficiency of the evidence before the second grand jury, we
could conceivably decline to address the issue, remanding this
case to the trial court to decide it in the first instance.
However, before ordering the second indictment dismissed, Judge
Curda determined that the evidence on the issue of sexual contact
was substantially identical to evidence that was presented to the
first grand jury. The parties do not dispute his finding, and
our own examination of the grand jury transcripts establishes
that it is accurate. Since Judge Curda has already ruled that
the evidence presented to the first grand jury was insufficient,
he would obviously be likely to reach the same conclusion with
respect to the sufficiency of evidence presented to the second
grand jury. Under the circumstances, remanding the case would
amount to little more than a hollow gesture. Since sufficiency
of the evidence is primarily a question of law, rather than a
question of fact, and since both parties have addressed the
substantive issue in their briefs, we believe it best to address
it at this juncture.
8. Williams has additionally argued that we should uphold
Judge Curda's dismissal order on the ground that the charges are
vague and overbroad, as well as for violation of the speedy trial
rule. See Alaska Criminal Rule 45. Neither of these issues,
however, falls within the scope of the state's appeal. Moreover,
Williams never raised the speedy trial issue below; and although
Williams did raise the issue of vagueness and overbreadth in his
motion to dismiss the first indictment, Judge Curda did not
decide it, and Williams did not reassert the issue in moving to
dismiss the second indictment. Under the circumstances, we find
that neither issue is ripe for decision here.
