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THE COURT OF APPEALS OF THE STATE OF ALASKA
KENNETH C. JACKSON, )
) Court of Appeals No. A-4442
Appellant, ) Trial Court No. 3AN-S91-804CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1392 - March 3, 1995]
Appellee. )
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Milton M. Souter,
Judge.
Appearances: Rex Lamont Butler, Anchorage,
for Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Kenneth C. Jackson was convicted by a jury of sexual
assault in the second degree for engaging in sexual penetration
with a mentally incapable person. AS 11.41.420(a)(3)(A).
Superior Court Judge Milton M. Souter sentenced Jackson to a term
of seven years with two years suspended. Jackson appeals,
contending that the evidence at trial was insufficient to
establish that his alleged victim was mentally incapable or that
he knew of her incapacity;
Jackson alternatively maintains that the statutory definition of
"mentally incapable" is unconstitutionally vague. Jackson
separately claims that his sentence is excessive, arguing that
the trial court erred in rejecting two proposed mitigating
factors. We affirm.
In August of 1990, Jackson had sexual intercourse with
T.Y.J., a twenty-six-year-old mentally retarded woman who has an
I.Q. of approximately 51-55. Several months later, a doctor
informed T.Y.J.'s mother that T.Y.J. was pregnant. T.Y.J.
identified Jackson as the man who had impregnated her; she stated
that she had not wanted to engage in sexual intercourse with
Jackson, but that Jackson had threatened to hit her if she
refused. Upon being interviewed by the police, Jackson
acknowledged having had sexual intercourse with T.Y.J. but
claimed that the intercourse had been consensual and that he had
been unaware of T.Y.J.'s mental incapacity.
Jackson was subsequently charged with and tried for one
count of first-degree sexual assault (based on an allegation of
nonconsensual sexual intercourse) and one count of second-degree
sexual assault (based on an allegation of T.Y.J.'s mental
incapacity). Jackson twice moved for a judgment of acquittal as
to the second-degree sexual assault charge, claiming insufficient
evidence. The trial court denied the motions. The jury
acquitted Jackson of first-degree sexual assault but convicted
him of the second-degree charge.
The second-degree sexual assault charge alleged a
violation of AS 11.41.420(a)(3)(A). This provision defines
second-degree sexual assault to include an act of sexual
penetration "with a person who the offender knows is . . .
mentally incapable[.]" At trial, the state presented no expert
testimony to prove that T.Y.J. was "mentally incapable."
Instead, it relied on the testimony of T.Y.J.'s mother and on the
jury's ability to observe the manner in which T.Y.J. spoke and
acted, both when she testified at trial and during a pretrial
police interview, a videotape of which was introduced at trial.
Jackson argues on appeal, as he did below, that, absent expert
testimony, there was insufficient evidence to support a finding
that T.Y.J. was "mentally incapable" within the meaning of the
second-degree sexual assault statute.
This argument is unpersuasive. T.Y.J.'s personal
appearance before the jury and her videotaped pretrial interview
with the police provided compelling evidence of her incapacity.
In her testimony and pretrial interview, T.Y.J. had difficulty
responding to simple questions and often paused for lengthy
periods before answering; she gave her answers in at most a few
words. At the outset of her trial testimony, T.Y.J. said she did
not know the meaning of truth but did know the difference between
right and wrong. Even a cursory viewing of the videotaped police
interview suffices to establish that T.Y.J.'s impairment is both
profound and obvious.
T.Y.J.'s responses to questions concerning sexual
matters confirmed her limited knowledge. She displayed only a
rudimentary awareness of the mechanics of sexual intercourse.
She was aware that babies came from "sex": that a baby comes
"[o]ut of my stomach" and that it got in her stomach "[f]rom just
having sex." In a very basic way, T.Y.J. could demonstrate
"sex," using a male and female doll.1 However, T.Y.J. did not
understand birth control, how to prevent pregnancy, or what
sexually transmitted diseases are or how to prevent them.2 She
did not know the meaning of words such as IUD, condom, rubber,
syphilis, gonorrhea, or AIDS. Apart from her awareness that
pregnancy resulted in the birth of a baby, T.Y.J. did not
understand any of the practical consequences or potential
complications of pregnancy.
In addition to observing and listening to T.Y.J., the
jury heard extensive testimony from T.Y.J.'s mother, whose
lifelong relationship to T.Y.J. and intimate knowledge of her
daughter's condition made her peculiarly well qualified to give
lay testimony.3 T.Y.J.'s mother testified that T.Y.J. had been
diagnosed as mentally retarded shortly after birth; as a twenty-
six-year-old adult, T.Y.J. functioned at the level of a
kindergartner and was intellectually less advanced than many of
the three- to five-year-olds that T.Y.J.'s mother supervised as a
child-care provider. According to T.Y.J.'s mother, although
T.Y.J. had attended special education classes and had completed
high school, she could not do simple arithmetic and lacked all
but the most rudimentary reading and writing skills: T.Y.J. could
write nothing except her name; and apart from being able to
recognize her address, telephone number, and certain "survival
words" such as an exit or stop sign or 911, she was unable to
read.
T.Y.J.'s mother recounted that, from 1982 until approxi
mately April of 1989, T.Y.J. had lived in Hope Cottage, a residen
tial program providing for the special needs of mentally or
physically handicapped persons. While there, T.Y.J. had been
provided with sex education. Because of her limited intellectual
ability, however, T.Y.J. did not succeed at Hope Cottage and left
the program. She moved back to her mother's home, and her mother
was formally appointed as T.Y.J.'s legal guardian. Since
returning home, T.Y.J. had been trained to ride the bus from her
house to Wendy's, where she worked cleaning tables and trays.
She also regularly went to ARCA, a recreation and learning center
for people with special needs. As a result of her condition,
T.Y.J. received social security and veterans administration
disability benefits.
By the time of trial, T.Y.J. had given birth to the
child she had conceived with Jackson. T.Y.J.'s mother told the
jury that T.Y.J. was unable to care for her child by herself,
could not measure the baby formula, and did not know what
temperature to fix the water for a bath. T.Y.J. was not able to
ensure that her baby received proper medical care and did not
understand about diseases. Although capable of dressing her baby,
T.Y.J. often dressed the child inappropriately for the weather.
T.Y.J. did not understand that the baby's needs came before her
own.
As we have already indicated, Alaska's second-degree
sexual assault statute prohibits sexual penetration "with a
person who the offender knows is . . . mentally incapable[.]" A
person is "mentally incapable" of consenting to an act of sexual
penetration when the victim suffers from "a mental disease or
defect that renders the person incapable of understanding the
nature or consequences of the person's conduct, including the
potential for harm to that person[.]" AS 11.41.470(2).4
Although Alaska courts have never decided whether
expert testimony must be presented to prove a victim's mental
incapacity in a second-degree sexual assault prosecution, other
jurisdictions have held that no such requirement exists:
Evidence which establishes a rape
victim's inability to understand the nature
and consequences of sexual intercourse is not
the kind of technical evidence which requires
medical testimony to decipher. . . . [A]
witness' comprehension of the basic
consequences of his or her actions can be
proved or disproved from his or her testimony
and testimony as to behavior.
State v. Summers, 853 P.2d 953, 956 (Wash. App. 1993).
Sufficient evidence of incapacity may be based on the jury's
assessment of the victim's testimony and demeanor:
The most striking evidence in support of
the trial court's determination that there
was substantial evidence to support the
jury's finding that the woman could not
legally consent to sexual intercourse with
[the defendant] was the appearance of the
victim herself. . . . The trial court found
her answers to be slow and short; her facial
expressions consisted of a "sagging jaw,
mouth open . . . she appeared to stare off
into space at times."
State v. Soura, 796 P.2d 109, 115 (Idaho 1990). See also Wootton
v. State, 799 S.W.2d 499, 501 (Tex. App. 1990). See generally K.
H. Larsen, Annotation, Rape or Similar Offense Based on
Intercourse with Woman Who Is Allegedly Mentally Deficient, 31
A.L.R.3d 1227, 1259-64 (1970 & Supp. 1994).
T.Y.J.'s rudimentary understanding of the mechanics of
sexual intercourse plainly fell short of the kind of awareness
contemplated by the statutory definition. Other jurisdictions
with statutes similar to Alaska's agree that the victim's mere
understanding of the physical act of sex is not equivalent to an
appreciation of the nature and consequences of the victim's
conduct:
Although the victim . . . apparently
knew what an act of sexual intercourse
entails, had some understanding of the
physical nature of sexual activity, and knew
"where babies come from," that is not the end
of the inquiry of whether . . . the victim is
capable of "understanding the act, its nature
and possible consequences."
People v. McMullen, 414 N.E.2d 214, 217 (Ill. App.
1980)(citations omitted); see also People v. Boggs, 290 P. 618,
619 (Cal. App. 1930); State v. Gonsalves, 706 P.2d 1333, 1338
(Haw. App. 1985), overruled on other grounds, State v. Kelekolio,
849 P.2d 58, 80 n.23 (Haw. 1993); People v. Easley, 364 N.E.2d
1328, 1332 (N.Y. 1977); State v. Fox, 31 N.W.2d 451, 455 (S.D.
1948); Summers, 853 P.2d at 957.
To appreciate the nature and consequences of engaging
in an act of sexual penetration, the victim must have the
capacity to understand the full range of ordinary and foreseeable
social, medical, and practical consequences that the act entails:
Without the ability to comprehend these
factors, the victim cannot be said to be
capable of appraising the nature of the act.
She would see only the shiny wrappings on
Pandora's box, and none of the contents. She
would be truly, in the old-fashioned phrase,
taken advantage of.
Gonsalves, 706 P.2d at 1338 (footnote omitted).
In the present case, there was an abundant evidentiary
basis to support a jury finding that T.Y.J. did not understand
the nature and consequences of engaging in an act of sexual
intercourse. Jackson nevertheless argues that the evidence
presented at trial, as outlined above, showed merely that T.Y.J.
did not understand about sex and pregnancy, not that she lacked
the capacity to understand. Since the statutory definition of
"mentally incapable" focuses on what the victim is capable of
knowing rather than on the victim's actual knowledge, Jackson
claims that expert testimony should have been required to provide
the jury with sufficient evidence to establish that T.Y.J. was
incapable of understanding the consequences of sexual
intercourse.
A person's capacity to understand something, however,
is a factual issue for the jury and, like other facts, may
properly be established by circumstantial evidence. More
particularly, evidence explaining what a person knows and how the
person came to know it may well give rise to an inference of
incapacity.
From the evidence presented at trial, it appears that
T.Y.J. possessed no more than a childlike awareness of the nature
and consequences of sexual intercourse and did not know how to
care for an infant. Given that T.Y.J. was twenty-seven years of
age, had completed high school, had received sex education
training, had resided for years in a residential program for
persons with special needs, and had recently given birth to a
child, the jury could readily infer that her lack of knowledge
reflected a lack of capacity to learn, and not just a failure to
become informed.
In determining whether sufficient evidence was
presented at trial to support a conviction, we must view the
record and the inferences arising therefrom in the light most
favorable to the state. Bush v. State, 397 P.2d 616 (Alaska
1964); Alam v. State, 776 P.2d 345, 347 (Alaska App. 1989). We
must find the evidence sufficient if the record, so viewed, would
support "a conclusion by a reasonable mind that there was no
reasonable doubt about the defendant's guilt." Alam, 776 P.2d at
347; Ratliff v. State, 798 P.2d 1288, 1290 (Alaska App. 1990).
Viewing the evidence in the light most favorable to the state, we
find that there was ample evidence to support a reasonable
conclusion that the state met its burden of proving beyond a
reasonable doubt that T.Y.J. was mentally incapable of
meaningfully consenting to sexual intercourse.
Jackson separately argues that insufficient evidence
was presented at trial to establish that he acted with the
requisite culpable mental state. Alaska's second-degree sexual
assault statute requires actual knowledge of the victim's mental
incapacity; a conviction under AS 11.41.420(a)(3)(A) is
permissible only if the offender "engages in sexual penetration
with a person who the offender knows is . . . mentally
incapable[.]" Jackson contends that, even if the jury could
properly have concluded that T.Y.J. was mentally incapable, it
could not have found that Jackson actually knew of her condition.
To prove that Jackson knew of T.Y.J.'s incapacity,
however, the state was not required to demonstrate absolute
certainty on Jackson's part. A person acts "knowingly" when the
"person is aware that the conduct is of that nature or that the
circumstance exists"; "knowledge is established if a person is
aware of a substantial probability of its existence." AS
11.81.900(a)(2). Moreover, knowledge is ordinarily proven by
circumstantial evidence, since it can seldom be proven directly.
"Under normal circumstances a mental incapacity to consent would
be apparent in ordinary social intercourse." Keim v. State, 777
P.2d 278, 280 (Kan. App. 1989).
There is substantial circumstantial evidence in the
trial record to support an inference that Jackson acted with
awareness of a substantial probability that T.Y.J. was mentally
incapable. As we have already indicated, the videotaped police
interview alone makes it obvious that T.Y.J. is profoundly
impaired. After viewing the videotaped interview and hearing
testimony from T.Y.J. and T.Y.J.'s mother, the jury could
properly have concluded that T.Y.J.'s incapacity would be
apparent even to a person who had only brief and casual contact
with her. Moreover, the state presented evidence indicating that
Jackson was acquainted with T.Y.J. before the incident that led
to his conviction: Jackson acknowledged that he had previously
met T.Y.J.'s brother and sister, and T.Y.J. stated that when she
first met Jackson on the day of the alleged assault, Jackson
called her by her first name.
Viewed in the light most favorable to the state, these
circumstances easily might have led reasonable jurors to conclude
beyond a reasonable doubt that Jackson acted with knowledge that
T.Y.J. was mentally incapable. A case in point is People v.
Farrokhi, 414 N.E.2d 921 (Ill. App. 1980). Farrokhi was
convicted of sexual assault for having sexual intercourse with a
mentally retarded victim. He claimed that he had no knowledge of
the victim's mental condition because he spent less than one hour
with the victim and conversed with her very little before
engaging in intercourse. Id. at 926. At trial, the victim
testified, not in complete sentences, but in two- or three-word
phrases. The victim had a mental age between four and six years,
and though she had fourteen years of schooling, could not read or
write (other than writing her first name). Id.
On appeal, noting that a defendant's knowledge is
"ordinarily" established by circumstantial evidence, the court
found the evidence sufficient to establish that Farrokhi acted
knowingly. Farrokhi, 414 N.E.2d at 926. Specifically, the court
found that Farrokhi had "sufficient opportunity to observe the
victim's severely limited mental capabilities and could not have
avoided the obvious nature of her mental deficiency[.]" Id. The
court concluded that it was "highly unlikely" that the defendant
did not discover the victim's mental deficiency, "particularly
where he was her sole companion during this time." Id.
In summary, we find no lack of evidence on the issues
of T.Y.J.'s mental incapacity or Jackson's knowledge of that
incapacity and we conclude that the superior court did not err in
denying Jackson's motions for acquittal.
Jackson alternatively claims that, even if we find the
evidence sufficient to support his conviction, we should declare
the second-degree sexual abuse statute unconstitutional because
Alaska's definitions of "mentally incapable" and "mental disease
or defect" are vague and overbroad.5
A statute fails to provide adequate notice "when it is
so imprecise that ordinary persons of common intelligence are
left to guess at its meaning and are apt to differ as to its
scope." Konrad v. State, 763 P.2d 1369, 1379 (Alaska App. 1988).
Jackson maintains that persons of common intelligence must
necessarily guess at the meaning of such broad statutory phrases
as "the nature and consequences of the person's conduct,
including the potential for harm,"6 "substantially impairs
judgment," "significantly below average general intellectual
functioning," and "the ordinary demands of life."7 Jackson
reasons that in place of such general terms a properly drafted
statute should list specific objective criteria to notify the
public of "the line which must not be crossed." He contends that
the second-degree sexual assault statute, as written, places
every Alaskan at risk of criminal prosecution whenever they
engage in sexual activity with one of "less than average intelli
gence."
However, mathematical precision is unnecessary to
satisfy the requirement of fair notice; some imprecision in
definitions is unavoidable. Panther v. State, 780 P.2d 386, 390
(Alaska App. 1989). The lack of a bright-line test will not
render a statute unconstitutionally vague if, "[a]lthough
difficult to define concretely, the statutory requirement . . .
is readily comprehensible." Id. at 391. As this court noted
recently in De Nardo v. State, 819 P.2d 903 (Alaska App. 1991):
the fact that people can, in good faith,
litigate the meaning of a statute does not
necessarily (or even usually) mean that the
statute is so indefinite as to be unconstitu
tional. The question is whether the
statute's meaning is unresolvably confused or
ambiguous after it has been subjected to
legal analysis. If study of the statute's
wording, examination of its legislative
history, and reference to other relevant
statutes and case law makes the statute's
meaning clear, then the statute is
constitutional.
Id. at 908 (emphasis in original) (citations omitted).
In Nash v. United States, 229 U.S. 373, 377 (1913), the
United States Supreme Court observed: "[T]he law is full of
instances where a man's fate depends on his estimating rightly,
that is, as the jury subsequently estimates it, some matter of
degree." In a similar vein, the Alaska Supreme Court has stated
that "[t]here are many instances in which the law resorts to the
general understanding of the community as the standard of legal
result." Harris v. State, 457 P.2d 638, 647 (Alaska 1969). The
court in Harris indicated that the use of such a standard would
run afoul of the requirement of fair notice only when "the
conduct to be prohibited by a criminal statute is capable of
objective definition by language descriptive of precise physical
acts and events[.]" Id.
Applying these principles to the case at hand, we find
no lack of adequate notice. The challenged statutory definitions
of mental incapacity and mental disease or defect involve
inherently abstract concepts that hardly lend themselves to
"objective definition by language descriptive of precise physical
acts."8 Id. Moreover, there is nothing unfamiliar or offensive
in the use of broad terms such as those found in the statutory
definition of "mentally incapable."9
Furthermore, the culpable mental state requirement of
Alaska's second-degree sexual assault statute provides a measure
of protection against potential vagueness in the statutory
terminology. Because AS 11.41.420(a)(3) obligated the state to
prove that Jackson acted knowingly with regard to T.Y.J.'s mental
incapacity, the jury was required to find beyond a reasonable
doubt that Jackson himself actually understood that T.Y.J. was
mentally incapable. Any inherent uncertainty in the definition
of "mentally incapable" would thus have worked to Jackson's
advantage, for it would have tended to preclude him from knowing
that T.Y.J. was mentally incapable. Cf. Jones v. Anchorage, 754
P.2d 275, 278 (Alaska App. 1988)(ordinance prohibiting harassing
conduct towards others not vague when prosecution required to
prove that accused acted with specific intent to harass).
Finally, it is well settled that a statute whose
application may be uncertain in marginal cases need not be
declared invalid "if the offense charged falls squarely within
its prohibitions[.]" Summers v. Anchorage, 589 P.2d 863, 867
(Alaska 1979). As we have indicated earlier in this opinion,
Jackson's case is not a close one. The profound nature of
T.Y.J.'s impairment places her case squarely within the statutory
definition of "mentally incapable"; the obviousness of the
impairment provides firm evidentiary footing for the conclusion
that Jackson acted knowingly with respect to T.Y.J.'s incapacity.
Other jurisdictions with criminal statutes similar to
Alaska's second-degree sexual assault law have not hesitated in
rejecting constitutional challenges based on claims of vagueness.
In State v. Degrenier, 424 A.2d 412, 413 (N.H. 1980), the New
Hampshire Supreme Court upheld a statute criminalizing sexual
penetration with a victim who "is mentally defective and the
actor knows or has reason to know that the victim is mentally
defective." Although the court found that the statute failed to
make clear the degree of mental defectiveness required to
establish a conviction, it nevertheless concluded that the
statute was sufficient "to give the defendant fair warning that,
by engaging in sexual intercourse with one who he knows or has
reason to know is mentally defective in any recognizable and
appreciable degree, he is violating the statute." Id.
Similarly, in Keim v. State, 777 P.2d at 279, 280-81,
the Kansas Supreme Court upheld a law prohibiting sexual
intercourse "when the victim is incapable of giving consent
because of mental deficiency or disease, which condition was
known by the offender[,]" finding that the statutory wording
sufficiently warns a person of common intel
ligence that . . . sexual intercourse with
one who is mentally handicapped to a degree
that he or she cannot understand the nature
and consequences of engaging in the act is
prohibited. Under normal circumstances a
mental incapacity to consent would be
apparent in ordinary social intercourse. The
fact that further questioning may be
necessary in some cases to determine if one's
partner fully understands the nature and
consequences of sexual intercourse does not
render the statute unconstitutional.
In short, the disputed statutory language in this case
is not "so imprecise that ordinary persons of common intelligence
are left to guess at its meaning and are apt to differ as to its
scope." Konrad, 763 P.2d at 1379. The trial court did not err
in rejecting Jackson's claim of vagueness and overbreadth.
Jackson next contends that the trial court erred in
instructing the jury on proof beyond a reasonable doubt. Before
the completion of trial, Jackson submitted a reasonable doubt
instruction his counsel had previously used in a federal case;
the trial court declined to give the proposed instruction,
relying instead on the reasonable doubt instruction it routinely
used. Jackson claims that his proposed instruction should have
been given.10 He complains that certain language in the
instruction actually given is potentially misleading and
difficult to understand.11
The trial court must "instruct the jury on all matters
of law which it considers necessary for the jury's
information[.]" Alaska Criminal Rule 30(b). In keeping with
this rule, the defendant is entitled to have the jury instructed
on the defense theory of the case; ordinarily, however, when a
standard instruction correctly and completely states the law on a
point, the trial court will not abuse its discretion in rejecting
a proposed instruction tailored to the facts of the case at
issue. Stoneking v. State, 800 P.2d 949, 950 (Alaska App. 1990).
In the present case, the reasonable doubt instruction
actually used below is both complete and legally sound; Jackson's
arguments concerning its deficiencies are strained, at best.12
Moreover, Jackson voices these complaints for the first time on
appeal. At trial, he did not object to the specific wording of
the trial court's reasonable doubt instruction; in fact, he did
not object to the instruction at all. He merely submitted his
own proposed instruction, stated that he preferred it, and
requested that it be given. We find no abuse of discretion in
the trial court's rejection of Jackson's proposed instruction.
Jackson lastly appeals his sentence. Sexual assault in
the second degree is a class B felony, for which the maximum term
of imprisonment is ten years. AS 11.41.420(b); AS 12.55.125(d).
As a second felony offender, Jackson was subject to a presumptive
term of four years. AS 12.55.125(d)(1). Judge Souter found one
aggravating factor applicable to Jackson's case: that Jackson was
on felony probation at the time of the sexual assault, AS
12.55.155(c)(20). The judge rejected two mitigating factors
proposed by Jackson: that his conduct was among the least serious
included in the definition of the offense, AS 12.55.155(d)(9),
and that the harm caused by his criminal conduct was consistently
minor and did not warrant the imposition of a substantial period
of incarceration, AS 12.55.155(d)(13). Judge Souter sentenced
Jackson to an adjusted presumptive term of seven years with two
years suspended and three years' probation.
On appeal, Jackson argues only that the trial court
erred in rejecting his proposed mitigating factors. This court
must uphold the sentencing court's findings with respect to the
accused's proof of a proposed mitigating factor unless the
findings are clearly erroneous. Juneby v. State, 641 P.2d 823,
834 & n.17 (Alaska App. 1982), modified on other grounds, 665
P.2d 30 (Alaska App. 1983). Here, the record supports the
conclusion that the sentencing court was not clearly erroneous in
rejecting either proposed factor.
Jackson's argument that his conduct was among the least
serious included in the definition of second-degree sexual
assault depends on two related premises: first, that Jackson was
convicted based on mere recklessness as to T.Y.J.'s mental
incapacity; second, that reckless conduct is necessarily less
serious than knowing or intentional conduct. Both premises are
mistaken. As required by the express language of AS
11.41.420(a)(3)(A), Jackson was convicted of acting knowingly,
not recklessly, with respect to T.Y.J.'s mental incapacity.
Moreover, in construing the least serious conduct mitigating
factor, this court has consistently taken the position that
"reckless conduct is not per se less serious than knowing or
intentional conduct." Adams v. State, 718 P.2d 164, 167 (Alaska
App. 1986)(citing New v. State, 714 P.2d 378, 382 n.2 (Alaska
App. 1986); and Walsh v. State, 677 P.2d 912, 916-18 (Alaska App.
1984)).
In declining to find that Jackson's conduct was among
the least serious included in the definition of the offense,
Judge Souter observed:
It's a full act of sexual intercourse. It
went through to full completion. There is
absolutely nothing mitigated about this
situation. This is exactly the type of
conduct that the statute is directly aimed
at.
This finding is not clearly erroneous.
Jackson's claim of error as to mitigating factor
(d)(13) is equally flawed. To establish this factor, it was
incumbent on Jackson to prove that the harm caused by his current
and past acts of criminal misconduct has been consistently minor
and was inconsistent with a substantial term of imprisonment.
Our conclusion that the sentencing court was not clearly mistaken
in declining to find Jackson's current conduct among the least
serious in its class defeats Jackson's claim that the harm caused
by his current conduct is minor. In addition, the circumstances
surrounding Jackson's prior felony conviction -- a third-degree
assault -- appear to be far from minor.13 We find no clear error
in Judge Souter's rejection of this proposed factor.
Having independently reviewed the entire sentencing
record, we conclude that the sentence imposed below was not
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
The conviction and sentence are AFFIRMED.
_______________________________
1. During T.Y.J.'s pretrial interview, the police made
available to T.Y.J. anatomically correct male and female dolls
that were dressed in removable clothing. After fully explaining
the dolls, the police asked T.Y.J. if she could use them to
demonstrate "sex." She answered that she could. T.Y.J.
initially took only the male doll and had to be reminded that she
would also need the female. In her first attempt to demonstrate
sex, T.Y.J. simply laid the clothed male doll on top of the
clothed female.
2. In fact, T.Y.J. did not understand what an ordinary
disease is.
3. Cf. Alaska Rule of Evidence 701 (allowing opinion
testimony by lay witnesses when "rationally based on the
perception of the witness and helpful to a clear understanding of
[the witness'] testimony." For a similar rule applied in a
context analogous to that of the present case, see also Globe
American Casualty Company v. Lyons, 641 P.2d 251, 255 (Ariz. App.
1982) (requiring, as a prerequisite to admission of lay testimony
on the issue of insanity, "an intimacy between the witness and
the defendant of such a character and duration that the witness'
testimony is of probative value" on the issue).
By a curious twist of logic, Jackson relies on Globe
American for the proposition that T.Y.J.'s presence before the
jury and the testimony of T.Y.J.'s mother were insufficient to
support a finding of incapacity in this case. Jackson attempts
to apply the Globe American requirement of "intimate" knowledge
by a lay witness, not to the lay witness in his case -- T.Y.J.'s
mother -- but rather to the jury itself. Jackson posits that the
jury's brief exposure to T.Y.J. and to the testimony of T.Y.J.'s
mother would be insufficient to amount to "intimacy" between the
jurors and T.Y.J. "of such a character and duration" as to
qualify individual jurors to testify as lay witnesses concerning
T.Y.J.'s incapacity. Implicitly likening a jury verdict to a lay
witness' opinion, Jackson reasons that the jury could not have
been qualified to render a verdict on the issue of T.Y.J.'s
incapacity based on the evidence it heard; from this, Jackson
concludes that expert testimony should have been required.
Jackson's reasoning is seriously flawed. Parallel
logic would compel the conclusion that Jackson's jury would not
have been qualified to decide the issue of T.Y.J.'s incapacity
even if expert testimony had been presented: individual jurors,
lacking in expertise other than that presented in the form of
expert testimony at trial, would hardly have been qualified to
testify as experts on the issue of T.Y.J.'s condition, and so,
under Jackson's theory, could not have returned a meaningful
verdict on the issue. In sum, a sufficient answer to Jackson's
argument is that a lay witness' testimony and a jury's verdict
are two different things.
4. "Mental disease or defect" is, in turn, defined in AS
12.47.130(3) as:
a disorder of thought or mood that
substantially impairs judgment, behavior,
capacity to recognize reality, or ability to
cope with the ordinary demands of life;
"mental disease or defect" also includes
mental retardation, which means a
significantly below average general
intellectual functioning that impairs a
person's ability to adapt to or cope with the
ordinary demands of life.
5. A claim of unconstitutionality based on vagueness and
overbreadth potentially involves three distinct components: (1)
is the statute "so imprecisely drawn and overbroad that it
`chills' the exercise of first amendment rights"; (2) does the
statute "give adequate notice of the conduct that is prohibited";
and (3) does the statute's "imprecise language encourage[]
arbitrary enforcement by allowing prosecuting authorities undue
discretion[.]" Summers v. Anchorage, 589 P.2d 863, 866-67
(Alaska 1979). Jackson's claim involves only the second
component, the adequate notice requirement. Jackson does not
argue that his first amendment rights are implicated. See
Sanuita v. Common Laborer's & Hod Carriers Union, 402 P.2d 199
(Alaska 1965)(first amendment issues mentioned only casually will
not be considered on appeal). Although Jackson summarily asserts
that the vague statutory definitions permit arbitrary
enforcement, he fails to establish any history of such
enforcement. See Summers at 868 (statute will not be invalidated
based on potential for arbitrary enforcement absent a history of
such enforcement).
6. The phrase is included in the statutory definition of
"mentally incapable," AS 11.41.470(2).
7. These phrases are contained in the statutory definition
of "mental disease or defect," AS 12.47.130(3).
8. As Judge Souter said in rejecting Jackson's claim of
vagueness, the statutory definitions appear to be "as clear and
unambiguous as human language will allow."
9. Several examples will suffice to illustrate the point.
In Stock v. State, 526 P.2d 3, 10 (Alaska 1974), the Alaska
Supreme Court held that criminal liability could properly be
defined to include "potentially" harmful conduct, provided that
the state proved "that the threatened injury was foreseeable to a
reasonable man in the position of the defendant at the time of
the act or omission." The statutory definition of "recklessly,"
see AS 11.81.900(a)(3), is applied as a threshold of criminal
liability throughout Alaska's revised criminal code; this
definition employs terms such as "substantial and unjustifiable
risk," and "gross deviation from the standard of conduct that a
reasonable person would observe in the situation[.]" And the
definition of insanity, see AS 12.47.010(a), which has
traditionally been applied to absolve defendants of criminal
responsibility, hinges criminality on the defendant's ability "to
appreciate the nature and quality of [the] conduct" constituting
the offense.
10. Jackson's proposed instruction read:
Few things in this world can be known with
absolute certainty, so the law does not
require proof even in a criminal trial which
overcomes every possible doubt and
establishes the facts to a certainty. But a
belief that a person may have done something,
or even that he probably did something, is
not enough to support a conviction.
11. The reasonable doubt instruction actually given read:
The distinguishing features of a
criminal trial are what are known in the
language of the law as the presumption of
innocence and the burden of proof beyond a
reasonable doubt. The law presumes a
defendant to be innocent of crime. Thus, a
defendant, although accused, begins the trial
with a clean slate -- with no evidence
favoring conviction. The presumption of
innocence alone is sufficient to acquit a
defendant, unless and until you are satisfied
beyond a reasonable doubt of the defendant's
guilt, after careful and impartial consider
ation of all the evidence in the case.
This last-mentioned requirement, that
you be satisfied beyond a reasonable doubt of
defendant's guilt, is what is called the
burden of proof. It [is] not required that
the prosecution prove guilt beyond all
possible doubt, for it is rarely possible to
prove anything to an absolute certainty.
Rather, the test is one of reasonable doubt.
A reasonable doubt is a doubt based upon
reason and common sense. Proof beyond a
reasonable doubt must be proof of such a
convincing character that, after careful
consideration, you would be willing to rely
and act upon it without hesitation in your
important affairs. A defendant is never to
be convicted on mere suspicion or conjecture.
12. Jackson centers his argument on two aspects of the
trial court's instruction. The first involves the instruction's
admonition that the jury was to presume innocence "unless and
until" it was satisfied of guilt beyond a reasonable doubt.
Jackson maintains that use of the word "until" in the phrase
"unless and until" implied that, at some point, the jury was
expected to find proof beyond a reasonable doubt. The second
aspect of Jackson's argument involves language advising the jury
that "[a] defendant is never to be convicted on mere suspicion or
conjecture." Jackson argues that words like "suspicion" and
"conjecture" are too abstract and vague to be understood by
ordinary jurors.
13. It appears from the record that Jackson's prior third-
degree assault conviction was based on an incident in which he
lay in wait for his two victims, beat one on the shoulder with a
baseball bat, shot the other in the rib cage, and smashed their
vehicles with the bat. The only indication of mitigation is that
Jackson's assault had evidently been provoked by the prior
conduct of his victims.
To establish, despite these circumstances, that his
prior assault was minor in nature, Jackson relies exclusively on
the fact that he received a suspended imposition of sentence for
that offense. Characterizing the suspended imposition of
sentence as a finding by the original sentencing court of least
serious conduct, Jackson argues that this finding should have
been binding on Judge Souter and is binding on this court.
However, a sentencing court's decision to give a suspended
imposition of sentence to a first offender can as readily reflect
the court's view of the offender's favorable prospects for
rehabilitation as its assessment of the seriousness of the
offender's conduct. Hence, the naked fact that an offender
received a suspended imposition of sentence does not amount to a
finding of minor harm or exceptionally mitigated conduct. And
because a suspended imposition of sentence reserves to the
sentencing court the power to impose any statutorily authorized
sentence in the event of a future probation violation, a judge's
decision to suspend the imposition of an offender's sentence does
not in itself amount to a finding that the offender's conduct is
necessarily inconsistent with a substantial term of imprisonment.
