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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MILAN H. KING, )
) Court of Appeals No. A-6835
Appellant, ) Trial Court No. 3AN-97-2041 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1633 - April 30, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Maria Bahr, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. William H. Hawley, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Under AS 11.41.420(a)(3)(B), a person commits second-
degree sexual assault if they engage in sexual penetration with a
person who is "incapacitated". At the time of the events in this
case, AS 11.41.470(2) defined "incapacitated" as "temporarily
incapable of appraising the nature of one's own conduct and
physically unable to express unwillingness to act". In this appeal,
we are asked to decide whether a sleeping person can be
"incapacitated" under this definition. We conclude that the answer
is yes.
On March 14, 1997, A.C. traveled from Fairbanks to
Anchorage; she spent the night at the home of her daughter and son-
in-law. Milan H. King was renting a room at that residence.
That night, A.C. went to bed fully clothed. She awoke to
the sound of a man calling her a "bitch". That man Milan King
had removed A.C.'s pants and underwear, and he was now lying on
top of her, engaged in sexual intercourse with her.
During her first few seconds of semi-consciousness, A.C.
thought that she was having sex with her boyfriend. Then she
remembered that she was now in Anchorage, while her boyfriend was
still in Fairbanks. When A.C. realized that the man on top of her
could not be her boyfriend, she woke up completely. She grabbed
King's head, pushed him off of her, and ran into the living room to
summon help from her daughter and son-in-law.
King was indicted for sexual assault in the second degree.
The State alleged alternative theories of why King's act of sexual
penetration constituted this offense: first, because A.C. was
incapacitated [Fn. 1], and second, because A.C. was unaware that
a sexual act was occurring [Fn. 2]. The jury convicted King under
the first theory: that A.C. was incapacitated.
On appeal, King argues that the State's evidence was
insufficient to support a finding that A.C. was "incapacitated" as
that term was defined in the 1997 version of AS 11.41.470(2). He
contends that the definition of "incapacitated" does not include
unconsciousness due to sleep.
As noted above, the 1997 definition of "incapacitated"
required the State to prove two things: that A.C. was "temporarily
incapable of appraising the nature of [her] conduct", and that A.C.
was "[temporarily] physically unable to express unwillingness to
act".
Viewed in the light most favorable to upholding the jury's
verdict, the evidence shows that King disrobed A.C. and sexually
penetrated her while she was unconscious and unaware that this was
happening. From this evidence, the jury could reasonably conclude
that A.C. was "temporarily incapable of appraising the nature of
[her] conduct" incapable of understanding that she was engaged
in sexual penetration with King. [Fn. 3] A.C. later awoke and
realized what was happening. But the evidence clearly supported the
conclusion that King's initial penetration of A.C. occurred while
A.C. was unconscious.
The remaining question is whether the evidence supported
a finding that A.C. was temporarily "physically unable to express
unwillingness to act". Viewed in the light most favorable to
upholding the verdict, the evidence showed that King disrobed A.C.
and penetrated her while she was unconscious and unresisting. The
jury could reasonably conclude that, because A.C. was asleep, she
was temporarily physically unable to express unwillingness to engage
in sexual penetration with King.
When this issue was argued in the trial court, the trial
judge expressed his opinion that people who are asleep are still
physically capable of resisting the assaultive acts of others. The
judge pointed out that people sometimes struggle while dreaming that
they are being attacked. Based on such occurrences, the judge
expressed doubt that sleeping people can ever be deemed
"incapacitated" within the meaning of the statute.
We do not share such doubts. We grant that sleeping
people may at times physically struggle, while unconscious, when
they dream that they are being attacked. But the fact that sleepers
react to their dreams does not mean that they would be capable of
recognizing and resisting actual assault.
Moreover, the trial judge appears to have assumed that all
sleeping people exhibit the same degree of consciousness or
unconsciousness, and that any particular sleeping person will
exhibit the same degree of consciousness or unconsciousness
throughout the several hours of their sleep cycle. Such assumptions
are seemingly at odds with common experience: some people sleep
more soundly or fitfully than others, and, during the course of
sleep, an individual will go through varying periods of deep and
light sleep.
But assuming, for purposes of argument, that a person
might be capable of physically resisting an assault even though
asleep, the question before the jury was whether one particular
individual A.C. was physically unable to express unwillingness
to engage in sexual activity at the time of King's assault. This
question of fact could not be answered by generalities about the
characteristics or capabilities of sleeping people. It had to be
answered by an examination of the evidence in this case. For this
reason, the question was properly presented to the jury. And, as
we have explained, the evidence supported a reasonable conclusion
that A.C., at the time of the assault, was physically unable to
express unwillingness to engage in sexual penetration with King.
King presents an alternative argument, one based on
statutory construction. He asserts that, even though the wording
of AS 11.41.470(2) could be interpreted to include people who are
unconscious due to sleep, the legislature never intended for this
statutory definition to include sleeping people.
The words used in AS 11.41.470(2) are not terms of art;
they are common English words. Taking these words in their normal
meaning, sleep appears to qualify as a form of incapacity. It is
therefore King's burden to show that the legislature did not mean
what they appear to have said. Moreover, because the statute
"appears clear and unambiguous, ... [King] bears a correspondingly
heavy burden of demonstrating contrary legislative intent." [Fn.
4]
King argues that the legislature could not have intended
to include sleeping people among the "incapacitated" because another
subsection of the second-degree assault statute, AS 11.41.-
420(a)(3)(C), refers to people who are "unaware" that a sexual act
is occurring. This subsection, King asserts, is the portion of the
statute that applies to sleeping people.
The State suggests an alternative and plausible reading
of subsection 420(a)(3)(C). The legislature added subsection (3)(C)
in 1992 in the wake of a notorious criminal case brought against a
male gynecologist who inserted his penis, rather than a speculum,
into his patients. In such instances, sexual penetration is
perpetrated by subterfuge; the victim is conscious and physically
able to express their unwillingness to be a party to the sexual
penetration, but they are unaware that sexual penetration is
occurring.
We grant that a person who is asleep may be "unaware" that
sexual activity is taking place, as that term is defined in
subsection (3)(C). But the fact that subsections (3)(B) and (3)(C)
overlap the fact that they may both apply to sleeping victims
does not invalidate either subsection, nor does it suggest that the
legislature wished one subsection to be applied to the exclusion of
the other. Title 11 is filled with statutes that have potentially
overlapping subsections. [Fn. 5]
For these reasons, we conclude that the definition of
"incapacitated" persons codified in AS 11.41.470(2) can apply to
people who are asleep. We note that other courts, applying
analogous statutes, have reached the same conclusion. [Fn. 6]
And, as explained above, we further conclude that the
evidence presented at King's trial supports the conclusion that A.C.
was incapacitated when King sexually penetrated her. Thus, the
evidence is sufficient to support the jury's verdict that King was
guilty of second-degree sexual assault.
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.420(a)(3)(B).
Footnote 2:
AS 11.41.420(a)(3)(C).
Footnote 3:
See AS 11.81.900(b)(56)(C) ("[E]ach party to any of the acts
defined as 'sexual penetration' is considered to be engaged in
sexual penetration").
Footnote 4:
University of Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska
1997).
Footnote 5:
See, for example, AS 11.41.110(a)(1)-(2), AS 11.41.200(a)(1)-
(3), and AS 11.46.730(a)(1)-(3).
Footnote 6:
See State v. Rush, 650 A.2d 373, 374 (N.J. App. 1994); State
v. Puapuaga, 776 P.2d 170, 171-72 (Wash. App. 1989); State v.
Moorman, 347 S.E.2d 857, 859 (N.C. App. 1986), reversed on othergrounds, 358 S.E.2d 502 (N.C. 1987).
