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Pitka v. State (2/4/00) ap-1659
Pitka v. State (2/4/00) ap-1659
NOTICE: The text of this opinion can be corrected
before the opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIE PITKA, JR., )
) Court of Appeals No. A-6901
Appellant, ) Trial Court No. 4BE-S97-00246 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
) [No. 1659 - February 4, 2000]
Appellee. )
)
Appeal from the Superior Court, Fourth
Judicial District, Richard D. Savell, Judge.
Appearances: Sharon Barr, Assistant Public
Defender, Anchorage, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Marcelle K. McDannel, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Willie Pitka, Jr. was convicted, following a jury trial,
of burglary in the first- degree and sexual assault in the first-
degree for entering the residence of T.N. with the intent to commit
sexual assault and then sexually assaulting her. [Fn. 1] Pitka
argues that Superior Court Judge Richard D. Savell erred in failing
to instruct the jury on an element of sexual assault in the first-
degree: proof that Pitka recklessly disregarded T.N.'s lack of
consent. We conclude that Judge Savell erred in failing to
instruct on this element of sexual assault in the first-degree.
T.N. lived with her daughter Edna in a house on Upper
Kalskag. At trial, Edna testified that she left the house on the
evening of March 7, 1997. She stated that her mother was drunk.
Edna's brother, Mike Pitka, was present at the residence and Edna
assumed that he would stay overnight with their mother.
T.N. testified that on the evening of March 7 she went to
bed at 11:00 p.m. She woke up and discovered Willie Pitka, Jr. on
top of her. According to T.N., Pitka managed to remove her
clothing while lying on top of her. She stated that Pitka put his
penis inside of her and she was unable to push him away.
Afterwards, she said that Pitka fell asleep next to her.
When Edna returned the next morning between 8:00 and 8:30
a.m., her brother Mike Pitka was in the house making coffee. Edna
went to her mother's room and saw Pitka lying next to her mother,
fully clothed, except for shoes and socks. Edna went into the
kitchen to talk to Mike Pitka, who had no idea that Willie Pitka,
Jr. was there. Apparently Mike Pitka had not stayed at T.N.'s
residence the previous evening. Edna went back to the room and
woke Willie Pitka, Jr. up and told him to leave. She then left the
house to call the state troopers and the health aid to report that
her mother had been raped. When Edna returned from making these
calls, Mike Pitka and Willie Pitka, Jr. were at the kitchen table
drinking. Edna again told Willie Pitka, Jr. to leave. Following
an investigation, Willie Pitka, Jr. was charged with burglary in
the first-degree and sexual assault in the first-degree based upon
this incident.
Prior to trial, the state made an offer of proof that it
had available three women who would testify that Pitka had engaged
in non-consensual sexual misconduct with them. The state asserted
that the testimony of these witnesses would be admissible under
A.R.E. 404(b)(3), which provides that in a prosecution for the
crime of sexual assault, evidence of similar sexual assaults "is
admissible if the defendant relies on a defense of a consent."
Judge Savell stated that if Pitka presented evidence of consent or
argued that T.N. consented to the sexual activity, these incidents
would be admissible under A.R.E. 404(b)(3). Pitka did not testify
and apparently decided not to produce any evidence of lack of
consent to avoid having these witnesses testify.
At the close of the evidence, the court and counsel
discussed jury instructions. Pitka argued for an instruction which
required the jury to find that he "recklessly disregarded T.N.'s
lack of consent" in order to convict him of sexual assault in the
first-degree. The elements of sexual assault in the first-degree
were set out in Pitka's proposed jury instruction as follows:
First, that the event in question
occurred at or near Upper Kalskag, in the Fourth Judicial District,
State of Alaska, and on or about March 8, 1997;
Second, that Willie J. Pitka, Jr.,
knowingly engaged in sexual penetration with T.N.,
Third, that the penetration occurred
without the consent of T.N.; and
Fourth, that the defendant recklessly
disregarded T.N.'s lack of consent. (Emphasis added).
Relying on Alaska Criminal Pattern Jury Instruction
41.410(a)(1), Judge Savell refused to give this instruction. In
Pattern Jury Instruction 41.410(a)(1), the element that the
defendant recklessly disregarded the victim's lack of consent is in
brackets. [Fn. 2] According to the use notes accompanying the
pattern instruction, "[t]he bracketed fourth element in this
instruction must be included if the defense [of] consent is at
issue." [Fn. 3] Judge Savell concluded that since Pitka had not
presented any evidence of consent in order to avoid having the
state present prior sexual assaults, consent was not an issue in
the case and therefore he would not instruct the jury that it had
to find that the defendant recklessly disregarded T.N.'s lack of
consent. Judge Savell stated that, if Pitka argued that T.N.
consented, he would stop the argument and allow the state to call
its witnesses. Pitka responded that he would be arguing that all
of the elements of the offense were not proven. Judge Savell
conceded that Pitka could argue that the jury could disbelieve
T.N., but reiterated that if Pitka argued that T.N. consented, he
would allow the state to present its witnesses. Judge Savell gave
the following instruction on the elements of sexual assault in the
first degree:
First, that the event in question
occurred at or near Upper Kalskag, in the Fourth Judicial District,
State of Alaska, and on or about March 8, 1997;
Second, that Willie J. Pitka, Jr.,
knowingly engaged in sexual penetration with T.N.;
Third, that the penetration occurred
without the consent of T.N.
We conclude that Judge Savell erred in giving this
instruction. AS 11.41.410(a) defines the crime of sexual assault
in the first-degree as engaging "in sexual penetration with another
person without consent of that person." In Reynolds v. State, [Fn.
4] the defendant argued that the sexual assault statute was
unconstitutionally vague because a person could be convicted of
violating the statute without being aware that he was acting
without the consent of the other person. We concluded, however,
that under the rule of construction codified in AS 11.81.610(b)(2),
the sexual assault statute had to be construed to require proof
that the defendant recklessly disregarded his victim's lack of
consent:
In order to prove a violation of AS
11.41.41(a)(1), the state must prove that the defendant knowingly
engaged in sexual intercourse and recklessly disregarded his
victim's lack of consent. Construed in this way, the statute does
not punish harmless conduct and is neither vague nor overbroad.
[Fn. 5]
In Russell v. State, [Fn. 6] we again recognized that the
reckless disregard of the victim's lack of consent was an element
of the offense:
In general, a charge of first-degree sexual
assault requires proof of two main elements: first, that the act of
sexual penetration occurred without the victim's consent, and
second, that the defendant acted recklessly with regard to the
victim's lack of consent. [Fn. 7]
These decisions make it clear that the instruction which
Judge Savell gave the jury omitted an element of the offense of
sexual assault in the first degree: that the defendant recklessly
disregarded T.N.'s lack of consent to sexual intercourse.
The trial court is under a duty to instruct the jury on
the essential elements of an offense. [Fn. 8] Further, it is
constitutional error not to instruct on an essential element of a
crime "'because it lets [the jury] convict without finding the
defendant guilty of that element.'" [Fn. 9] As the U.S. Supreme
Court has stated, both the Fifth and Sixth Amendments to the United
States Constitution require that criminal convictions "rest upon a
jury determination that the defendant is guilty of every element of
the crime with which he is charged, beyond a reasonable doubt."
[Fn. 10] Under the court's instructions, the jury was not
required to find an element of an offense for which Pitka was
charged: that Pitka had recklessly disregarded T.N.'s lack of
consent. Since the jury did not find this element of sexual
assault in the first degree, we must reverse Pitka's conviction for
this offense.
Pitka was convicted of burglary on the theory that he
entered T.N.'s residence with the intent to commit the crime of
sexual assault. Pitka has not argued that the defect in the sexual
assault conviction affected his conviction for burglary and we find
no prejudice. We accordingly affirm Pitka's conviction for
burglary in the first-degree.
Following his conviction, Pitka filed a motion for a new
trial. In his motion, Pitka pointed out that Judge Savell violated
Criminal Rule 27.1(b) which requires the court to inform the
defendant of his right to testify before the defense rests its
case: "[i]f the defendant has not testified, the court shall ask
the defendant to confirm that the decision not to testify is
voluntary." In denying the new trial motion, Judge Savell
acknowledged that he had not made this inquiry. But he pointed out
that, in Pitka's affidavit, Pitka had not alleged any prejudice.
Judge Savell pointed out that Pitka did "not claim that he was
prevented from testifying, that he was advised by his attorney that
he could not testify, or that he wished to and would have
testified."
We agree with Judge Savell that Pitka was required to
allege that he would have testified. The supreme court's holding
in LaVigne v. State makes it apparent that the defendant must
allege that he would have testified. [Fn. 11] In LaVigne, the
supreme court concluded that LaVigne's "behavior does indicate that
he clearly wished to testify in response to the prosecution's
case." [Fn. 12] After finding that LaVigne would have testified,
the court remanded the case so that "the defendant may be given an
opportunity to show that he would have offered relevant testimony
had he been allowed to testify." [Fn. 13] The facts in Pitka's
case do not suggest that he would have testified or that he was
prevented from doing so. Further, Pitka made no attempt to modify
his affidavit after Judge Savell alerted him to the defect.
Accordingly, Judge Savell did not err in denying Pitka's new trial
motion.
We conclude that Pitka's conviction for sexual assault in
the first-degree must be REVERSED. We AFFIRM Pitka's conviction
for burglary in the first-degree. [Fn. 14]
MANNHEIMER, Judge, concurring.
I agree that Pitka's conviction for first-degree sexual
assault must be reversed, and I also agree that his conviction for
first-degree burglary should be affirmed, but I wish to clarify why
the burglary conviction should be affirmed.
The majority opinion tersely states that Pitka "has not
argued that the defect in the sexual assault [instruction] affected
his conviction for burglary[,] and we find no prejudice." This
sparse explanation suggests that we are affirming Pitka's burglary
conviction in large measure because he failed to attack it. But
even if Pitka had explicitly argued that the defect in the sexual
assault instruction tainted his burglary conviction, this
contention would be meritless.
The jury was told that, to convict Pitka of burglary,
they had to find that he unlawfully entered the residence with the
intent to commit sexual assault. As explained in the majority
opinion, even though the first-degree sexual assault instruction
was flawed, the instruction did inform the jury that this crime
required proof of non-consensual sexual penetration. Thus, in
combination, the burglary instruction and the sexual assault
instruction accurately conveyed the concept that Pitka could not be
convicted of burglary unless the government proved that he entered
the victim's residence with the intent to engage in non-consensual
sexual penetration with her. This was the requisite culpable
mental state to support Pitka's conviction for burglary. [Fn. 1]
FOOTNOTES
Footnote 1:
AS 11.46.300(a)(1); AS 11.41.410(a)(1).
Footnote 2:
Alaska Criminal Pattern Jury Instruction 41.410(a)(1) (1988
Rev.).
Footnote 3:
Id.
Footnote 4:
664 P.2d 621 (Alaska App. 1983).
Footnote 5:
Id. at 625; see also AS 11.81.610(b)(2).
Footnote 6:
934 P.2d 1335 (Alaska App. 1997).
Footnote 7:
Id. at 1340.
Footnote 8:
See Sears v. State, 713 P.2d 1218, 1219 (Alaska App. 1986);
see also Criminal Rule 30(b).
Footnote 9:
United States v. Tagalicud, 84 F.3d 1180, 1184 (9th Cir.
1996) (quoting United States v. Caldwell, 989 F.2d 1056, 1060 (9th
Cir. 1993)); see also Martinez v. Borg, 937 F.2d 422, 424 (9th Cir.
1991).
Footnote 10:
United States v. Gaudin, 515 U.S. 503, 510 (1995) (quoting
Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993)).
Footnote 11:
812 P.2d 217 (Alaska 1991).
Footnote 12:
Id. at 221; see Hurn v. State, 872 P.2d 189, 193-99 (Alaska
App. 1994).
Footnote 13:
Id.
Footnote 14:
Our disposition of these issues makes is unnecessary to
address Pitka's sentencing arguments.
FOOTNOTES (Concurring)
Footnote 1:
Compare Echols v. State, 818 P.2d 691, 694-95 (Alaska App.
1991), where we discussed the culpable mental state necessary to
establish a person's complicity in a crime requiring proof of
reckless conduct. We held that when a person is charged with
aiding or abetting the commission of a crime requiring proof of
reckless infliction of injury, the government must prove that the
alleged accomplice acted, not just recklessly, but with the intent
that the victim suffer injury.
