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Ritter v. State (1/19/01) ap-1715
Ritter v. State (1/19/01) ap-1715
NOTICE
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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:
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ANDY N. RITTER, )
) Court of Appeals No. A-6983
Appellant, ) Trial Court No. 2BA-97-171 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1715 January 19, 2001]
)
Appeal from the Superior Court, Second Judicial
District, Barrow, Michael I. Jeffery, Judge.
Appearances: Kathleen A. Murphy, Assistant
Public Defender, 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, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
This appeal presents us with two important questions of
law.
The first question concerns the proper scope of a Cooksey
plea a plea of no contest, with the defendant preserving the right
to raise a dispositive issue on appeal. Specifically, we are asked
to decide whether a Cooksey plea can be valid when the issue
preserved for appeal is the sufficiency of the evidence at grand
jury. Subject to a potential exception that we explain below, we
hold that the sufficiency of the evidence at grand jury is not a
dispositive issue, and thus it is not a proper basis for a Cooksey
plea.
The second question concerns the proper interpretation of
AS 11.41.420(a)(4). This portion of the second-degree sexual
assault statute prohibits certain health care workers from engaging
in sexual contact with their patients if the health care worker
knows that the patient "is unaware that a sexual act is being
committed". Ritter argues that only those patients who are
unconscious (or, for some other reason, have no physical perception
of being touched) can be deemed "unaware" for purposes of this
statute. The State argues that the statute also includes patients
who physically perceive the touching but who are "unaware" that the
touching is for a sexual purpose and not a proper treatment purpose.
With certain qualifications that we explain below, we agree with the
State that AS 11.41.420(a)(4) covers sexual contact with patients
who are aware of the touching but who are unaware that the touching
exceeds the legitimate bounds of treatment.
Facts and procedural history of this case
Andy N. Ritter was a massage therapist in Barrow. The
State charged him with six counts of unlawfully engaging in sexual
contact with several of his female clients by touching their breasts
and genitals, and by pressing his penis against their bodies. When
the State presented Ritter's case to the grand jury, the State
argued that Ritter's conduct constituted second-degree sexual
assault under two different theories.
First, the State contended that the circumstances of the
massage (the fact that the women were naked, and that they were
alone with Ritter in the building) constituted "implicit" coercion,
and thus any sexual contact was "without consent" as that term is
defined in AS 11.41.470(8)(A). [Fn. 1]
Alternatively, the State contended that even though the
women might have expected to be touched on their breasts and,
conceivably, on their genitals during their massages, they did not
expect the touching to be sexual in nature, and therefore Ritter was
guilty of second-degree sexual assault under AS 11.41.420(a)(4).
This portion of the statute declares that a "health care worker" (a
term which includes massage therapists [Fn. 2]) commits the crime
of second-degree sexual assault if, during the course of the
victim's professional treatment, the health care worker "engages in
sexual contact with a person who the offender knows is unaware that
a sexual act is being committed".
After Ritter was indicted, he filed a motion to dismiss
the charges, arguing that both of the State's theories of
prosecution were invalid. With regard to the State's "without
consent" theory, Ritter noted that although the women testified that
the touching made them uncomfortable, none of them testified that
they did not consent to the touching or that, if they had any
reservations about it, they did anything to manifest their lack of
consent. He further argued that the State's theory of "implicit
coercion" was not supported by the record. With regard to the
State's "lack of awareness" theory, Ritter noted that the women were
at all times awake and in control of their faculties, and that they
all knew that they were being touched on their breasts and/or
genitals. Under such circumstances, Ritter argued, there was no
evidentiary basis for the State's allegation that the women were
"unaware" that sexual contact was occurring.
The superior court denied Ritter's motion to dismiss the
indictment, and the parties prepared to go to trial. However, on
the day that Ritter's trial was to commence, Ritter and the State
announced that they had reached a plea agreement. Under this
agreement, Ritter would plead no contest to one of the six counts
of second-degree sexual assault (a count of his choice). In
exchange for this plea, the State would dismiss the remaining five
counts and would promise not to pursue any other charges arising
from the same incidents. The State would also agree that Ritter
could appeal his conviction, renewing his argument that the superior
court should have dismissed the indictment.
This last provision of the plea bargain (the agreement
that Ritter could appeal his conviction and renew his attack on the
indictment) meant that Ritter's proposed plea was a Cooksey plea
a plea governed by the supreme court's decisions in Cooksey v. State
[Fn. 3] and Oveson v. Anchorage [Fn. 4]. In order for Ritter's plea
agreement to be valid under Cooksey and Oveson, the issue preserved
for appeal had to be dispositive of the litigation. As this court
clarified in Miles v. State [Fn. 5], an issue is "dispositive" for
Cooksey purposes only if "resolution of the issue in the defendant's
favor would either legally preclude the government from pursuing the
prosecution or would leave the government without sufficient
evidence to survive a motion for judgement of acquittal at the
conclusion of the government's case." [Fn. 6]
The obvious problem with Ritter's Cooksey plea is that
motions to dismiss a grand jury indictment are generally not
dispositive under Miles. Even if the court agrees with the
defendant and dismisses the indictment for lack of sufficient
evidence, for erroneous legal instructions to the grand jury, or for
any other procedural flaw, the State is almost always free to
present the case to the grand jury again. As we explained in Ryan
v. State [Fn. 7], an attack on an indictment is not dispositive
unless a ruling in the defendant's favor would preclude
reindictment. [Fn. 8]
Superior Court Judge Michael I. Jeffery recognized this
problem when the parties proposed the Cooksey plea. But when the
judge questioned whether Ritter's motion to dismiss the indictment
was "dispositive", both the defense attorney and the prosecutor
assured him that the attack on the indictment would be dispositive
if Ritter could show that both of the State's theories of
prosecution were flawed the "without consent" theory and the
"unawareness" theory. Based on the attorneys' arguments, Judge
Jeffery concluded that the issues preserved for appeal were, in
combination, dispositive, and so he accepted Ritter's plea as a
valid Cooksey plea.
A year and a half later, after Ritter was sentenced and
while his appeal was pending, Ritter filed a motion to withdraw his
plea. He noted (correctly) that even if both of the State's
theories of prosecution were dismissed for lack of evidence and/or
for faulty instructions to the grand jury, the State would still be
able to return to the grand jury with better evidence and/or more
accurate instructions on the law. Thus, Ritter concluded, the Miles
test was not satisfied, his appeal would ultimately be dismissed,
and it would be easier for everyone if he were allowed to withdraw
his plea now rather than waiting for this court to dismiss the
appeal and order that same remedy.
The State defended Ritter's plea. Although it
acknowledged that grand jury errors are generally not dispositive,
the State now asserted for the first time that they had no better
case than the one they presented to the grand jury:
What is ... missing from the Cooksey
discussion [when Ritter's plea agreement was presented to the
superior court] is a specific acknowledgement that the grand jury
testimony ... includes all the evidence available on the issues of
coercion and [unawareness]. Although it was probably assumed by the
participants in the hearing, the State will [now] stipulate that it
has no additional evidence on these issues ... , and therefore could
present no more [evidence] at trial[.] Thus, if the appellate court
... held that the evidence presented at the grand jury was
insufficient to constitute a crime under AS 11.41.420(a)(1) or
(a)(4)(A), the State could no longer prosecute [the] defendant[.]
In light of its concession that it had no better case to present
against Ritter, the State argued that Ritter's appeal really
presented only two issues of law, and that a ruling in Ritter's
favor on these two issues would preclude the State from prosecuting
him.
Based on the State's concession that there was no other
evidence against Ritter, Judge Jeffery analogized Ritter's attack
on the indictment to a ruling on a defense motion for judgement of
acquittal at the close of the State's case. The judge therefore
agreed with the State that the attack on the indictment was
dispositive, and he refused to allow Ritter to withdraw his plea.
Was Ritter's plea a valid Cooksey plea?
In his brief to this court, Ritter renews his argument
that his attack on the grand jury indictment is not dispositive,
that his plea is invalid under Cooksey and Miles, and that we should
remand this case to the superior court with directions to allow
Ritter to withdraw his plea and go to trial on the original six
counts of the indictment. The State opposes this. Asserting that
the grand jury record contains its entire case against Ritter, the
State urges us to rule that the plea agreement is valid under Miles.
In Brown v. State [Fn. 9], this court accepted a Cooksey
plea under circumstances that are facially similar to Ritter's case.
Brown was charged with refusal to submit to a breath test. He
wished to litigate the contention that a person could not be found
guilty of this offense unless the State also proved beyond a
reasonable doubt that the person had contemporaneously been driving
while intoxicated.
From the facts of the case, it was not clear that Brown
should be acquitted even if he prevailed on this claim. The police
discovered Brown and his vehicle in a ditch. Brown was intoxicated,
but he claimed that he had become intoxicated while sitting in the
ditch, waiting for rescue. If the jury accepted Brown's version of
the event, then even though he refused to take the breath test, he
would not be guilty of the separate crime of driving while
intoxicated. [Fn. 10] However, the State obviously had a reasoned
basis for arguing that Brown was shading the truth in his own favor,
and that Brown's intoxicated driving was the true reason that
Brown's vehicle ended up in the ditch.
Given these facts, this court faced a Cooksey plea in a
seemingly non-Cooksey situation. Even if Brown's legal contention
was correct i.e., even if the law required the State to prove that
Brown had been driving while intoxicated as a predicate to any
charge of breath-test refusal, Brown's contention would not
necessarily be dispositive of the case. Based on the evidence, a
jury could reasonably find that Brown was, in fact, also guilty of
driving while intoxicated, and thus the jury could lawfully convict
Brown of breath-test refusal even if this court adopted Brown's
interpretation of the law.
This court finessed the Cooksey problem by declaring that
Brown and the State had, "in effect[,] submitted this case on
stipulated facts, arguing only the legal significance of those
facts." [Fn. 11] That is, we accepted Brown's Cooksey plea (and
decided his case) under the assumption that the State had agreed to
forego any attempt to prove that Brown was intoxicated when he drove
into the ditch thus converting Brown's legal argument into a
dispositive issue.
Our decision in Brown might be read as an indication that
we should accept the State's similar concession in Ritter's case
the State's concession that (1) it has no further evidence to offer
against Ritter and, thus, (2) if Ritter's legal attacks on the
State's two theories of prosecution are well-founded, Ritter should
be acquitted. But there are three problems with applying the Brown
decision to Ritter's case.
The first problem is that Ritter wants to withdraw his
plea and go to trial. In Brown, we stretched the limits of Cooksey
at the request of two willing parties, both of whom wanted to
litigate a particular legal issue and were willing to have the
defendant's guilt or innocence decided on that basis. But Ritter
is no longer a willing participant in this appellate litigation.
The State wants to resolve this case on stipulated facts, but Ritter
does not wish to join the stipulation.
The second problem is that our later decision in Miles v.
State appears to be at odds with the approach we took in Brown. In
Miles, we rejected the State's attempt to make an issue "dispositive"
by agreeing not to pursue the case if the defendant prevailed on the
disputed issue. Instead, we established the rule that an issue
would be deemed dispositive for Cooksey purposes only if a decision
in the defendant's favor "would either legally preclude the
government from pursuing the prosecution or ... leave the government
without sufficient evidence to survive a motion for judgement of
acquittal". [Fn. 12] Three paragraphs later in Miles, we discussed
cases like Ritter's:
We recognize that criminal cases will,
from time to time, give rise to important
questions of law which, although not
"dispositive", are nonetheless deserving of
immediate appellate resolution. Our holding
does not preclude, nor is it intended to
discourage, either or both parties from
petitioning this court for interlocutory review
under Alaska Appellate Rule 402 in such cases.
Alternatively, if the parties concur that the
only crucial aspect of the case is a non-
dispositive legal issue and that there are no
material factual disputes to be litigated, the
parties may agree to hold a trial on stipulated
facts or upon the grand jury record, thus
obtaining an appealable judgement.
825 P.2d at 907 (emphasis added). The problem in Ritter's case is
that the parties did not follow either of the procedures approved
in Miles procedures that lead to a trial verdict and, thus, an
appealable judgement.
As explained above, the flaw in Ritter's Cooksey plea is
that attacks on a grand jury indictment are usually not dispositive
because, generally speaking, the State's failure to present
sufficient evidence at grand jury does not mean that the State will
be unable to pursue the prosecution and later survive a motion for
judgement of acquittal. If Ritter and the State had gone to trial
on the grand jury record, this problem would not exist for then
the State's grand jury evidence would have been the State's trial
evidence. But the parties did not see this problem until Ritter
asked to withdraw his plea. Only then did the State express a
willingness to stipulate that its grand jury evidence constituted
its complete case against Ritter and, by then, Ritter was
unwilling to join in this stipulation.
Miles certainly suggests, even if it does not directly
hold, that when the parties wish to make an issue dispositive by
presenting the case on stipulated facts, the plea agreement will not
meet the test for a valid Cooksey plea unless a verdict has been
rendered on those stipulated facts. Although we are not prepared
to say that we would never again accept the kind of Cooksey plea
presented in Brown, we are prepared to say that we will not accept
a Cooksey plea based on "stipulated" facts unless all parties join
in the stipulation.
Finally, there is a third problem with applying the Brown
decision to Ritter's case. That problem is the evidence contained
in the grand jury record. We have examined the testimony presented
by the State's witnesses, and it appears that even if we accepted
the State's concession that the grand jury record contains the
entire evidence against Ritter, the issues presented in this appeal
are not dispositive. That is, the State could still prosecute one
or more of its sexual assault counts even if Ritter prevails on the
legal arguments presented in this appeal.
We note, in particular, the testimony that Ritter took one
victim's hand and held it against his penis for up to twenty
seconds. This testimony could conceivably support a conviction for
second-degree sexual assault even if this court rejected the State's
two arguments in this appeal (the State's theory of "implicit"
coercion and its interpretation of the word "unaware").
For these reasons, we conclude that Ritter's Cooksey plea
is invalid. He must be allowed the opportunity to withdraw that
plea and go to trial on the indictment (with all six counts
reinstated).
Treating this appeal as a petition for review filed by the
State, we decline to review the State's theory that the
circumstances of the massages constituted implicit "coercion"
Anticipating that we might conclude that Ritter's Cooksey
plea was invalid, the State asks us to accept this case as a
petition for review and resolve the issues that have been briefed.
For two reasons, we decline the State's invitation to
review its theory that Ritter could be charged with sexual assault
under AS 11.41.420(a)(1) because the circumstances of the massage
constituted "implicit" coercion. First, whatever meaning we might
attach to the phrase "implicit coercion", the line between "implicit"
and "explicit" coercion will almost inevitably rest entirely on the
facts of each case. This line may often be fuzzy and more
appropriate for a jury determination than an appellate court ruling.
Second, the legislative history of AS 11.41.420(a)(4) the health
care worker provision of the sexual assault statute suggests that
the State's theory of "implicit" coercion may be flawed.
The State argues that the circumstances of a massage
the victim disrobed, alone with the masseur, isolated from other
people who might intervene constitute an implicit coercion that
makes any ensuing sexual contact "without consent". But if the State
is correct that sexual assaults by massage therapists will generally
be prosecutable under section (a)(1) of the statute because massage
patients generally find themselves in a vulnerable position, then
it is seemingly difficult to explain the legislature's decision to
enact a separate provision, section, (a)(4), that expressly covers
sexual assaults by health care workers (including massage
therapists).
In testimony before the House Judiciary Committee, one of
the drafters of section (a)(4) declared that the definition of
"health care worker" was crafted for the very purpose of
identify[ing] professions in the healing arts
where people had to take their clothes off or
make their bodies vulnerable as part of
treatment. ... [T]he basic criteri[on] for
defining "health care workers" [was identifying]
professions where the patient's body was put in
a vulnerable position.
Testimony of Laurie Otto, Counsel to the House Judiciary Committee,
House Judiciary Committee Minutes, January 15, 1992.
This testimony strongly suggests that the legislature
enacted section (a)(4) so that sexual contact committed by certain
health care providers upon vulnerable patients could be prosecuted
even when the State could not prove that the sexual contact was
"without consent". The legislature's enactment of section (a)(4)
also suggests that the legislature believed that a substantial
amount of unauthorized sexual contact perpetrated by massage
therapists would go unprosecuted or unpunished if the State was
confined to a "without consent" theory of prosecution under section
(a)(1) a belief seemingly at odds with the State's argument that
the circumstances of a massage will generally constitute coercion.
It may be that, in a specific case, the particular
circumstances in which the massage was administered and the
particular words or actions of the massage therapist would
constitute a coercion sufficient to prove that any ensuing sexual
contact was "without [the victim's] consent" and thus prosecutable
under section (a)(1) of the second-degree sexual assault statute.
But we have significant doubts about the State's assertion that this
will generally be true. These doubts, combined with the case-
specific nature of any such inquiry, lead us to conclude that we
should deny this portion of the State's petition for review.
We accept the State's petition concerning the second issue
raised: the proper interpretation of the word "unaware" in AS
11.41.420(a)(4)
We reach a different conclusion with respect to the
State's argument that Ritter could be indicted under section (a)(4)
of the statute, on the theory that his patients were "unaware that
a sexual act [was] being committed". Here, the issue is purely a
legal one. Ritter asserts that this phrase must be confined to
health care patients who are unconscious or whose faculties are
otherwise so dulled that they have no conscious perception that they
are being touched on the genitals, anus, or female breast. The
State asserts that section (a)(4) also applies to patients who are
aware that they are being touched but who are unaware that this
touching is for a sexual purpose rather than a health care purpose.
This question of statutory interpretation can be answered
without reference to the still-unlitigated details of Ritter's case.
The parties have fully briefed the matter. Moreover, our decision
will resolve "an important question of law on which there is
substantial ground for difference of opinion", and our resolution
of this question "may materially advance the ultimate termination
of [this] litigation". [Fn. 13] For these reasons, we grant the
State's petition for review of this legal issue, and we now take up
the meaning of the phrase "unaware that a sexual act is being
committed".
The meaning of this phrase rests on the meaning of the
words "sexual act". For purposes of the sexual assault statutes,
"sexual act" is defined by AS 11.41.470(6). It means "sexual
penetration or sexual contact". Thus, the phrase "unaware that a
sexual act is being committed" is equivalent to "unaware that sexual
penetration or sexual contact is being committed". Ritter is only
charged with sexual contact. Therefore, in his case, the statutory
phrase is equivalent to "unaware that sexual contact is being
committed".
Because the key question in Ritter's case is whether his
patients were unaware that sexual contact was being committed, we
turn to the definition of "sexual contact" found in AS
11.81.900(b)(57).
The definition of "sexual contact" has two parts: a basic
definition and an exception. Subsection (b)(57)(A) contains the
basic definition of "sexual contact": a defendant engages in sexual
contact if they "knowingly touch[] ... the victim's genitals, anus,
or female breast; or knowingly caus[e] the victim to touch ... the
defendant's or victim's genitals, anus, or female breast".
Subsection (b)(57)(B) contains two exceptions to this
basic definition. For purposes of Ritter's case, the pertinent
exception is found in subsection (B)(ii). Under this subsection,
a touching that would normally constitute "sexual contact" under
subsection (A) will not be deemed "sexual contact" if the touching
is "performed for the purpose of administering a recognized and
lawful form of treatment that is reasonably adapted to promoting the
physical or mental health of the person being treated". In other
words, when a massage therapist knowingly touches a female patient's
breasts, genitals, or anus, this touching is not "sexual contact"
if it was performed for the purpose of administering legitimate
massage therapy.
We now return to the main issue the proper
interpretation of the phrase "unaware that a sexual act is being
committed" in AS 11.41.420(a)(4). Given the various statutory
definitions we have just discussed, we conclude that a massage
therapy patient can be "unaware that [sexual contact] is being
committed" even though the patient is conscious of the fact that
their masseur or masseuse is purposely touching them on the breasts
or genitals. Such touching does not constitute "sexual contact" if
it is done for the purpose of administering "a recognized and lawful
form" of massage therapy. Thus, if Ritter's female patients were
aware that he was purposely ("knowingly") touching them on the
breasts or genitals, but if they mistakenly believed that this
touching was a legitimate part of the massage when in fact it was
not, then these patients would have been unaware that sexual contact
was occurring. Under such circumstances, Ritter might properly be
charged under section (a)(4) of the second-degree assault statute.
Our interpretation of AS 11.41.420(a)(4) means that it
covers two distinct situations: (1) instances where a patient is
unconscious or otherwise fails to perceive that they are being
touched on the genitals, anus, or female breast; and (2) instances
where a patient mistakenly believes that this touching is part of
legitimate treatment.
Regarding this second category of cases, the State
suggests that the touching is illegal because the health care worker
is motivated by a sexual purpose rather than a legitimate
therapeutic purpose. This is not accurate. The definition of
"sexual contact" does not include an element of specific intent.
In particular, "sexual contact" does not require proof that the
offender acted for the purpose of sexual gratification or arousal.
[Fn. 14]
Rather, AS 11.81.900(b)(57)(B)(ii) declares that a
defendant's conduct is removed from the definition of "sexual
contact" if the defendant's conduct was motivated by a particular
exculpatory purpose: "the purpose of administering a recognized and
lawful form of treatment that is reasonably adapted to promoting the
physical or mental health of the person being treated". Thus, in
a case like Ritter's, the State is not obliged to prove what
Ritter's intent was, but will likely have to prove what it was not.
If Ritter raises the defense that the alleged touching was
part of legitimate massage therapy, the State must prove beyond a
reasonable doubt that Ritter did not have the intent to administer
recognized and lawful treatment. We note that, under the statutory
definition of "intentionally" contained in AS 11.81.900(a)(1), a
person can act with more than one intent. The statute provides that
a person can be found guilty of acting with a specific prohibited
intent even when the person was motivated by other intents as well.
[Fn. 15] Applying this rule to Ritter's case, Ritter would not be
guilty of engaging in "sexual contact" if he acted for the
exculpatory purpose specified in AS 11.81.900(b)(57)(B)(ii),
regardless of any other purpose that he might have had.
Of course, if the State has evidence that Ritter derived
sexual enjoyment from touching the three women named in the
indictment, this evidence would be relevant to identifying Ritter's
motivation(s) for the touching. But this evidence would not be
conclusive of Ritter's guilt for if there is a reasonable
possibility that Ritter acted for "the purpose of administering a
recognized and lawful form of treatment", then he would not be guilty
of engaging in "sexual contact" even if he also acted for the purpose
of deriving sexual arousal or gratification.
Finally, we note that AS 11.41.420(a)(4) also requires
proof that the health care worker knows that the patient is unaware
that sexual contact is occurring. Thus, when the State's case is
based on the allegation that a conscious patient was subjected to
touching that exceeded the bounds of legitimate treatment, the State
must also prove that the health care worker "knew" (was aware of at
least a substantial probability) that the patient was unaware that
the touching exceeded the bounds of legitimate treatment. [Fn. 16]
Turning to the facts of Ritter's case, if the evidence
presented to the grand jury is viewed in the light most favorable
to the State, that evidence is sufficient to prove all the elements
of second-degree sexual assault under AS 11.41.420(a)(4) as we have
interpreted them here. We therefore affirm the superior court's
decision to uphold the indictment insofar as it alleges violations
of AS 11.41.420(a)(4).
(As explained above, we deny the State's petition for
review concerning the other aspect of the superior court's decision
the superior court's ruling that the grand jury evidence was
sufficient to support indictment under AS 11.41.420(a)(1), the
State's "without consent" theory of prosecution.)
Conclusion
Because Ritter's plea is not a valid Cooksey plea, he must
be allowed to withdraw his plea and go to trial on the indictment.
The superior court's denial of Ritter's motion to withdraw his plea
is REVERSED.
We hold that the evidence presented to the grand jury is
sufficient to support Ritter's indictment on the six counts of
second-degree sexual assault under AS 11.41.420(a)(4) i.e., under
the theory that Ritter engaged in sexual contact with patients who
he knew were unaware that sexual contact was occurring. The
superior court's decision upholding the indictment on this theory
is AFFIRMED.
We express no opinion as to whether one or more counts of
the indictment validly charge second-degree sexual assault under
AS 11.41.420(a)(1) i.e., the theory that the sexual contact was
"without [the women's] consent" as that phrase is defined in
AS 11.41.470(8)(A).
This case is remanded to the superior court for further
proceedings consistent with our decision.
FOOTNOTES
Footnote 1:
Under this statute, an act of sexual penetration or sexual
contact is "without consent" if the victim "is coerced by the use of
force ... or by the express or implied threat of death, imminent
physical injury, or kidnapping to be inflicted on anyone".
Footnote 2:
See AS 11.41.470(1).
Footnote 3:
524 P.2d 1251, 1255-57 (Alaska 1974).
Footnote 4:
574 P.2d 801, 803 n.4 (Alaska 1978).
Footnote 5:
825 P.2d 904 (Alaska App. 1992).
Footnote 6:
Id. at 906-07.
Footnote 7:
899 P.2d 1371, 1383 (Alaska App. 1995).
Footnote 8:
Compare Shetters v. State, 751 P.2d 31, 36 (Alaska App. 1988);
Wilson v. State, 711 P.2d 547, 550 n.2 (Alaska App. 1985) (when a
defendant claims to have received ineffective assistance of counsel
because their attorney failed to attack the grand jury indictment,
the defendant must show not only that the attack would have
succeeded but also that the State could not have obtained another
indictment).
Footnote 9:
739 P.2d 182 (Alaska App. 1987).
Footnote 10:
See id. at 183-84.
Footnote 11:
Id. at 183.
Footnote 12:
825 P.2d at 906.
Footnote 13:
Alaska Appellate Rule 402(b)(2).
Footnote 14:
See Beltz v. State, 980 P.2d 474, 477 (Alaska App. 1999);
Peratrovich v. State, 903 P.2d 1071, 1076-78 (Alaska App. 1995).
Footnote 15:
AS 11.81.900(a)(1) states that "when intentionally causing a
particular result is an element of an offense, that intent need not
be the person's only objective".
Footnote 16:
See the definition of "knowingly" contained in AS
11.81.900(a)(2).
