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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
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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
| RAYMOND J. JIMMY, | ) |
| ) Court of Appeals No. A-9852 | |
| Appellant, | ) Trial Court No. 3HO-03-00405 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2214 May 8, 2009 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Homer, Charles T. Huguelet,
Judge.
Appearances: David Reineke, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, for Appellant. Terisia K.
Chleborad, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
COATS, Chief Judge.
Raymond J. Jimmy was convicted of sexual assault in the
first degree1 and sexual assault in the second degree2 at a jury
trial conducted by Superior Court Judge Charles T. Huguelet.
Jimmy appeals, arguing that there was insufficient evidence to
support his conviction for sexual assault in the first degree.
He also argues that his convictions for sexual assault in the
first degree and sexual assault in the second degree should
merge. We conclude that the State presented sufficient evidence
for the jury to convict Jimmy of sexual assault in the first
degree. But we conclude that his two convictions should merge.
Factual Background
At Jimmys trial, S.H., who was 16 years old at the time
of the offense, testified that she was in bed asleep when she was
awakened by something, but did not realize what was happening.
She then realized that someones fingers were inside her vagina.
The person was pushing his fingers in and out. She saw someone
kneeling next to her bed. In response, she pulled her legs away,
shut her legs, and pulled the covers over her. When her eyes
were able to focus, she saw that the person molesting her was
Raymond Jimmy. Jimmy kept trying to reach under the blankets,
but S.H. apparently prevented him from touching her further.
According to S.H., Jimmy left a short time later.
The following day, S.H. was examined by a nurse at the
hospital in Homer. S.H. told the nurse that when she was first
awakened, she tried to pretend that she was asleep so that Jimmy
would go away.
Why we conclude that the State presented
sufficient evidence to convict Jimmy of sexual
assault in the first degree
Jimmy argues that the evidence presented at trial was
insufficient to establish that he penetrated S.H. without her
consent. In order to establish S.H.s lack of consent, the
question is not whether [the victim] protested or physically
resisted, but rather whether [the defendant] was aware of, and
consciously disregarded, a substantial and unjustifiable
possibility that his sexual contact with [the victim] was being
conducted without [her] consent.3 In the present case, S.H. was
asleep in her own bed when an intoxicated Jimmy, who was twice
her age and married to one of S.H.s relatives in the village,
molested her. After S.H. was first awakened, she tried to
pretend that she was asleep so that Jimmy would go away. A jury
could reasonably conclude that Jimmy acted at least recklessly
with regard to the possibility that this sexual conduct was
without her consent.
Why we conclude that Jimmys convictions should
merge
Jimmy next argues that his convictions for sexual
assault in the first degree (for sexually penetrating S.H.
without her consent4) and sexual assault in the second degree
(for sexually penetrating S.H. knowing that she was unaware that
a sexual act [was] being committed5) should merge because Jimmy
engaged in a single continuous act of penetration and the
societal interests in protecting S.H. were the same under both
statutes.
In Moore v. State,6 the defendant was convicted of
attempted sexual assault in the second degree and attempted
sexual assault in the first degree based on a single continuing
course of conduct.7 We held that the two convictions should
merge because the societal interest protected by the two statutes
is fundamentally the same, protecting an individual from sexual
penetration achieved without the individuals consent, whether
there was a lack of consent from a conscious victim or whether
there was no consent because the victim was incapacitated.8 We
concluded that separate sentences could not be imposed because
there was no difference between the defendants intent or conduct
in the two crimes in relation to the societal interests protected
by both ... .9
The State points out that, in Moore, the two
convictions were for attempted conduct, not completed conduct.
We conclude that this distinction is immaterial and that we
should follow Moore. The statutes underlying both convictions
advanced the same societal interest: to protect S.H. from sexual
penetration without her consent. Jimmys intent and conduct with
respect to the two offenses were essentially the same. Under
these circumstances, the convictions must merge.
Conclusion
Because we have concluded the State presented
sufficient evidence to convict Jimmy of sexual assault in the
first degree, we AFFIRM Jimmys conviction. But we REMAND this
case to the superior court, where the court shall merge Jimmys
convictions for sexual assault in the first degree and sexual
assault in the second degree and shall resentence the defendant.
We do not retain jurisdiction of this case.
_______________________________
1 AS 11.41.410(a)(1).
2 AS 11.41.420(a)(3)(C).
3 Ritter v. State, 97 P.3d 73, 78 (Alaska App. 2004).
4 AS 11.41.410(a)(1).
5 AS 11.41.420(a)(3)(C).
6 123 P.3d 1081 (Alaska App. 2005).
7 Id. at 1093.
8 Id.
9 Id. at 1093-94.
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