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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA,
Court of Appeals No. A-12534
Appellant, Trial Court No. 4FA-15-02245 CR
v.
O P I N I O N
THOMAS A. MAYFIELD,
Appellee.
No. 2643 - May 3, 2019
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Michael A. MacDonald, Judge.
Appearances: Diane L. Wendlandt, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,
Attorney General, Juneau, for the Appellant. Renee McFarland,
Assistant Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge.*
Judge ALLARD.
* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
----------------------- Page 2-----------------------
Thomas A. Mayfield was indicted by a Fairbanks grand jury for attempted
second-degree sexual assault. Mayfield's attorney moved to dismiss the indictment,
arguing that the evidence presented to the grand jury was legally insufficient to establish
attempted second-degree sexual assault. The superior court granted this motion. The
State now appeals.
For the reasons explained here, we affirm the superior court's dismissal of
the indictment.
Background facts and prior proceedings
On September 27, 2015, fourteen-year-old H.R. went to the Regal Cinema
in Fairbanks with her younger sister and her friend. The three girls sat at the end of a
row toward the back of the theater. The seat next to H.R. was empty. Twenty-one-year-
old Mayfield was sitting in the seat next to this empty seat. Mayfield was at the theater
with two of his friends.
After the girls sat down, H.R.'s sister noticed that Mayfield was staring and
smiling at them. H.R.'s sister told H.R.; H.R. ignored Mayfield. A short time later, after
the movie started, H.R. glanced over and realized that Mayfield had moved into the
empty seat next to her. H.R. also saw that Mayfield had put his hand, palm-side up, in
the gap between the seats, so that his hand was resting close to her knee. H.R. thought
this was "weird," and Mayfield's proximity "freaked [her] out."
H.R. scooted over in her seat so that she was further away from Mayfield
and closer to her sister. When H.R. glanced back at Mayfield, she saw Mayfield slowly
moving his hand upwards. H.R. then felt "a push on [her] hip," and "the force started
going down and he was trying to put his hand in my pants."
At the grand jury hearing, the prosecutor asked H.R. to describe exactly
what happened:
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----------------------- Page 3-----------------------
Prosecutor : Okay. And when you said you felt
something on your hip, do you know what that was you felt
on your hip?
H.R. : His hand, because when I looked down I saw it.
Prosecutor : Okay. And then you said something
about his hand in your pants, what happened after that?
H.R. : I jumped. I looked over, and I said - I yelled
at him.
Prosecutor : Okay. So let's talk about why you yelled
at him. What is it that he did that made you yell at him?
H.R. : Touching me.
Prosecutor : Okay. So you said you felt his hand on
your hip, right? Okay. Did something happen after that?
H.R. : What do you mean? Like, he pushed his hand.
Like, he got, like, under my sweats.
Prosecutor : Okay. So did he put his hand in your
pants?
H.R. : He got his fingertips in my pants, but I had
leggings on, so -
Prosecutor : Okay.
H.R. : Right.
Prosecutor : Where did he put his hand? Was it -
when he was trying to put his hand down your pants, was it
in the front or back or somewhere else?
H.R. : It was just on the side.
Prosecutor : Just on the side.
H.R. : Like -
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----------------------- Page 4-----------------------
Prosecutor : Okay. And when he did that, how did
you react?
H.R. : It scared me, so I jumped, and I - I said -
yelled at him.
Prosecutor : And you yelled at him?
H.R. : Well, not yelled, but I said something.
Prosecutor : Do you remember what you said?
H.R. : Yeah. I said, "Don't f-ing touch me." . . . [1]
Prosecutor : Okay. After you did that, what did you
do next?
H.R. : I leaned over and told my friend that we should
go.
Prosecutor : Okay.
H.R. : Actually I said he just touched me. He just
touched me. I was, like, he just grabbed my butt. Like, just
like, I was so scared, I just said, and then, like, then we got up
and left.
The girls got out of their seats and called H.R.'s foster mother, who told the
girls to tell the theater manager. The theater manager contacted the police, and Mayfield
was arrested when he left the theater.
Mayfield was originally arrested for assault in the fourth degree, a class A
misdemeanor,2 harassment in the second degree, a class B misdemeanor,3
and violating
1 H.R. then explained to the jury that she used an expletive for "f-ing."
2 AS 11.41.230(a)(3), (b).
3 AS 11.61.120(a)(5), (b) (subjecting a person to offensive physical contact with the
(continued...)
- 4 - 2643
----------------------- Page 5-----------------------
4
conditions of release, a class B misdemeanor. The assault charge was subsequently
5
elevated to attempted second-degree sexual assault, a class C felony.
Mayfield was then
indicted on that charge, with a separate information charging him with harassment and
violating conditions of release.
Mayfield's attorney filed a motion to dismiss the indictment, arguing that
the evidence presented to the grand jury was insufficient to establish the crime of
attempted second-degree sexual assault. The defense attorney argued specifically that
the State had not shown that Mayfield used or threatened any force against H.R.
In response, the prosecutor argued that the State was not required to show
that Mayfield intended to use or threaten the use of force in attempting to have sexual
contact with H.R. Instead, the prosecutor contended that the State was only required to
show that Mayfield intended to engage in sexual contact with H.R. and that Mayfield
acted in reckless disregard of H.R.'s lack of consent.
The superior court dismissed Mayfield's indictment. Relying on our
6
unpublished opinion in State v. Townsend, the court concluded that "[e]vidence that the
defendant engaged in or attempted to engage in unwanted contact with H.R. is not
enough." Instead, the court concluded that "[t]here must be evidence before the grand
jury that the defendant attempted to coerce sexual contact with H.R. by the use of force
or threats." Because there was no such evidence, the court dismissed the indictment.
The State now appeals.
3 (...continued)
intent to harass or annoy that person).
4 AS 11.56.757(a), (b). Mayfield was on bail release from a disorderly conduct charge
at the time of the incident.
5 AS 11.41.420(a)(1) & AS 11.31.100(a); AS 11.31.100(d)(4).
6 State v. Townsend, 2011 WL 4107008 (Alaska App. Sept. 14, 2011) (unpublished).
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----------------------- Page 6-----------------------
The elements of the completed crime of second-degree sexual assault
The dispute in this case primarily turns on a question of law: What does
the State need to prove in order to establish that a defendant is guilty of attempted
second-degree sexual assault? We begin our discussion by reviewing the elements of the
completed crime of second-degree sexual assault, and we then discuss the elements that
must be proven to establish attempted second-degree sexual assault.
Under AS 11.41.420(a)(1), a defendant commits the completed crime of
second-degree sexual assault if the defendant (1) engages in "sexual contact" with
7
another person, and (2) the sexual contact is "without consent."
In Reynolds v. State we
interpreted the statute to require an additional element: (3) that the defendant acts in
8
reckless disregard of the circumstance that the sexual contact is "without consent."
The first element of the crime is that the defendant engages in "sexual
contact" with another person. Under AS 11.81.900(b)(60), "sexual contact" means
"knowingly touching, directly or through clothing, the victim's genitals, anus, or female
breast" or "knowingly causing the victim to touch, directly or through clothing, the
defendant's or victim's genitals, anus, or female breast." Touching another person's
7 See Alaska Criminal Pattern Jury Instruction 11.41.420(a)(1) (2002).
8
See Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983). In Reynolds, we read
this recklessness mens rea requirement into the sexual assault statute in recognition of the
fact that, in eliminating the common law requirement of resistance, the legislature had
"substantially enhanced the risk of conviction in ambiguous circumstances" and increased
the likelihood that a defendant could be unfairly convicted of sexual assault even if the
defendant honestly and reasonably believed that the sexual contact was not without consent.
Id. at 624-25.
- 6 - 2643
----------------------- Page 7-----------------------
9
buttocks does not constitute "sexual contact" under Alaska law. However, touching
another person's buttocks may constitute the crime of harassment. 10
The second element of the crime is that the sexual contact is "without
consent." This term has a specialized legal meaning under Alaska law. Under
AS 11.41.470(8)(A), "without consent" means that the victim of the sexual contact,
"with or without resisting, is coerced by the use of force against a person or property, or
by the express or implied threat of death, imminent physical injury, or kidnapping to be
11
inflicted on anyone."
Thus, coercion by the use or threat of force is a central element of sexual
assault under Alaska law. The criminal code broadly defines "force" as "any bodily
impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or
12
confinement." But to prove the use of "force" in the context of sexual assault, the
9 See Reakoff v. State, 1998 WL 224919, at *4 (Alaska App. May 6, 1998)
(unpublished) (citing Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996) (noting that
the touching of another person's buttocks is not "sexual contact")).
10 See AS 11.61.118(a)(2) ("A person commits the crime of harassment in the first
degree if . . . the person violates AS 11.61.120(a)(5) and the offensive physical contact is
contact by the person touching through clothing another person's genitals, buttocks, or
female breast."); AS 11.61.120(a)(5) ("A person commits the crime of harassment in the
second degree if, with intent to harass or annoy another person, that person . . . subjects
another person to offensive physical contact.").
11 A sexual act is also "without consent" if the person is "incapacitated as a result of an
act of the defendant." AS 11.41.470(8)(B). This portion of the definition is not at issue in
this case.
12 AS 11.81.900(b)(28).
- 7 - 2643
----------------------- Page 8-----------------------
bodily impact or restraint must be more than simply the bodily impact or restraint
inherent in the charged act of sexual penetration or contact. 13
As the statutory definition makes clear, coercion can be established either
14
Resistance by the victim is not required. Instead, sexual
by force or the threat of force.
15
activity can be coerced even if the victim acquiesces or submits without resisting.
Moreover, the question of coercion is evaluated under the totality of the circumstances,
from the perspective of the victim who is subjected to the unwanted sexual activity.16
13 See Inga v. State, ___ P.3d ___, 2019 WL 989309 (Alaska App. Mar. 1, 2019); see
also Townsend, 2011 WL 4107008, at *7-8 (Mannheimer, J., concurring); Inga v. State , 2004
WL 719626, at *5 (Alaska App. Mar. 31, 2004) (unpublished). The requirement that the
bodily impact, restraint, or confinement be more than simply the bodily impact or restraint
inherent in the charged act of sexual penetration or contact derives from the common law and
remains the law in the majority of jurisdictions. See State v. Jones, 299 P.3d 219, 228 (Idaho
2013) ("The extrinsic force standard is the traditional view and 'is still the most commonly
adopted.'"). See generally 2 Wayne R. LaFave, Substantive Criminal Law § 17.3(a), (b), at
841-50 (3d ed. 2017) (discussing extrinsic force requirement and collecting cases).
14 AS 11.41.470(8)(A).
15 See, e.g., Ritter v. State, 97 P.3d 73, 77-78 (Alaska App. 2004); Nicholson v. State,
656 P.2d 1209, 1213 (Alaska App. 1982).
16 See, e.g., Maslin v. State , 718 N.E.2d 1230, 1235 (Ind. App. 1999), rev'd on other
grounds by Ludy v. State, 784 N.E.2d 459 (Ind. 2003) (noting that it is from the rape victim's
perspective, not the assailant's, that the presence or absence of forceful compulsion is to be
determined, and that this is a subjective test that looks to the victim's perception of the
surrounding circumstances); People v. Texidor, 71 A.D.3d 1190, 1193 (N.Y. App. Div. 2010)
(stating that the element of forcible compulsion must be viewed through "the state of mind
produced in the victim by the defendant's conduct," considering "all relevant factors
including the age of the victim, the relative size and strength of the defendant and the victim,
and the nature of the defendant's relationship to the victim") (internal citations omitted). See
generally 2 Wayne R. LaFave, Substantive Criminal Law § 17.3(a), (b), at 841-50 (3d ed.
2017).
- 8 - 2643
----------------------- Page 9-----------------------
However, the defendant's perspective is important to the third element of
second-degree sexual assault. Under this Court's decision in Reynolds v. State , the State
must prove that the defendant recklessly disregarded the circumstance that the sexual
17
activity was "without consent." That is, the State must prove that the defendant was
subjectively aware of a substantial and unjustifiable risk that the victim was coerced by
the use of force or threat of force - or that the defendant would have been aware of this
18
risk but for the defendant's voluntary intoxication.
(As defined in AS 11.81.900(a)(3), a "substantial and unjustifiable risk" is
a risk "of such a nature and degree that disregard of it constitutes a gross deviation from
the standard of conduct that a reasonable person would observe in the situation.")
In our past cases, we have often used a shorthand when describing the
element of "without consent." We have sometimes declared, for example, that in a
prosecution for sexual assault, the State is required to show that (1) the defendant
knowingly engaged in the sexual act, and that (2) the defendant recklessly disregarded
the victim's "lack of consent." But this shorthand description of the "without consent"
element is potentially misleading because the phrase "lack of consent" could be misread
as referring only to the fact that the sexual activity was unwanted, without the element
of coercion also required to establish sexual assault under Alaska law.
The elements of attempted second-degree sexual assault
Having reviewed the elements of the completed crime of second-degree
sexual assault, we now address the elements of attempted second-degree sexual assault.
Under AS 11.31.100(a), a person is guilty of an attempt to commit a criminal offense if,
17 Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983).
18 Id. at 625, 627; see AS 11.81.900(a)(3); AS 11.81.900(b)(35).
- 9 - 2643
----------------------- Page 10-----------------------
"with intent to commit a crime, the person engages in conduct which constitutes a
substantial step toward the commission of that crime." Thus, to convict a defendant of
attempted second-degree sexual assault, the State needs to prove that (1) the defendant
intended to commit the crime of second-degree sexual assault, and (2) the defendant took
a substantial step toward the commission of this crime. (This is similar to the
formulation used in other states to define attempted sexual assault crimes. 19)
But this definition is far from self-explanatory. As the present appeal
illustrates, substantial uncertainty has arisen as to exactly what the State must prove to
show that a defendant "intended to commit the crime of second-degree sexual assault."
The parties to this case also disagree regarding what elements of the completed crime
must be present in order for the defendant's actions to constitute a "substantial step"
toward the commission of the completed crime of second-degree sexual assault.
19 See, e.g., People v. Dixon, 75 Cal.App.4th 935, 942, 89 Cal.Rptr.2d 602, 607 (Cal.
App. 1999) ("Attempted sexual battery requires (1) an intent to and (2) a direct but
ineffectual act in an attempt to, touch an intimate part of the body (contact with the victim's
skin) of a victim unlawfully restrained (by force or fear), without the victim's consent, for
the purpose of sexual arousal, sexual gratification, or sexual abuse."); State v. Allen, 237 P.3d
14, 16 (Idaho 2010) ("An attempt consists of: '(1) an intent to do an act . . . which would in
law amount to a crime; and (2) an act in furtherance of that intent which, as it is most
commonlyput, goes beyond mere preparation.'" (quoting State v. Grazian, 164 P.3d 790, 796
(Idaho 2007))); State v. Rick, 463 S.E.2d 182, 188 (N.C. 1995) ("In order to prove an attempt
to commit an offense, the State must show defendant intended to commit the offense and
made an overt act, going beyond mere preparation, for that purpose, but falling short of the
completed offense."). See generally 2 Wayne R. LaFave, Substantive Criminal Law §
11.3(a), at 293-98 (3d ed. 2017) (noting that the mental state required for the crime of attempt
is the intent to commit the relevant crime, though the defendant need not intend criminality
per se).
- 10 - 2643
----------------------- Page 11-----------------------
We partially addressed these questions in two prior decisions: Guertin v.
20 21
State
and Sergie v. State. In Guertin, the defendant argued that there was no such
crime as "attempted second-degree sexual assault" because (according to Guertin)
"attempt" crimes could only exist for specific-intent offenses - that is, offenses where
a mens rea of "intentionally" is attached to a specific result. In other words, Guertin
argued that it was logically impossible for a person to "intentionally" commit a crime
when that crime was defined by the person's reckless disregard of the victim's lack of
22
consent.
Guertin also argued that the jury instructions in his case failed to adequately
inform the jury that the State had to prove that Guertin actually intended to engage in
sexual contact with the victim, rather than simply creating a substantial risk that such
23
sexual contact might occur.
We rejected both arguments, concluding that the crime of attempted sexual
assault existed and that the crime required proof that the defendant "attempted to engage
24
in sexual contact with another person without regard to that person's lack of consent."
We also found that the jury instructions, when read in a common-sense fashion, were
adequate to convey the State's obligation to prove that the defendant's conscious goal
25
was to engage in the prohibited sexual contact.
This Court's ruling in Guertin became the basis for a jury instruction that
was challenged more than ten years later in Sergie v. State, where we addressed the
20 Guertin v. State, 854 P.2d 1130 (Alaska App. 1993).
21 Sergie v. State, 105 P.3d 1150 (Alaska App. 2005).
22 Guertin, 854 P.2d at 1131.
23 Id. at 1133.
24
Id.
25
Id.
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----------------------- Page 12-----------------------
26
elements of attempted first-degree sexual assault. Sergie involved an intoxicated
husband who physically assaulted his wife, pushing her down to the floor multiple
times.27
Sergie then began removing his wife's shirt and bra and trying to remove her
28
Sergie's attack on his wife was witnessed
pants, telling his wife to "spread [her] legs."
by his sister and another family member, and was eventually stopped by the sister's
29
calling the police. At trial, the jury was instructed (in accordance with Guertin) that to
convict Sergie of attempted first-degree sexual assault, the State was required to prove
beyond a reasonable doubt that Sergie "intended to engage in sexual penetration with
30
another person without regard to that person's lack of consent."
On appeal, Sergie argued that the mens rea of "intentionally" applied to
both the phrase "sexual penetration with another" and the phrase "that person's lack of
31
consent." In other words, Sergie argued that a defendant could only be found guilty of
attemptedfirst-degreesexual assault ifthedefendant'sconsciousobjectivewas to engage
in sexual penetration with a victim that he knew was unwilling - and that a defendant's
willingness to proceed with the sexual penetration regardless of the victim's lack of
consent was not enough. We rejected this claim, concluding that it was enough for the
26 Sergie, 105 P.3d at 1153.
27 Id. at 1152-53.
28 Id.
29 Id. at 1152.
30 Id. at 1153.
31 Id.
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----------------------- Page 13-----------------------
State to prove that "Sergie intended to engage in sexual penetration with [his wife]
whether she consented or not ."32
As the parties in the current case both point out, our discussion in Sergie
was not as complete as it could have been, because the decision says very little about the
coercion element of "without consent." Instead, the language of our decision focuses
primarily on the victim's subjective willingness or unwillingness to engage in the
attempted sexual activity. Sergie did not directly address the issue of coercion,
presumably because the defendant's willingness to use force was already apparent under
the facts of this case.
The failure of either Sergie or Guertin to directly address the coercion
element of "without consent" leads Mayfield to argue that these cases were wrongly
33
The State argues that Sergie and
decided and should be overruled by this Court.
Guertin should be clarified rather than overruled. We agree with the State that our prior
caselaw is potentially misleading and that additional clarification of the "without
consent" coercion element is required.
As has been recognized in other jurisdictions, to be guilty of attempted
sexual assault, a defendant must intend - or at least conditionally intend - to use
"whatever force is required to commit the sexual act against the victim's will."34 That
32 Id. at 1155 (emphasis added).
33 See Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 2004)
("We will overrule a prior decision only when clearly convinced that the rule was originally
erroneous or is no longer sound because of changed conditions, and that more good than
harm would result from a departure from precedent.") (internal quotations omitted).
34 United States v. Bolanos-Hernandez, 492 F.3d 1140, 1147 n.5 (9th Cir. 2007) (internal
citations omitted). See generally Laurie L. Levenson & Alex Ricciardulli, The Rutter Group,
California Criminal Law § 7:12 (2018-2019 ed.) ("The specific intent required for a
(continued...)
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----------------------- Page 14-----------------------
is, the defendant must be willing to use force or threat of force to the extent necessary to
achieve the desired sexual contact.
As a general matter, the law views a qualified or conditional intent as just
35
as culpable as an unconditional intent. Thus, if a defendant attempts to carry away an
item of property not knowing whether it belongs to him or is simply a similar-looking
item, and if the defendant intends to keep the item no matter to whom it belongs, then
36
this is attempted theft. Likewise, if a defendant is aware of a substantial and
unjustifiable risk that a victim is unwilling to engage in sexual contact, and if the
defendant intends to use force or threat of force if necessary to effectuate their intended
goal of sexual contact, then the defendant is guilty of attempted second-degree sexual
assault.
How the State proves such an intent or conditional intent will depend on
the circumstances of the specific case. Proof that the defendant actually used force or
threat of force in an attempt to achieve the unwanted sexual contact will, of course, be
legally sufficient to prove the defendant's willingness to use force or threat of force for
purposes of defeating a motion for judgment of acquittal or a motion to dismiss an
indictment based on insufficiency of the evidence. Butthe defendant's "substantial step"
toward commission of the completed crime need not necessarily involve the actual use
of force or threat of force to survive such motions or to support a conviction. Rather, the
question is whether, given all the circumstances, the State has proved that the defendant
intended or conditionally intended to use force or threat of force if necessary to achieve
34 (...continued)
conviction for attempted sexual assault has been described as the intent to use whatever force
is required to complete the sexual act against the victim's will.").
35 See Rollin M. Perkins and Ronald N. Boyce, Criminal Law, 640 (3d ed. 1982).
36 Id.
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----------------------- Page 15-----------------------
the sexual contact. In other words, although a defendant's "substantial step" toward
committing the sexual assault need not necessarily include an active use of force or the
threat of force, the defendant's actions must still be "strongly corroborative" of the
defendant's willingness to use force or threat of force if necessary to effectuate the
intended sexual contact. 37
In sum, to prove that a defendant committed the crime of attempted second-
degree sexual assault under AS 11.41.420(a)(1), the State must establish that:
(1) the defendant intended to engage in sexual contact with the victim;
(2) the defendant recklessly disregarded a substantial and unjustifiable risk
that the victim was unwilling to engage in the sexual contact;
(3) the defendant intended to use force or threat of force if necessary to
achieve the sexual contact; and
(4) the defendant took a substantial step toward achievement of the
completed crime.
Application of this law to the current case
Under AlaskaCriminal Rule 6(q), "[t]he grand jury shallfindan indictment
when all the evidence taken together, if unexplained or uncontradicted, would warrant
a conviction of the defendant." In making the determination of whether an indictment
37 See Avila v. State, 22 P.3d 890, 893-94 (Alaska App. 2001) (noting that although the
Alaska criminal code does not explicitly define "substantial step," Alaska generally follows
the approach taken by the Model Penal Code: to qualify as a "substantial step," the
defendant's act must be "strongly corroborative of the actor's criminal purpose." (quoting
Alaska Criminal Code Revision, Tentative Draft, Part II at 72-73 (1977))); Iyapana v. State ,
284 P.3d 841, 848 (Alaska App. 2012); Beatty v. State, 52 P.3d 752, 755-56 (Alaska App.
2002).
- 15 - 2643
----------------------- Page 16-----------------------
was proper, the court must draw all legitimate inferences from the evidence in favor of
the indictment, and determine whether there exists a "probability of guilt." 38
In the current case, the superior court found that the evidence presented to
the grand jury was insufficient to establish that Mayfield intended to use force or threat
of force if necessary to achieve the sexual contact.
On appeal, the State criticizes this ruling, arguing that the superior court
erroneously required the State to prove that the "substantial step" underlying the
attempted sexual assault included the active use of force or threat of force. We read the
superior court's order differently. Although the State is correct that a defendant's
"substantial step" need not involve the active use of force or threat of force, the conduct
must still be "strongly corroborative" of the defendant's willingness to use force or threat
39
of force to effectuate the intended sexual contact.
Here, the evidence showed that Mayfield engaged in physical contact with
H.R. - contact that alarmed and frightened her. Mayfield put the fingertips of his hand
on H.R.'s hip between her pants and leggings - an action that H.R. described to her
friends as Mayfield "grabb[ing] her butt." But there is no indication that Mayfield
reached toward H.R.'s genitals, or that his intent was to have contact with H.R.'s
genitals. Nor is there any indication that Mayfield intended (or conditionally intended)
to use force or the threat of force to touch H.R.'s genitals.
In its briefing on appeal, the State compares this case to Nicholson v.
40
State,
and argues that similar reasoning should apply here. But the circumstances in
Nicholson were materially different from those presented here. Nicholson involved a
38 Sheldon v. State, 796 P.2d 831, 836-37 (Alaska App. 1990).
39 See Avila , 22 P.3d at 893-94; Iyapana , 284 P.3d at 848; Beatty, 52 P.3d at 755-56.
40 Nicholson v. State, 656 P.2d 1209 (Alaska App. 1982).
- 16 - 2643
----------------------- Page 17-----------------------
defendant who broke into a house in the early morning hours and proceeded to take his
41
clothes off and climb into bed with the sleeping fifteen-year-old victim.
The victim
42
awoke to find the naked defendant in her bed, fondling her breasts and kissing her.
43
Taken by surprise, she hesitated for a moment, and then jumped up, waking her sister.
44
The two girls fled downstairs, where they armed themselves with butcher knives.
Nicholson was later convicted of second-degree sexual assault, as a lesser included
charge of the charged attempted first-degree sexual assault.45
On appeal, Nicholson argued that there was insufficient evidence to indict
him for attempted first-degree sexual assault, arguing that his conduct only supported an
inference that he wished to fondle the breast of the victim, not that he intended sexual
penetration.46
We rejected this argument, concluding that:
a jury could reasonably infer that Nicholson intended to
"penetrate" K.R. and that entering her bed naked and
uninvited and fondling her were "substantial steps" toward
the commission of that crime. We are satisfied that a jury
could conclude that if Nicholson had intended only sexual
contact [as opposed to penetration], he would not have
undressed before entering her bed and that if he did not
intend to coerce her he would not have entered her home
41 Id. at 1210.
42 Id.
43 Id.
44 Id.
45 Id.
46 Id. at 1211-12.
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uninvited in the early morning hours when a jury could find
that he knew her parents would be gone. 47
The circumstances of Mayfield's case are far more ambiguous as to the
defendant's intent to use or threaten force to engage in sexual contact. Although the
State refers to Mayfield "putting his hand down H.R.'s pants," the testimony at the grand
jury was that Mayfield put his fingertips between H.R.'s pants and leggings, and that he
touched her only on her hip. Contrary to the State's assertions on appeal, there is no
indication that Mayfield's hand would have impeded H.R.'s ability to stand up or to pull
away from the unwanted touching. Nor is there any indication that Mayfield tried to
continue to touch H.R. after she voiced her disapproval. There is also no way to tell
what the intended goal of the touching was. H.R. herself apparently viewed it as an
attempt to grab her "butt," and she initially described it as such to her sister and friend.
Onappeal, theStatepoints out thepotentiallycoercivecircumstancesunder
which the touching occurred, focusing in particular on H.R.'s age and the fact that the
movie theater was dark. We agree that such circumstances are relevant to a jury's
consideration of whether an intent (or conditional intent) to use force has been shown.
Also relevant, however, is the fact that H.R. was in a public place, accompanied by her
sister and her friend, and surrounded by other moviegoers. We also note that the State
has not charged Mayfield with attempted sexual abuse of a minor or put forward any
evidence suggesting that Mayfield was aware of H.R.'s age or that Mayfield viewed H.R.
as particularly vulnerable. And, as already noted, the State put forward no evidence as
to the intended goal of the touching, which was limited in nature (although undoubtedly
frightening to H.R.).
47 Nicholson, 656 P.2d at 1212.
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In sum, even viewing the evidence in the light most favorable to the
indictment, the evidence shows that Mayfield engaged in offensive and unwanted
touching of H.R. - touching that was frightening to her - but it does not show that
Mayfield acted with the intent to force his hand down H.R.'s pants and touch her genitals
"without consent."
A person cannot be indicted (or convicted) based on mere conjecture or
48
speculation.
Because the evidence presented to the grand jury failed to show that
Mayfield took a substantial step toward completing the crime of second-degree sexual
assault, we agree with the superior court that this evidence was insufficient to support
Mayfield's indictment. Accordingly, we affirm the superior court's dismissal of the
indictment, and we remand this case to the superior court for further proceedings, as
appropriate.49
Conclusion
The judgment of the superior court is AFFIRMED, and this case is
REMANDED to the superior court for further proceedings consistent with this decision.
48 See Alaska R. Crim. P. 6(q); Allen v. State , 420 P.2d 465, 467 (Alaska 1966).
49 The record on appeal indicates that Mayfield has already pleaded no contest to
second-degree harassment and violating conditions of release, and he has already been
sentenced on those charges.
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