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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KEITH ROSCOE BARTMAN,
Court of Appeals No. A-13954
Appellant, Trial Court No. 3KN- 14-00947 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2795 - January 10, 2025
Appeal from the Superior Court, Third Judicial District, Kenai,
Jennifer K. Wells, Judge.
Appearances: Michael L. Barber, Barber Legal Services,
Boston, Massachusetts, under contract with the Office of
Public Advocacy, Anchorage, for the Appellant. Kayla H.
Doyle, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell,
Judges.
Judge ALLARD.
Keith Roscoe Bartman was convicted, following a jury trial, of two counts
of second-degree sexual abuse of a minor and one count of attempted second-degree
----------------------- Page 2-----------------------
1
sexual abuse of a minor for engaging in sexual contact with a fourteen-year-old girl.
Bartman challenges his convictions, raising two issues on appeal. First, Bartman argues
that the superior court violated his right to self-representation when it denied his request
to represent himself. Second, Bartman argues that the superior court erred when it
instructed the jury that the term "genitals" includes the mons pubis. For the reasons
explained in this opinion, we reject both claims of error and affirm Bartman's
convictions.
Factual background
Around January 2014, Bartman began dating Toni Bismark. Bismark had
three children that were living with her: fourteen-year-old H.B.; nine-year-old C.B.; and
six-year-old S.B. Bartman first moved in with Bismark and her children when they were
living in a hotel in Anchorage. After a couple of months, the five of them moved down
to Kenai and stayed with friends of Bartman.
In Kenai, the girls slept together on couches right by the entryway inside
a house, while Bartman and Bismark slept inside of Bismark's car. On multiple
occasions, Bartman came into the house at night while everyone was sleeping and
sexually abused H.B.
H.B. testified that the first time it happened, Bartman began rubbing
H.B.'s vagina over her pajamas, causing her to wake up. H.B. stated that she "froze up"
and "couldn't do anything" other than lay there as Bartman continued to touch her.
According to H.B., after this first incident, Bartman would come into the
house at night and sexually abuse H.B. at least once a week for over three months, from
late February through May 2014. On some occasions, Bartman placed his hands
underneath H.B.'s pajamas and touched her vagina; on others, he pulled her pajamas
1 AS 11.41.436(a)(5)(A) and AS 11.41.436(a)(5)(A) & AS 11.31.100(a),
respectively.
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----------------------- Page 3-----------------------
down and put his mouth on her vagina, or spread her legs apart and rubbed his penis
against her. H.B. pretended to sleep while Bartman sexually abused her.
C.B. woke up on one of these nights and observed Bartman "grunting or
moaning" as he rocked his pelvis against H.B.'s pajamas near her vagina. C.B. did not
tell H.B. that she had seen anything until later that year because she was worried that
her mother or H.B. would be mad about it.
H.B. testified that she intentionally began sleeping on the couch closest to
the door to make sure Bartman would assault her and not her sisters. H.B. felt "scared,"
"angry," and "ashamed" whenever this happened because she knew it was wrong and
she worried she would get in trouble if anyone found out.
Bartman, Bismark, and her children stayed with Bartman's friends for a
few months, but would leave occasionally and stay with various people around the
Kenai Peninsula. H.B. was hospitalized for some length of time between May and June
of this period.2 While H.B. was hospitalized, Bartman, Bismark, C.B., and S.B. stayed
briefly at a hotel in Anchorage. While there, C.B. observed Bartman standing over S.B.,
pulling a blanket away from her and "messing with his pants." C.B. later testified that
she was afraid Bartman was going to do to S.B. what he had done to H.B., so she kicked
him in the chest and he left the room.
On a different occasion, the family was again staying with Bartman's
friends. C.B. testified that a person she assumed to be Bartman came into the area where
C.B. and S.B. were sleeping. C.B. heard a zipper open. C.B. testified that she
"panicked" and kicked, and the person she assumed to be Bartman left.
While H.B. was in the hospital, Bartman and Bismark met a woman at a
food bank named Valerie Campbell who offered to let them stay at her house. Bartman,
Bismark, C.B., and S.B. moved in with Campbell, with H.B. moving in after she was
2 It is unclear from the record why H.B. was hospitalized. In its briefing, the State
attributes her hospitalization to self-harm caused in part by Bartman's abuse.
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----------------------- Page 4-----------------------
released from the hospital. Just as they did with Bartman's friends, the three girls slept
in Campbell's house while Bartman and Bismark slept in the car. Bismark eventually
gave full custody of the girls to Campbell and the girls began staying with her by
themselves. Under this arrangement, Bismark could pick up H.B. and spend time with
H.B. away from Campbell's house.
In late June 2014, Campbell observed that H.B. was reluctant to leave
when Bismark came to pick her up. Shortly thereafter, H.B. told Campbell about the
sexual abuse and Campbell contacted the police. The police came to Campbell's house
and interviewed the children and H.B. was also interviewed at a Child Advocacy
Center. Campbell tried unsuccessfully to contact Bartman and Bismark to have them
come to the residence.
When Bismark learned about the allegations against Bartman, she dropped
him off on the side of the road between Nikiski and Soldotna and left him there.
Bartman decided it was best for him to no longer be around Bismark and her children.
Bartman subsequently wrote a suicide note and tried to kill himself by walking into the
Kenai River. He was pulled out of the river by police and taken to a hospital to recover.
After he recovered, Bartman was interviewed by the police. The
investigator told Bartman that he had interviewed the girls and that he knew what
Bartman had done. Bartman denied knowing why the police were interviewing him,
and described H.B. and her siblings as "beautiful little liars." Eventually, however, he
stated that H.B. had "led [him] on" and that things got "out of hand."
Bartman acknowledged an instance where he put his hand inside H.B.'s
jeans but insisted he only touched her waist and that H.B. initiated the encounter.
Bartman initially claimed this was the only time he had done something like this to H.B.
and denied having weekly sexual encounters with H.B. Later in the interview, the
investigator asked Bartman about the incident where Bartman had walked into where
the girls were sleeping and removed his pants. Bartman answered that he was simply
changing his pants.
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----------------------- Page 5-----------------------
Bartman was asked about placing his mouth on H.B.'s genitals. He
admitted that this was a second incident. He told the investigator that H.B. removed her
pants and he kissed her from the "top of her pube line down." He claimed that he tried
to pull away but his "face got buried in further."
Bartman was eventually charged with three counts of second-degree
sexual abuse of a minor for his conduct involving H.B., two counts of attempted second-
degree sexual abuse of a minor for his conduct involving C.B. and S.B., and one count
3
of misdemeanor failure to register as a sex offender.
At trial, the jury convicted Bartman of two counts of second-degree sexual
abuse of a minor for his conduct involving H.B. As to the third charge involving H.B.,
the jury acquitted him of second-degree sexual abuse of a minor, but convicted him of
the lesser-included offense of attempted second-degree sexual abuse of a minor. The
jury acquitted Bartman of the two counts of attempted sexual abuse of a minor involving
C.B. and S.B. The State dismissed the failure to register charge.
Bartman now appeals.
Why we conclude that the superior court did not err when it denied
Bartman's request to represent himself
Bartman first argues that the superior court erred because it deprived him
of his right to represent himself at trial. He argues that he knowingly, intelligently, and
voluntarily waived his right to counsel and that he was at least minimally capable of
presenting his case to the jury in a coherent fashion. We first describe the procedural
history of this issue.
3 AS 11.41.436(a)(5)(A), AS 11.41.436(a)(5)(A) & AS 11.31.100(a), and
AS 11.56.840(a)(1), respectively. Bartman was required to register as a sex offender
because he had previously pleaded guilty to attempting to sexually abuse a six-year-old
child.
- 5 - 2795
----------------------- Page 6-----------------------
Prior to trial, Bartman underwent a competency evaluation because his
appointed attorney expressed concerns regarding Bartman's competency to stand trial.
The psychologist who evaluated Bartman found him competent to stand trial, but noted
that Bartman "may, at times, be difficult to interact with." The psychologist noted that
Bartman sometimes refused to participate in the evaluation, and that "[h]is response
style was not elaborative, and he became much briefer in his answers when inquiries
related to legal procedure were made." The superior court subsequently found Bartman
competent to stand trial.
Nearly eleven months later, the court held a confidential representation
hearing with just Bartman and his attorney. The hearing was held telephonically.
Bartman began by telling the court that he wished to represent himself at
trial. The court's first question to Bartman was why he thought this would be in his best
interest, to which Bartman answered that he was not aware he needed to give a reason.
The court told Bartman it was not trying to trick him; he had the right to represent
himself, but the court would have to first determine that he was minimally capable of
doing so.
The court asked Bartman if he knew what he was charged with and what
the possible penalties were. Bartman said "yes," but when the court asked for more
specificity, Bartman did not answer. The court followed up by asking if Bartman had
any legal training, and again received no audible response. When the court asked what
it could do to make Bartman more comfortable answering the questions, Bartman
provided no audible response. The court tried again to have Bartman answer its
questions. Bartman was slow to respond and, when he did respond, he stated only that
he did not feel that his attorney would represent him fully. He did not directly answer
any of the court's questions.
The court then explained in detail why it was asking these questions. The
court explained that trials are "complicated," and because Bartman would be going up
against an experienced prosecutor, he would be at a disadvantage. Bartman responded
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----------------------- Page 7-----------------------
that despite having a tough time using the law library, he had been "doing [his] best to
learn" and had learned he was able to represent himself even if he did not have a law
license. Bartman acknowledged that he did not have any legal education or training.
After going through the list of charges, the court asked Bartman if he knew
what level the offenses were. At this point, the defense attorney interjected, saying the
level did not matter because Bartman faced a 99-year sentence. The court asked if
Bartman understood, and he replied that he did.
The court again wanted to know what steps Bartman had taken to learn
the rules of court and the rules of evidence. Bartman answered, "Aside from the
questions, I wish to proceed without an attorney." After Bartman told the court that he
did not want to answer any more questions, the court explained that it would be hard to
make a decision concerning his right to represent himself if he was not willing to answer
the court's questions. Bartman again said that he was not aware he "needed to give a
finding in order to proceed without counsel."
The court replied that it understood and read a statement to Bartman that
further explained the benefits of having an attorney, repeating the points from earlier
while adding more details about the practical and strategic importance of having a
lawyer. Upon finishing, the court asked Bartman if he had any questions, and he said
"no."
The court indicated it had more questions it needed to ask, but received no
response when it asked what formal education Bartman had. This caused the court to
conclude that Bartman's unwillingness to answer prevented it from making the findings
needed to grant Bartman's request:
So I get the feeling you don't want to answer my questions,
and that is fine, but to me that suggests that it's going to be
hard to have a trial together. So that - and I'm not able to
make the findings that I can make, so I 'm really inclined at
this point to say that, you know, I 've done what I can to give
you a chance to convince me that you 're knowingly and
intelligently waiving your right to a lawyer and that you can
- 7 - 2795
----------------------- Page 8-----------------------
present yourself in a rational and coherent manner. So unless
there's anything else you want to say right now, I'm not
going to allow you to represent yourself. Is there anything
else you wanted to say?
Bartman did not provide an audible response. The court acknowledged it
was difficult to gauge what was going on without being able to see Bartman and observe
any visual cues. The defense attorney told the court that it was difficult for her as well
since she could not see Bartman either. The attorney expressed that she wanted a chance
to speak to him about this issue and, if he still wanted to pursue self-representation, she
would speak with him about what information he would need to present to the court.
The court agreed.
The court later conducted a second hearing in which the prosecutor and
Bartman appeared in person, while Bartman's attorney appeared telephonically. The
court noted that it had attempted "a pretty thorough inquiry" at the previous hearing but
Bartman had been unwilling to answer many of its questions. Bartman was slightly
more responsive than he had been at the first telephonic hearing, but the exchanges with
the court continued to be marked by long pauses, unresponsive answers, and inaudible
responses.
For example, the court asked Bartman if he had been able to look at the
rules of evidence or the rules of criminal procedure. Bartman did not directly answer
the question and instead told the court that he was trying to get funding for a private
investigator. When the court asked Bartman about his level of education, Bartman
remained silent for a period of time before telling the court about a dormmate in jail
that was helping him. When the court warned Bartman that he might not be able to
introduce all the evidence he sought to admit without the assistance of an attorney,
Bartman did not respond at all.
Notably, when the court asked Bartman what penalties he thought he was
facing, Bartman answered "30 [years] for all five [charges]." The court then corrected
him, reminding him that he was facing a presumptive term of 99 years. The court also
- 8 - 2795
----------------------- Page 9-----------------------
warned Bartman that he would have to make decisions in the moment and would not
always be able to consult with his dormmate. The court noted Bartman's reluctance to
answer its questions and the time it often took Bartman to provide an answer. In
response, Bartman was silent for a period of time and then said, "The bottom line is I'm
bringing my truth to the table, and I don't feel that I have [to have] a representative in
order to be at trial."
The court then asked the defense attorney and the prosecutor if they had
anything to add. The defense attorney noted that Bartman had a constitutional right to
represent himself. The prosecutor expressed significant concerns about Bartman's
ability to represent himself, noting his confusion over the penalties he faced, his
ongoing reluctance to answer the court's questions, and the non-responsive nature of
the answers he did give.
The superior court agreed with the State and denied Bartman's motion to
represent himself.
A criminal defendant has a constitutional right to waive their right to
counsel and to represent themselves at trial if they "voluntarily and intelligently elect
to do so."4 This right of self-representation is not absolute; it may be restricted in narrow
5
circumstances "to prevent a perversion of the judicial process."
In McCracken v. State , the Alaska Supreme Court set forth the
requirements that must be met before a trial court may permit a defendant to represent
themselves.6 First, the trial court must determine whether a defendant "is capable of
4 Falcone v. State, 227 P.3d 469, 472 (Alaska App. 2010) (quoting Faretta v.
California, 422 U.S. 806, 807 (1975)).
5 Id. (quoting McCracken v. State , 518 P.2d 85, 91 (Alaska 1974)).
6 McCracken , 518 P.2d at 91-92.
- 9 - 2795
----------------------- Page 10-----------------------
7
presenting his allegations in a rational and coherent manner." Second, the trial court
must be satisfied that the defendant "understands precisely what he is giving up by
declining the assistance of counsel."8 Lastly, the trial court must determine that the
defendant "is willing to conduct himself with at least a modicum of courtroom
9
decorum."
Thus, once a defendant clearly and unequivocally declares their desire to
waive counsel, the trial court must conduct a self-representation hearing in which the
court details the benefits of counsel and the risks of proceeding pro se .10 "The purpose
of this hearing is to ensure that the defendant's decision to waive their constitutionally
protected right to counsel is a knowing and intelligent one."11 The hearing also ensures
that the defendant is "'minimally capable of presenting their case in a coherent fashion '
12
and 'capable of conducting their defense without being unusually disruptive.'"
The State does not contest that Bartman clearly and unequivocally
asserted his right to self-representation, and the State does not argue that Bartman would
be unusually disruptive if he represented himself. Rather, the State argues that, because
Bartman was deflective or otherwise nonresponsive to the court's questions, the court
was unable to find that Bartman could present his defense in a coherent manner or that
he understood the advantages of proceeding with an attorney and the disadvantages of
proceeding without one.
7 Id. at 91.
8 Id.
9 Id. at 92.
10 Hinshaw v. State, 515 P.3d 129, 138 (Alaska App. 2022) (citing McCracken , 518
P.2d at 91-92).
11 Id.
12 Id. (quoting Oviuk v. State, 180 P.3d 388, 390 (Alaska App. 2008)).
- 10 - 2795
----------------------- Page 11-----------------------
In Bourdon v. State, an unpublished case, Bourdon asserted his right to
self-representation.13 The trial court asked Bourdon whether he could follow the rules
of evidence and whether he understood how to present evidence.14 Bourdon refused to
respond, stating that he "will not understand anything that [the court is] saying right
now" and he objected to the court's exercise of jurisdiction over him.15 The court told
Bourdon that it needed to ask him questions from a self-representation checklist and
that without "comprehensible answers," the court would not be able to grant his
request. 16 Bourdon refused to answer the questions and continued to contest the court's
jurisdiction over him. 17 The court denied Bourdon's request to represent himself
because his "refusal to answer the judge's questions effectively sabotaged the judge's
ability to determine whether Bourdon knowingly, intelligently, and voluntarily waived
18
his right to counsel."
This Court determined that the trial court did not abuse its discretion in
denying the defendant's request for self-representation because Bourdon had caused the
trial court to suspect "that he might not be able to understand the legal issues in the case,
to organize himself and mount a coherent defense, and to conform himself to proper
courtroom decorum in the sense of following the court's orders not to argue legal
irrelevancies to the jury."19 However, "the judge was never able to get to the bottom of
13 Bourdon v. State, 2018 WL 3933557, at *1-2 (Alaska App. Aug. 15, 2018)
(unpublished).
14 Id.
15 Id. at *2.
16 Id.
17 Id.
18 Id.
19 Id. at *3.
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----------------------- Page 12-----------------------
these potential concerns" because Bourdon either deflected in response to the judge's
questions with irrelevant responses or denied the court's authority to conduct the
20
inquiry at all.
Bartman's responses to the court's questions are not as obstinate as
Bourdon's responses. In fact, at the in-person hearing, the court commended Bartman
for "clearly paying attention" and providing his "full attention and trying to be as
responsive as [he could]." However, we find Bourdon sufficiently analogous because,
both in Bourdon and in the present case, the defendants' non-responsiveness and
deflection in the face of trial court questioning prevented the trial court from
determining that the defendant was minimally capable of representing himself.
Bartman declined to answer many of the court's questions. Rather than
answer the court's question at the first hearing about what steps he had taken to learn
the rules of court and rules of evidence, Bartman stated he did not want to answer any
more questions and wished to proceed pro se . Though the court told him it would be
difficult to decide whether Bartman was capable of representing himself if he did not
answer its questions, Bartman responded that he was not aware he "needed to give a
finding." When he was again asked at the second hearing whether he had the
opportunity to review the rules of evidence or criminal procedure, Bartman deflected
and told the court he was gathering funds for a private investigator.
Though Bartman's and Bourdon's attitudes toward their respective trial
courts stand in stark contrast, Bartman's pattern of non-responsiveness and deflection
resulted in the same outcome. The superior court was unable to determine whether
Bartman understood the advantages of proceeding with an attorney and the
disadvantages of proceeding without one, and whether he would be able to present his
20 Id.
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----------------------- Page 13-----------------------
arguments in a minimally coherent manner. We therefore conclude that the superior
21
court did not err when it denied Bartman's request to represent himself.
Why we conclude that the superior court did not err when it provided a
definition of "genitals" that included the mons pubis
Next, Bartman argues that the superior court erred when it provided, in
response to a jury question, a definition of the term "genitals" that included the mons
pubis - the rounded mass of fatty tissue that covers the pubic bone.
Bartman was charged with multiple counts of second-degree sexual abuse
of a minor for "engag[ing] in sexual contact" with H.B.22 The phrase "sexual contact"
is defined by statute as "the defendant's knowingly touching, directly or through
23
clothing, the victim's genitals, anus, or female breast."
At trial, the State presented evidence of Bartman's inculpatory statements
to the police, including his admission that he had kissed H.B. from the "pube line
down." In closing argument, the prosecutor told the jury that Bartman was guilty of
touching H.B.'s "genitals" even if he did not penetrate or touch "just the vagina itself."
Rather, the prosecutor argued, Bartman was guilty of engaging in sexual contact even
21 In their briefing on appeal, the parties use an abuse of discretion standard of review.
See, e.g., Falcone v. State, 227 P.3d 469, 473 (Alaska App. 2010) (reviewing for abuse of
discretion the trial court's determination that the defendant was incapable of presenting his
case in a coherent fashion or conforming to the orderly procedures of the court). However,
as we have recently noted, federal law generally views the waiver determination as a mixed
question of fact and law that is reviewed de novo. See Hinshaw v. State, 515 P.3d 129, 137
(Alaska App. 2022) (discussing federal standard of review). Because we conclude that the
outcome in this case would be the same regardless of what standard of review we employ,
we need not address it further.
22 AS 11.41.436(a)(5)(A).
23 AS 11.81.900(b)(61)(A)(i).
- 13 - 2795
----------------------- Page 14-----------------------
if he only touched the mons pubis. Here is how the prosecutor articulated this point to
the jury:
Sometimes there are questions and we talk about the vagina,
those things, that's a part of the female genital structure,
[b]ut [the term "genitals"] includes all of it . . . all of the
female genitalia, from, as Mr. Bartman explained it, the pube
line on down - the mons pubis, the pubic hair, that area of
her genitals, that whole structure. It doesn't require actual
penetration or touching of just the vagina itself.
Although the prosecutor's argument was a legal one - i.e., an argument
about the meaning of the statutory term "genitals" - the jury was not given a definition
of the term "genitals" as part of their jury instructions. Instead, the jury was simply
instructed, consistent with the statutory definition, that sexual contact means "the
defendant's knowingly touching, directly or through clothing, the victim's genitals,
anus, or female breast."
During deliberations, the jury sent the superior court a note: "Could we
get some clarification on the State's definition of a victim's genitals. Does the State
have a set definition of specific body parts? In relation to the definition of victim's
genitals."
After consulting with the parties, reviewing our case law, and examining
various dictionaries, the court provided the following instruction to the jury:
The term 'genitals' means the entire female genitalia,
including both the vagina and the vulva. Vulva is defined as
the external parts of the female genitalia, including the labia
majora, the labia minora, mons pubis, clitoris, perineum, and
the vestibule or entrance to the vagina.
Bartman objected to this instruction, and he again challenges this
instruction on appeal. Bartman argues first that the court should not have provided any
definition to the jury. This is incorrect. Alaska Criminal Rule 30(b) provides that "[t]he
court shall instruct the jury on all matters of law which it considers necessary for the
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----------------------- Page 15-----------------------
jury's information in giving their verdict." 24 If the jury appears confused about a legal
issue and previous instructions do not alleviate that confusion, "the trial judge has a
'responsibility to give the jury the required guidance by a lucid statement of the relevant
legal criteria. When a jury makes explicit its difficulties, a trial judge should clear them
away with concrete accuracy.'"25 Further, when a statutory term "is susceptible of
differing interpretations, only one of which is a proper statement of the law, an
26
instruction must be given."
Here, the jury was apparently confused about a legal issue - namely, the
meaning of the term "genitals." The judge therefore had an obligation to clear away the
27
jury's confusion about the meaning of this term "with concrete accuracy."
Bartman's second argument is that the definition the court provided was
legally incorrect because the term "genitals," at least for purposes of the statutory
definition of "sexual contact," does not include the mons pubis.
The proper interpretation of a criminal statute is a question of law that we
decide de novo using our independent judgment.28 "When we interpret a statute, our
task is 'to ascertain the legislature's intent and then to construe the statute so as to
implement that intent.'"29 We interpret statutes "according to reason, practicality, and
24 Alaska R. Crim. P. 30(b).
25 Des Jardins v. State, 551 P.2d 181, 190 (Alaska 1976) (quoting Bollenbach v.
United States, 326 U.S. 607, 612-13 (1946)).
26 McKee v. State , 488 P.2d 1039, 1043 (Alaska 1971) (citing People v. Escarcega,
78 Cal. Rptr. 785, 789 (Cal. App. 1969)).
27 Des Jardins, 551 P.2d at 190 (quoting Bollenbach, 326 U.S. at 612-13).
28 Seaman v. State, 499 P.3d 1028, 1034 (Alaska App. 2021) (citing Callan v. State,
904 P.2d 856, 857 (Alaska App. 1995)).
29 R.C. v. State, 435 P.3d 1022, 1026-27 (Alaska App. 2018) (quoting Williams v.
State, 2015 WL 4599554, at *3 (Alaska App. July 29, 2015) (unpublished)).
- 15 - 2795
----------------------- Page 16-----------------------
common sense, considering the meaning of the statute's language, its legislative history,
and its purpose."30 Alaska courts use "a sliding scale approach to statutory
interpretation, in which 'the plainer the statutory language is, the more convincing the
31
evidence of contrary legislative purpose or intent must be.'"
This Court has not previously defined the term "genitals" as it is used in
the definition of "sexual contact." We have, however, defined the term "genital
opening" (a term used in the statutory definition of "sexual penetration"32) to
encompass the vulva.33 In Hooper v. State, an unpublished case, we relied on Webster's
New World Dictionary to define the vulva as "the external genital organs of the female,
34
including the labia majora, labia minora, clitoris, and the entrance to the vagina."
Like the term "genital opening," the term "genitals" also encompasses the
vulva - i.e., the external female genital organs. The definition of vulva we used in
Hooper, however, did not list the mons pubis as one of the external female genital
organs.35 Bartman, relying on this omission, argues that Hooper "excluded the mons
pubis from its definition [of genitals]."
30 Alaska Airlines, Inc. v. Darrow , 403 P.3d 1116, 1121 (Alaska 2017) (citing Louie
v. BP Expl. (Alaska), Inc., 327 P.3d 204, 206 (Alaska 2014)).
31 Adamson v. Municipality of Anchorage , 333 P.3d 5, 11 (Alaska 2014) (quoting
McDonnell v. State Farm Mut. Auto. Ins. Co. , 299 P.3d 715, 721 (Alaska 2013)).
32 AS 11.81.900(b)(62)(A).
33 Hooper v. State, 1989 WL 1595096, at *3 (Alaska App. July 19, 1989)
(unpublished).
34 Id. ; see also Littlefield v. State , 2008 WL 4822916, at *3 (Alaska App. Nov. 5, 2008)
(unpublished) (holding that "sexual penetration" includes an intrusion into the labia
majora); Mason v. State , 2004 WL 1418694, at *2 (Alaska App. June 23, 2004)
(unpublished) (holding that "clitoral touching" constitutes "sexual penetration").
35 See Hooper, 1989 WL 1595096, at *3.
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----------------------- Page 17-----------------------
But there is a difference between "excluding" a term and "not including"
a term. The Webster's New World Dictionary we relied on in Hooper is a common
usage dictionary intended for a lay audience, and its definition of vulva did not purport
to be an exhaustive description of the external female genital organs. It did not, in other
36
words, exclude the mons pubis; it simply did not affirmatively include it.
As the State discusses in its brief, medical texts and dictionaries provide
more detailed descriptions of the vulva, and the consensus among these authorities is
that the mons pubis is part of the vulva. One text, for example, writes that the "female
external genitalia" includes the following parts: "the mons pubis, labia majora et minora
37
pudendi, the clitoris, vestibule, vestibular bulb and the greater vestibular glands."
Bartman argues that we should not rely on medical texts and dictionaries
to define the statutory term "genitals." Rather, he argues that we are "required" to rely
only on the "common usage" of the term as determined by lay dictionaries, like the one
we relied on in Hooper . This is incorrect. Alaska Statute 01.10.040(a) states that
"[w]ords and phrases shall be construed according to the rules of grammar and
36 We note, however, that the omission of the mons pubis from the definition of vulva
used in Hooper makes particular sense when it is understood that Hooper was defining the
term "genital opening," and not "genitals." See id. There is an important distinction
between "genital opening" and "genitals" in that the touching of the mons pubis, although
sufficient to establish that the defendant engaged in sexual contact (because the mons pubis
is part of the female genitals), is not sufficient to establish that the defendant engaged in
sexual penetration (i.e., "an intrusion, however slight, . . . into the genital or anal opening
of another person's body"). AS 11.81.900(b)(62)(A) (emphasis added).
37 Gray's Anatomy 1446 (Peter L. Williams et al. eds., 37th ed. 1989); see also Richard
Sloane, The Sloane-Dorland Annotated Medical-Legal Dictionary (1987) (defining
"vulva" as "the external genital organs of the female" that includes "the labia majora, labia
minora, [and] mons pubis"); Dorland's Illustrated Medical Dictionary (28th ed. 1994)
(defining the "external female genital organs" to include the pudendum femininum, and,
in turn, defining the "pudendum femininum" to include the mons pubis); Stedman's
Medical Dictionary (28th ed. 2006) (defining "vulva" as "the external genitalia of the
female, composed of the mons pubis" among others).
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according to their common and approved usage."38 But the very next sentence of that
provision explains that this rule does not apply to words that have acquired a particular
and technical meaning: "Technical words and phrases and those that have acquired a
peculiar and appropriate meaning, whether by legislative definition or otherwise, shall
39
be construed according to the peculiar and appropriate meaning."
The statutory term "genitals" has both a common meaning and a technical
one. But as our discussion above has made clear, these definitions are not mutually
exclusive or contradictory. Rather, the technical definition supplements and provides
further detail to the more general description of "genitals" (and associated terms, like
"vulva") typically provided by lay dictionaries.
In Hooper, the question presented - whether the phrase "genital
opening" for purposes of sexual penetration was ambiguous - could be resolved solely
by looking at the general definition of "vulva" provided in a lay dictionary, together
with the definition of "genital."40 Reading these definitions together, we concluded that
the phrase "genital opening" included the external genitalia and thus, there was no
ambiguity in the court's failure to further define this phrase for the jury.41 In other
words, the issue in Hooper was not whether the vulva included the mons pubis
specifically, but whether "the phrase genital opening includes the external genitalia
42
under Alaska law."
38 AS 01.10.040(a); see also Walker v. State, 742 P.2d 790, 791 (Alaska App. 1987).
39 AS 01.10.040(a); see also Gerlach v. State, 699 P.2d 358, 360 n.3 (Alaska App.
1985).
40 See Hooper, 1989 WL 1595096, at *3.
41 Id.
42 Id.
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The issue in this case is distinct from Hooper . Here, we must evaluate the
specific definition of "vulva." As we have explained, the lay definition of "vulva" we
relied on in Hooper does not address whether the mons pubis is part of the genitals.
Medical texts, however, are clear on this point.
Our reliance on medical texts is further supported by the decisions of other
state courts, including Virginia, Idaho, North Carolina, Texas, and Iowa, all of which
have relied, at least in part, on medical texts to conclude that the mons pubis is part of
43
the "genitals" or "genital area."
Our reliance on medical texts is also supported by the legislative history
and purpose of the statute. This Court has identified the "central purpose" of
AS 11.41.436 as protecting children "from becoming the objects of adults' sexual
gratification."44 The inclusion of the mons pubis within the definition of "genitals"
better supports the statute's purpose of protecting children from adult sexual predation.
For all these reasons, we hold that the mons pubis is part of the female
"genitals" as that term is used in the statutory definition of "sexual contact."
Finally, Bartman makes one more challenge to the jury instruction. As we
have explained above, the jury's question was as follows: "Could we get some
clarification on the State's definition of a victim's genitals. Does the State have a set
definition of specific body parts? In relation to the definition of victim's genitals."
(Emphasis added). Bartman asserts that this wording indicates that the jury wanted the
court to clarify the State's interpretation of the term "genitals," and he argues that the
court's response "should have provided some clarification that the definition it
43 Horton v. Commonwealth, 499 S.E.2d 258, 261 (Va. 1998); Crawford v. State,
377 P.3d 400, 409 n.4 (Idaho 2016); State v. Weathers, 366 S.E.2d 471, 473 (N.C. 1988)
(citing State v. Ludlum, 281 S.E.2d 159, 162 (N.C. 1981)); Carmell v. State, 963 S.W.2d
833, 837 (Tex. App. 1990), rev'd on other grounds, 529 U.S. 513 (2000); State v. Martens,
569 N.W.2d 482, 485-86 (Iowa 1997).
44 Stephan v. State, 810 P.2d 564, 567 (Alaska App. 1991).
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----------------------- Page 20-----------------------
ultimately provided was the court's view of the law or the legal definition of 'genitals'
and not the 'State's definition.'"
We find no merit to this argument. For starters, the jury was instructed
that they should disregard the lawyers' arguments if they departed from the law as
instructed by the court. Further, the court did not immediately respond with an answer
to the jury's question. Instead, the court explained that it would need additional time to
research and answer the question. Specifically, the court told the jury:
The court is not able to research and answer this question
before 4:30PM today and needs more time. Please deliberate
until 4:30PM and return to the court at 8:30AM tomorrow
morning. This is the court's decision. Do not hold it against
either party.
Given this response, it is highly unlikely the jury believed the definitions
of "genitals" and "vulva" provided by the court were the State's definitions, or that the
court was otherwise advocating on behalf of the State.
Conclusion
For the reasons stated above, the judgment of the superior court is
AFFIRMED.
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