WILBURN D. JACKSON, Appellant,
STATE OF ALASKA, Appellee
Appeal from the Superior Court, First Judicial District, Sitka, Patricia A. Collins, Judge. Trial Court No. 1SI-09-84 CR.
Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]
Wilburn Dean Jackson was convicted of first-degree sexual assault and fourth-degree assault for physically assaulting L.D., his girlfriend, and forcing her to have sexual intercourse. Jackson appeals his sexual assault conviction, arguing that the superior court erred in failing to give the jury a proper unanimity instruction on that charge.
Because we conclude that the failure to properly instruct the jury on the need for unanimity constituted plain error in this case, we reverse Jackson's sexual assault conviction and remand for a new trial.
Factual and procedural background
Jackson and L.D. lived together and were in a sexual relationship for six years. On March 2, 2009, they went to a local bar and had several drinks. L.D. became too intoxicated to drive and took a cab back to the trailer she shared with Jackson. Jackson returned to the trailer sometime later that night. Although L.D. could not remember the specific details of Jackson's arrival, she recalled that he pulled her by the hair and dragged her to the trailer door. (This conduct formed the basis of the fourth-degree assault conviction that Jackson is not challenging on appeal.)
The next morning, L.D. woke to find Jackson lying next to her. Jackson apologized for putting his fingers in her vagina the night before, an action L.D. did not remember happening. Later in the morning, Jackson grew upset about misplaced money and began throwing things around the trailer and breaking furniture. Eventually, however, he calmed down and lay down on a couch in the living room, and L.D. lay down on the living room floor.
L.D. testified that, at that point, Jackson yelled at L.D. to get her " ass in the air." She initially did not respond, but when Jackson repeated his command, L.D. refused. L.D. testified that Jackson then " flew" off the couch and held her down with his body. She said that while Jackson was holding her down from behind, she could feel his penis in her vagina and then in her anus. Once the assault was over, L.D. called 911; the police arrived and took Jackson into custody.
Jackson gave a recorded interview to the police. The interview was played at trial, and the jury was also provided with a transcript. During the interview, Jackson admitted that he stuck two fingers into L.D.'s vagina the previous night and that he apologized to L.D. because she had not liked the way he did it.
Jackson also claimed in the interview that the vaginal sex with L.D. the next morning was consensual. He stated that L.D. had allowed him to lie down next to her on the living room floor and eventually also to put his penis into her vagina. Jackson stated that although L.D. may not have affirmatively wanted to have sex, he believed that she " didn't mind" and was willing to go along with it. Jackson explained that, after a few thrusts, his penis fell out of L.D.'s vagina, and when he attempted to reenter, he accidently put his penis in her anus. Because
L.D. and Jackson had previously discussed that they would not have anal sex, Jackson immediately withdrew and ...