KELSEY P. GEORGE, Petitioner,
STATE OF ALASKA, Respondent
Petition for Hearing from the Court of Appeals of the State of Alaska, on appeal from the Superior Court of the State of Alaska, Third Judicial District, Glenallen, Eric Smith, Judge. Court of Appeals No. A-11028.
Dan S. Bair, Assistant P ublic Advocate, and Richard Allen, Alaska Public Advocate, Anchorage, for Appellant.
Timothy W. Terrell, Assistant Attorney General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Fabe, Maassen, and Bolger, Justices. [Winfree, Justice, not participating.].
STOWERS, Chief Justice.
Kelsey P. George was convicted of four counts of sexual abuse of a minor in the first degree, three counts of sexual abuse of a minor in the second degree, and one count of attempted sexual abuse of a minor in the first degree. George appealed, challenging one of the first-degree sexual abuse counts (Count Ten) and the attempted sexual abuse count (Count One). The court of appeals affirmed his convictions on both counts, and George filed a petition for hearing regarding the sufficiency of the evidence supporting the conviction on Count Ten, which we granted.
We conclude that the evidence was insufficient to convict George on Count Ten. Therefore, we reverse the court of appeals' decision in part, and we remand this matter to the superior court for entry of a judgment of acquittal on Count Ten.
II. FACTS AND PROCEEDINGS
George was indicted in December 2009 on one count of attempted sexual abuse of a minor in the first degree and three counts
of sexual abuse of a minor in the second degree. These charges involved two victims, T.E. and M.G. In November 2010 the grand jury indicted George on five new counts of sexual abuse of a minor in the first degree. These new counts all involved one victim, A.M. George's petition only involves the allegations related to A.M.
The State charged George with three different types of sexual abuse of A.M. occurring during two different time periods. The charges were as follows:
o Count Five: Sexual penetration, fellatio, between September 2005 and May 2006;
o Count Six: Sexual penetration, penis to vagina, between September 2005 and May 2006;
o Count Seven: Sexual penetration, penis to vagina, between September 2005 and May 2006;
o Count Eight: Sexual penetration, digital penetration, between September 2005 and May 2006; and
o Count Ten: Sexual penetration, digital penetration, between September 2004 and May 2005.
The only count at issue in this appeal is Count Ten, which charged George with digitally penetrating A.M. during her third-grade year when she was between eight and nine years old. Supporting George's indictment on Count Ten was A.M.'s testimony before the grand jury that George had abused her by digital penetration when she was in third grade.
B. George's Trial
The State introduced three main pieces of evidence at trial regarding George's abuse of A.M.: A.M.'s live testimony, A.M.'s forensic interview, and George's interview.
A.M. testified that she frequently stayed with her aunt, Marina, when A.M.'s grandparents (with whom A.M. lived) went out of town. George lived with Marina. A.M. stated that she last stayed with Marina when A.M. was in fourth grade or when A.M. was nine or ten years old. A.M. testified that she could not recall if she had stayed with Marina during the third grade.
A.M. indicated that George would come into her room when she stayed with Marina and that when George came into her room " [h]e would touch [her]." She stated that he first touched her when she was four. The prosecutor then asked her, " Do you remember him touching you when you were in the fourth grade?" A.M. stated that she did, and she proceeded to describe George abusing her by engaging in digital penetration. The prosecutor then changed focus, asking if George had touched her with anything other than his hands. A.M. testified that George had also made her engage in fellatio. She stated,
A: (Pause) He would make me put it in my mouth.
Q: He'd put his -- he'd make you put it in your ...