Appeal
from the Superior Court Trial Court No. 3PA-13-1048 CR, Third
Judicial District, Palmer, Kari C. Kristiansen, Judge.
Nancy
Driscoll Stroup, Law Office of Nancy Driscoll Stroup, Palmer,
under contract with the Office of Public Advocacy, Anchorage,
for the Appellant.
Brittany L. Dunlop, Assistant District Attorney, Palmer, and
Craig W. Richards, Attorney General, Juneau, for the
Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
OPINION
ALLARD, JUDGE
Following
a jury trial, Jerry Gene Inga was convicted of second-degree
sexual assault and third-degree assault.[1] According to the
State's evidence, Inga committed these offenses while he
was alone at his stepfather's house with his
stepfather's girlfriend, L.P. Inga had been violent
towards L.P. in the past, and his stepfather had previously
promised L.P. that he would not leave Inga and L.P. together
again.
While
Inga and L.P. were watching television, Inga propositioned
L.P. to have sex with him. L.P. told him no. Inga then
grabbed L.P.'s breasts. (This was the basis of the
second-degree sexual assault charge.) L.P. pushed Inga away.
Inga then pulled L.P. to the ground and beat her brutally.
During this beating, Inga straddled L.P. and tried to
restrain her hands above her head. L.P. suffered multiple
injuries from this assault, including a fractured nose. (This
was the basis of the third-degree assault charge.)
At
trial, Inga's attorney conceded that Inga was guilty of
beating up L.P., but the defense attorney contended that Inga
never grabbed L.P.' s breasts. The attorney argued that
L.P. was lying about this aspect of the attack - that she
invented a story of sexual assault so that Inga would get in
more trouble for the physical assault. The jury rejected the
defense attorney's contention and convicted Inga of both
sexual assault and physical assault.
On
appeal, Inga challenges the sufficiency of the evidence to
support his conviction for second-degree sexual assault. Inga
concedes that the jury could reasonably have found that he
grabbed L.P.'s breasts. But Inga now argues that the
State failed to present sufficient evidence of coercion to
render Inga's act of grabbing L.P.'s breasts
"without consent" as that term is defined in AS
11.41.470(8)(A).
For the
reasons explained in this opinion, we conclude that the
evidence presented at Inga's trial was sufficient to
establish the "without consent" element. We
therefore affirm Inga's conviction for second-degree
sexual assault.
Inga
also separately appeals his sentence, arguing that his
sentence is excessive and that the superior court erred in
rejecting the proposed mitigator that his conduct was
"among the least serious" included in the
definition of second-degree sexual assault. We affirm the
superior court's rejection of the statutory mitigator,
and we conclude that Inga's sentence is not clearly
mistaken.
Factual
background and proceedings in the trial court
Because
Inga challenges the sufficiency of the evidence to support
his sexual assault conviction, we present the following
background facts in the light most favorable to upholding the
jury's verdict.[2]
In
early May 2013, Inga was with his stepfather and his
stepfather's girlfriend, L.P., at the house his
stepfather was renting in Big Lake. A few months earlier,
there had been an incident where Inga had pushed L.P., and
L.P. was therefore aware that Inga could become violent. At
that time, Inga's stepfather had promised L.P. that he
would not leave Inga and L.P. together again.
Despite
this promise, Inga's stepfather left to go to Anchorage,
leaving Inga and L.P. to clean the house. After Inga and L.P.
had been cleaning for a while, Inga found ten dollars, and
they decided to walk to the liquor store and buy alcohol. On
the way home, Inga and L.P. were drinking shots of the vodka
they had purchased. L.P. later testified that Inga seemed
like he was getting upset with her.
When
they arrived back at the house, Inga and L.P. sat on the
couch and started watching television. According to
L.P.'s testimony at trial, Inga propositioned her for
sex. When L.P. said no, Inga grabbed her breasts. L.P. pushed
Inga away, and then he began beating her. During the beating,
Inga was straddling L.P., trying to restrain her hands above
her head, and biting her. L.P. fought back and punched Inga.
L.P. testified that she was bitten a couple of times on the
face and on her arms and then "somehow I got out of it,
and I ran out the side door." L.P. suffered multiple
injuries from the assault, including a fractured nose.
In her
statement to the police (which was played for the jury), L.P.
was asked if Inga had touched her sexually during the
assault. L.P. replied, "He grabbed my boobs... but I did
not let him get any further than that." At trial, L.P.
confirmed that Inga "grabbed [her] breasts in the course
of the assault," and that he did so in a
"groping-type way," although it "all happened
so fast."
After
escaping from the house, L.P. ran barefoot to a
neighbor's house located about a quarter-mile away. Inga
chased L.P. for part of the way, but eventually he gave up.
He was found by the troopers a few hours later walking south
on the Parks Highway.
At
trial, Inga's defense attorney argued that L.P. was lying
about Inga grabbing her breasts, and that L.P. told the
trooper that this happened because she wanted to get Inga in
even more trouble for the physical assault. During closing
argument, the defense attorney replayed L.P.' s interview
with the trooper for the jury, emphasizing that L.P. told the
trooper that Inga grabbed her breasts only after the trooper
asked L.P. if Inga had touched her sexually. The defense
attorney also attacked L.P.'s credibility, emphasizing
her intoxication and mental health issues.
Following
deliberations, the jury convicted Inga of both second-degree
sexual assault and third-degree assault. At sentencing, the
trial court rejected Inga's proposed mitigator that his
conduct was "among the least serious conduct included in
the definition of the offense, "[3] rejecting Inga's
contention that this was a "touch-and-go" breast
grab. The superior court ultimately sentenced Inga to 13
years with 3 years suspended (10 years to serve) on the
second-degree sexual assault and 5 years on the third-degree
assault, to run consecutively for a composite sentence of 18
years with 3 suspended (15 years to serve).
This
appeal followed.
Why
we conclude that the evidence presented at Inga's trial
was sufficient to establish the coercion element of
"without consent"
On
appeal, Inga argues that the evidence presented at trial was
legally insufficient to support his conviction for
second-degree sexual assault.
To
prove this charge, the State had to establish (1) that Inga
knowingly engaged in sexual contact with L.P. (here, touching
L.P.'s breasts), [4] (2) that this sexual contact was
"without consent" as that phrase is defined in AS
11.41.47O(8)(A), and (3) that Inga acted at least recklessly
with respect to the circumstance that the sexual contact was
"without consent."[5]
Under
AS 11.41.470(8)(A), an act of sexual penetration or sexual
contact is "without consent" if:
a person[, ] 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[.][6]
In
other words, to establish that sexual activity occurred
without consent, the State must prove that the victim was not
willing to engage in the sexual activity, and that the victim
was coerced by force or by the threat of force. Thus, the
phrase "without consent" refers to a particular
type of unwanted sexual activity: unwanted sexual activity
that is coerced by force or the threat of
force.[7]
For
purposes of our criminal code, the word "force" is
defined in AS 1 l.81.900(b)(28) as any "bodily impact,
restraint, or confinement, or the threat of imminent bodily
impact, restraint, or confinement." However, in the
context of sexual offenses, the "bodily impact,
restraint, or confinement" that the defendant uses or
threatens must be more than simply the bodily impact or
restraint inherent in the charged act of sexual penetration
or contact.[8]
In the
present case, Inga concedes that the State presented
sufficient evidence that Inga knowingly engaged in unwanted
sexual contact with L.P. - i.e., that he knowingly
touched L.P.' s breasts through her clothing when she did
not want him to do so. However, Inga contends that the State
failed to present sufficient evidence of the coercion element
of "without consent"-that is, he contends that
there was insufficient evidence that the sexual touching was
"coerced by the use of force."
But, as
Chief Judge Mannheimer's concurrence points out, whether
coercion exists in a particular case is inherently a
fact-intensive inquiry that ultimately turns on the totality
of the circumstances present in a given
interaction.[9]
Inga
argues that the facts of his case are analogous to the facts
in State v. Townsend, an unpublished decision
involving a charge of sexual assault in which a majority of
this Court held that the State failed to present sufficient
evidence that the victim was "coerced by the use of
force."[10] But the facts of Townsend
are materially different from the facts of Inga's case.
In
Townsend, T.M. and his fiancee were walking through
a crowded bar, brushing against people.[11] Townsend, dressed
in drag, approached T.M. and grabbed T.M.'s penis
(through T.M.'s clothing) for a few seconds. T.M.
immediately chased after Townsend and reported the incident
to a nearby police officer, who arrested Townsend for
second-degree sexual assault - i.e., engaging in
sexual contact "without consent."[12] When
Townsend was arrested, he admitted that he had grabbed the
victim's penis. He told the officer that he did not know
T.M., and that he grabbed T.M.'s penis because he wanted
to "hit on" T.M.[13]
Following
Townsend's indictment, Townsend's attorney moved to
dismiss the sexual assault charge, arguing that the evidence
did not support a finding that Townsend's act of
momentarily grabbing T.M.'s penis constituted sexual
contact that was "coerced by the use of force." The
superior court agreed that there was insufficient proof that
Townsend used any force or threat of force beyond the
"bodily impact [or] restraint" inherent in the act
of touching itself, so the court dismissed the
indictment.[14]
When
the State appealed the superior court's decision, the
case resulted in separate opinions from each of the three
members of this Court-with two members of this Court voting
to affirm the superior court's decision, but for slightly
different reasons. Central to both the lead and concurring
opinions, however, was the concept that there is a difference
between an act of unwanted sexual touching that a person may
find offensive and an act of unwanted sexual touching that is
coerced by the use of force or threat of force.[15] The
former may constitute the criminal offense of first-degree
harassment, but it does not constitute the crime of
second-degree sexual assault.[16]
In
Townsend, there was no evidence of force or threat
of force, apart from the force inherent in the sexual contact
itself. Nor was there any evidence that the victim felt
threatened or fearful. The same is not true in Inga's
case. Townsend involved a momentary grab of a
man's genitals in a crowded public bar. Here, the sexual
contact occurred in an isolated location by a man who the
victim had good reason to be afraid of. The sexual contact
also occurred immediately after the victim had just
unequivocally refused to have sex with the defendant, and the
defendant's immediate response to the victim's
attempt to resist any further contact was to physically
attack her, pushing her down to the floor, straddling her
body, and trying to restrain her arms as he did so.
In his
briefing on appeal, Inga repeatedly tries to separate his act
of grabbing L.P.'s breasts from his ensuing physical
attack on L.P. that left her injured, focusing on L.P.'s
comment that she momentarily looked towards her cigarettes
after pushing Inga away from her breasts. But when we review
a claim of evidentiary insufficiency on appeal, we are
required to view the evidence presented at trial - and all
reasonable inferences to be drawn from this evidence - in the
light most favorable to upholding the verdict.[17] Viewing
the evidence at Inga's trial in that light, we conclude
that a fair-minded juror exercising reasonable judgment could
find that Inga's grabbing of L.P.'s breasts and his
ensuing attack were connected parts of a continuous episode,
and that Inga's contact with L.P.'s breasts occurred
without consent, as that term is defined under Alaska
law.[18] Accordingly, we reject Inga's
argument on appeal that the evidence was insufficient to
support his conviction for second-degree sexual assault.
Inga
's sentencing arguments
Inga
had one prior felony conviction and multiple prior
misdemeanor convictions, many of which involved assaultive
behavior. As a result of his prior felony conviction, Inga
faced a presumptive sentencing range of 10 to 25 years'
imprisonment for the second-degree sexual assault conviction
and a ...