Appeal
from the District Court No. 4BE-15-00780 CR, Fourth Judicial
District, Bethel, Nathaniel Peters, Judge.
Laurence Blakely, Assistant Public Defender, and Quinlan
Steiner, Public Defender, Anchorage, for the Appellant.
RuthAnne B. Bergt, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, andMannheimer,
Senior Judge. [*]
OPINION
MANNHEIMER, JUDGE
In
2015, while Aaron James Fedolfi was on duty as an officer of
the Bethel Police Department, he saw an intoxicated woman
walking along the side of a road, headed home from a party.
Fedolfi contacted this woman and offered her a ride home in
his patrol car. But instead of driving the woman to her home,
Fedolfi drove her to another location, where he exposed his
erect penis and used his hands to try to direct the
woman's head toward his penis. The woman pushed Fedolfi
away and ran into the bushes, where she hid until Fedolfi got
back into his patrol car and drove away.
Based
on this episode, Fedolfi was charged with two offenses:
attempted third-degree sexual assault and official
misconduct.
Count I
charged Fedolfi with attempting to commit third-degree sexual
assault as defined in AS 11.41.425(a)(4). This statute makes
it a crime for a police officer to engage in sexual
penetration with a person who is in the officer's custody
or apparent custody.
Count
II charged Fedolfi with official misconduct as defined in AS
11.56.-850(a)(1). This statute makes it a crime for a public
servant to perform an act relating to the public
servant's office, knowing that the act constitutes an
unauthorized exercise of the public servant's official
functions. According to the charging document, Fedolfi's
unauthorized exercise of his police functions was his attempt
to sexually assault the woman who was in his custody -
i.e., Fedolfi's commission of the crime charged
in Count I.
Fedolfi
ultimately pleaded no contest to both charges. At sentencing,
Fedolfi's attorney argued that these two offenses should
merge into a single conviction under the Alaska Supreme
Court's decision in Whitton v. State, 479 P.2d
302 (Alaska 1970). However, the district court concluded that
the sexual assault statute and the official misconduct
statute protected distinct societal interests, so the court
ruled that each of the two counts would support a separate
conviction.
In this
appeal, Fedolfi renews his argument that the two counts
should merge into a single conviction. We agree.
Fedolfi
was charged with attempted sexual assault under a subsection
of AS 11.41.425 that applies specifically to peace officers.
This subsection, (a)(4), does not require proof that the
officer committed an "assault" as that term is
commonly understood. Rather, subsection (a)(4) applies even
when the person in the officer's custody ostensibly
consents to the sexual penetration.
As the
chair of the Senate Judiciary Committee explained during the
Committee's consideration of subsection (a)(4), the
purpose of this subsection was to "basically [tell]
police officers that they can't have sex with people who
are in their custody. Period. ... [There is] no question of
consent. ... [That person] cannot consent to have sex with
you."[1]
When a
defendant pleads no contest to a criminal charge, the
defendant's plea "is an admission [for purposes of
conviction and sentencing] of every essential element of the
offense well-pleaded in the charging
document."[2] But the charge against Fedolfi (attempted
sexual assault under subsection (a)(4) of the statute) did
not encompass an allegation that Fedolfi attempted to coerce
the woman to engage in sexual penetration, nor did it
encompass an allegation that Fedolfi attempted to engage in
sexual penetration with the woman when she was too
intoxicated to ...