from the District Court, Fourth Judicial District, Bethel,
Nathaniel Peters, Judge. Trial Court No. 4BE-15-00780 CR
Blakely, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant.
B. Bergt, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Appellee.
Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior
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 womans
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.
on this episode, Fedolfi was charged with two offenses:
attempted third-degree sexual assault and official
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 officers custody or
II charged Fedolfi with official misconduct as defined in AS
11.56.850(a)(1). This statute makes it a crime for a public
to perform an act relating to the public servants office,
knowing that the act constitutes an unauthorized exercise of
the public servants official functions. According to the
charging document, Fedolfis unauthorized exercise of his
police functions was his attempt to sexually assault the
woman who was in his custody — i.e., Fedolfis
commission of the crime charged in Count I.
ultimately pleaded no contest to both charges. At sentencing,
Fedolfis attorney argued that these two offenses should
merge into a single conviction under the Alaska Supreme
Courts 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
appeal, Fedolfi renews his argument that the two counts
should merge into a single conviction. We agree.
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