Fedolfi v. State

         Appeal from the District Court, Fourth Judicial District, Bethel, Nathaniel Peters, Judge. Trial Court No. 4BE-15-00780 CR

         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, and Mannheimer, 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

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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 ...