Opinion
Court of Appeals No. A-9925.
November 18, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-04-4923 CR.
Marjorie K. Allard, Assistant Public Defender, Anchorage, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Ralph Scott Inga appeals his conviction of second-degree sexual assault on the grounds that a jury instruction misstated the applicable law, improperly limited the scope of the jury's consideration, and biased the jury against him. Because Inga did not object to the instruction at trial, he must now show plain error. We conclude that Inga cannot establish plain error because the instruction did not affect the outcome of Inga's trial and because Inga tactically withheld his objection.
Background
Inga was staying at a mobile home in Anchorage with L.S. and her family. On May 22, 2004, L.S. returned to her home in the early morning hours after drinking with a friend. L.S. testified that when she went to bed, she was "pretty drunk."
When L.S. woke up around 10:00 a.m., she was naked from the waist down, her outer garments were on the floor, and her genitals hurt. Her family called the police, and L.S. underwent a sexual assault examination. The examination revealed that swabs of L.S.'s vagina contained sperm matching Inga's genetic profile. Inga was charged with one count of second-degree sexual assault for sexual penetration of a person the offender knows is incapacitated or unaware that a sexual act is being committed.
AS 11.41.420(a)(3)(B) (C).
Before trial, the prosecutor filed notice of her intent to introduce evidence of Inga's previous conviction of third-degree sexual assault. That conviction was based on an offense committed against L.S. in 1989, when she was a minor. Superior Court Judge Phillip R. Volland ruled that the conviction was admissible under Evidence Rule 404(b)(3) because Inga intended to rely on the defense of consent at trial.
After a change in counsel, Inga decided that he would not rely on the defense of consent and moved to exclude the evidence of his prior conviction. Judge Volland ruled that the prior conviction was inadmissible as long as Inga did not raise the defense of consent. The prosecutor later asked for a jury instruction to explain that consent was not at issue in the case, and Judge Volland said that he was inclined to give such an instruction.
During trial, the State again requested the consent instruction, this time arguing that Inga's opening statement and witness examination implicated the issue of consent. Defense counsel replied that he did not have an objection to the instruction requested by the State. At the end of the trial, the jury was instructed that consent was not an element of the crime charged. The jury found Inga guilty, and he now appeals.
Discussion
Inga argues that the instruction excluding the consideration of consent amounted to plain error. Instruction 19 stated:
Neither "consent" nor "lack of consent" is an element of the offense charged in this case. Consent is not a defense to the charge in this case. As such, you may not consider whether or not the victim consented to the sexual penetration alleged. Likewise, you may not consider whether the defendant may have thought that the victim consented to the sexual penetration alleged. If any information or argument was presented to you that implied or inferred consent, tended to show consent, questioned consent, or provided a motive for consent, you must disregard that information. You are to confine your deliberations to whether or not the defendant knew that the victim was incapacitated or unaware that a sexual act was being committed.
Inga argues that the last sentence of the instruction improperly directed a verdict on the element of actual incapacitation or unawareness. Inga also argues that the remainder of the instruction impermissibly removed the issue of consent from the jury's consideration.
Because Inga did not object to the instruction at trial, he must now show plain error. To establish that the instruction was plain error, Inga must show: (1) that the instruction was, in fact, erroneous; (2) that the error in instruction was so obvious that any competent judge or attorney would have recognized it; (3) that defense counsel had no tactical reason to withhold objection to the instruction; and (4) the error in instruction was so prejudicial to the fairness of the proceeding that failure to correct the error would perpetuate manifest injustice. We consider the jury instructions as a whole to determine whether the jury was correctly instructed.
Sergie v. State, 105 P.3d 1150, 1155 (Alaska App. 2005); Allen v. State, 51 P.3d 949, 958 (Alaska App. 2002).
See Marrone v. State, 653 P.2d 672, 675-76 (Alaska App. 1982).
Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989).
Jackson v. Am. Equity Ins. Co., 90 P.3d 136, 144 (Alaska 2004) (explaining that a party can not challenge a jury instruction as "plain error" if the record indicates that the party's failure to object to the instruction was a tactical choice); Willis v. State, 57 P.3d 688, 691 (Alaska App. 2002) (explaining that a party alleging plain error must show that there was no tactical reason for failing to object to the alleged error).
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).
See Wilson v. State, 967 P.2d 98, 102 (Alaska App. 1998).
When all of the instructions in Inga's case are considered, it is clear that the jury was properly instructed that the State was required to prove that L.S. was actually incapacitated or unaware that sexual activity was occurring. Instruction 13 specified the elements of sexual assault in the second degree, including "that Ralph S. Inga knowingly engaged in sexual penetration with L.S.," "that L.S. was incapacitated and/or unaware that a sexual act was being committed," and "that Ralph S. Inga knew that L.S. was incapacitated and/or unaware that a sexual act was being committed." Based on this instruction, the jurors should have understood that they were responsible for determining all of the elements of second-degree sexual assault, including the requirement that L.S. was actually incapacitated or unaware of the sexual act.
In Dexter v. State, we were presented with a similar issue. Dexter was convicted of third-degree assault for engaging in sexual penetration with a person he knew was incapacitated under former AS 11.41.430. On appeal, Dexter argued that his jury was not properly instructed because the elements instruction only directed the jury to determine whether Dexter knowingly engaged in sexual penetration with another person and whether Dexter knew the other person was incapacitated. We concluded that the jury understood that it would first have to determine whether the victim was actually incapacitated to determine whether Dexter had knowledge of that incapacity. Applying that logic to the present case, Instruction 13 clearly required the jury to determine whether L.S. actually was actually incapacitated or unaware.
672 P.2d 144 (Alaska App. 1983).
Id. at 145.
Id. at 147.
Id.
We also look to the arguments of counsel to determine whether the jury was correctly apprised of its duties. In this case, the prosecutor acknowledged in her opening statement and closing argument that she would have to prove that L.S. was incapacitated or unaware at the time of the incident. Likewise, in both his opening statement and his closing argument, defense counsel argued that there was insufficient evidence to show that L.S. was intoxicated or unconscious. There was sufficient argument on this issue to ensure that the jury knew that it had to determine that L.S. was actually incapacitated or unaware of the sexual act.
See Edwards v. State, 158 P.3d 847, 857 (Alaska App. 2007); Wolfe v. State, 24 P.3d 1252, 1256 n. 11 (Alaska App. 2001).
Inga also argues that it was plain error to instruct the jury not to consider consent because evidence of consent may be relevant to the element of incapacity. Here, to show plain error, Inga must show that his trial counsel had no tactical reason to withhold his objection to the instruction. But throughout the trial, Inga's attorney maintained that he was purposely avoiding the defense of consent based on the judge's ruling that Inga's prior conviction would be inadmissible if no defense of consent was raised.
See Jackson, 90 P.3d at 144; Willis, 57 P.3d at 691; Henry v. State, 861 P.2d 582, 589 (Alaska App. 1993).
For example, when the judge considered the State's proposed instruction regarding consent, Inga explained that "I don't have any objection to that instruction. I think it's a good instruction." And when the trial court addressed the packet of jury instructions, Inga suggested that the consent instruction should be placed after the instruction defining "incapacitated" and "unaware." Inga cannot show plain error with this instruction because his trial attorney clearly made a tactical decision not to object to it.
Moreover, based on the record, it is not obvious that there was any evidence of consent that Inga could have relied on to raise a doubt about his awareness of L.S.'s condition. Inga does not argue that there was any affirmative evidence that L.S. consented to sexual intercourse. At trial, Inga only argued that the evidence failed to establish that L.S. was severely or obviously intoxicated. Accordingly, the instruction that precluded the jury from considering any evidence of consent did not affect the fairness of his trial.
Conclusion
Neither of Inga's attacks on Instruction 19 establish plain error. We therefore AFFIRM the superior court judgment.