Order
Jherome Ladera was prosecuted for first-degree sexual assault under former AS 11.41.410(a)(1) and former AS 11.41.470(8)(B) based on the prosecutions theory that he sexually penetrated a fifteen-year-old girl, J.M., who was incapacitated at a party and who had allegedly become incapacitated “as a result of an act of the defendant.”
1
The prosecutions theory was that Ladera (who was also underage) was legally responsible for J.M.’s incapacitation because he had poured her (and others) alcoholic drinks at the party.
In his initial motion for judgment of acquittal at trial, Ladera argued that Alaska law required “something more” than just pouring drinks for a person in order to support a finding that the defendant caused another persons incapacitation for purposes of former AS 11.41.470(8)(B). According to Ladera, the legislative history of this statute showed that the legislature had intended for “incapacitation as a result of an act of the defendant” to apply to circumstances involving “trickery” such as surreptitious or involuntary drugging.
2
Ladera also pointed to an unpublished memorandum opinion by this Court, State v. Armstrong, which rejected the States theory that a defendants act of simply furnishing alcohol to a person was sufficient to make that persons incapacitation the “result of an act of the defendant” for purposes of former AS 11.41.470(8)(B).
3
The superior court initially dismissed Laderas arguments as without merit. However, Ladera renewed his arguments in a second motion for judgment of acquittal and a motion for a new trial after the jury convicted him of two counts of first-degree sexual assault under former AS 11.41.410(a)(1) and former AS 11.41.470(8)(B). In these motions, Ladera pointed to the legislative commentary and specific legislative hearings, arguing that the legislature enacted former AS 11.41.470(8)(B) to criminalize cases which involved involuntary drugging, like slipping another person “a Mickey.” 4
At that point, the superior court granted the motion for a new trial, agreeing that the legislative history and case law showed that the simple act of furnishing alcohol to a person was insufficient, as a matter of law, to establish criminal liability for first-degree sexual assault under former AS 11.41.410(a)(1) and former AS 11.41.470(8)(B), and that, accordingly, the jury had been misinstructed on the meaning of “as a result of an act of the defendant.”
The State now petitions for review of the trial courts ruling, arguing that the superior court erred when it granted Laderas motion for a new trial.
We have reviewed the trial record in this case, along with the statute and accompanying legislative history, and we disagree with the States contention. As the committee discussions demonstrate, the legislature envisioned former AS 11.41.470(8)(B) as applying to circumstances such as where the defendant “slipped [the victim] a Mickey and caused [their] incapacitation.”
5
The commentary to the Tentative Draft to Alaskas Revised Criminal Code likewise refers to “slipping a narcotic in a drink” when describing the alternative “without consent” definition. As the Tentative Draft states:
[T]he definition also provides that sexual penetration or contact is “without consent” if it is committed upon a victim who was incapacitated by an act committed by the defendant, i.e., slipping a narcotic in a drink.”[6]
The official legislative commentary includes a similar description. As the Senate Journal states:
Additionally, sexual penetration will be “without consent” when the victim is incapacitated ․ as a result of an act of the defendant (i.e., knock-out drug placed in drink).[7]
The legislative history also makes clear that the legislature intended to distinguish between the serious crime of second-degree sexual assault
8
— where a defendant sexually penetrates a person who is incapacitated, thereby taking advantage of their incapacitation — and the even more serious crime of first-degree sexual assault — where the defendant sexually penetrates a person that they are responsible for having made incapacitated.
9
The States theory that Ladera (who was a minor) is legally responsible for J.M.’s incapacitation under former AS 11.41.470(8)(B) simply by furnishing alcohol to her at a party is inconsistent with this legislative history and the underlying structure of these crimes.
10
As this Court observed in State v. Armstrong,
We take judicial notice that, in our society, mutual consumption of alcoholic beverages is commonly a prelude (or an anticipated prelude) to sexual relations. The legislature has justifiably declared that it is a felony—second-degree sexual assault — for one party to take sexual advantage when, because of this drinking, the other party becomes incapacitated. But under the States construction of the statute, all of these situations would be first-degree sexual assault. They would be deemed equivalent in blameworthiness to violent rape, and they would carry the same penalty as violent rape. Under the States construction, second-degree sexual assault would be restricted to instances where there had been no interaction between the defendant and the victim before the victim became incapacitated. We do not believe that the legislature envisioned or intended this expansive definition of first-degree sexual assault and the correspondingly narrow definition of second-degree sexual assault. Based on the legislative commentary, we conclude that a victim does not become “incapacitated as a result of an act of the defendant” merely because the defendant furnishes alcoholic beverages to the victim.[11]
We note that Armstrong involved an adult man who took his daughters thirteen-year-old friend shopping and then took her to his house and plied her with alcohol to the point of incapacitation before sexually assaulting her.
12
Although the decision refers to “unwitting intoxication,” the decision also suggests that deception or trickery are not necessarily required to establish criminal liability under AS 11.41.470(8)(B).
13
This suggestion is arguably in tension with the legislatures use of “i.e.” rather than “e.g.” in the official commentary.
14
However, we need not resolve this apparent tension because it is enough, for purposes of this petition, to reaffirm our holding in Armstrong that “a victim does not become ‘incapacitated as a result of an act of the defendant’ merely because the defendant furnishes alcoholic beverages to the victim.”
15
It was therefore error to allow the jury to convict Ladera of first-degree sexual assault without clarifying this point of law.
Accordingly, we GRANT the States petition and AFFIRM the superior courts granting of a new trial.
Entered at the direction of the Court.
Clerk of the Appellate Courts
Meredith Montgomery
Distribution:
Black, Ann B.
Jura, Emily L.
FOOTNOTES
1
. See former AS 11.41.410(a)(1) (2017) (“An offender commits the crime of sexual assault in the first degree if ․ the offender engages in sexual penetration with another person without consent of that person[.]”); former AS 11.41.470(8)(B) (2017) (providing that “ ‘without consent’ means that a person ․ is incapacitated as a result of an act of the defendant”).
2
. See, e.g., Commentary to Alaskas Revised Criminal Code, 1978 Senate Journal Supp. No. 447 (June 12), at 23; Alaska Criminal Code Revision, Tentative Draft, Part I (1977), at 80.
3
. State v. Armstrong, 2002 WL 31185806, at *4 (Alaska App. Oct. 2, 2002) (unpublished), overruled on other grounds by Michael v. State, 115 P.3d 517 (Alaska 2005) (“Based on the legislative commentary, we conclude that a victim does not become ‘incapacitated as a result of an act of the defendant’ merely because the defendant furnishes alcoholic beverages to the victim.”).
4
. See, e.g., Minutes of House Judiciary Committee, H.B. 661, statement of Representative Fred Brown, Tape 1722 HJUD 78, at 1:22:33 (Mar. 20, 1978); Commentary to Alaskas Revised Criminal Code, 1978 Senate Journal Supp. No. 447 (June 12), at 23; Alaska Criminal Code Revision, Tentative Draft, Part I (1977), at 80.
5
. Minutes of House Judiciary Committee, H.B. 661, statement of Representative Fred Brown, Tape 1722 HJUD 78, at 1:22:33 (Mar. 20, 1978); see also Minutes of House Judiciary Committee, H.B. 661, statement of Barry Stern, Staff Counsel of the Criminal Law Revision Subcommission, Tape 17-HJUD 780301-780304, at 1:24:28 (Mar. 2, 1978) (providing the example of giving someone a “Mickey”).
6
. Alaska Criminal Code Revision, Tentative Draft, Part I (1977), at 80.
7
. Commentary to Alaskas Revised Criminal Code, 1978 Senate Journal Supp. No. 447 (June 12), at 23.
8
. When the Legislature was revising the Alaska Criminal Code in 1978, this conduct was labeled as third-degree sexual assault. In 2017, when the conduct against J.M. took place, this conduct would fall under second-degree sexual assault. Compare former AS 11.41.420 (1978) & AS 11.41.430 (1978) with former AS 11.41.420(a)(3)(B) (2017).
9
. See Minutes of House Judiciary Committee, H.B. 661, Tape 09-HJUD-780215, at 2:16:08 (Feb. 15, 1978); Minutes of House Judiciary Committee, House Bill 661, statement of Barry Stern, Staff Counsel of the Criminal Law Revision Subcommission, Tape 17-HJUD 780301-780304, at 1:22:53 (Mar. 2, 1978) (stating that an assault against “a girl who was completely passed out” would qualify then as a third-degree sexual assault).
10
. See State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska 2019) (“When ‘interpreting a statute, we consider its language, its purpose, and its legislative history, in an attempt to give effect to the legislatures intent, with due regard for the meaning the statutory language conveys to others.’ ” (quotations omitted)).
11
. State v. Armstrong, 2002 WL 31185806, at *3-4 (Alaska App. Oct. 2, 2002), overruled on other grounds by Michael v. State, 115 P.3d 517 (Alaska 2005).
12
. Id. at 1.
13
. Id. at 2.
14
. See Commentary to Alaskas Revised Criminal Code, 1978 Senate Journal Supp. No. 447 (June 12), at 23; Alaska Criminal Code Revision, Tentative Draft, Part I (1977), at 80.
15
. Armstrong, 2002 WL 31185806, at *4.