Ackerman v. State, Court of Appeals No. A-11667

• Court: Alaska Court of Appeals
• Writing for the Court: Judge ALLARD, writing for the Court.
• Parties: JASON NICKOLAS ACKERMAN, Appellant, v. STATE OF ALASKA, Appellee.
• Decision Date: 20 February 2019
• Docket Number: No. 6773,Court of Appeals No. A-11667

JASON NICKOLAS ACKERMAN, Appellant,
v.
STATE OF ALASKA, Appellee.

Court of Appeals No. A-11667
No. 6773

COURT OF APPEALS OF THE STATE OF ALASKA

February 20, 2019

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 authority for any proposition of law.

Trial Court No. 3AN-10-13667 CR

MEMORANDUM OPINION

Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge.

Appearances: Andrew Steiner, Attorney at Law, Bend, Oregon, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.^*

Judge ALLARD, writing for the Court.
Judge COATS, dissenting.

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Jason Nickolas Ackerman was convicted of second-degree sexual assault for engaging in sexual intercourse with a woman, A.L., who was intoxicated and passed out and therefore incapable of consenting to the sexual activity.¹

On appeal, Ackerman contends that the trial judge committed error by refusing to allow his attorney to introduce evidence that, earlier in the evening in question, A.L. made a sexual advance toward Ackerman's girlfriend. For the reasons explained in this opinion, we conclude that the trial judge did not abuse his discretion when he refused to allow Ackerman's attorney to introduce this proposed evidence.

Ackerman also argues that the judge committed error later at Ackerman's sentencing, when the judge declined to refer Ackerman's case to the statewide three-judge sentencing panel. Ackerman sought referral to the three-judge panel on the theory that the lowest sentence within the applicable presumptive sentencing range — 5 years to serve — was manifestly unjust. For the reasons we explain here, we uphold the sentencing judge's ruling that it was not manifestly unjust to sentence Ackerman within the presumptive range.

Lastly, Ackerman challenges the conditions of his probation. Ackerman first argues that all of his probation conditions are invalid, because the sentencing judge did not make case-specific findings with respect to each of these probation conditions before the judge imposed them. Second, Ackerman argues that even if the sentencing judge did not need to individually specify the basis for each of the probation conditions, several of the provisions of his probation are unconstitutionally vague.

For the reasons explained in this opinion, we reject all but one of Ackerman's challenges to his probation conditions. We agree with Ackerman that a provision in one of his probation conditions is plainly unconstitutional, in that it fails to

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give him reasonable notice of what conduct is prohibited to him. We therefore direct the superior court to either delete this provision or amend it to make it more specific.

Factual background

On the night of November 22, 2008, a group of friends went bar-hopping in Anchorage. This group included Lindy Risinger, Mark McGarry, Ackerman, and Ackerman's girlfriend, Patricia Wakefield. Around 3:30 in the morning, after the bars closed, this group went to Risinger's residence — a two-story duplex that Risinger shared with two roommates.

One of Risinger's roommates was A.L. Risinger considered A.L. to be her best friend and "sister." A.L. had not gone bar-hopping with the others; instead, she had spent the night working. (A.L. worked as an exotic dancer at a strip club.) A.L. got home to the duplex around 4:00 a.m. (i.e., about a half-hour after the other people). According to the testimony, A.L. was sober when she arrived home. After she got home, A.L. changed into a pair of pink sweatpants and t-shirt, in preparation for going to bed.

Within the next hour or so, most of the guests left, and only Risinger, McGarry, Ackerman, Wakefield, and A.L. remained at the duplex.

At some point around the time the rest of the guests left, Wakefield was with A.L. in her bedroom, which was adjacent to the upstairs living room. According to Ackerman's attorney's offer of proof in the trial court, Wakefield would have testified that Ackerman was in the room as well, and that this was when A.L. made a sexual advance toward her. (We will discuss this matter more fully later in this opinion.) While Wakefield was in the room, A.L. loaned her a pair of pajama pants, and then Wakefield went downstairs to sleep in Risinger's room. Around this same time, A.L. decided to take two or three Tylenol PM tablets in preparation for going to sleep.

After taking the Tylenol, A.L. returned to the living room. At this point, only four people — A.L., Risinger, McGarry, and Ackerman — were still awake.

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According to the trial testimony, A.L. drank two or three shots of vodka. A.L. also smoked marijuana that evening. Both Risinger and McGarry testified that A.L. was visibly impaired by the combination of drugs and alcohol. McGarry described A.L. as "hammered," and he stated that A.L. was a "disaster of a drunk girl." According to the testimony, A.L. was stumbling, slurring her words, and speaking gibberish. It was uncontested at trial that Ackerman witnessed A.L.'s impairment.

Risinger became so concerned about A.L.'s impairment that she took A.L. to A.L.'s bedroom and put her to bed. Risinger continued to check on A.L. until A.L. fell asleep. Risinger testified that, when she left A.L., A.L. was wearing her sweatpants and a top, and she was lying on her bed normally — i.e., lengthwise on the bed, with her head toward the headboard.

After Risinger put A.L. to bed, Risinger, McGarry, and Ackerman continued socializing in the living room for several hours. Around 8:40 a.m., Risinger and McGarry told Ackerman that they were going to the garage to smoke a cigarette. At the same time, Ackerman told Risinger and McGarry that he was going to the bathroom. This upstairs bathroom had two doors: a door opening into the hallway, and a second door leading into A.L.'s bedroom.

About fifteen minutes later, when Risinger and McGarry returned from their smoke break in the garage, Ackerman still had not emerged from the bathroom. Risinger thought that this was odd, especially since she knew that the bathroom was out of toilet paper.

Risinger decided to check again on A.L. Just as Risinger was opening the door to A.L.'s room, Ackerman emerged from the bathroom.

When Risinger looked into A.L.'s bedroom, she observed that A.L. was still passed out, but her body was in a completely different position on the bed. A.L. was now lying face down and sideways on the bed, with her legs hanging off the edge of the bed. A.L.'s sweatpants and underwear (but not her top) had been removed.

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Seeing this, Risinger got a "yucky feeling" that something had happened to A.L. From inside A.L.'s bedroom, Risinger locked the door that led into the hallway, and she tried to lock the door that led into the adjoining bathroom, but she was unable to because it only locked from inside the bathroom.

In the meantime, according to the testimony, Ackerman had borrowed McGarry's cell phone to call a friend to make plans to meet for breakfast at a local sports bar. (Ackerman's own cell phone was later discovered next to A.L.'s bed.) Ackerman was pacing around the living room, talking loudly to his friend.

While Ackerman was still on the phone, Risinger took McGarry into the garage and told him what she had seen. After a brief conversation (no more than five minutes, according to the testimony), Risinger and McGarry quietly went back upstairs — but Ackerman was no longer in the living room.

Unable to find Ackerman, Risinger and McGarry then went to check on A.L. in her bedroom. They had to enter through the bathroom, because Risinger had previously locked the hallway door from the inside of the bedroom.

When they got into A.L.'s room, Risinger and McGarry discovered Ackerman standing next to A.L.'s bed. Ackerman's pants were down, and he was having sex with A.L., who was lying motionless on the bed.

According to Risinger's testimony, Ackerman was holding A.L.'s legs up and penetrating A.L.'s body as she lay face-down and unmoving. McGarry also testified that A.L. was passed out, and that she was not making any sounds or any movements. A.L. testified that she had no memory of any sexual activity with Ackerman.

Risinger screamed at Ackerman and started hitting him. Ackerman then left the bedroom. Ackerman went downstairs and proceeded to wake up Wakefield. Meanwhile, Risinger followed Ackerman downstairs, and she accused him of raping A.L.

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During this commotion, A.L. woke up for a brief time and came downstairs. A.L. was confused and disoriented, and she asked what was going on. Risinger did not want to tell A.L. what had happened, so she simply told A.L. to go back to her bedroom and go to sleep. A.L. went back upstairs and passed out again on her bed — where she remained until she was awakened by paramedics in response to Risinger's later 911 call.

In the meantime, Ackerman had roused Wakefield, and the two of them left the duplex. Wakefield testified that, on the way home, Ackerman initially denied that anything had happened. But after Wakefield pressed him, Ackerman told her that he had had consensual sex with A.L. When Ackerman and Wakefield got home, Ackerman washed his genitals and changed his clothes. He then told Wakefield that he wanted to go back to Risinger's duplex to apologize to both A.L. and Risinger.

Meanwhile, Risinger called the police. When A.L. was told what had happened — that Ackerman had sex with her — A.L. became hysterical and distraught. When the police responded to Risinger's report of sexual assault, officers took A.L. to be examined by a SART nurse.

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