Malyk v. State, 121918 AKCA, A-11958

Docket Nº:A-11958
Opinion Judge:MANNHEIMER JUDGE.
Party Name:VIKTOR M. MALYK, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.
Case Date:December 19, 2018
Court:Court of Appeals of Alaska
 
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VIKTOR M. MALYK, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-11958

Court of Appeals of Alaska

December 19, 2018

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Trial Court No. 4DJ-12-012 CR Douglas L. Blankenship, Judge.

Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Eric A. Ringsmuth, 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 Suddock, Superior Court Judge. [*]

MEMORANDUM OPINION

MANNHEIMER JUDGE.

Viktor M. Malyk was convicted of two counts of second-degree sexual assault and one count of fourth-degree sexual abuse of a minor stemming from two incidents involving his 16-year-old niece.

In this appeal, Malyk contends that various flaws in the jury instructions require reversal of his convictions, and that, in any event, the evidence presented at his trial was legally insufficient to support one of his convictions for sexual assault.

For the reasons explained in this opinion, we conclude that the flaws in the jury instructions do not require reversal of Malyk's convictions, and that the evidence presented at trial is sufficient to support the challenged conviction for sexual assault.

Malyk argues in the alternative that, even if he is not entitled to reversal of his convictions, he should not have received a separate conviction for fourth-degree sexual abuse of a minor, since this conviction was based on the same act of sexual contact as one of his convictions for sexual assault. We agree, and we direct the merger of these two counts into a single conviction.

Finally, Malyk argues - and the State agrees - that the superior court should issue a corrected pre-sentence report, and that certain conditions of Malyk's probation are invalid because they are either unconstitutionally vague or unsupported by the record. We find that the State's concessions of error are well-founded, and we therefore grant the relief that Malyk seeks.

Underlying facts

Because Malyk challenges the sufficiency of the evidence, we present that evidence in the light most favorable to the jury's verdict.1

Viktor Malyk lived in Delta Junction with his wife and children. In February 2012, Malyk's wife was visiting Ukraine, and Malyk's oldest daughter, Oksana, was placed in charge of her younger siblings. Oksana repeatedly asked her 16-year-old cousin, S.M., to come over and keep her company, and also to help her babysit her siblings. S.M. generally came over to Oksana's house in the daytime, but she also spent the night with Oksana on more than one occasion.

On one of these occasions, after the younger children had been put to bed, Oksana, S.M., and Malyk were sitting on a couch in the living room, watching a movie. Oksana grabbed a blanket to keep warm. Malyk, who was sitting between the two girls, grabbed another blanket and used it to cover both himself and S.M.

As Malyk was positioning this blanket, he touched S.M. between her legs. S.M. pushed his hand away. At trial, S.M. testified that she thought this first touching was a genuine accident. But then Malyk placed his hand inside S.M. 's pants and touched her between the legs again. When S.M. pulled Malyk's hand out of her clothing, Malyk took hold of S.M.'s hand and placed it inside his pants, against his penis. S.M. pulled her hand away, and then she got up and went into Oksana's room.

Based on this incident, Malyk was charged with second-degree sexual assault (sexual contact without consent) and fourth-degree sexual abuse of a minor (sexual contact with a minor of 16 or 17 years when the perpetrator is in a position of authority over the minor).2

A second incident occurred later, in Oksana's bedroom. According to S.M.'s testimony, both she and Oksana were having trouble sleeping, so Oksana asked her father (Malyk) to give them sleeping pills. Malyk agreed, and he brought the girls some pills - telling the girls that the pills would make them "high" and then they would fall asleep. The girls took the pills around 4:00 a.m., but the pills were not immediately effective. S.M. testified that she and Oksana did not fall asleep until more than two hours later.

Oksana had to get up around 7:00 a.m. to prepare her younger siblings for school, and S.M. woke up at that time too. S.M. testified that she was still feeling the effects of the pill when she awoke, but her detailed description of what happened next showed that she was conscious, aware of what was happening, and capable of expressing herself.

S.M. testified that while Oksana was attending to her siblings in another room of the house, Malyk came into the bedroom while S.M. was still there. Malyk told S.M. that he had come to the bedroom to change a lamp, but then he started touching her. Malyk removed S.M. 's clothing. He then touched her breasts, and he started to lick her between the legs. S.M. was afraid to hit Malyk, because he was drunk and she feared that he would hit her back. However, she pushed Malyk away, and Malyk soon ended the assault because Oksana was returning to the bedroom.

Based on this incident, Malyk was charged with first-degree sexual assault (sexual penetration - i.e., cunnilingus - without consent) and second-degree sexual abuse of a minor (sexual penetration with a minor of 16 or 17 years when the perpetrator is in a position of authority over the minor).3 At Malyk's trial, the jury was also instructed on the lesser included offense of second-degree sexual assault (i.e., sexual contact without consent).

Part of the State's evidence in this case was a letter of confession that Malyk wrote after S.M.'s father (who was Malyk's brother) confronted Malyk about these incidents. In his letter (which was written in Russian), Malyk stated: I, Viktor Malyk, had sexual relations with [my niece] by compulsion, without her agreement. I hereby announce that I was in a state of alcoholic intoxication, and I promise to go through treatment in a rehabilitation center for a minimum of one year. Otherwise, if I don't comply with what I have just promised, I'm ready to go through punishment in accordance with the law.

Malyk did not testify at his trial. His attorney conceded that Malyk had done something inappropriate, but the attorney argued that Malyk's inappropriate behavior did not fit the legal definition of sexual assault or abuse. In the defense attorney's words, Malyk "kissed [S.M.] below the bellybutton, but... not actually on her private parts."

The defense attorney pointed out that S.M. had sometimes been vague in her description of precisely where Malyk touched or licked her. S.M. used the word "pee" to describe a person's private parts - and, during cross-examination, S.M. appeared to say that she used the word "pee" to describe any portion of the body that is normally covered by underwear. The defense attorney also reminded the jury that S.M. herself acknowledged that Malyk's first touch (under the blanket in the living room) appeared to have been accidental.

The defense attorney argued that, given all the circumstances, there was reasonable doubt as to whether Malyk's inappropriate conduct ever rose to the level of a crime.

At the conclusion of the trial, the jury found Malyk guilty of some charges but not guilty of others.

With respect to the allegation of sexual contact on the couch in the living room (charged both as second-degree sexual assault and fourth-degree sexual abuse of a minor), the jury found Malyk guilty of both counts.

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