Reynolds v. State

• Decision Date: 10 June 1983
• Docket Number: No. 6890,6890
• Citation: 664 P.2d 621
• Parties: Randall C. REYNOLDS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 621

664 P.2d 621

Randall C. REYNOLDS, Appellant, v. STATE of Alaska, Appellee.

No. 6890.

Court of Appeals of Alaska.

June 10, 1983.

Robert B. Downes, Cole & Downes, Fairbanks, for appellant.

Kristen Young, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ., Judges.

OPINION

SINGLETON, Judge.

Randall C. Reynolds was convicted of sexual assault in the first degree, AS 11.41.410, and acquitted of kidnapping, AS 11.41.300. He received a five-year sentence. He appeals challenging his conviction and contending that the sentence imposed was excessive. Reynolds challenges the constitutionality of AS 11.41.410, Alaska's first-degree sexual assault statute, and argues that he should have been given a directed verdict of acquittal on the kidnapping and sexual assault charges or, alternatively, more favorable jury instructions. We affirm.

Reynolds and J.D., his victim, were employees of separate businesses located in the Shoppers' Forum shopping mall in Fairbanks. On November 24, 1981, employees of the various businesses located in the mall were engaged in decorating it in anticipation of the Christmas shopping season. Reynolds and J.D. were acquainted but had never previously dated. J.D. accepted an invitation from Reynolds' father to join him, his girlfriend and Reynolds for dinner. The four went out to dinner and thereafter to a Fairbanks nightclub for drinks and dancing. J.D. allegedly asked Reynolds to take her home. Instead, he took her to his apartment. She alleges that he "forced" her to enter his apartment and used a key to close a deadbolt lock and pocketed the key, effectively preventing her from leaving. She contends that he had intercourse with her against her will and restrained her at the apartment until morning at which time he accepted her request to drive her home. She concedes that her objections were verbal, that she never forcibly resisted Reynolds and that Reynolds never threatened her or struck her. She contends that she was afraid of him particularly because she noticed a handgun on a chair in the room. She admits that Reynolds never touched or even mentioned the handgun. Reynolds testified that he had intercourse with J.D. with her consent. He contends that he did not notice anything about her behavior or demeanor which would indicate that she did not wish to have intercourse with him. Reynolds' father and his father's girlfriend testified that during the early evening J.D. seemed comfortable in Reynolds' company and satisfied to be with him.

CONSTITUTIONAL ARGUMENTS

Reynolds argues that AS 11.41.410 is unconstitutionally vague, chills constitutionally protected activity and, when applied to the facts of this case, results in the imposition of cruel and unusual punishment because the sanctions established are out of proportion to the seriousness of his conduct. See U.S. Const. amend. XIV, VIII. Alaska Const. art. 1, § 7, § 12. Essentially, Reynolds argues that the statute either requires strict liability regarding the putative victim's lack of consent or is so vague that reasonable people will disagree regarding the mens rea which the state must prove in order to obtain a conviction. He also contends that the statutory definitions make the offense so broad that it does not distinguish between serious and harmless conduct thereby depriving him of substantive due process.

In order to place Reynolds' arguments in context, it is necessary to briefly consider the history of our first-degree sexual assault statute. At common law, rape, the predecessor to first-degree sexual assault, required that the defendant have intercourse with a woman forcibly and against her will. See former AS 11.15.120. The phrase "forcibly and against her will" was interpreted to mean without her consent. Rape was a general intent crime. Walker v. State, 652 P.2d 88, 91 (Alaska 1982). The state was required to prove that the defendant intentionally engaged in the prohibited conduct, i.e., sexual intercourse to which the complaining witness had not consented. However, it was not necessary for the state to prove that the defendant knew or should have known that the victim did not consent. The potential harshness of this rule was mitigated by the common law requirement that in order for the state to prove the absence of consent, it must show that the victim "resisted to the utmost." In State v. Risen, 192 Or. 557, 235 P.2d 764 (Or.1951), the court interpreted a statute similar to our former rape statute and concluded:

To constitute rape the act must have been committed forcibly and without the consent of the woman. The woman must resist by more than mere words. Her resistance must be reasonably proportionate to her strength and her opportunities. It must not be a mere pretended resistance but in good faith and continued to the extent of the woman's ability until the act has been consummated.

235 P.2d at 765 (citations omitted).

Illustrative of the operation of this rule is Mills v. United States, 164 U.S. 644, 17 S.Ct. 210, 41 L.Ed. 584 (1897). In that case, the defendant seized his victim at gunpoint, told her he was "Henry Starr," the notorious train robber, and threatened to kill her. He succeeded in having intercourse with her on two occasions. The trial court instructed the jury that:

The fact is that all the force that need be exercised, if there be no consent, is the force incident to the commission of the act. If there is nonconsent of the woman, the force, I say, incident to the commission of the crime is all the force that is required to make out this element of the crime.

164 U.S. at 647, 17 S.Ct. at 210, 41 L.Ed. at 585. The defendant was convicted and appealed contending that the instruction erroneously stated the law. The United States Supreme Court agreed and reversed stating:

In this charge we think the court did not explain fully enough so as to be understood by the jury what constitutes in law nonconsent on the part of the woman, and what is the force necessary in all cases of nonconsent to constitute the crime. He merely stated that if the woman did not give consent the only force necessary to constitute the crime in that case was that which was incident to the commission of the act itself. That is true in a case where the woman's will or her resistance had been overcome by threats or fright, or she had become helpless or unconscious, so that while not consenting she still did not resist. But the charge in question covered much more extensive ground. It covered the case where no threats were made; where no active resistance was overcome; where the woman was not unconscious, but where there was simply nonconsent on her part and no real resistance whatever. Such nonconsent as that is no more than a mere lack of acquiescence, and is not enough to constitute the crime of rape. Taking all the evidence in the case, the jury might have inferred just that amount of nonconsent in this case. Not that they were bound to do so, but the question was one for them to decide. The mere nonconsent of a female to intercourse where she is in possession of her natural, mental, and physical powers, is not overcome by numbers or terrified by threats, or in such place and position that resistance would be useless, does not constitute the crime of rape on the part of the man who has connection with her under such circumstances. More force is necessary when that is the character of nonconsent than was stated by the court to be necessary to make out the element of the crime. That kind of nonconsent is not enough, nor is the force spoken of then sufficient, which is only incidental to the act itself .... where a woman is awake, of mature years, of sound mind and not in fear, a failure to oppose the carnal act is consent; and though she object verbally, if she make no outcry and no resistance, she by her conduct consents, and the act is not rape in the man.

164 U.S. at 647-48, 17 S.Ct. at 210-11, 41 L.Ed. at 585.

More recent cases have substantially diluted the requirement of "resistance to the utmost," increasing the risk that a jury might convict a defendant under circumstances where lack of consent was ambiguous. To counteract this risk, some courts, notably the Supreme Court of California, have held that the defendant is entitled to an instruction on reasonable mistake of fact. See People v. Mayberry, 15 Cal.3d 143, 125 Cal.Rptr. 1337, 542 P.2d 1337 (Cal.1975). The California instruction reads as follows:

It is a defense to a charge of forcible rape that the defendant entertained a reasonable and good faith belief that the female person voluntarily consented to engage in sexual intercourse. If from all the evidence you have a reasonable doubt whether the defendant reasonably and in good faith believed she voluntarily consented to engage in sexual intercourse, you must give the defendant the benefit of that doubt and acquit him of said charge.

California Jury Instructions-Criminal Instruction No. 10.23 (4th ed. 1979).

Under People v. Mayberry, when a defendant argues "consent" as a defense, the state must prove that he intentionally engaged in intercourse and was at least negligent regarding his victim's lack of consent.

Alaska has dispensed with any requirement that the victim resist at all. AS 11.41.470 provides in relevant part:

Definitions. For purposes of §§ 410-470 of this chapter [sexual offenses], unless the context requires otherwise,

(3) "without consent" means that a person

(A) with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of imminent death, imminent physical injury, or imminent kidnapping to be inflicted on anyone;

The code defines "force" and "physical injury" as follows:

AS 11.81.900(b)(22) "force" means any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement; "force"...