Riley v. State, Court of Appeals No. A-13199

CourtCourt of Appeals of Alaska
Writing for the CourtJudge WOLLENBERG.
Citation515 P.3d 1259
Parties Lincoln N. RILEY, Appellant, v. STATE of Alaska, Appellee.
Docket NumberCourt of Appeals No. A-13199
Decision Date22 July 2022

515 P.3d 1259

Lincoln N. RILEY, Appellant,
v.
STATE of Alaska, Appellee.

Court of Appeals No. A-13199

Court of Appeals of Alaska.

July 22, 2022


Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.

Before: Wollenberg, Harbison, and Terrell, Judges.

OPINION

Judge WOLLENBERG.

Lincoln N. Riley was convicted, following a jury trial, of one count of second-degree sexual abuse of a minor and two counts of attempted second-degree sexual abuse of a minor for conduct involving eight-year-old C.S. Riley now appeals his two attempt convictions (but not his conviction for the completed crime of second-degree sexual abuse of a minor).

Riley's challenges stem from the superior court's decision to amend the elements instructions for the two attempt counts after closing arguments and after the instructions had been read to the jury. Specifically, at the State's request, the court deleted language identifying the specific attempted sexual contact ("penis to genitals" and "hand to genitals"), leaving the elements instructions to refer more generally to "sexual contact." During deliberations, the jury inquired about the change. The court responded that, although the indictment contained allegations of specific conduct, those allegations were not elements of the charges; the State was required only to prove "sexual contact" or "attempted sexual contact" beyond a reasonable doubt.

On appeal, Riley raises several claims related to these events.

First, Riley argues that, by removing the specific allegations of attempted sexual contact from the elements instructions, the superior court constructively amended the two attempt charges, such that Riley was convicted of crimes different from those for which he was indicted. Riley also argues that the amendments prejudiced his defense because he relied on the original instructions in his closing argument.

Second, Riley contends that the court's response to the jury's question was improper.

Finally, Riley argues that the trial court erroneously denied his motion for a new trial based on the changes to the jury instructions.

For the reasons discussed in this opinion, we agree with Riley that the superior court erred in amending the jury instructions after closing arguments. While we do not find a fatal variance between the charges for which Riley was indicted and the charges for which he was convicted, we conclude that the superior court's modification of the instructions violated Alaska Criminal Rule 30(a).1 Having closely reviewed the record, we further conclude that this error — while harmless with respect to one of the attempt charges — prejudiced Riley's defense with respect to the other attempt charge.

Accordingly, we reverse Riley's conviction for that offense (Count I). We otherwise affirm the judgment of the superior court.

Underlying facts

Cynthia and Lincoln Riley were friends with C.S.’s mother, and C.S. often spent time at their home. Although C.S. was not related by blood to the Rileys, C.S. referred to the Rileys as her grandparents.

515 P.3d 1262

On March 8, 2013, when C.S. was eight years old, C.S. spent the night at the Rileys’ cabin. When Cynthia and Lincoln Riley went to bed upstairs, C.S. remained in the living room downstairs and tried to fall asleep on the couch.

C.S. testified that, at some later point, Lincoln Riley stumbled back into the living room and approached her. C.S. could smell alcohol on his breath. Riley began speaking to her, calling her pretty and a "hottie." He also tried to put his hand down the back of C.S.’s pants.

C.S. got up to leave, but Riley sat down on the couch and pulled her onto his lap. C.S. noticed that Riley's pants were pulled down slightly, exposing his genitals. C.S. felt Riley "rubbing" against her; she also described it as "humping" in an interview with a trooper. According to C.S., she made a few attempts to stand up, but Riley kept pulling her back down into his lap.

Eventually, C.S. told Riley that she was going upstairs and left to join Cynthia Riley in the bedroom. As C.S. got into bed with Cynthia, C.S. told Cynthia that Riley was being "weird and inappropriate." Riley then came upstairs and turned on the television, causing Cynthia and C.S. to go downstairs to try to sleep on the couch. When Riley followed them, they returned to the bedroom upstairs.

C.S. testified that some time later, Riley came back upstairs and got into bed next to her. Riley began to touch C.S.’s legs over her pajama pants; he moved his hands up her legs before stopping right below C.S.’s crotch and asking her where she wanted to be touched. After telling Riley to stop, C.S. woke Cynthia and told her that Riley was being "weird" again. Cynthia then switched places with C.S. in the bed so that C.S. would no longer be next to Riley.

The next day, C.S. told Cynthia that she had seen Riley's "peepee." C.S. later told her mother what had happened, and her mother called 911. When interviewed by the police, Riley reported that C.S. saw his penis only because he had his pants down after urinating in the downstairs bucket. (The Rileys’ cabin did not have running water.)

Prior relevant proceedings

A grand jury indicted Riley for two counts of attempted second-degree sexual abuse of a minor (Counts I and II)2 and one count of second-degree sexual abuse of a minor (Count III).3 The indictment included "to-wit" language describing the specific type of sexual contact that was alleged in each of the three counts: Count I alleged attempted "penis to genitals" contact; Count II alleged attempted "hand to genitals" contact; and Count III alleged completed "genitals to buttocks" contact.

At trial, Riley testified in his own defense, maintaining that C.S. saw his penis only when he used the downstairs bucket to urinate.4 He admitted that he may have slapped her on the butt "like they do in football" earlier that day as a way of saying "good job" for doing well in her Girl Scout cookie sales.

At the close of the evidence, the parties discussed and approved a packet of jury instructions that had been proposed by the State. Instruction No. 10 recited the charges in the indictment, including the "to-wit" language specifying the particular sexual contact alleged in each count. Instruction Nos. 11 and 12, as initially drafted, contained the elements of the two attempt charges and repeated the specific sexual contact alleged in the indictment — "penis to genitals" for Count I and "hand to genitals" for Count II. (Instruction No. 13 provided the elements for Count III, the completed charge, and did not contain any identifying "to-wit" language, instead containing only the broader term, "sexual contact.") The statutory definition of

515 P.3d 1263

"sexual contact" was set out in a separate instruction.5

Before closing arguments, the court read a general instruction explaining the purpose of the attorneys’ arguments and the fact that the arguments did not constitute evidence. In the State's closing argument, the prosecutor then outlined the three charges and explained that "there are specific acts that the State is alleging for each of these counts":

[E]ssentially Count I is for pulling her onto his lap and attempting to engage in sexual contact. Count II is for attempting to fondle her in bed, like put his hand on her genitals. ... And Count III is for what she describes as humping her on the couch, putting his body against her body, and touching his genitals to her buttocks or her back.

In his closing argument, Riley's attorney discussed the elements of the two attempt offenses and generally argued that Riley did not intend to engage in sexual contact with C.S. With regard to Count I, counsel specifically argued that Riley lacked the intent to have his penis touch C.S.’s genitals:

Did he admit to it? Did he say to the officers, oh yes, I tried to have — I tried to put my penis to her genitals. Did he say that? ... Was there any statement from [C.S.] saying yeah, he was trying to put his penis to my genitals? No. I don't know what his intent was. ... [W]hen she testified, she said ... she felt his chest. She could not feel his genitals on her. Well, there's no penis to genitals there. And if she didn't feel it, he obviously didn't do it.

After the parties completed their arguments, the court read the remaining instructions to the jury.

But before the court released the jury for deliberations, the prosecutor asked for a bench conference. At the bench conference, the prosecutor asked the court to delete from Instruction Nos. 11 and 12 — the instructions identifying the elements of the attempt offenses (Counts I and II) — the language identifying the specific conduct alleged in the indictment. According to the prosecutor, the "to-wit" language in the indictment was intended solely to give notice to the defendant of the conduct alleged — and she argued that including the language in the instructions identifying the elements of the attempt charges was not "fair" because it presented an "overly...

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