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 precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

COATS, Chief Judge.

In a bench trial conducted by Superior Court Judge Vanessa White, Mario Paradiso was convicted of one count of sexual abuse of a minor in the first degree1 and one count of sexual abuse of a minor in the second degree.2 The charges arose from allegations that, while he was staying in a Wasilla hotel in December 2007, Paradiso engaged in sexual penetration and sexual contact with his two granddaughters, who were under thirteen years old.

At trial, Paradiso raised a defense of involuntary intoxication. His defense was based on an allegation that he had used a sleep aid, Ambien, on the night of the incident. He contended that he was under the influence of Ambien and was essentially asleep at the time he committed the acts of sexual abuse. He did not dispute that he had had sexual contact with his granddaughters, although he did dispute that he had engaged in sexual penetration. In support of his defense, Paradiso relied on an earlier recorded statement in which he stated that he had taken an Ambien pill thirty minutes before the incident and had no recollection of what happened. He also presented an expert witness, Dr. Raymond Grimsbo, who testified that drugs like Ambien could result in "anterograde amnesia," a condition where a person would have no awareness or recall of an event: "So basically at the time of the event, you're not aware of doing it and the next day you don't remember doing it." Dr. Grimsbo concluded, after reviewing Paradiso's case, that there was "a probability" that Paradiso had acted unknowingly.

At the conclusion of the trial, Judge White found Paradiso guilty of both offenses. In rejecting Paradiso's defense that he was not guilty because he was involuntarily intoxicated through his ingestion of Ambien, Judge White reasoned that this was an affirmative defense which Paradiso had to prove by a preponderance of the evidence. Paradiso argues that this was error. He contends that, once he had presented sufficient evidence to raise the defense of involuntary intoxication, the State had the burden of disproving the defense beyond a reasonable doubt (that is, Paradiso argues that involuntary intoxication is a defense, not an affirmative defense). Paradiso concedes that he never raised an objection to this allocation of the burden of proof in the trial court, and concedes that he must therefore establish plain error on appeal. The State argues that it was not error for Judge White to require Paradiso to prove that he ingested Ambien. Furthermore, the State argues that, in any event, Paradiso has not established plain error because the law at the time of Paradiso's trial was unclear about the allocation of the burden of proof when the defendant claims involuntary intoxication.

We conclude that it is unnecessary to resolve the issue of where the burden of proof lies when a defendant raises a defense of involuntary intoxication. In her findings, after rejecting Paradiso's defense of involuntary intoxication, Judge White considered whether Paradiso had knowingly committed the acts of sexual abuse:

It is clear from this passage that Judge White found, beyond a reasonable doubt, that Paradiso was aware of what he was doing when he committed the sexual abuse, despite his earlier ingestion of Ambien. In other words, Judge White rejected Paradiso's defense of involuntary intoxication even when the State bore the burden of proof.

Conclusion

The judgment of the superior court is AFFIRMED.

BOLGER, Judge, concurring.

In the superior court, Mario Paradiso argued that he was not aware of his conduct when he molested his granddaughters because of the intoxicating effects of the medication Ambien. In this appeal, Paradiso argues that the superior court improperly analyzed this defense and returned a guilty verdict without requiring the State to prove beyond a reasonable doubt that he acted "knowingly." The lead opinion concludes that, regardless of any defects in the superior court's approach, the court ultimately found beyond a reasonable doubt that Paradiso had acted knowingly.

I would affirm Paradiso's convictions for a different reason. The statutory definition of the term "knowingly" states that "a person who is unaware of conduct ... of which the person would have been aware had that person not been intoxicated acts knowingly with respect to that conduct."1 The definition of "intoxicated" includes intoxication "from the use of a drug."2 So intoxication, including intoxication from prescription medication, does not negate the required mental state for crimes that require only knowing misconduct.

As noted, Paradiso's argument is that the superior court improperly allocated the burden of proof on his diminished capacity defense. This argument is unavailing because Paradiso was not entitled to assert a diminished capacity defense for these crimes.

This restriction on the diminished capacity defense does not mean that there is no remedy for those who suffer the unforeseeable effects of prescription medication. A person who commits a crime while unconscious may have a defense under AS 11.81.600(a), which provides that "[t]he minimal requirement for criminal liability is the performance by a person of conduct that includes a voluntary act or the omission to perform an act that the person is capable of performing."3 A "voluntary act" is defined as "a bodily movement performed consciously as a result of effort and determination."4 So it is arguable that intoxication from a prescription medication could be a defense if it caused a defendant to commit a criminal act while unconscious.

In this appeal, Paradiso mentions AS 11.81.600(a) only as a passing reference in his reply brief. This reference is not sufficient to preserve this argument as the basis for our decision.5 And there is likewise no potential that Judge White committed plain error with respect to this defense. The judge found that the State had proven beyond a reasonable doubt "that the defendant knew what he was doing and that he knew that his actions were legally and morally wrong." This finding is inconsistent with any reasonable possibility that Paradiso was unconscious when he committed these crimes.