Memorandum decisions of this court do not create legal precedent.
MANNHEIMER, Judge.
On the night of September 25, 2007, in the village of Goodnews Bay, Vernon Bavilla engaged in sexual penetration with a woman, N.R., while she was incapacitated from a combination of alcohol and prescription drugs, and unaware of what was happening to her. For this conduct, Bavilla was convicted of second-degree sexual assault.
In this appeal, Bavilla argues that his trial was flawed by two mistaken evidentiary rulings. Bavilla contends that the trial judge placed an improper restriction on his cross-examination of two village public safety officers, and he also contends that the trial judge improperly prevented him from presenting evidence that he consented to be interviewed by a state trooper who came to Goodnews Bay to pursue the investigation.
Bavilla also argues that the evidence presented at his trial was insufficient to support the conclusion that N.R. was incapacitated at the time of the sexual penetration, or that she was unaware of the sexual activity.
Finally, Bavilla argues that his sentencing was flawed because the judge rejected Bavilla's proposed mitigator that his conduct was among the least serious within the definition of the relevant portions of the second-degree sexual assault statute.
For the reasons explained here, we conclude that none of these arguments has merit, and we therefore affirm Bavilla's conviction and sentence.
Bavilla's sexual assault of N.R. was discovered — in fact, observed — by N.R.'s adult son. The son had come to N.R.'s house to feed her dog. He noticed that his mother's outer door was not fastened in the normal way, and he could hear grunting noises (in a male voice) coming from inside the house. The son pushed hard against the front door — dislodging a two-by-four that had been propped behind it. He then entered the house and saw Bavilla, who was naked, engaged in sexual intercourse with his mother, who was half-undressed and in a state of extreme intoxication. When the son announced that he was going to call the police, Bavilla got up and started to dress himself.
N.R.'s son left his mother's house and went several places in search of a telephone to call the authorities. He finally was able to call the home of Village Public Safety Officer George Bright, but Bright was away from home, so the son left a message for him. N.R.'s son, along with two other relatives, then went to N.R.'s house to take care of her until help arrived.
While N.R.'s son and relatives were at N.R.'s house, Bavilla returned to the house, but he was chased away. A little later, N.R.'s son decided to lock N.R. inside her house (using a padlock on the front door) so that she would be safe from intruders, and so that she would not wander around the village in a helpless condition.
When VPSO Bright returned home and learned of the reported sexual assault, he contacted N.R.'s son. The son brought Bright to N.R.'s house, where he removed the padlock and admitted Bright into the residence. Because N.R. was still extremely intoxicated, Bright concluded that he should take N.R. into protective custody.
Enlisting the son's help, Bright brought N.R. to the Goodnews Bay public safety office. There, N.R. was locked inside the office overnight, supervised by a female staffer. The next morning, this same female staffer accompanied N.R. on a flight to Bethel, where N.R. underwent a sexual assault examination at the Yukon-Kuskokwim Regional Hospital.
During Bavilla's attorney's cross-examination of VPSO Bright, the defense attorney asked Bright to clarify that he had not arrested N.R. for a crime, but rather had taken her into protective custody under AS 47.37.170. This statute generally authorizes law enforcement officers to detain persons who are found incapacitated from alcohol or drugs, either in a public place or on licensed premises, and to hold these persons at a treatment facility (or, if there is no treatment facility, at a place of detention) until they have received treatment or have regained their faculties.
After clarifying that Bright took N.R. into protective custody, the defense attorney began asking Bright whether AS 47.37.170 authorized law enforcement officers to enter a private residence to take an incapacitated person into protective custody. At this point, the prosecutor objected.
At a bench conference, the defense attorney explained that she did not believe that the protective custody statute permitted police officers to enter a private residence, even if the officer had reason to believe that there was an incapacitated person inside. The defense attorney then argued that if Bright did not have the authority to enter N.R.'s house, that fact would be "absolutely relevant".
The trial judge, Superior Court Judge Leonard R. Devaney, sustained the prosecutor's objection. Judge Devaney ruled that, even though Bright's answer to this question might have some small relevance, the issue would be confusing to the jury.
The defense attorney immediately began to argue with Judge Devaney:
Judge Devaney, in a commendable display of judicial temperance, decided to treat the defense attorney's remarks as a motion for reconsideration of his ruling. He then re-affirmed his previous decision not to allow the defense attorney to question Bright on this subject. Judge Devaney again declared that Bright's answer to the defense attorney's inquiry would be only "marginally relevant". And the judge again concluded that the inquiry would be confusing to the jury — because, even assuming that the protective custody statute did not give Bright the authority to enter N.R.'s residence to take her into custody, Bright's awareness or lack of awareness of this "[would not be relevant] to what happened or didn't happen, as far as the charges [against Bavilla are concerned]".
Following Judge Devaney's ruling, Bavilla's attorney indicated that she had no further questions for VPSO Bright, and Bright was excused from the witness stand.
A few moments later, the defense attorney announced that she wanted to "make a [fuller] record" with respect to the proposed cross-examination and Judge Devaney's ruling. She then proceeded to challenge Judge Devaney's ruling again:
Judge Devaney thanked the defense attorney for her argument, and then announced that the court would recess for lunch. Before the court could go off-record, Bavilla's attorney told Judge Devaney that, despite his ruling, she "fully intend[ed]" to ask the same question when she cross-examined VPSO Bright's supervisor, Trooper Altepeter.
Rather then telling the defense attorney that this matter was already decided, Judge Devaney responded that he might be willing to reconsider his ruling: "If you can fine-tune your argument, ... we'll see if I'll allow [your question]."
Following the lunch recess, and before Trooper Altepeter took the stand, Bavilla's attorney told the court that she wished to "lay a greater foundation" to support her request to question the trooper about his understanding of the protective custody statute. But when Judge Devaney asked the defense attorney to explain how the trooper's response to this question would be relevant, the defense attorney offered no clear answer:
A few minutes later, the defense attorney repeated her suggestion that Bright and Altepeter might have had some ulterior motive for taking N.R. into custody. She argued that if the two officers "were acting outside the bounds of the law" when Bright took N.R. into protective custody, "then perhaps something else [was] going on". But the defense attorney offered no clearer explanation of what she thought this "something else" might be, or how the officer's motive for taking N.R. into custody had any relevance to whether Bavilla was guilty or innocent of the sexual assault.
Trooper Altepeter then took the stand. The prosecutor's direct examination of Trooper Altepeter dealt primarily with Altepeter's visit to Goodnews Bay to execute a search warrant authorizing the seizure of body samples from Bavilla, and the trooper's processing of other physical evidence. Following the conclusion of this direct examination, the defense attorney renewed her argument that she should be allowed to question Altepeter about his understanding of the protective custody statute.
The defense attorney told Judge Devaney that, just as law enforcement officers could not have seized body samples from Bavilla without a search warrant, VPSO Bright could not have taken N.R. into protective custody unless his action was authorized by the protective custody statute. The defense attorney asserted that if Bright exceeded his authority under this statute, then the defense attorney had a right to let the jury know about this.
When Judge Devaney pressed the defense attorney to explain how this was relevant, the defense attorney initially told the judge that she did not wish to explain why it was relevant — but then she suggested that Trooper Altepeter might have knowingly misused the protective custody statute to take custody of N.R., not for the purpose of protecting her from harm, but rather for the purpose of collecting and preserving evidence of the sexual assault:
When Judge Devaney heard this last rationale — i.e., the defense attorney's suggestion that the trooper used the protective custody statute as a guise for taking N.R. into custody, when his real aim was not to protect N.R.'s safety, but rather to collect and preserve evidence — the judge decided that the defense attorney's proposed questions had "some minor relevance" that would survive an Evidence Rule 403 analysis. The judge therefore declared that he would allow the defense attorney to ask a few questions on this point.
(We express no opinion regarding Judge Devaney's ruling that the defense attorney's inquiry was relevant, or that the purported relevance of this inquiry outweighed the risk of confusing the jury with irrelevant issues. We describe the judge's ruling in so much detail simply because it forms an important part of the procedural history of this litigation.)
During the defense attorney's ensuing cross-examination of Trooper Altepeter, the trooper testified that VPSO Bright contacted him (in Bethel) to tell him that a sexual assault had been reported in Goodnews Bay, and that the alleged victim was "still highly intoxicated and unresponsive". Altepeter further stated that, according to his understanding, Bright was able to report on N.R.'s condition because he had personally observed her.
Altepeter testified that, because of N.R.'s level of intoxication, he advised Bright to take N.R. into protective custody. Bavilla's attorney then asked Altepeter if, according to his understanding, the protective custody statute gave law enforcement officers the authority "to go into somebody's home and take them out of their home when they're intoxicated"? Altepeter answered, "Generally, no." Altepeter then explained that he believed VPSO Bright was authorized to take N.R. into protective custody because N.R.'s adult son and caregiver "allow[ed] [Bright] to be there [in the home] and concur[red] with this decision".
Upon hearing this answer, Bavilla's attorney engaged in several minutes of questioning designed to suggest to the jury that Altepeter was wrong if he thought that these circumstances were sufficient to trigger any authority to take N.R. into protective custody under the statute. During this questioning, Altepeter continued to insist that he and Bright had acted lawfully under the statute.
The defense attorney also asked Altepeter if he ordered Bright to take N.R. into custody for the purpose of preserving the physical evidence on her body. Altepeter answered, "Most certainly not."
The defense attorney's questions on these subjects were never interrupted by either the prosecutor or Judge Devaney.
In his brief to this Court, Bavilla argues that Judge Devaney committed error when the judge prohibited the defense attorney from cross-examining VPSO Bright about his understanding of the protective custody statute, and the possibility that he acted unlawfully when he took N.R. into custody. Bavilla also argues that the judge committed error when he restricted the defense attorney's cross-examination of Trooper Altepeter by allowing her to make only a "limited inquiry" into these matters.
Bavilla's second argument is easy to answer. The record simply does not support Bavilla's assertion that Judge Devaney limited the defense attorney's cross-examination of Trooper Altepeter on this point.
As we explained in the preceding section, although Judge Devaney initially indicated that he would not let the defense attorney cross-examine Altepeter on this point, the judge ultimately concluded that the defense attorney had identified a plausible way in which her proposed cross-examination might be relevant, and he therefore allowed her to pursue the cross-examination.
It is true that when Judge Devaney made this ruling, he warned the defense attorney that he would "cut [her] off if it [got] out of hand". But, as we have explained, Judge Devaney never exercised this authority. Nor did the prosecutor object to any of the defense attorney's questions on this issue. And there is no indication in the record that the defense attorney wished to cross-examine Altepeter any further on this issue.
In sum, there is nothing in the record to support Bavilla's contention that Judge Devaney restricted his cross-examination of Trooper Altepeter on this point.
We now turn to Bavilla's argument that Judge Devaney improperly prevented Bavilla's attorney from cross-examining VPSO Bright on this issue.
It is true that the judge initially prohibited Bavilla's attorney from asking Bright whether the protective custody statute gave him the authority to enter a residence to take custody of an incapacitated person. But Judge Devaney made this ruling before Bavilla's attorney finally articulated a ground of relevance for this inquiry that Judge Devaney found convincing.
The defense attorney did not articulate this ground of relevance until later in the trial, when she asked Judge Devaney for permission to cross-examine Trooper Altepeter about this matter. As we have explained, after the defense attorney articulated this ground of relevance, Judge Devaney ruled that the attorney could ask these questions during her cross-examination of Altepeter. Moreover, the record shows that the defense attorney was allowed to fully pursue these questions during her cross-examination.
We accordingly conclude that the correctness or incorrectness of Judge Devaney's initial ruling on this issue — i.e., the ruling he made during the cross-examination of Bright — is a moot question. The relevant ruling is Judge Devaney's second ruling — the ruling he made regarding the permissible scope of the defense attorney's cross-examination of Altepeter.
This second ruling was favorable to the defense, and Bavilla's attorney cross-examined Altepeter on this issue without hindrance. If, after receiving this favorable ruling, Bavilla's attorney wished to pursue this same line of cross-examination with VPSO Bright, it was the attorney's obligation to ask Judge Devaney to go back and apply his ruling to VPSO Bright. That is, the defense attorney was required to ask Judge Devaney to summon Bright to the stand once more, so that the defense attorney could cross-examine Bright concerning this matter, just as she had cross-examined Altepeter. But the defense attorney made no such request.
From this, we conclude that Bavilla failed to properly preserve an objection to Judge Devaney's resolution of this issue. Moreover, because Bavilla's attorney never sought to take advantage of Judge Devaney's ultimate, favorable ruling on this issue, Bavilla can not show that he was prejudiced by the judge's earlier, and now superseded, ruling.
Finally, we note that Bavilla presents completely new arguments on appeal as to why the proposed cross-examination of Bright would have been relevant.
In his brief to this Court, Bavilla gives two reasons why his attorney should have been able to ask Bright whether the protective custody statute granted police officers the authority to enter a residence (as opposed to taking custody of an incapacitated person in a public place). First, Bavilla argues that if Bright thought that the statute did not apply to incapacitated persons in private residences, this would be "relevant to whether [N.R.] was [in fact] incapacitated, and to whether Mr. Bavilla should have known [this when he engaged in sexual penetration with her]." Second, Bavilla argues that if Bright thought that the statute did not apply to incapacitated persons in private residences, this would "rais[e] serious concerns [as to] whether [N.R.'s] cooperation with law enforcement was the product of coercion."
Neither of these rationales appears to have any logical connection to the question that Bavilla's trial attorney wanted to ask VPSO Bright: to wit, whether Bright thought that the protective custody statute allowed him to take custody of an incapacitated person only if that person was in a public place.
Just as important, neither of these rationales was presented to Judge Devaney as a potential justification for asking this question.
For all of these reasons, we conclude that Bavilla has failed to show that Judge Devaney committed prejudicial error in his handling of this issue.
Late in the afternoon on the day after the sexual assault, Trooper Altepeter flew from Bethel to Goodnews Bay, armed with a search warrant to collect body samples from Bavilla. Upon his arrival, Altepeter met with VPSO Bright, and then the two officers went to Bavilla's house.
When they arrived at Bavilla's house, Altepeter explained that he wanted to talk to Bavilla about what happened the previous night. Bavilla proceeded to give the officers a completely exculpatory version of events. Bavilla claimed that he was asleep in N.R.'s house, with all of his clothes on, when N.R. "bothered" him — waking him up by slapping him. Bavilla told the officers that, despite this interruption, he went back to sleep — only to discover later that N.R. had come and lain down next to him in the bed. Even though Altepeter expressed skepticism about Bavilla's account, Bavilla repeatedly denied that he had engaged in sexual intercourse with N.R.. Then Bavilla stated, "I'm done talking to you guys at this time."
At this point, Altepeter served the search warrant for the body samples, and Bavilla accompanied the officers to the public safety office, where the officers used a standardized sexual assault evidence kit to collect various kinds of physical evidence from Bavilla's body.
Before Bavilla's trial, his attorney filed a motion asking the superior court to exclude all the statements that Bavilla made to the officers. The defense attorney argued that Bavilla had been in custody throughout the interview, and that Bavilla's statements should be suppressed because the officers had not obtained a Miranda waiver from Bavilla. Following an evidentiary hearing, Judge Devaney granted this suppression motion in part: The judge ruled that the interview had not been custodial at its inception, but that the interview became custodial when Altepeter served the search warrant and directed Bavilla to accompany the officers to the Goodnews Bay public safety office. For this reason, Judge Devaney suppressed all of Bavilla's statements to the officers after that point in time.
Because all of Bavilla's statements up to that point had been exculpatory, the State chose not to introduce those statements, and the State asked Judge Devaney to prohibit Bavilla from introducing his own statements (since they were apparently inadmissible hearsay if offered by the defense). See State v. Agoney, 608 P.2d 762, 764 (Alaska 1980).
Judge Devaney denied the State's motion without prejudice. In essence, the judge decided to defer his final ruling on this issue until the trial, when he would be better able to assess whether some hearsay exception might apply to Bavilla's statements to the officers. However, Judge Devaney cautioned the parties to "[make] no mention of [the] disputed hearsay statements ... prior to a determination that they fall within a hearsay exception".
In the ensuing litigation in the superior court, Bavilla's attorney decided not to press the argument that Bavilla's statements to the officers were admissible under some exception to the hearsay rule. Rather, the defense attorney argued that she should be allowed to elicit testimony (from Altepeter and Bright) that Bavilla willingly allowed the officers into his house, and that Bavilla willingly spoke to the officers about the events of the previous night. The defense attorney contended that Bavilla's willingness to speak to the officers was circumstantial proof that he was innocent.
Relying on this Court's decision in Stumpf v. State, 749 P.2d 880 (Alaska App. 1988), Judge Devaney denied the defense attorney's request.
In Stumpf, this Court indicated that a defendant's willingness to speak to the police (when the defendant knew that the police were investigating him) "was relevant, albeit marginally, to establish a lack of consciousness of guilt". Id. at 900. However, this Court suggested that a trial judge would seldom, if ever, abuse their discretion by excluding this evidence — since "[a]dmission of this evidence ... could obviously cause the jury to speculate on the substance of [the defendant's] statement [to the police]", and the statement itself "would normally be inadmissible[.]" Ibid.
Judge Devaney concluded that Bavilla's case was analogous to the facts of Stumpf, and that whatever marginal relevance there might be in Bavilla's willingness to speak to Altepeter and Bright was outweighed by the potential unfair prejudice of this evidence — its potential for confusing the jury, or causing the jury to speculate as to what Bavilla might have said to the officers.
In his brief to this Court, Bavilla argues that Judge Devaney was wrong to exclude the evidence that Bavilla willingly spoke to the officers. But Bavilla does not renew the argument that his willingness to speak to the officers was circumstantial evidence of his innocence. Rather, Bavilla presents several other arguments as to why the evidence should have been admitted. None of these arguments was presented to Judge Devaney during the litigation of this issue in the superior court.
First, Bavilla contends that this evidence was admissible under Alaska Evidence Rule 106. We assume that Bavilla means to argue that the disputed evidence was admissible under the common-law "rule of completeness". Under this rule, when one party offers a portion of an out-of-court written or recorded statement, an opposing party can introduce any other portions of the statement that are necessary "to explain or shed light on the meaning of the [portion] already received", so as to prevent the first party from offering "a selective and out-of-context presentation of evidence" that might "mislead[] the trier of fact". Sipary v. State, 91 P.3d 296, 299 (Alaska App. 2004).
This argument was not preserved in the superior court. Moreover, as we have explained, the State did not offer any portion of Bavilla's statement to the officers. Thus, the rule of completeness does not apply to Bavilla's case.
Bavilla next argues that the disputed evidence was admissible under Evidence Rule 403. Again, this argument was not preserved in the superior court. Moreover, Evidence Rule 403 does not mandate or authorize the admission of evidence. Rather, Rule 403 authorizes the exclusion of relevant evidence in circumstances where the probative value of the evidence is outweighed by its potential for creating confusion or unfair prejudice.
Bavilla also argues that the disputed evidence was necessary "to set the context for the search warrant that Trooper Altepeter executed" — i.e., the search warrant authorizing the seizure of body samples from Bavilla. Again, this argument was not preserved in the superior court. Moreover, the authority granted by the search warrant did not hinge on whether Bavilla chose to speak to the officers, and Trooper Altepeter was apparently going to execute this warrant regardless of whether Bavilla was willing or unwilling to speak to the officers.
Next, Bavilla argues that his willingness to speak to the officers was relevant to show "that he was not unnecessarily hostile or uncooperative with the police". Again, this argument was not preserved in the superior court. Moreover, Bavilla's attitude toward the police was not in dispute. During cross-examination by the defense attorney, Trooper Altepeter testified that Bavilla was cooperative with the officers, both when they initially arrived at his house and later, when they ordered Bavilla to accompany them to the public safety office for the collection of the body samples. We note that, during the defense summation, Bavilla's attorney reminded the jurors that Trooper Altepeter conceded that Bavilla was cooperative throughout this process.
Finally, to the extent that Bavilla means to renew his contention that his willingness to speak to Trooper Altepeter and VPSO Bright was circumstantial evidence of his innocence, we reject that argument as well.
First, despite what this Court said in Stumpf, it is not clear that a suspect's willingness to speak to the police can generally be viewed as circumstantial evidence of the suspect's innocence. Here, for instance, the evidence at Bavilla's trial (viewed as a whole) tends to support the conclusion that Bavilla gave the police a false, exculpatory version of events. Thus, Bavilla may have been willing to speak to the officers, but he apparently lied to them about what happened. This normally does not bespeak innocence.
In addition, it appears that Bavilla was only willing to speak to the officers as long as he thought they were listening to his exculpatory story. When the officers expressed skepticism of his account, Bavilla announced that he wished to end the conversation. In this situation, it would have been affirmatively misleading for Judge Devaney to allow the defense attorney to introduce evidence that Bavilla was willing to speak to the officers unless, at the same time, he allowed the State to introduce evidence that, later in the same conversation, Bavilla indicated that he was going to refuse to say more.
Given these circumstances, and given this Court's decision in Stumpf, Bavilla has failed to show that Judge Devaney abused his discretion when he refused to let the defense attorney introduce evidence that Bavilla willingly spoke to the officers when they came to his house to investigate the reported sexual assault.
Bavilla argues that his conviction of second-degree sexual assault is not supported by the evidence. Specifically, Bavilla argues that the evidence was insufficient to support the conclusion that, at the time of the sexual penetration, Bavilla knew that N.R. was incapacitated, or knew that N.R. was unaware that a sexual act was occurring.
Bavilla's argument is premised on viewing the evidence in the light most favorable to himself. But when an appellate court reviews the sufficiency of the evidence to support a verdict, the court must view the evidence in the light most favorable to the verdict.
Both N.R.'s son and VPSO Bright testified that N.R. was so extremely intoxicated that they felt they needed to put her in a secure place for her own protection. Thus, the son testified that he locked N.R. inside her house (using a padlock) so that she would not wander the village in a helpless condition. And VPSO Bright testified that, later that evening, he took N.R. to the public safety office for the same reason.
Viewing this evidence in the light most favorable to upholding the jury's verdict, this evidence was sufficient to support the jury's conclusions that Bavilla knew that N.R. was incapacitated, and knew that N.R. was unaware that a sexual act was occurring.
Bavilla's offense, second-degree sexual assault, is a class B felony,
In support of this proposed mitigator, Bavilla argued that his criminal conduct was among the least serious (1) because he was lawfully present in N.R.'s house (as her invited guest) when the offense occurred; (2) because he did not supply the alcoholic beverages that led to N.R.'s incapacitation, nor did he encourage her to drink to incapacity; (3) because N.R. did not complain of pain or even discomfort as a result of the sexual penetration, and the injuries that could reasonably be interpreted to have been caused by the sexual penetration were minor; and finally, (4) because N.R. had no conscious memories of the sexual assault — suggesting that she might not suffer long-term adverse effects from the crime.
Judge Devaney concluded that Bavilla had failed to prove this proposed mitigator. In particular, the judge noted that the lack of injury to N.R. was not proof that the offense was among the least serious; rather, Bavilla's offense would have been aggravated if he had inflicted injury on N.R.. See AS 12.55.155(c)(1).
And with respect to Bavilla's suggestion that N.R. would not suffer long-term effects from the sexual assault, Judge Devaney concluded that it was unclear how the crime would ultimately affect N.R. — and, for this reason, Bavilla had failed to prove a lack of long-term effect by clear and convincing evidence.
Judge Devaney did not expressly address Bavilla's other arguments in favor of the proposed mitigator, but he concluded that Bavilla's conduct "[fell] in the broad middle ground" of second-degree sexual assault committed when the victim is incapacitated or unaware that a sexual act is occurring.
On appeal, Bavilla renews his argument that his offense was among the least serious because he "neither planned nor orchestrated" the sexual assault upon N.R.. But if Bavilla had performed acts that were intended to cause N.R.'s incapacitation, he would have been guilty of the more serious offense of first-degree sexual assault under AS 11.41.410(a)(1) — because his sexual penetration of N.R. would have been "without consent" as defined in AS 11.41.470(8)(B). This statute declares that an act of sexual penetration or sexual contact is "without consent" if the victim "is incapacitated as a result of an act of the defendant".
The fact that Bavilla did not plan or orchestrate N.R.'s incapacity means that he could not be convicted of first-degree sexual assault. But it does not mean that his conduct was among the least serious within the definition of the lesser offense of second-degree sexual assault.
Bavilla also argues that his offense should be deemed mitigated because "there is no evidence that [he] used force or violence against N.R.". Again, if Bavilla had used force or violence, his offense would have been first-degree sexual assault. Bavilla was convicted of the lesser crime of second-degree sexual assault because his victim was incapacitated, and he could achieve his goal without using force or violence.
Bavilla further claims that his offense was among the least serious because "there was no completed act of intercourse". If Bavilla means, by this, that there was no completed act of sexual penetration, his argument is at odds with the jury's verdict; an act of sexual penetration is a necessary element of his offense.
Bavilla may mean to argue that, even though he sexually penetrated N.R., his offense should be considered mitigated because he did not reach orgasm. But the offense of second-degree sexual assault is completed by the act of penetration, regardless of the defendant's sexual satisfaction. The fact that Bavilla's sexual penetration of N.R. was interrupted by N.R.'s son before Bavilla reached orgasm does not mean that his offense was among the least serious within the statutory definition.
Finally, Bavilla argues that his offense should be considered mitigated because N.R. "experienced no pain as a result of the alleged [sic] sexual assault". If Bavilla means to argue that his offense should be viewed as mitigated because N.R. did not experience pain during the assault, the answer is that N.R. was incapacitated and insensible. This is characteristic of second-degree sexual assaults under AS 11.41.420-(a)(3)(B) and (3)(C).
If Bavilla means to argue that N.R. did not experience pain after the assault, this is tantamount to arguing that Bavilla's offense should be deemed mitigated because he did not inflict significant injuries on N.R. during the assault. But Bavilla's offense would be aggravated under AS 12.55.155(c)(1) if he had inflicted injury on N.R.. The fact that Bavilla did not inflict significant injury on N.R. does not mean that his offense was mitigated.
For these reasons, we uphold Judge Devaney's rejection of the proposed mitigator.
The judgement of the superior court is AFFIRMED.
