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 authority for any proposition of law.

MEMORANDUM OPINION

SMITH, Judge.

Walter Kuku was convicted of second-degree sexual abuse of a minor and second-degree sexual assault for a single episode involving one victim, and third-degree sexual abuse of a minor and second-degree sexual assault for a different episode involving a different victim. At sentencing, the superior court merged the sexual assault conviction as to each victim with the sexual abuse of a minor conviction as to that victim.

Kuku raises only one argument that applies to all of his convictions: he contends that the superior court erred in permitting his daughter to testify that he had asked her to lie for him. We conclude the superior court could properly decide to admit this testimony because it tended to prove Kuku's consciousness of guilt. We therefore affirm Kuku's two convictions for sexual abuse of a minor.

Kuku separately challenges his sexual assault convictions. Kuku argues first that the superior court erred when it failed to instruct the jury on the legal definition of the term "without consent", as codified in AS 11.41.470(8). We agree with Kuku that, given the way this case was litigated, the lack of such an instruction was plain error, and this error requires reversal of Kuku's sexual assault convictions.

Kuku also argues that the State should be barred from retrying him on the sexual assault charges because (according to Kuku) the evidence presented at his trial was legally insufficient to support those charges. Specifically, Kuku argues that there was insufficient evidence presented at trial to establish that the touching occurred "without consent" within the legal meaning of that term. But Kuku's argument on this point is premised on the assumption that, in cases such as his, where the elements of the offense are misdefined in the jury instructions, the sufficiency of the evidence should be evaluated by asking whether the evidence was sufficient to prove the offense under the correct definition of the offense.

This Court has researched this issue and has found several cases where appellate courts held, in similar circumstances, that the sufficiency of the evidence is evaluated by asking whether the evidence was sufficient to establish the offense as it was presented to the jury: in other words, under the incorrect definition contained in the jury instructions or argued to the jury.

Because the parties do not address this issue in their briefs, and because no Alaska appellate decision directly resolves this issue, we are ordering the parties to file supplemental briefs on this issue, and we will resolve this issue in a later decision.

Kuku further contends that the superior court violated Blakely v. Washington and AS 12.55.155(f)(2) when it found aggravating factor AS 12.55.155(c)(5) (particularly vulnerable victim) without submitting this question to a jury. We agree that this was error, and that the sentencing judge's finding of aggravator (c)(5) must be vacated. If the State still wishes to pursue aggravator (c)(5), the superior court can address this issue when jurisdiction returns to that court.

Finally, the record reveals that two separate errors occurred during the sentencing proceedings in this case.

The first of these errors occurred with respect to Kuku's sentencing for the offenses against one of the victims, S.M.. According to the State's proof, the offenses against S.M. were committed in 2001. But when the superior court sentenced Kuku for those offenses, the court applied the more severe sentencing provisions that were enacted by the legislature in 2006. Thus, Kuku was sentenced in violation of the ex post facto clause.

We therefore vacate Kuku's sentence for the sexual abuse of S.M., and we direct the superior court to re-sentence Kuku under the sentencing provisions that were in effect in 2001.

The second of these errors occurred when the superior court failed to determine whether Kuku's assault conviction from 1980 was a felony conviction. If it was, then Kuku was illegally sentenced as a second felony offender — because, under AS 12.55.145(a)(1), he was a third felony offender. We therefore direct the superior court to determine whether Kuku's 1980 conviction was a felony conviction — and, if it was, we direct the superior court to sentence Kuku as a third felony offender.

Summary of the proceedings at Kuku's trial

In the fall of 2001, twelve-year-old S.M. — a friend of Kuku's daughter, Frances — spent the night at Kuku's house. S.M. testified at the trial that she and Frances slept in the same bed, with Frances next to the wall and S.M. on the outer side. After S.M. went to sleep, the next thing she remembered was waking up with Kuku standing over her with his hand on her breast. He rubbed one of her breasts with one hand for a minute or two. S.M. testified that she lay there with her eyes open the entire time because she did not know what to do. S.M. said she thought Kuku noticed her eyes were open and he left the room. S.M. tried to wake Frances up by shaking her, but Frances did not wake up, so she grabbed her belongings and went home. S.M. told Frances what happened when Frances called her the next morning to find out where she was. Frances was the only person S.M. told about the incident until she spoke with an Alaska State Trooper in 2009, after K.S. accused Kuku of doing something similar.

In May 2009, Frances had another friend, K.S., stay the night at her house. At that time, K.S. was 15 years old. Frances and K.S. watched television in Frances's room before going to bed. K.S. testified that Frances slept closer to the wall and that she slept on the edge of the bed on top of the blanket; she had a sweater on. K.S. woke up when Kuku touched her breasts. She indicated that Kuku moved his hands back and forth, and that Kuku was looking at her breasts. She yelled at Kuku and pushed his hands away. K.S. testified that she lay there scared, and that Kuku made an excuse for being there, asking her, "Where's the remote?" K.S. replied that she did not have the remote control, and Kuku left the room. K.S. then woke Frances up; she told Frances angrily that Kuku had touched her, and that she was going home to call the police.

The jury convicted Kuku of second-degree sexual abuse of a minor and second-degree sexual assault against S.M., and third-degree sexual abuse of a minor and second-degree sexual assault against K.S..

The sentencing judge found that one mitigating factor applied to Kuku's offenses: AS 12.55.155(d)(9) (conduct among the least serious within the definition of the offense).

The State proposed one aggravating factor: AS 12.55.155(c)(5) (particularly vulnerable victim). The sentencing judge decided this issue himself: using the "clear and convincing evidence" standard of proof, he found that the State had proved this aggravator.

The sentencing judge merged Kuku's sexual abuse and sexual assault convictions as to each victim. For the charges involving S.M., the judge sentenced Kuku to 13 years with 5 years suspended. For the charges involving K.S., the judge sentenced Kuku to 12 years with 5 years suspended. These sentences were imposed concurrently, except for 1 year consecutive to serve. Thus, Kuku's composite sentence was 14 years with 5 years suspended (9 years to serve).

The trial judge did not abuse his discretion when he allowed Kuku's daughter to testify that Kuku asked her to lie

As we noted above, K.S. testified that before Kuku left the bedroom, he made an excuse for being there — asking her where the remote control was. Kuku's daughter Frances testified, over objection, that Kuku asked her to say that she was awake and looking for the remote control with him, when she actually was asleep during the incident.

On appeal, Kuku asserts that this testimony was more prejudicial than probative, and hence should have been excluded under Alaska Evidence Rule 403.1 In particular, Kuku claims that his daughter's testimony had limited probative value because Kuku's request to his daughter was "ambiguous", because there was no evidence that Kuku threatened, intimidated, or bribed her, and because Kuku made this request before any police investigation had been initiated or charges filed.

The State responds that Kuku's statement to his daughter was probative because it tended to show his consciousness of guilt. We agree.

While there is no Alaska case directly on point, Jordan v. State, 481 P.2d 383 (Alaska 1971), is instructive. In Jordan, there was evidence that the defendant might have made false exculpatory statements outside of court.2 The supreme court upheld a jury instruction which told the jurors that if they found that Jordan's exculpatory statements were untrue, and that he had made these statements voluntarily with knowledge that they were false, then the jury could consider these statements as circumstantial evidence of Jordan's consciousness of guilt.3

A defendant's act of asking someone to lie on his behalf could likewise be viewed as probative of his consciousness of guilt. Kuku's trial judge accordingly could reasonably conclude that, if Kuku indeed asked his daughter to lie for him, then this was probative of Kuku's consciousness of guilt.

Kuku also contends that this testimony was unfairly prejudicial because it suggested that he had committed the separate crime of tampering with a witness. (In fact, Kuku initially had been indicted for witness tampering, but this charge was dismissed before trial.)

There is nothing in the record to indicate that the jurors understood that Kuku's request to his daughter constituted a separately chargeable crime. But even assuming that one or more jurors understood this, the fact remains that if Kuku asked his daughter to lie, Kuku's request — whether a separate crime or not — was directly relevant to the issues being litigated at Kuku's trial. If the jury believed Frances's testimony, it could properly infer that Kuku wanted his daughter to lie for him because he was conscious of his own guilt.

For these reasons, we conclude that the trial judge did not abuse his discretion when he overruled Kuku's objections and admitted this evidence.

The trial judge committed plain error when he failed to instruct the jury that the element of "without consent" required proof of coercion

In order to prove the second-degree sexual assault charges, the State had to prove beyond a reasonable doubt (1) that Kuku knowingly engaged in sexual contact with the two girls, (2) that this sexual contact was "without consent", and (3) that Kuku recklessly disregarded the fact that the sexual contact was without consent.4

For purposes of Kuku's case, the relevant definition of "without consent" is found in AS 11.41.470(8)(A): "without consent" means that the victim, "with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone." When interpreting this definition, "force" means "any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement."5

The statutory definition of "without consent" thus differs from the common understanding of this phrase, in that the State is required to prove not only the victim's lack of subjective consent to the sexual conduct, but also coercion.6

In Kuku's case, when the trial judge instructed the jury on the elements of second-degree sexual assault, the judge failed to apprise the jury of the statutory definition of "without consent". Kuku's attorney did not object to this omission from the jury instructions, so Kuku must now show plain error.

The State argues at the outset that Kuku forfeited or waived this claim because his attorney approved the packet of instructions to the jury. By approving the instruction packet, the State argues, the defense attorney thereby invited the trial judge to erroneously omit the definition of "without consent."

This argument conflates the plain error and invited error doctrines. As we explained in Frankson v. State, plain error review applies to a jury instruction issue when a party "remains silent, failing to object to an alleged error, and then urges the error on appeal," whereas the doctrine of "`invited error' applies when the court takes erroneous action at the express request of the party claiming error on appeal."7 Kuku's attorney remained silent; she did not take any affirmative action to block the jury from receiving an instruction on the meaning of "without consent." The plain error analysis therefore applies.

The State argues next that the omission of this instruction was harmless — that it could not have affected the jury's deliberations because Kuku's defense focused on a denial that any sexual contact occurred. Although this is true, once the jury rejected this defense and found that Kuku had engaged in sexual contact with the victims, the jury still had to decide whether this sexual contact occurred "without consent" — which, as we have explained, requires proof of both (1) lack of subjective consent and (2) coercion.

When Kuku's attorney moved for a judgment of acquittal on the sexual assault charges at the end of the State's case-in-chief, the defense attorney argued that the State had failed to prove that the sexual contact was "without consent". When the trial judge issued his ruling denying this motion, the judge focused solely on the two girls' lack of subjective consent to the sexual contact. The judge did not mention the requirement of coercion, and neither the prosecutor nor the defense attorney pointed out that the judge had failed to consider this additional element of the State's proof. It appears that both attorneys mistakenly agreed with the trial judge that "without consent" meant only a lack of subjective consent.

This mistake of law surfaced again during the prosecutor's summation to the jury. The prosecutor argued at length that the sexual touchings had occurred "without consent" because, given the fact that the girls were asleep, the girls could not possibly have given their consent to Kuku's actions.

The defense attorney did not object to the prosecutor's argument, nor did the defense attorney respond by telling the jurors that the State had to prove coercion. However, we can discern no tactical reason why the defense attorney would have withheld an objection to the trial judge's and the prosecutor's misinterpretations of the phrase "without consent" — nor any reason why, in the face of these misinterpretations, the defense attorney would have affirmatively decided not to request a jury instruction on the statutory meaning of "without consent."

Given the way the prosecutor argued the case to the jury, the lack of such an instruction was a significant and obvious error, and there is a significant possibility that the jury convicted Kuku of sexual assault based on a mistaken understanding of the elements of this crime.

We therefore conclude that it was plain error for the judge not to instruct the jurors on the statutory meaning of "without consent", and we must reverse Kuku's convictions for sexual assault.

The sufficiency of the evidence to support Kuku's convictions for sexual assault

Kuku argues that the double jeopardy clause bars the State from retrying him on the second-degree sexual assault charges because (according to Kuku) the evidence presented at his trial was legally insufficient to prove the coercion element of "without consent".

Kuku's argument is premised on the assumption that, in cases where the elements of the offense are misdefined in the jury instructions, the sufficiency of the evidence should be evaluated by asking whether the evidence was sufficient to prove the State's case under the correct definition of the offense. However, this Court has found several appellate cases holding, in similar circumstances, that the sufficiency of the evidence is evaluated by asking whether the evidence was sufficient to establish the offense as it was presented to the jury: that is, under the incorrect definition contained in the jury instructions.

In other words, when the jury instructions contain a mistaken definition of the offense, the defendant is entitled to a reversal of the conviction and a retrial, but the defendant is not allowed to seek a dismissal of the charges with prejudice by arguing that the evidence at trial was insufficient to establish the offense as correctly defined. Rather, the sufficiency of the evidence is gauged by whether the State proved the elements of the offense as the parties and the jury mistakenly believed them to be.

See State v. Rosaire, 939 P.2d 597, 601 (N.M. App. 1996) ("[W]e review the sufficiency of the evidence in light of the erroneous jury instruction."); State v. Pierce, 439 N.W.2d 435, 446 (Neb. 1989) ("[T]he erroneous instruction on pecuniary loss necessitates our setting aside the jury's finding concerning the extent of [the] pecuniary loss [, but this] error . . . is a `trial error' which does not bar Pierce's retrial after reversal of his conviction."); United States v. Sanchez-Corcino, 85 F.3d 549, 554 (11th Cir. 1996)8 (when the jury received an erroneous instruction on the definition of "willfully", "[r]emand for a new trial [was] the appropriate remedy [because] the insufficiency of evidence [was] accompanied by [a] trial court error whose effect may have been to deprive the Government of an opportunity or incentive to present evidence that might have supplied the deficiency"); United States v. Weems, 49 F.3d 528, 530-31 (9th Cir. 1995) (holding that a remand for a new trial was the appropriate remedy where, under the erroneous jury instructions, the missing evidence was apparently not necessary); United States v. Wacker, 72 F.3d 1453, 1464-65 (10th Cir. 1995) (same).

The parties do not address this issue in their briefs, and there is no Alaska appellate decision that directly resolves this issue. Because this legal issue has importance both to the present case and to future cases, we direct the parties to file supplemental briefs on this issue, and we will resolve this issue in a later decision.

The trial court erred in finding aggravating factor (c)(5) without submit-ting this issue to a jury, and without requiring the State to prove this factor beyond a reasonable doubt

Shortly before the sentencing hearing, the State filed a tardy notice that it intended to prove aggravating factor AS 12.55.155(c)(5): that Kuku knew, or reasonably should have known, that the victims of his offenses were particularly vulnerable or incapable of resistance. To establish this aggravator, the State relied on the fact that both of the victims were asleep when Kuku committed the offenses.

Tacitly acknowledging that Kuku would ordinarily be entitled to a jury trial on this proposed aggravator, pursuant to Blakely v. Washington,9 the State argued that Blakely did not apply because the State would not be asking the sentencing judge to impose a sentence beyond the top of the applicable presumptive range.

Kuku's attorney did not object to the tardiness of the State's notice, nor did the defense attorney argue that Kuku was entitled to a jury trial on this aggravator.

The sentencing judge proceeded to adjudicate this aggravator without a jury, and the judge found that the State had proved the aggravator by clear and convincing evidence.

On appeal, Kuku argues first that the trial court erred in accepting the State's late-filed notice of this aggravator. Kuku next argues that the sentencing judge erred by failing to submit the State's proposed aggravator to a jury, and by failing to require the State to prove this aggravator beyond a reasonable doubt. We need only reach the second and third of these claims.

Alaska Statute 12.55.155(f)(2) provides that aggravator (c)(5) "shall be presented to a trial jury . . ., unless the defendant waives trial by jury". This statute further requires that aggravator (c)(5) be proven beyond a reasonable doubt. The sentencing judge did not comply with these procedures, and therefore the judge erred in finding aggravator (c)(5).

The State argues that the judge's error was harmless beyond a reasonable doubt because Kuku received a mitigated sentence. But we do not know what weight, if any, the sentencing judge gave to this aggravator (just as we do not know what role, if any, Kuku's merged convictions for sexual assault played in the judge's sentencing decision).

Because we have reversed Kuku's convictions for second-degree sexual assault, Kuku will have to be resentenced. If, in connection with the resentencing, the State wishes to raise the issue of aggravator (c)(5) again, the superior court can address the issue at that time.

Kuku's sentences for the offenses against S.M. are illegal

As we explained earlier in this opinion, Kuku was convicted of two crimes involving S.M. — second-degree sexual assault, and second-degree sexual abuse of a minor. These offenses were committed in 2001. At that time, both of these offenses carried a maximum penalty of 10 years' imprisonment, and the presumptive term of imprisonment for second felony offenders (like Kuku) was 4 years to serve.10

In 2006, the Alaska Legislature enacted substantially more severe penalty provisions for sexual felonies.11 Under the current law, the maximum penalty for second-degree sexual assault and second-degree sexual abuse of a minor is 99 years' imprisonment12 — and for second felony offenders (whose prior felony was a non-sexual felony), the presumptive sentencing range is now 10 to 25 years' imprisonment.13

At the sentencing hearing in this case, everyone involved — the prosecutor, the defense attorney, and the sentencing judge — proceeded under the assumption that Alaska's current sentencing provisions applied to Kuku's 2001 offenses against S.M..

Toward the beginning of the hearing, the sentencing judge declared that "everyone agrees that [Kuku faces] a presumptive [range of] 10 to 25 [years,] with a maximum [sentence] of 99 [years]". Neither attorney voiced any objection to the judge's statement. Ultimately, the judge found one mitigating factor and, based on that mitigator, the judge sentenced Kuku to 13 years with 5 years suspended (8 years to serve) for the charges involving S.M..

The judge believed this sentence to be mitigated, given the current presumptive range of 10 to 25 years. But in fact this sentence exceeded the 10-year maximum sentence that applied to class B felonies under Alaska's 2001 sentencing law.

When, as here, the legislature enacts new, more severe penalties for a crime, the ex post facto clauses of the federal and state constitutions prohibit the courts from applying these new penalties to defendants who committed their offenses before the new penalties were enacted.14 Accordingly, it was constitutional error for the superior court to apply the 2006 sentencing provisions when it sentenced Kuku for his 2001 offenses against S.M..

Although we are reversing Kuku's second-degree sexual assault conviction involving S.M., we are affirming Kuku's conviction for second-degree sexual abuse of S.M.. We therefore vacate Kuku's sentence for this offense, and we direct the superior court to re-sentence Kuku under Alaska's 2001 sentencing law.

Kuku's sentences are also potentially illegal because he was sentenced as a second felony offender, when the record suggests that he may be a third felony offender

There is one additional matter that the superior court must consider when it resentences Kuku.

At Kuku's original sentencing, the superior court treated Kuku as a second felony offender for presumptive sentencing purposes, based on the fact that Kuku had a felony conviction from 1999 (i.e., a felony conviction that pre-dated both his 2001 sexual offense and his 2009 sexual offense).

The court and the parties were also aware that Kuku was convicted of assault in 1980, and the updated presentence report identified this 1980 assault as a felony. However, the court and the parties proceeded on the assumption that, even if this 1980 assault was a felony, the conviction was too old to be counted as a prior felony conviction for presumptive sentencing purposes. This assumption was mistaken.

Under the version of AS 12.55.145(a)(1) that applies to Kuku's 2001 offense (the version of the statute that was in effect between 1982 and 2003), all of a defendant's prior felony convictions are counted when determining the defendant's presumptive sentencing status, no matter how old those prior convictions might be, if the defendant's current offense was committed less than ten years after the defendant's unconditional discharge from their immediately preceding felony conviction. See Mooney v. State, 167 P.3d 81, 85 (Alaska App. 2007).

Kuku's immediately preceding felony conviction was entered in 1999, and he apparently had not been discharged from that conviction when he committed his 2001 sexual offense. Thus, all of Kuku's prior felony convictions had to be counted — so if his 1980 assault conviction was a felony, Kuku had to be sentenced as a third felony offender for his 2001 sexual offense.

The governing statute, AS 12.55.145(a)(1), was amended in 2003 to eliminate the ten-year limitation for defendants who are being sentenced for a sexual felony. This new version of the statute applies to Kuku's sentencing for his 2009 sexual offense. So, again, all of Kuku's prior felony convictions had to be counted — meaning that if Kuku's 1980 assault conviction was a felony, Kuku had to be sentenced as a third felony offender for his 2009 sexual offense.

As we explained above, the superior court did not determine whether Kuku's 1980 assault conviction was for a felony or a misdemeanor. But if the 1980 conviction was a felony conviction, so that Kuku was mistakenly sentenced in this case as a second felony offender rather than a third felony offender, his sentence is illegal. We therefore direct the superior court to resolve this issue. And if Kuku's 1980 assault conviction was a felony, the superior court must resentence Kuku as a third felony offender.

We note that if the superior court concludes that Kuku must be resentenced as a third felony offender, the court can modify Kuku's current sentence, but only to the minimum extent necessary to correct the illegality.15

Conclusion

Kuku's two convictions for second-degree sexual assault are REVERSED. Kuku's remaining convictions are AFFIRMED.

With regard to Kuku's sentencing, the superior court's finding of aggravator (c)(5) is VACATED. Likewise, Kuku's sentence for the sexual abuse of S.M. is VACATED.

We retain jurisdiction of this case for the purpose of resolving Kuku's remaining claim — his claim that the evidence presented at his trial was legally insufficient to support his convictions for sexual assault, and that the State should therefore be barred from retrying him on those charges.

We direct the parties to file supplemental briefs on this issue. Kuku's supplemental brief shall be filed within 60 days following the issuance of this opinion. The State's supplemental brief shall be filed within 60 days thereafter. We do not intend to grant extensions of these deadlines absent extraordinary and compelling circumstances.

After we have received the parties' supplemental briefs, we will renew our consideration of this issue. We ask the State to promptly notify us if it decides not to retry Kuku on the sexual assault charges — because, in that event, the question of whether the evidence was legally sufficient to support those charges would be moot.

Once we have resolved the outstanding issue in this case, we will remand the case to the superior court for further proceedings.