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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


WILBURN D. JACKSON,                         )
                                            )       Court of Appeals No. A-10835
                         Appellant,         )       Trial Court No. 1SI-09-84 CR
                                            )
           v.                               )               OPINION
                                            )
STATE OF ALASKA,                            )
                                            )
                         Appellee.          )       No. 2439 — December 26, 2014
                                            )

                Appeal from the Superior Court, First Judicial District, Sitka,
                Patricia A. Collins, Judge.

                Appearances: Kelly R. Taylor, Assistant Public Defender, and
                Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
                Tamara E. de Lucia, Assistant Attorney General, Office of
                Special Prosecutions and Appeals, Anchorage, and Michael C.
                Geraghty, Attorney General, Juneau, for the Appellee.

                Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
                District Court Judge.*

                Judge ALLARD.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
             Wilburn Dean Jackson was convicted of first-degree sexual assault and
fourth-degree assault for physically assaulting L.D., his girlfriend, and forcing her to
have sexual intercourse. Jackson appeals his sexual assault conviction, arguing that the
superior court erred in failing to give the jury a proper unanimity instruction on that
charge.
             Because we conclude that the failure to properly instruct the jury on the
need for unanimity constituted plain error in this case, we reverse Jackson’s sexual
assault conviction and remand for a new trial.


      Factual and procedural background
             Jackson and L.D. lived together and were in a sexual relationship for six
years. On March 2, 2009, they went to a local bar and had several drinks. L.D. became
too intoxicated to drive and took a cab back to the trailer she shared with Jackson.
Jackson returned to the trailer sometime later that night. Although L.D. could not
remember the specific details of Jackson’s arrival, she recalled that he pulled her by the
hair and dragged her to the trailer door. (This conduct formed the basis of the fourth-
degree assault conviction that Jackson is not challenging on appeal.)
             The next morning, L.D. woke to find Jackson lying next to her. Jackson
apologized for putting his fingers in her vagina the night before, an action L.D. did not
remember happening. Later in the morning, Jackson grew upset about misplaced money
and began throwing things around the trailer and breaking furniture. Eventually,
however, he calmed down and lay down on a couch in the living room, and L.D. lay
down on the living room floor.
             L.D. testified that, at that point, Jackson yelled at L.D. to get her “ass in the
air.” She initially did not respond, but when Jackson repeated his command, L.D.


                                             2                                          2439

refused. L.D. testified that Jackson then “flew” off the couch and held her down with his
body. She said that while Jackson was holding her down from behind, she could feel his
penis in her vagina and then in her anus. Once the assault was over, L.D. called 911; the
police arrived and took Jackson into custody.
             Jackson gave a recorded interview to the police. The interview was played
at trial, and the jury was also provided with a transcript. During the interview, Jackson
admitted that he stuck two fingers into L.D.’s vagina the previous night and that he
apologized to L.D. because she had not liked the way he did it.
             Jackson also claimed in the interview that the vaginal sex with L.D. the next
morning was consensual. He stated that L.D. had allowed him to lie down next to her
on the living room floor and eventually also to put his penis into her vagina. Jackson
stated that although L.D. may not have affirmatively wanted to have sex, he believed that
she “didn’t mind” and was willing to go along with it. Jackson explained that, after a
few thrusts, his penis fell out of L.D.’s vagina, and when he attempted to reenter, he
accidently put his penis in her anus. Because L.D. and Jackson had previously discussed
that they would not have anal sex, Jackson immediately withdrew and stopped having
sex with L.D.
             Based on this conduct, the State charged Jackson with one count of first-
degree sexual assault.1
             At trial, Jackson’s defense was consistent with his taped statement. He
asserted that the vaginal penetration was consensual and that the anal penetration was
accidental. He also asserted that he had not acted in reckless disregard of any lack of
consent on L.D.’s part because it was reasonable for Jackson to believe L.D. had



   1
       AS 11.41.410(a)(1).

                                           3                                        2439
consented to vaginal intercourse that morning based on past experiences and the long-
standing dynamics of Jackson’s and L.D.’s relationship.
               In support of this latter theory, the defense called a clinical psychologist to
testify about Jackson’s and L.D.’s relationship and the communication patterns that had
developed between Jackson and L.D. The expert opined that Jackson and L.D. had spent
their lives together in a perpetual state of misunderstanding. The defense also elicited
testimony from L.D. that, on past occasions, she would sometimes consent to intercourse
even though she did not want to have sex. In addition, when Jackson first asked her for
sex that morning, she did not say no and instead told him she “would get there.”
               Following the close of evidence, the jury was instructed to find Jackson
guilty of first-degree sexual assault if it found that (1) Jackson had knowingly engaged
in sexual penetration of L.D., (2) the sexual penetration was without her consent, and (3)
Jackson acted in reckless disregard of that lack of consent.2 The jury was instructed that
“sexual penetration” meant “genital intercourse, cunnilingus, fellatio, anal intercourse,
or an intrusion, however slight, of an object or any part of a person’s body into the
genital or anal opening of another person’s body.”3
               The jury was not instructed that it needed to be unanimous as to the specific
act or acts of penetration. No objection was made to the lack of a jury unanimity
instruction.
               The jury subsequently convicted Jackson of first-degree sexual assault on
a general verdict form. This appeal followed.




   2
       See Alaska Criminal Pattern Jury Instruction for AS 11.41.410(a)(1) (rev. 2002).
   3
       AS 11.81.900(b)(60)(A).

                                              4                                         2439
       The jury unanimity requirement under Alaska law
              The due process clause of the Alaska Constitution protects a criminal
defendant’s right to have the jurors unanimously agree on the specific act or acts
constituting the offense.4
              Under Alaska law, a defendant can be separately convicted and punished
for each distinct type of sexual penetration that occurs during a single episode.5 Thus,
when the State charges a single count of sexual assault based on the allegation that
multiple types of penetration occurred during one episode, the State must either elect the
specific type of sexual penetration upon which it will rely for conviction or, if the State
chooses not to elect, the jury must be instructed that to convict the defendant, all twelve
jurors must be in agreement as to which specific act (or acts) of sexual penetration the
defendant committed.6
              The failure to properly instruct the jury on this unanimity requirement is
error of constitutional magnitude,7 and reversal is required unless the error is harmless
beyond a reasonable doubt.8
              Here, the indictment charged Jackson with one count of first-degree sexual
assault “for sexually penetrating L.D. without her consent.” But the indictment did not
specify which act or acts of sexual penetration formed the basis of that charge. At


   4
      Khan v. State, 278 P.3d 893, 899 (Alaska 2012) (citing State v. James, 698 P.2d 1161,
1167 (Alaska 1985)).
   5
       See Iyapana v. State, 284 P.3d 841, 852 (Alaska App. 2012); Yearty v. State, 805 P.2d
987, 995 (Alaska App. 1991).
   6
       Covington v. State, 703 P.2d 436, 440 (Alaska App. 1985).
   7
       Anderson v. State, 337 P.3d 534, 537 (Alaska App. 2014).
   8
       Khan, 278 P.3d at 900-01.

                                             5                                        2439

Jackson’s trial, the jury heard evidence of three distinct sexual penetrations: the digital-
vaginal penetration that occurred in the night and the penile-vaginal and penile-anal
penetrations that took place the following morning.
              The State contends that the jury understood that the conviction had to be
based on one or both of the penile penetrations that occurred that morning (rather than
on the digital penetration that occurred the night before) because the prosecutor’s
arguments for conviction were focused exclusively on the penile penetrations. We note,
however, that both the parties and the court recognized that this issue needed to be
clarified for the jury in the jury instructions, but then no clarifying instruction was
actually provided.
              In any case, even if we were to accept the State’s contention that the jury
understood that the conviction had to be based on penile penetration, we would still be
left with the problem that the jury was never instructed on the need for unanimity as to
which act or acts of penile penetration formed the basis for its verdict. The State argues
that, given the manner in which the case was argued by the prosecutor — i.e., the lack
of differentiation in the prosecutor’s arguments regarding the vaginal and anal penile
penetrations — the jury was likely unanimous as to both acts.
              The problem with this argument is that the defense clearly did differentiate
between the vaginal and anal penetrations, asserting that the vaginal penetration was
consensual and that the anal penetration was accidental.
              On appeal, Jackson concedes that because his attorney never requested a
jury unanimity instruction from the trial court, he must now prove plain error.9 “Plain




   9
       See State v. Covington, 711 P.2d 1183, 1184 (Alaska App. 1985).

                                             6                                        2439
error is an error that (1) was not the result of intelligent waiver or a tactical decision not
to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial.”10


        Was Jackson’s failure to request a jury unanimity instruction the result of
        intelligent waiver or a tactical decision?
              The State argues that Jackson cannot meet the first prong of the test because
the defense attorney may have made the decision not to bring the jury unanimity problem
to the attention of the court out of concern that raising this issue could lead to amendment
of the indictment to add charges against Jackson.
              We agree that this might be a legitimate concern prior to trial when the
State could potentially move to reindict or to otherwise amend the indictment to separate
the duplicitous count into separate charges.11 But we do not agree that this is a legitimate
concern once trial has already begun.
              Alaska Criminal Rule 7(e) permits an indictment to be amended without
reindictment at any time before a verdict is returned only “if no additional or different
offense is charged and the substantial rights of the defendant are not prejudiced.”12 Here,
amending Jackson’s indictment in the middle of trial to add a second first-degree sexual
assault charge would violate this rule, not only because it would add a new charge, but




   10
        Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
   11
       See Khan v. State, 2013 WL 6576722, at *8-9 (Alaska App. Dec. 11, 2013)
(unpublished) (Mannheimer, C.J., concurring) (noting that an attorney could have a tactical
reason not to object to a duplicitous indictment during trial proceedings that occurred before
jeopardy attached).
   12
       See Bell v. State, 716 P.2d 1004, 1005 (Alaska App. 1986) (reversing a possibly
duplicitous assault conviction for violating Criminal Rule 7(e)).

                                              7                                         2439

also because that new charge, if it resulted in a conviction, would require a partially
consecutive sentence under Alaska law.13
              We recognize that we have previously suggested in dicta that a defense
attorney might refrain from drawing attention to the lack of a unanimity instruction even
after trial has begun due to a “credible risk” that the trial court would allow the State to
charge a second count of driving under the influence.14 After reviewing the law on this
issue more thoroughly, however, we acknowledge that we did not speak carefully
enough in these prior decisions.
              As a general matter, a defendant’s failure to timely object to a duplicitous
indictment — that is, an indictment that includes multiple charges in a single count —
waives any future objection to the defective nature of the indictment.15 This is true, in
part, because prior to trial, the State has the ability to cure the defective indictment by




   13
       Alaska Statute 12.55.127(c)(2)(E) requires at least one-fourth of the presumptive term
specified for first-degree sexual assault to be served consecutively when a defendant is
sentenced for two or more crimes against a person, such as first-degree sexual assault.
   14
       See Hicks v. State, 2013 WL 203264, at *4 n.17 (Alaska App. Jan. 16, 2013)
(unpublished) (citing Anderson v. State, 289 P.3d 1, 4-5 (Alaska App. 2012), Miles v. State,
2012 WL 3870841, at *5-6 (Alaska App. Sept. 5, 2012) (unpublished), Hilburn v. State, 765
P.2d 1382, 1387 (Alaska App. 1988), and Potts v. State, 712 P.2d 385, 388 n.1 (Alaska App.
1985)).
   15
        Wayne R. LaFave et al., 5 Criminal Procedure § 19.3(c) (3d ed. 2007); see also
Alaska R. Crim. P. 12(b)(2), (e) (objections based on defects in the indictment not raised
prior to trial are waived unless the court grants relief from the waiver for cause); Leitzell v.
State, 1983 WL 807796, at *1 n.1 (Alaska App. April 20, 1983) (unpublished) (noting that
any error in allowing the case to go to the jury on duplicitous theories without special verdict
forms was waived by defendant’s failure to object).

                                               8                                          2439

separating the duplicitous count into separate counts and, if necessary, seeking
reindictment.16 But this remedy is no longer available once the trial has commenced.17
              Instead, once trial has begun, the remedy for a duplicitous count is
essentially limited to (1) permitting the State to elect the act on which it will seek a
conviction; or (2) instructing the jury on the need to reach unanimous agreement as to
the act or acts on which it convicts the defendant.18 Some courts have also adopted the
remedy of dividing the charges into separate jury verdict forms.19 But a mid-trial
amendment of an indictment to add new counts is not permitted.




   16
      See LaFave, supra note 15, § 19.3(c), at 286 n.188 (noting that some states allow
severance of a duplicitous indictment into separate counts).
   17
       See id.; see also Alaska R. Crim. P. 7(e) (permitting amendment of an indictment at
any time before a verdict only if no additional or different offense is charged).
   18
       1A Charles Alan Wright & Andrew D. Liepold, Federal Practice and Procedure:
Criminal § 145, at 94-95 (4th ed. 2008); LaFave, supra note 15, § 19.3(c) (duplicitous count
can be cured mid-trial with a corrective jury instruction); see also United States v. Lloyd, 462
F.3d 510, 514 (6th Cir. 2006) (duplicitous indictment may be cured through jury instruction
particularizing a distinct offense); United States v. Hughes, 310 F.3d 557, 561 (7th Cir. 2002)
(duplicitous indictment cured by corrective jury instructions); United States v. Karam, 37
F.3d 1280, 1286 (8th Cir. 1994) (duplicitous indictment cured by corrective jury instruction);
United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir. 1981) (duplicitous indictment may
be cured by corrective jury instruction or government election to rely on one charge within
a count); United States v. Browning, 572 F.2d 720, 726 (10th Cir. 1978) (remanding with
instructions to direct government election if the lower court finds count duplicitous); Reno
v. United States, 317 F.2d 499, 502 (5th Cir. 1963) (duplicitous indictment may be cured by
government election).
   19
        See, e.g., People v. Smith, 568 N.E.2d 482 (Ill. App. 1991) (finding unanimity
requirement satisfied in prosecution charging three counts of aggravated sexual assault by
oral, vaginal, and anal penetration, where jury was provided with “guilty” and “not guilty”
forms for each of the specified forms of penetration).

                                               9                                          2439

               We therefore reject the State’s argument that Jackson’s attorney could have
made a legitimate tactical decision to waive Jackson’s right to jury unanimity out of
concern that raising the issue would result in a mid-trial amendment of the indictment
and the addition of a second first-degree sexual assault charge.


        Was the failure to give the jury a unanimity instruction harmless beyond
        a reasonable doubt in this case?
               In State v. Covington,20 we affirmed the defendant’s sexual abuse
convictions despite the absence of a proper jury unanimity instruction because we
concluded that the defendant was not prejudiced by the lack of this instruction, given the
nature of his defense.21 At trial, Covington did not distinguish between any of the
alleged incidents of sexual abuse, claiming instead that the victim lied about everything
and that nothing sexual had ever happened.22 We concluded that, given this all-or­
nothing defense and the specific manner in which the case was litigated to the jury, the
jury was left to choose between two stark choices — either the victim was telling the
truth about everything or the victim was lying about everything, and that therefore a
unanimity instruction would have made no difference in the jury’s verdict.23
               But, as we recently explained in Anderson v. State,24 our harmlessness
analysis in Covington was based on a plain error standard that has since been superseded



   20
        711 P.2d 1183 (Alaska App. 1985). 

   21
        Id. at 1185.

   22
        Id.

   23
        See id.

   24
        337 P.3d 534 (Alaska App. 2014).

                                              10                                     2439

by the Alaska Supreme Court decisions in Adams v. State25 and Khan v. State.26 In those
cases, the Alaska Supreme Court held that even when a claim of constitutional error is
raised for the first time on appeal (i.e., when it is raised as a claim of plain error), the
“harmless beyond a reasonable doubt” test continues to govern the question of whether
the error requires reversal of the defendant’s conviction.
              Therefore, in resolving Jackson’s case, we must apply the “harmless
beyond a reasonable doubt” test set forth in Adams and Khan, rather than the
“appreciably affected the verdict” test that we applied in Covington. That is, we must
determine whether there is no reasonable possibility that the verdicts reached by
Jackson’s jury would have been different if the jury had been properly instructed on the
need for unanimity.27
              We conclude that this standard cannot be met in this case. Unlike in
Covington, Jackson’s defense was not an all-or-nothing defense. As we explained
earlier, Jackson argued at trial that the vaginal intercourse was consensual and, in the
alternative, that he reasonably believed, based on his past interactions and dysfunctional
communication with L.D., that L.D. had consented to the vaginal intercourse. He
acknowledged, however, that L.D. would not have agreed to anal penetration and that
he was aware of that fact. But he claimed that the anal penetration was purely accidental.
              Thus, depending on the individual jurors’ assessment of Jackson’s
credibility and L.D.’s credibility, different members of the jury may have come to




   25
        261 P.3d 758, 773 (Alaska 2011).
   26
        278 P.3d 893, 901 (Alaska 2012).
   27
        See id.; Adams, 261 P.3d at 773.

                                            11                                        2439
different conclusions regarding which penile penetration constituted the sexual assault
in this case.
                Some jurors may have concluded that Jackson should not be convicted for
the vaginal penetration (either because the jurors had a reasonable doubt as to whether
this vaginal penetration occurred without L.D.’s consent or because they had a
reasonable doubt as to whether Jackson acted with reckless disregard of L.D.’s lack of
consent), but that Jackson should be convicted of the anal penetration (because they
rejected his assertion that the anal penetration was accidental).
                Conversely, some jurors may have concluded that Jackson should be
convicted for the vaginal penetration (because they concluded that L.D. did not consent
to this penetration and that Jackson acted recklessly with regard to L.D.’s lack of
consent), but that Jackson should not be convicted of the anal penetration (because they
concluded there was a reasonable possibility that this penetration was accidental, as
Jackson claimed).
                And, of course, some jurors may have concluded that Jackson was
criminally liable for both acts of penetration — i.e., that both acts of penetration were
done knowingly, that they occurred without L.D.’s consent, and that Jackson acted in
reckless disregard of L.D.’s lack of consent as to both of them.
                Thus, because different members of the jury may have found different parts
of Jackson’s defense persuasive, and because the jury was never instructed on the need
to be unanimous, there is a reasonable possibility that the jurors convicted Jackson
without ever reaching consensus on which act (or acts) they were convicting him on. We




                                             12                                      2439

therefore cannot conclude that the failure to instruct the jury on unanimity was harmless
beyond a reasonable doubt.28


        We do not reach Jackson’s other claims of error
              Because we are reversing Jackson’s sexual assault conviction and
remanding for a new trial, we do not reach Jackson’s other claims of error.


        Conclusion
              We REVERSE Jackson’s conviction for first-degree sexual assault.




   28
        Khan, 278 P.3d at 901.

                                           13                                       2439
