J.E.C. v. State , 681 P.2d 1358 ( 1984 )

BRYNER, Chief Judge,

concurring.

For the reasons stated in my separate opinion in Flink v. State, — P.2d-, Op. No. 370 (Alaska App., May 11, 1984), I would construe the offense of sexual abuse of a minor to require proof of recklessness, .and not specific intent, as the applicable culpable mental state. Since, in this case, the trial court failed to give an appropriate criminal intent instruction, I think it committed error.

In arguing this case to the jury, however, both the prosecution and the defense construed the court’s instructions to require a jury finding that the defendant knew his contact with the victim was of a sexual nature and thus was not justified. The instructions given by the court were not inconsistent with this interpretation. In fact, the jury was instructed, in general terms, that it was required to find that the defendant acted with criminal intent before it could convict him.

The culpable nature of the sexual contact alleged in this case was unambiguous, and, if the jury determined that the contact occurred, there was little danger of error with respect to the issue of intent. The only factual issue apparently contested at trial was whether the alleged sexual contact occurred at all.

Considering the totality of these circumstances, I would hold that the trial court’s failure to give a specific instruction on criminal intent amounted to harmless error. See Neitzel v. State, 655 P.2d 325, 338 (Alaska App.1982); Reynolds v. State, 664 P.2d 621, 627-28 (Alaska App.1983).