Iyapana v. State , 2012 Alas. App. LEXIS 140 ( 2012 )

MANNHEIMER, Judge,

concurring.

I write separately to explain my understanding of the relationship between this Court's decisions in Oswald v. State, 715 P.2d 276 (Alaska App.1986), Rodriquez v. State, 741 P.2d 1200 (Alaska App.1987), and Yearty v. State, 805 P.2d 987 (Alaska App.1991).

In Oswald, this Court ruled that the defendant's digital penetration of the victim's vagina, followed closely by a penile penetration of the victim's vagina, constituted only a single act of sexual assault. This Court's discussion of this issue is fairly terse, but it appears that the Court's primary rationale for merging the two counts was that the act of digital penetration was essentially a preparatory act that immediately preceded, and led up to, the act of penile penetration. Here is this Court's entire discussion of this issue:

The state concedes that Count I encompassed foreplay leading to the act of sexual intercourse charged in Count II, and consequently could not support a separate conviction. See Tookak v. State, 648 P.2d 1018 (Alaska App.1982). The state asks that the conviction for Count I be vacated, and Oswald joins in this request. We have carefully considered the record and conclude that the parties' position is correct, and that the first act of digital penetration in effect merged with the first act of genital penetration. Only one conviction and sentence was therefore appropriate. On remand, the trial court should correct the judgment to reflect only one conviction on Counts I and II.

Oswald, 715 P.2d at 280.

The following year, in Rodriquez v. State, 741 P.2d at 1207-08, this Court held that a defendant can be separately convicted and sentenced for acts of sexual assault or sexual abuse involving different types of sexual penetration, even when those acts of penetration oceur during the same criminal episode.

As this Court acknowledged in footnote 3 of the Yearty opinion, 805 P.2d at 995, there is a potential inconsistency between Rodri-ques and Oswald. In Oswald, this Court appeared to say that any "preparatory" acts of sexual penetration will merge with a defendant's ultimate act(s) of sexual penetration. But in Rodriquez, this Court held that separate convictions are proper when the defendant's acts of sexual penetration involve different types of penetration, even though some of those acts of penetration might be viewed as "preparatory".

To resolve this potential inconsistency, the Yearty majority declared that Oswald was overruled "[tlo the extent that Oswald is inconsistent with our subsequent decision in Rodriques". Yearty, 805 P.2d at 995 n. 3.

It is important to note that Oswald has been overruled only to the extent that it is inconsistent with Rodriguez-that is, only to the extent that Oswald would apparently require a merger of counts even when a defendant's preparatory act of sexual penetration involved a different type of penetration from the defendant's ultimate act of sexual penetration.

Thus, even after Rodriques and Yearty, the result reached in Oswald remains correct: the defendant's preparatory act of penetrating the victim's vagina with his finger merged with the defendant's ensuing act of penetrating the victim's vagina with his penis-because the first penetration was preparatory to the second, and because both acts involved penetration of the same orifice.