TIMOTHY MILLS v. STATE OF ALASKA (2010)

NOTICE 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 precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Timothy L. Mills was convicted of sexual assault in the second degree ¹ for engaging in sexual contact with S.M. by touching her breast without her consent.   He raises two arguments in appeal of his conviction.

First, Mills argues that there was insufficient evidence that he actually touched S.M.'s breast, rather than another part of her chest.   To decide this question, we view the evidence in the light most favorable to the verdict, asking whether a reasonable juror could conclude that the State had proven the charge beyond a reasonable doubt.²

At the trial, S.M. testified that Mills pulled the collar of her shirt down, exposing the top part of her breasts.   She testified that Mills then placed his hand over her breast, touching her chest.   Avril Rhoades testified that she saw Mills touch S.M. on the upper portion of her breast while commenting on the fact that her chest was growing.   And Nathaniel Hughes testified that he saw Mills touch S.M. “right above her boob,” about level with her armpit area, while commenting that she was “quite a young lady.”

When he denied Mills's motion for judgment of acquittal, Superior Court Judge pro tem Daniel Schally stated that a number of witnesses had made hand motions suggesting Mills's hand touched S.M.'s breast.   Based on this evidence and the witnesses' testimony, there was a sufficient basis for a reasonable juror to conclude that Mills touched S.M. on her breast.

Second, Mills argues that the trial judge should have instructed the jury on the meaning of the term “female breast” as it is used in the definition of “sexual contact.” ³  Mills did not request such an instruction at trial, so now he must show plain error.⁴

Our criminal code does not contain a definition of the term “female breast.” ⁵  That being so, AS 01.10.040(a) directs us to construe this term “according to [its] common and approved usage” in the absence of some indication, either from the pertinent legislative history or from the context in which the term is used in the statute, that the legislature intended to depart from the commonly understood meaning of this term.⁶  In the absence of any such indication, the term “female breast” is given the meaning it has in common usage.⁷

In order to show plain error, Mills must show that any competent attorney or judge would have recognized the need for a definition of the term “female breast.” ⁸  But ordinarily, no additional instruction is necessary when a statutory term is used in its commonly understood sense.⁹  The trial judge could reasonably conclude that the jurors would know what was meant by the term “female breast” as used in the charging statute and the jury instructions, and that the jurors could properly evaluate the evidence and the arguments of the attorneys without any special instruction on this issue.   Accordingly, the failure of the trial judge to give a special instruction defining the term “female breast” was not plain error.

We therefore AFFIRM the superior court's judgment.

FOOTNOTES

FN1. AS 11.41.420(a)(1)..  FN1. AS 11.41.420(a)(1).

FN2. Spencer v. State, 164 P.3d 649, 653 (Alaska App.2007)..  FN2. Spencer v. State, 164 P.3d 649, 653 (Alaska App.2007).

FN3. See AS 11.81.900(b)(58)..  FN3. See AS 11.81.900(b)(58).

FN4. See Mooney v. State, 105 P.3d 149, 155 (Alaska App.2005)..  FN4. See Mooney v. State, 105 P.3d 149, 155 (Alaska App.2005).

FN5. See AS 11.41.470 & 11.81.900(b)..  FN5. See AS 11.41.470 & 11.81.900(b).

FN6. See Lakloey, Inc. v. Univ. of Alaska, 141 P.3d 317, 323-24 (Alaska 2006);  see also McGee v. State, 162 P.3d 1251, 1256-57 (Alaska 2007);  Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289, 292 (Alaska App.2004);  McKillop v. State, 857 P.2d 358, 362 (Alaska App.1993)..  FN6. See Lakloey, Inc. v. Univ. of Alaska, 141 P.3d 317, 323-24 (Alaska 2006);  see also McGee v. State, 162 P.3d 1251, 1256-57 (Alaska 2007);  Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289, 292 (Alaska App.2004);  McKillop v. State, 857 P.2d 358, 362 (Alaska App.1993).

FN7. See Stephan v. State, 810 P.2d 564, 565-67 (Alaska App.1991)..  FN7. See Stephan v. State, 810 P.2d 564, 565-67 (Alaska App.1991).

FN8. See Baker v. State, 22 P.3d 493, 498 (Alaska App.2001)..  FN8. See Baker v. State, 22 P.3d 493, 498 (Alaska App.2001).

FN9. Close v. Anchorage, 911 P.2d 41, 42-43 (Alaska App.1996) (finding no error in the failure to define “carelessly” when the term was used in its normal sense);  Walker v. State, 674 P.2d 825, 829-30 (Alaska App.1983) (holding that failure to define “recklessly” was not plain error because code definition was the same as common sense definition of that term)..  FN9. Close v. Anchorage, 911 P.2d 41, 42-43 (Alaska App.1996) (finding no error in the failure to define “carelessly” when the term was used in its normal sense);  Walker v. State, 674 P.2d 825, 829-30 (Alaska App.1983) (holding that failure to define “recklessly” was not plain error because code definition was the same as common sense definition of that term).

BOLGER, Judge.