EDRICK POINTER 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

The main issue in this appeal is whether there was a substantial variance between the offenses with which the defendant, Edrick C. Pointer, was charged in the grand jury indictment and the offenses for which he was convicted at trial.   We conclude there was not a substantial variance and affirm Pointer's convictions.

Factual and procedural background

The State indicted Pointer for several counts of sexual assault and attempted sexual assault based on an incident where he forced a young woman, A.D., into a restaurant restroom and touched her sexually.   Among other charges, the State charged Pointer with sexual assault in the second degree by engaging in sexual contact “hand to vagina with A.D. ․”  The State also charged Pointer with sexual assault in the first degree by engaging in sexual penetration “finger to vagina, with A.D. ․”  At grand jury, A.D. testified that Pointer touched her “vagina.”   When she was asked whether Pointer touched her on the outside or inside of her vagina, A.D. replied, “In the inside.”

Superior Court Judge Philip R. Volland presided over Pointer's trial.   At trial, A.D. testified that, during the sexual assault, Pointer touched her “vagina.”   When she was asked how Pointer had touched her vagina, A.D. stated that Pointer had touched her “inside the lips but [not] inside the hole.”

After the case was submitted to the jury for deliberation, the jury sent out a series of notes inquiring whether the word “vagina,” as used in the indictment, should be construed in its narrow medical sense, or instead in the broader sense of the entire female genitalia.

In arguing to Judge Volland about how he should respond to the jury's inquiry, Pointer's attorney argued that in the indictment, the State had charged Pointer with touching and penetrating A.D.'s vagina.   He argued that the State was committed to proving the charges as set out in the indictment.   He argued that the State had to prove that Pointer touched and then penetrated the vaginal canal rather than just penetrating her genitalia.   He argued that unless the State proved these specific charges, it would constitute a variance from the charges that the State presented to the grand jury.

Judge Volland pointed out that the instructions that he gave the jury did not define “vagina.”   After consulting a dictionary, he observed that “the actual vagina is the canal within the female genitals.”   The prosecutor argued that this medical definition was different than the ordinary common understanding of the word “vagina.”   The prosecutor argued that in common usage, this term referred to the entire female genitalia.

After hearing argument from the parties, Judge Volland then turned to the major question which the jury asked:  “If we find that sexual penetration occurred but not [that the defendant's finger] actually [touched the] vagina, can we find the defendant guilty [for engaging in sexual penetration, finger to vagina, with A.D.?]” Judge Volland stated that the answer to the question was, “Yes,” and so instructed the jury.   Therefore, under Judge Volland's instruction, to find Pointer guilty of engaging in sexual penetration with A.D., the jury only had to find that Pointer penetrated the victim's genitals, rather than her vaginal canal.

In answering this question, Judge Volland relied on an unpublished decision, Mason v. State.¹  He concluded that Mason made it clear that a defendant does not have to touch the vagina or the vaginal opening in order to have engaged in sexual penetration.   He found that the grand jurors would have understood the term “vagina” to refer “to an area that includes the labia majora, minora, and clitoris․”  He concluded that there was no variance between the charges the State presented to the grand jury and the charges the State presented at trial.   He found that the charges had not been constructively amended and that Pointer had notice of the charges he was defending against from the grand jury indictment.

Why we affirm Judge Volland's finding

Pointer argues that Judge Volland's answer to the jury's question constituted an improper amendment of the grand jury indictment.   He argues that he was prejudiced because he was entitled to rely on the specific wording of the indictment-charging him with vaginal penetration, not genital penetration-and that he was surprised by the court's amendment of the charges.

Alaska Rule of Criminal Procedure 7(e) permits the amendment of an indictment so long as the amendment does not charge an additional or different offense, and the defendant is not prejudiced:  “The court may permit an indictment or information to be amended at any time before verdict or finding if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced.”

Pointer was charged with sexual assault in the first degree for engaging in sexual penetration with A.D. without her consent.²  “Sexual penetration” includes “․ an intrusion, however slight, of ․ any part of a person's body into the genital ․ opening of another person's body.” ³  Pointer concedes that in unpublished cases, this court has held that the genital opening is not limited to the vaginal opening, but is defined to include the external female genitalia.   Under that definition, “any contact inside the labia majora constitutes sexual penetration.” ⁴

Furthermore, Judge Volland made a finding that the term “vagina” was commonly used and understood to include all of the female genitalia even though that was not the technical, medical definition.⁵  He concluded that, given this common understanding of the word “vagina,” this is how the grand jurors would have understood the term.   Therefore Pointer had no basis to claim that his ability to defend himself against the charges was prejudiced.   In his brief, Pointer has not attacked Judge Volland's finding;  thus he has not met his burden of demonstrating that the trial court's ruling is erroneous.⁶  And we conclude that Judge Volland's finding is supported by the record.

There was sufficient evidence to support Pointer's conviction

Pointer also argues that the State failed to present sufficient evidence to support his conviction for sexual assault in the first degree.   To establish whether sufficient evidence was presented to support a conviction, we view the evidence and the reasonable inferences in the light most favorable to the State and inquire whether reasonable jurors could conclude that the accused's guilt was established beyond a reasonable doubt.⁷  The court does not weigh the credibility of the witnesses.⁸

In order to prove first-degree sexual assault, the State was required to show that Pointer sexually penetrated A.D. without her consent.⁹  In order to prove sexual penetration, the State was required to show that Pointer made “any contact inside the labia majora.” ¹⁰

Pointer contends that the evidence the State presented at trial at most supports a finding that he engaged in sexual contact with A.D., not sexual penetration.   But Pointer is viewing the evidence in the light most favorable to himself.   In the light most favorable to the State, A.D.'s testimony was ultimately clear:  Pointer touched her “inside the lips but [did not touch her] inside the hole.”   If the jurors found this testimony credible, they could have found that Pointer touched A.D. under her clothing and inside the labia majora.   This evidence was sufficient for the jury to convict Pointer of sexual assault in the first degree.

Conclusion

The judgment of the superior court is AFFIRMED.MANNHEIMER, Judge, concurring.

I write separately because I have somewhat different reasons for rejecting Pointer's argument that there was a fatal variance between the grand jury indictment and the trial jury's verdict.

The issue involves Counts III and IV of the indictment.   Count III charged Pointer with second-degree sexual assault for “engag[ing] in sexual contact, hand to vagina ․, without the consent of [the victim].”   Count IV charged Pointer with first-degree sexual assault for “engag[ing] in sexual penetration, finger to vagina ․, without the consent of [the victim].”

Technically, the vagina is the internal canal that runs between a woman's cervix and the vulva-that is, the outer structures of the female genitalia, comprising the labia minora, the clitoris, and the labia majora.¹  Because the vaginal canal is completely enclosed within a woman's body, one can engage in sexual penetration and sexual contact (as those terms are defined in the Alaska Statutes) without ever making contact with, or penetrating, the vagina.   Indeed, if there has been any contact with a woman's vagina (in this narrow sense), this contact must necessarily have been preceded by “sexual penetration” as defined in AS 11.81.900(b)(59).

(As defined in AS 11.81.900(b)(58)-(59), “sexual contact” includes “[any] touching, directly or through clothing, [of] the victim's genitals”, and “sexual penetration” includes “[any] intrusion, however slight, ․ into the genital ․ opening of another person's body”.)

However, the word “vagina” has a more colloquial usage:  people commonly use this word when they are referring to the entire female genital structure.   As noted in the Wikipedia article on the vulva, “[i]n [imprecise] colloquial speech, the term ‘vagina’ is often wrongly used to refer to the female genitals generally.” ²

It appears that the word “vagina” was used in this broader, colloquial sense in Pointer's indictment.   This usage is most apparent in the wording of Count III, the count that charged Pointer with engaging in “sexual contact” by touching his “hand to [the victim's] vagina”.   As I explained earlier, any physical contact with the vagina (in its narrow, technical sense) necessarily requires sexual penetration, not just sexual contact.   Thus, in the indictment, it appears that the word “vagina” was used in its broader sense of “female genitals”.

It also appears, from the victim's testimony, that she too used the word in its broader, colloquial sense.   As pointed out in Judge Coats's lead opinion, when the victim was asked how Pointer touched her “vagina”, she answered that Pointer touched her “inside the lips but [not] inside the hole”.

It also seems, from the record of Pointer's trial, that throughout the presentation of evidence and the parties' summations to the jury, both the prosecutor and the defense attorney understood the term “vagina” to mean the female genitals.   I note in particular that, in the defense attorney's summation to the jury, he never suggested that Pointer was entitled to an acquittal because, even though the evidence might prove that Pointer sexually penetrated the victim, the evidence failed to show that this penetration was deep enough to penetrate, or make contact with, the victim's vagina.

The whole issue of the distinction between the technical and the colloquial meanings of the word “vagina” did not arise until after Pointer's case was submitted to the jury.   The foreperson of the jury was a doctor, and he apparently was the one who prompted the jurors to send a note to the trial judge asking for a definition of “vagina”-specifically, asking if the word “vagina” (as used in the indictment) should be construed in its narrow medical sense or, instead, in the broader sense of the entire female genitalia.

Only at this point did the defense attorney argue that the indictment employed the term “vagina” in its narrow medical sense-and that, therefore, even if the State proved that Pointer engaged in sexual contact and sexual penetration with the victim, Pointer was nevertheless entitled to an acquittal unless the State proved that Pointer touched and penetrated the victim's vagina (in this narrow medical sense).   The defense attorney argued that if the trial jurors found Pointer guilty without specifically finding that he touched and penetrated the victim's vaginal canal, this would constitute a fatal variance from the charges specified in the indictment.

The prosecutor responded that the dictionary or medical definition of “vagina” was “hypertechnical”, and he asserted that, in everyday usage, the word “vagina” referred to the entire female genitalia.

The crucial ruling in this case-Superior Court Judge Philip M. Volland's resolution of the defense attorney's variance claim-is found at pages 565-66 and 570-71 of the transcript.

First, even though Judge Volland consulted a dictionary and found the narrower, technical meaning of “vagina”, the judge agreed with the prosecutor that, in common usage, the term “vagina” is used as a synonym for “female genitals”.

Second, Judge Volland found that when the grand jury returned the indictment in Pointer's case, the grand jurors were using the term “vagina” in this broader, everyday sense-and not in the narrower medical sense of the vaginal canal.

Third, Judge Volland found that the defendant was on notice that this was the meaning of the charges in the indictment.   In other words, the judge found that a reasonable person would have interpreted the indictment as simply charging sexual penetration of the victim's genitals and sexual contact with the victim's genitals, as defined in the Alaska Statutes.

For these reasons, Judge Volland concluded that there was no variance between the charges listed in the indictment and the instructions to the trial jury which stated that Pointer could be convicted of first- and second-degree sexual assault if the State proved that Pointer engaged in “sexual penetration” and “sexual contact” with the victim (as opposed to penetration of, or contact with, the victim's vaginal canal).

Here is the first portion of Judge Volland's ruling (pages 565-66 of the transcript):

The Court:  We're back to the issue [of whether, because] the term [“vagina”] is used in the indictment, ․ the State [is] bound by the more technical medical definition of that term.   Or [is the State only] bound to prove ․ what's required by [the statutory definition of] sexual [penetration], which doesn't require penetration actually [of] the vagina?

․

I would say [there] is a more common understanding of that term by most people-meaning a woman's [entire] genitals between the legs.   I think people ․ commonly use the word “vagina” to include the labia majora, [labia] minora, the clitoris-you know, the whole area.

And here is the concluding portion of Judge Volland's ruling (pages 570-71 of the transcript):

The Court:  I ․ conclude that, for the purposes of [the] presentation [of this case] to the grand jury, and the words the grand jury used [in the indictment], absent some specific medical definition of [“vagina”] and/or [the drawing of a] distinction between the ․ vagina and other areas of the female genitalia, that [the] grand jurors would use and understand [the] term [“vagina”] in a ․ layman's sense.   And [I] find that people frequently refer to the “vagina” in a non-specific, [non-]medical sense, ․ referring to an area that includes the labia majora, [labia] minora, and clitoris․  And that's the area of touching [and the] area of penetration that the grand jury was considering, [and that they] put the defendant on notice of [in the indictment].

In other words, Judge Volland rejected Pointer's variance claim because he concluded that the indictment employed the word “vagina” in its broader, colloquial sense-a reference to the entire female genital structure-rather than in the narrower, technical sense that a health professional might employ.   Thus, the charges in the indictment that referred to contact with or penetration of the victim's “vagina” merely restated the statutory definitions of “sexual contact” and “sexual penetration”.

The basic flaw in Pointer's briefs to this Court-a potentially dispositive flaw-is that Pointer's briefs do not address the basis of Judge Volland's ruling.   They are written as if Judge Volland never offered this explanation of his ruling.

Pointer's variance argument to this Court is premised on two underlying assumptions:  first, that there is a substantive, recognized difference between the meaning of the term “vagina” and the definition of the female genitals that is used in the Alaska statutes defining “sexual penetration” and “sexual contact”;  and second, that the grand jury indictment in this case employed the term “vagina” in the narrower medical sense.

Both of these assumptions were expressly rejected by Judge Volland.   Judge Volland acknowledged that the medical definition of “vagina” is narrower than the definition of female genitals used in the Alaska Statutes, but the judge found that people use “vagina” as a synonym for female genitals in everyday speech.   He further found that this is how the grand jurors understood the term “vagina” when they gave their assent to the indictment in Pointer's case, and that Pointer was on notice of the nature of the charges (i.e., that these charges alleged “sexual contact” and “sexual penetration” within their normal statutory definitions).

To prevail in this appeal, Pointer must demonstrate that Judge Volland's ruling was either factually or legally mistaken.   But Pointer's briefs to this Court do not acknowledge the basis of Judge Volland's ruling.   When a party challenges a lower court's ruling on appeal, but fails to address the basis for the lower court's ruling, the party's briefing is legally inadequate, and the appellate court can reject the party's claim simply on this basis (unless the appellate court independently concludes that the lower court's ruling is plainly wrong).   See Krushensky v. Farinas, 189 P.3d 1056, 1064 (Alaska 2008);  Stevens v. Matanuska-Susitna Borough, 146 P.3d 3, 14-15 (Alaska App.2006).

Moreover, even assuming that this issue were properly briefed, the record amply supports Judge Volland's ruling regarding the colloquial usage of the term “vagina” and the fact that the grand jury indictment, on its face, appears to use the word in that broader sense.

For these reasons, I agree with my colleagues that there was no variance between the crimes alleged in the indictment and the crimes for which Pointer was convicted at his trial.

FOOTNOTES

FN1. Memorandum Opinion and Judgment No. 4885 (Alaska App., June 23, 2004), 2004 WL 1418694 at *2;  see also Littlefield v. State, Memorandum Opinion and Judgment No. 5398 (Alaska App., Nov. 5, 2008), 2008 WL 4822916 at *3..  FN1. Memorandum Opinion and Judgment No. 4885 (Alaska App., June 23, 2004), 2004 WL 1418694 at *2;  see also Littlefield v. State, Memorandum Opinion and Judgment No. 5398 (Alaska App., Nov. 5, 2008), 2008 WL 4822916 at *3.

FN2. AS 11.41.410(a)(1)..  FN2. AS 11.41.410(a)(1).

FN3. AS 11.81.900(59)(A)..  FN3. AS 11.81.900(59)(A).

FN4. Littlefield, 2008 WL 4822916 at *3..  FN4. Littlefield, 2008 WL 4822916 at *3.

FN5. See Wikipedia, http://en.wikipedia.org/wiki/vagina (last visited July 7, 2010) (providing commonly used and understood meaning of “vagina”)..  FN5. See Wikipedia, http://en.wikipedia.org/wiki/vagina (last visited July 7, 2010) (providing commonly used and understood meaning of “vagina”).

FN6. Krushensky v. Farinas, 189 P.3d 1056, 1064 (Alaska 2008);  Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 330 (Alaska 2007);  Stevens v. Matanuska-Susitna Borough, 146 P.3d 3, 14-15 (Alaska App.2006)..  FN6. Krushensky v. Farinas, 189 P.3d 1056, 1064 (Alaska 2008);  Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 330 (Alaska 2007);  Stevens v. Matanuska-Susitna Borough, 146 P.3d 3, 14-15 (Alaska App.2006).

FN7. Simpson v. State, 877 P.2d 1319, 1320 (Alaska App.1994);  Dorman v. State, 622 P.2d 448, 453 (Alaska 1981)..  FN7. Simpson v. State, 877 P.2d 1319, 1320 (Alaska App.1994);  Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).

FN8. Brown v. Anchorage, 680 P.2d 100, 104 (Alaska App.1984)..  FN8. Brown v. Anchorage, 680 P.2d 100, 104 (Alaska App.1984).

FN9. AS 11.41.410(a)(1)..  FN9. AS 11.41.410(a)(1).

FN10. Littlefield, 2008 WL 4822916 at *3..  FN10. Littlefield, 2008 WL 4822916 at *3.

FN1. See Webster's New World College Dictionary (Fourth Edition, 2004), definition of “vagina” at p. 1577, and definition of “vulva” at p. 1605..  FN1. See Webster's New World College Dictionary (Fourth Edition, 2004), definition of “vagina” at p. 1577, and definition of “vulva” at p. 1605.

FN2. See http://en.wikipedia.org/wiki/Vulva (July 21, 2010)..  FN2. See http://en.wikipedia.org/wiki/Vulva (July 21, 2010).

MANNHEIMER, Judge, concurring.