Wassillie v. State

911 P.2d 1071, 1996 Alas. App. LEXIS 11, 1996 WL 78090
CourtCourt of Appeals of Alaska
DecidedFebruary 23, 1996
DocketA-5684
StatusPublished
Cited by4 cases

This text of 911 P.2d 1071 (Wassillie v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wassillie v. State, 911 P.2d 1071, 1996 Alas. App. LEXIS 11, 1996 WL 78090 (Ala. Ct. App. 1996).

Opinion

OPINION

BRYNER, Chief Judge.

Teddy M. Wassillie, Sr., pled no contest to and was convicted of one count of sexual abuse of a minor in the second degree, in violation of AS 11.41.436(a)(3). The offense is a class B felony, punishable by a maximum term of ten years’ imprisonment. AS 11.41.436(b); AS 12.55.125(d). As a second felony offender, Wassillie was subject to a presumptive term of four years. AS 12.55.125(d). Acting Superior Court Judge Mark I. Wood found three aggravating factors and sentenced Wassillie to a term of ten years with four years suspended. Wassillie appeals, arguing that the sentencing court committed legal error as to the existence of one of the aggravating factors and factual error as to the circumstances underlying a second aggravating factor. Wassillie also argues that his sentence is excessive. We affirm.

Wassillie’s conviction stems from an incident that occurred in the village of Napakiak during the summer of 1991. Wassillie entered a bedroom where his eleven-year-old daughter, A.W., lay sleeping. He placed his hand on her panties and began moving his hand up and down on her vagina. The abuse continued for approximately ten minutes. The incident was witnessed by A.W.’s cousin, A.B., who was also in the bedroom.

A.W. reported the incident in 1994; according to A.W., it was one of a series of sexual touchings that Wassillie committed against her over a three-year period: the touchings began when she was in the fourth grade and continued to occur approximately once a month until some time during her seventh-grade year.

Upon pleading no contest to a second-degree sexual abuse of a minor charge for sexually abusing A.W., Wassillie was subject to presumptive sentencing as a second felony offender by virtue of a 1977 incident for which he had previously been convicted of rape, assault with intent to commit rape, and assault with a dangerous weapon. Prior to sentencing on the sexual abuse of a minor *1073 charge, Judge Wood found three aggravating factors applicable to Wassillie’s case: 1) that A.W. was a particularly vulnerable victim because she was asleep when Wassillie molested her; 2) that A.W. was a member of Wassillie’s household and that Wassillie had engaged in similar conduct with her and another minor on other occasions; and 3) that Wassillie’s prior felony conviction was for a more serious class of offense. See AS 12.55.155(e)(5), 17), (18).

Wassillie first contends Judge Wood erred in finding that the aggravating factor spelled out in AS 12.55.155(c)(5) was applicable to Wassillie’s case. Subsection (c)(5) provides for an aggravating factor when “the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill health, or extreme youth or was for any other reason substantially incapable of exercising normal physical or mental powers of resistance[.]” In Braaten v. State, 705 P.2d 1311, 1321-22 (Alaska App.1985), this court interpreted factor (c)(5) to exclude situational or “environmental” vulnerabilities. There, the sentencing court had found that a sexual assault victim was particularly vulnerable because she was assaulted in her own home. We reversed the finding. Here, Judge Wood ruled that A.W. was particularly vulnerable because she was asleep when Wassillie molested her. 1 Relying on Braaten, Wassillie urges us to find that “sleep is situational. Everybody sleeps, and is capable ... of resisting when they awake. Resistance upon wakening is part of the normal capacity of human beings.”

We find this argument unpersuasive. Braaten was not intended, as Wassillie suggests, to limit aggravating factor (c)(5) to vulnerabilities arising from a victim’s long-term physical condition. Such an interpretation of Braaten would put it in conflict with the express language of AS 12.55.155(e)(5), which encompasses proof that the victim was peculiarly vulnerable due to age, disability, ill health, or “for any other reason.” “Environmental” vulnerabilities of an assault victim under Braaten are those external to the victim, as distinguished from those that “bear[ ] an intrinsic relationship to [the defendant’s] assault and to his victim’s response to that assault.” Williams v. State, 859 P.2d 720, 722 (Alaska App.1993). Contrary to Wassil-lie’s argument on appeal, sleep is not the type of extrinsic, “situational” or “environmental” factor whose consideration Braaten precludes. Rather, sleep is a factor integrally related to one’s physical and mental condition — an intrinsic aspect of a person’s state of mind.

Moreover, while Wassillie may be correct in observing that normal powers of resistance are quickly restored upon wakening, this observation, in the context of the present case, simply begs the point. The offense for which Wassillie was convicted, second-degree sexual abuse of a minor, consists of a knowing act of sexual touching between an adult and a child. See AS 11.41.436(a)(3). By its very nature, the offense involves conduct that can readily be completed before a sleeping victim awakens.

In determining whether A.W.’s sleep rendered her particularly vulnerable for purposes of aggravating factor (e)(5), Judge Wood was entitled to consider the totality of the circumstances surrounding Wassillie’s conduct. Williams, 859 P.2d at 722 (citing Gant v. State, 712 P.2d 906, 908-09 (Alaska App.1986), and Martin v. State, 704 P.2d 1341, 1342 (Alaska App.1985)). The record in this case established that A.W. was asleep until awakened by Wassillie’s sexual touchings. Regardless of A.W.’s theoretical ability to resist once awakened, she was obviously incapable of resisting until she was awakened. By that time, Wassillie had already committed the sexual touching for which he was convicted. Given these circumstances, Judge Wood properly concluded that, because she was asleep, A.W. was particularly vulnerable to Wassillie’s sexual abuse.

*1074 Wassillie next contends that the sentencing court erred in interpreting the evidence relied on by the state to establish aggravating factor (c)(18)(B). Alaska Statutes 12.55.155(c)(18XB) provides for an aggravating factor when a defendant who is convicted of sexually abusing or assaulting a victim “has engaged in the same or [similar] conduct involving the same or another vie-tim[.J” In the present case, the state’s pre-sentencing notice of intent to rely on aggravating factors alleged the existence of this aggravating factor by virtue of Wassillie’s repeated abuse of AW. while she was in the fourth through seventh grades.

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Bluebook (online)
911 P.2d 1071, 1996 Alas. App. LEXIS 11, 1996 WL 78090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wassillie-v-state-alaskactapp-1996.