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Ritter v. State1/19/2001
[No. 1715 - January 19, 2001]
This appeal presents us with two important questions of law.
The first question concerns the proper scope of a Cooksey plea - a plea of no contest, with the defendant preserving the right to raise a dispositive issue on appeal. Specifically, we are asked to decide whether a Cooksey plea can be valid when the issue preserved for appeal is the sufficiency of the evidence at grand jury. Subject to a potential exception that we explain below, we hold that the sufficiency of the evidence at grand jury is not a dispositive issue, and thus it is not a proper basis for a Cooksey plea.
The second question concerns the proper interpretation of AS 11.41.420(a)(4). This portion of the second-degree sexual assault statute prohibits certain health care workers from engaging in sexual contact with their patients if the health care worker knows that the patient "is unaware that a sexual act is being committed". Ritter argues that only those patients who are unconscious (or, for some other reason, have no physical perception of being touched) can be deemed "unaware" for purposes of this statute. The State argues that the statute also includes patients who physically perceive the touching but who are "unaware" that the touching is for a sexual purpose and not a proper treatment purpose. With certain qualifications that we explain below, we agree with the State that AS 11.41.420(a)(4) covers sexual contact with patients who are aware of the touching but who are unaware that the touching exceeds the legitimate bounds of treatment.
Facts and procedural history of this case
Andy N. Ritter was a massage therapist in Barrow. The State charged him with six counts of unlawfully engaging in sexual contact with several of his female clients by touching their breasts and genitals, and by pressing his penis against their bodies. When the State presented Ritter's case to the grand jury, the State argued that Ritter's conduct constituted second-degree sexual assault under two different theories.
First, the State contended that the circumstances of the massage (the fact that the women were naked, and that they were alone with Ritter in the building) constituted "implicit" coercion, and thus any sexual contact was "without consent" as that term is defined in AS 11.41.470(8)(A).
Alternatively, the State contended that even though the women might have expected to be touched on their breasts and, conceivably, on their genitals during their massages, they did not expect the touching to be sexual in nature, and therefore Ritter was guilty of second-degree sexual assault under AS 11.41.420(a)(4). This portion of the statute declares that a "health care worker" (a term which includes massage therapists ) commits the crime of second-degree sexual assault if, during the course of the victim's professional treatment, the health care worker "engages in sexual contact with a person who the offender knows is unaware that a sexual act is being committed".
After Ritter was indicted, he filed a motion to dismiss the charges, arguing that both of the State's theories of prosecution were invalid. With regard to the State's "without consent" theory, Ritter noted that although the women testified that the touching made them uncomfortable, none of them testified that they did not consent to the touching or that, if they had any reservations about it, they did anything to manifest their lack of consent. He further argued that the State's theory of "implicit coercion" was not supported by the record. With regard to the State's "lack of awareness" theory, Ritter noted that the women were at all times awake and in control of th
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