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Ritter v. State1/19/2001
ed touching was part of legitimate massage therapy, the State must prove beyond a reasonable doubt that Ritter did not have the intent to administer recognized and lawful treatment. We note that, under the statutory definition of "intentionally" contained in AS 11.81.900(a)(1), a person can act with more than one intent. The statute provides that a person can be found guilty of acting with a specific prohibited intent even when the person was motivated by other intents as well.
Applying this rule to Ritter's case, Ritter would not be guilty of engaging in "sexual contact" if he acted for the exculpatory purpose specified in AS 11.81.900(b)(57)(B)(ii), regardless of any other purpose that he might have had.
Of course, if the State has evidence that Ritter derived sexual enjoyment from touching the three women named in the indictment, this evidence would be relevant to identifying Ritter's motivation(s) for the touching. But this evidence would not be conclusive of Ritter's guilt - for if there is a reasonable possibility that Ritter acted for "the purpose of administering a recognized and lawful form of treatment", then he would not be guilty of engaging in "sexual contact" even if he also acted for the purpose of deriving sexual arousal or gratification.
Finally, we note that AS 11.41.420(a)(4) also requires proof that the health care worker knows that the patient is unaware that sexual contact is occurring. Thus, when the State's case is based on the allegation that a conscious patient was subjected to touching that exceeded the bounds of legitimate treatment, the State must also prove that the health care worker "knew" (was aware of at least a substantial probability) that the patient was unaware that the touching exceeded the bounds of legitimate treatment.
Turning to the facts of Ritter's case, if the evidence presented to the grand jury is viewed in the light most favorable to the State, that evidence is sufficient to prove all the elements of second-degree sexual assault under AS 11.41.420(a)(4) as we have interpreted them here. We therefore affirm the superior court's decision to uphold the indictment insofar as it alleges violations of AS 11.41.420(a)(4).
(As explained above, we deny the State's petition for review concerning the other aspect of the superior court's decision - the superior court's ruling that the grand jury evidence was sufficient to support indictment under AS 11.41.420(a)(1), the State's "without consent" theory of prosecution.)
Conclusion
Because Ritter's plea is not a valid Cooksey plea, he must be allowed to withdraw his plea and go to trial on the indictment. The superior court's denial of Ritter's motion to withdraw his plea is REVERSED.
We hold that the evidence presented to the grand jury is sufficient to support Ritter's indictment on the six counts of second-degree sexual assault under AS 11.41.420(a)(4) - i.e., under the theory that Ritter engaged in sexual contact with patients who he knew were unaware that sexual contact was occurring. The superior court's decision upholding the indictment on this theory is AFFIRMED.
We express no opinion as to whether one or more counts of the indictment validly charge second-degree sexual assault under AS 11.41.420(a)(1) - i.e., the theory that the sexual contact was "without [the women's] consent" as that phrase is defined in AS 11.41.470(8)(A).
This case is remanded to the superior court for further proceedings consistent with our decision.
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