NOTICE
 

The text of this opinion can be corrected before the opinion is published in the 

Pacific Reporter. Readers are encouraged to bring typographical or other formal 

errors to the attention of the Clerk of the Appellate Courts: 

303 K Street, Anchorage, Alaska 99501
 

Fax: (907) 264-0878
 

E-mail: corrections @ akcourts.us
 

IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

STATE OF ALASKA, 

Appellant, 

v. 

THOMAS A. MAYFIELD, 

Appellee. 

Court of Appeals No. A-12534 

Trial Court No. 4FA-15-02245 CR 

O P I N I O N 

No. 2643 — May 3, 2019 

Appeal from the Superior Court, Fourth Judicial District, 

Fairbanks, Michael A. MacDonald, Judge. 

Appearances: Diane L. Wendlandt, Assistant Attorney General, 

Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 

Attorney General, Juneau, for the Appellant. Renee McFarland, 

Assistant Public Defender, and Quinlan Steiner, Public 

Defender, Anchorage, for the Appellee. 

Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, 

Superior Court Judge.* 

Judge ALLARD. 

* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska 

Constitution and Administrative Rule 24(d). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Thomas A. Mayfield was indicted by a Fairbanks grand jury for attempted 

second-degree sexual assault. Mayfield’s attorney moved to dismiss the indictment, 

arguing that the evidence presented to the grand jury was legally insufficient to establish 

attempted second-degree sexual assault. The superior court granted this motion. The 

State now appeals. 

For the reasons explained here, we affirm the superior court’s dismissal of 

the indictment. 

Background facts and prior proceedings 

On September 27, 2015, fourteen-year-old H.R. went to the Regal Cinema 

in Fairbanks with her younger sister and her friend. The three girls sat at the end of a 

row toward the back of the theater. The seat next to H.R. was empty. Twenty-one-yearold Mayfield was sitting in the seat next to this empty seat. Mayfield was at the theater 

with two of his friends. 

After the girls sat down, H.R.’s sister noticed that Mayfield was staring and 

smiling at them. H.R.’s sister told H.R.; H.R. ignored Mayfield. A short time later, after 

the movie started, H.R. glanced over and realized that Mayfield had moved into the 

empty seat next to her. H.R. also saw that Mayfield had put his hand, palm-side up, in 

the gap between the seats, so that his hand was resting close to her knee. H.R. thought 

this was “weird,” and Mayfield’s proximity “freaked [her] out.” 

H.R. scooted over in her seat so that she was further away from Mayfield 

and closer to her sister. When H.R. glanced back at Mayfield, she saw Mayfield slowly 

moving his hand upwards. H.R. then felt “a push on [her] hip,” and “the force started 

going down and he was trying to put his hand in my pants.” 

At the grand jury hearing, the prosecutor asked H.R. to describe exactly 

what happened: 

– 2 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Prosecutor: Okay. And when you said you felt 

something on your hip, do you know what that was you felt 

on your hip? 

H.R.: His hand, because when I looked down I saw it. 

Prosecutor: Okay. And then you said something 

about his hand in your pants, what happened after that? 

H.R.: I jumped. I looked over, and I said — I yelled 

at him. 

Prosecutor: Okay. So let’s talk about why you yelled 

at him. What is it that he did that made you yell at him? 

H.R.: Touching me. 

Prosecutor: Okay. So you said you felt his hand on 

your hip, right? Okay. Did something happen after that? 

H.R.: What do you mean? Like, he pushed his hand. 

Like, he got, like, under my sweats. 

Prosecutor: Okay. So did he put his hand in your 

pants? 

H.R.: He got his fingertips in my pants, but I had 

leggings on, so — 

Prosecutor: Okay. 

H.R.: Right. 

Prosecutor: Where did he put his hand? Was it — 

when he was trying to put his hand down your pants, was it 

in the front or back or somewhere else? 

H.R.: It was just on the side. 

Prosecutor: Just on the side. 

H.R.: Like — 

– 3 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Prosecutor: Okay. And when he did that, how did 

you react? 

H.R.: It scared me, so I jumped, and I — I said — 

yelled at him. 

Prosecutor: And you yelled at him? 

H.R.: Well, not yelled, but I said something. 

Prosecutor: Do you remember what you said? 

H.R.: Yeah. I said, “Don’t f-ing touch me.” . . .[1] 

Prosecutor: Okay. After you did that, what did you 

do next? 

H.R.: I leaned over and told my friend that we should 

go. 

Prosecutor: Okay. 

H.R.: Actually I said he just touched me. He just 

touched me. I was, like, he just grabbed my butt. Like, just 

like, I was so scared, I just said, and then, like, then we got up 

and left. 

The girls got out of their seats and called H.R.’s foster mother, who told the 

girls to tell the theater manager. The theater manager contacted the police, and Mayfield 

was arrested when he left the theater. 

Mayfield was originally arrested for assault in the fourth degree, a class A 

misdemeanor,2 harassment in the second degree, a class B misdemeanor,3 and violating 

1 H.R. then explained to the jury that she used an expletive for “f-ing.” 

2 AS 11.41.230(a)(3), (b). 

3 AS 11.61.120(a)(5), (b) (subjecting a person to offensive physical contact with the 

(continued...) 

– 4 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

conditions of release, a class B misdemeanor.4 The assault charge was subsequently 

elevated to attempted second-degree sexual assault, a class C felony.5 Mayfield was then 

indicted on that charge, with a separate information charging him with harassment and 

violating conditions of release. 

Mayfield’s attorney filed a motion to dismiss the indictment, arguing that 

the evidence presented to the grand jury was insufficient to establish the crime of 

attempted second-degree sexual assault. The defense attorney argued specifically that 

the State had not shown that Mayfield used or threatened any force against H.R. 

In response, the prosecutor argued that the State was not required to show 

that Mayfield intended to use or threaten the use of force in attempting to have sexual 

contact with H.R. Instead, the prosecutor contended that the State was only required to 

show that Mayfield intended to engage in sexual contact with H.R. and that Mayfield 

acted in reckless disregard of H.R.’s lack of consent. 

The superior court dismissed Mayfield’s indictment. Relying on our 

unpublished opinion in State v. Townsend,

6 the court concluded that “[e]vidence that the 

defendant engaged in or attempted to engage in unwanted contact with H.R. is not 

enough.” Instead, the court concluded that “[t]here must be evidence before the grand 

jury that the defendant attempted to coerce sexual contact with H.R. by the use of force 

or threats.” Because there was no such evidence, the court dismissed the indictment. 

The State now appeals. 

3 (...continued) 

intent to harass or annoy that person). 

4 AS 11.56.757(a), (b). Mayfield was on bail release from a disorderly conduct charge 

at the time of the incident. 

5 AS 11.41.420(a)(1) & AS 11.31.100(a); AS 11.31.100(d)(4). 

6 State v. Townsend, 2011 WL 4107008 (Alaska App. Sept. 14, 2011) (unpublished). 

– 5 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The elements of the completed crime of second-degree sexual assault 

The dispute in this case primarily turns on a question of law: What does 

the State need to prove in order to establish that a defendant is guilty of attempted 

second-degree sexual assault? We begin our discussion by reviewing the elements of the 

completed crime of second-degree sexual assault, and we then discuss the elements that 

must be proven to establish attempted second-degree sexual assault. 

Under AS 11.41.420(a)(1), a defendant commits the completed crime of 

second-degree sexual assault if the defendant (1) engages in “sexual contact” with 

another person, and (2) the sexual contact is “without consent.”7 In Reynolds v. State we 

interpreted the statute to require an additional element: (3) that the defendant acts in 

reckless disregard of the circumstance that the sexual contact is “without consent.”8 

The first element of the crime is that the defendant engages in “sexual 

contact” with another person. Under AS 11.81.900(b)(60), “sexual contact” means 

“knowingly touching, directly or through clothing, the victim’s genitals, anus, or female 

breast” or “knowingly causing the victim to touch, directly or through clothing, the 

defendant’s or victim’s genitals, anus, or female breast.” Touching another person’s 

7 See Alaska Criminal Pattern Jury Instruction 11.41.420(a)(1) (2002). 

8 See Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983). In Reynolds, we read 

this recklessness mens rea requirement into the sexual assault statute in recognition of the 

fact that, in eliminating the common law requirement of resistance, the legislature had 

“substantially enhanced the risk of conviction in ambiguous circumstances” and increased 

the likelihood that a defendant could be unfairly convicted of sexual assault even if the 

defendant honestly and reasonably believed that the sexual contact was not without consent. 

Id. at 624-25. 

– 6 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

buttocks does not constitute “sexual contact” under Alaska law.9 However, touching 

another person’s buttocks may constitute the crime of harassment.10 

The second element of the crime is that the sexual contact is “without 

consent.” This term has a specialized legal meaning under Alaska law. Under 

AS 11.41.470(8)(A), “without consent” means that the victim of the sexual contact, 

“with or without resisting, is coerced by the use of force against a person or property, or 

by the express or implied threat of death, imminent physical injury, or kidnapping to be 

inflicted on anyone.”11 

Thus, coercion by the use or threat of force is a central element of sexual 

assault under Alaska law. The criminal code broadly defines “force” as “any bodily 

impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or 

confinement.”12 But to prove the use of “force” in the context of sexual assault, the 

9 See Reakoff v. State, 1998 WL 224919, at *4 (Alaska App. May 6, 1998) 

(unpublished) (citing Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996) (noting that 

the touching of another person’s buttocks is not “sexual contact”)). 

10 See AS 11.61.118(a)(2) (“A person commits the crime of harassment in the first 

degree if . . . the person violates AS 11.61.120(a)(5) and the offensive physical contact is 

contact by the person touching through clothing another person’s genitals, buttocks, or 

female breast.”); AS 11.61.120(a)(5) (“A person commits the crime of harassment in the 

second degree if, with intent to harass or annoy another person, that person . . . subjects 

another person to offensive physical contact.”). 

11 A sexual act is also “without consent” if the person is “incapacitated as a result of an 

act of the defendant.” AS 11.41.470(8)(B). This portion of the definition is not at issue in 

this case. 

12 AS 11.81.900(b)(28). 

– 7 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

bodily impact or restraint must be more than simply the bodily impact or restraint 

inherent in the charged act of sexual penetration or contact.13 

As the statutory definition makes clear, coercion can be established either 

by force or the threat of force.14 Resistance by the victim is not required. Instead, sexual 

activity can be coerced even if the victim acquiesces or submits without resisting.15 

Moreover, the question of coercion is evaluated under the totality of the circumstances, 

from the perspective of the victim who is subjected to the unwanted sexual activity.16 

13 See Inga v. State, ___ P.3d ___, 2019 WL 989309 (Alaska App. Mar. 1, 2019); see 

also Townsend, 2011 WL 4107008, at *7-8 (Mannheimer, J., concurring); Inga v. State, 2004 

WL 719626, at *5 (Alaska App. Mar. 31, 2004) (unpublished). The requirement that the 

bodily impact, restraint, or confinement be more than simply the bodily impact or restraint 

inherent in the charged act of sexual penetration or contact derives from the common law and 

remains the law in the majority of jurisdictions. See State v. Jones, 299 P.3d 219, 228 (Idaho 

2013) (“The extrinsic force standard is the traditional view and ‘is still the most commonly 

adopted.’”). See generally 2 Wayne R. LaFave, Substantive Criminal Law § 17.3(a), (b), at 

841-50 (3d ed. 2017) (discussing extrinsic force requirement and collecting cases). 

14 AS 11.41.470(8)(A). 

15 See, e.g., Ritter v. State, 97 P.3d 73, 77-78 (Alaska App. 2004); Nicholson v. State, 

656 P.2d 1209, 1213 (Alaska App. 1982). 

16 See, e.g., Maslin v. State, 718 N.E.2d 1230, 1235 (Ind. App. 1999), rev’d on other 

grounds by Ludy v. State, 784 N.E.2d 459 (Ind. 2003) (noting that it is from the rape victim’s 

perspective, not the assailant’s, that the presence or absence of forceful compulsion is to be 

determined, and that this is a subjective test that looks to the victim’s perception of the 

surrounding circumstances); People v. Texidor, 71 A.D.3d 1190, 1193 (N.Y. App. Div. 2010) 

(stating that the element of forcible compulsion must be viewed through “the state of mind 

produced in the victim by the defendant’s conduct,” considering “all relevant factors 

including the age of the victim, the relative size and strength of the defendant and the victim, 

and the nature of the defendant’s relationship to the victim”) (internal citations omitted). See 

generally 2 Wayne R. LaFave, Substantive Criminal Law § 17.3(a), (b), at 841-50 (3d ed. 

2017). 

– 8 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

However, the defendant’s perspective is important to the third element of 

second-degree sexual assault. Under this Court’s decision in Reynolds v. State, the State 

must prove that the defendant recklessly disregarded the circumstance that the sexual 

activity was “without consent.”17 That is, the State must prove that the defendant was 

subjectively aware of a substantial and unjustifiable risk that the victim was coerced by 

the use of force or threat of force — or that the defendant would have been aware of this 

risk but for the defendant’s voluntary intoxication.18 

(As defined in AS 11.81.900(a)(3), a “substantial and unjustifiable risk” is 

a risk “of such a nature and degree that disregard of it constitutes a gross deviation from 

the standard of conduct that a reasonable person would observe in the situation.”) 

In our past cases, we have often used a shorthand when describing the 

element of “without consent.” We have sometimes declared, for example, that in a 

prosecution for sexual assault, the State is required to show that (1) the defendant 

knowingly engaged in the sexual act, and that (2) the defendant recklessly disregarded 

the victim’s “lack of consent.” But this shorthand description of the “without consent” 

element is potentially misleading because the phrase “lack of consent” could be misread 

as referring only to the fact that the sexual activity was unwanted, without the element 

of coercion also required to establish sexual assault under Alaska law. 

The elements of attempted second-degree sexual assault 

Having reviewed the elements of the completed crime of second-degree 

sexual assault, we now address the elements of attempted second-degree sexual assault. 

Under AS 11.31.100(a), a person is guilty of an attempt to commit a criminal offense if, 

17 Reynolds v. State, 664 P.2d 621, 625 (Alaska App. 1983). 


18 Id. at 625, 627; see AS 11.81.900(a)(3); AS 11.81.900(b)(35). 


– 9 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“with intent to commit a crime, the person engages in conduct which constitutes a 

substantial step toward the commission of that crime.” Thus, to convict a defendant of 

attempted second-degree sexual assault, the State needs to prove that (1) the defendant 

intended to commit the crime of second-degree sexual assault, and (2) the defendant took 

a substantial step toward the commission of this crime. (This is similar to the 

formulation used in other states to define attempted sexual assault crimes.19) 

But this definition is far from self-explanatory. As the present appeal 

illustrates, substantial uncertainty has arisen as to exactly what the State must prove to 

show that a defendant “intended to commit the crime of second-degree sexual assault.” 

The parties to this case also disagree regarding what elements of the completed crime 

must be present in order for the defendant’s actions to constitute a “substantial step” 

toward the commission of the completed crime of second-degree sexual assault. 

19 See, e.g., People v. Dixon, 75 Cal.App.4th 935, 942, 89 Cal.Rptr.2d 602, 607 (Cal. 

App. 1999) (“Attempted sexual battery requires (1) an intent to and (2) a direct but 

ineffectual act in an attempt to, touch an intimate part of the body (contact with the victim’s 

skin) of a victim unlawfully restrained (by force or fear), without the victim’s consent, for 

the purpose of sexual arousal, sexual gratification, or sexual abuse.”); State v. Allen, 237 P.3d 

14, 16 (Idaho 2010) (“An attempt consists of: ‘(1) an intent to do an act . . . which would in 

law amount to a crime; and (2) an act in furtherance of that intent which, as it is most 

commonlyput, goes beyond mere preparation.’” (quoting State v. Grazian, 164 P.3d 790, 796 

(Idaho 2007))); State v. Rick, 463 S.E.2d 182, 188 (N.C. 1995) (“In order to prove an attempt 

to commit an offense, the State must show defendant intended to commit the offense and 

made an overt act, going beyond mere preparation, for that purpose, but falling short of the 

completed offense.”). See generally 2 Wayne R. LaFave, Substantive Criminal Law § 

11.3(a), at 293-98 (3d ed. 2017) (noting that the mental state required for the crime of attempt 

is the intent to commit the relevant crime, though the defendant need not intend criminality 

per se). 

– 10 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We partially addressed these questions in two prior decisions: Guertin v. 

State20 and Sergie v. State.

21 In Guertin, the defendant argued that there was no such 

crime as “attempted second-degree sexual assault” because (according to Guertin) 

“attempt” crimes could only exist for specific-intent offenses — that is, offenses where 

a mens rea of “intentionally” is attached to a specific result. In other words, Guertin 

argued that it was logically impossible for a person to “intentionally” commit a crime 

when that crime was defined by the person’s reckless disregard of the victim’s lack of 

consent.22 Guertin also argued that the jury instructions in his case failed to adequately 

inform the jury that the State had to prove that Guertin actually intended to engage in 

sexual contact with the victim, rather than simply creating a substantial risk that such 

sexual contact might occur.23 

We rejected both arguments, concluding that the crime of attempted sexual 

assault existed and that the crime required proof that the defendant “attempted to engage 

in sexual contact with another person without regard to that person’s lack of consent.”24 

We also found that the jury instructions, when read in a common-sense fashion, were 

adequate to convey the State’s obligation to prove that the defendant’s conscious goal 

was to engage in the prohibited sexual contact.25 

This Court’s ruling in Guertin became the basis for a jury instruction that 

was challenged more than ten years later in Sergie v. State, where we addressed the 

20 Guertin v. State, 854 P.2d 1130 (Alaska App. 1993). 


21 Sergie v. State, 105 P.3d 1150 (Alaska App. 2005). 


22 Guertin, 854 P.2d at 1131. 

23 Id. at 1133. 

24 Id. 

25 Id. 

– 11 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

elements of attempted first-degree sexual assault.26 Sergie involved an intoxicated 

husband who physically assaulted his wife, pushing her down to the floor multiple 

times.27 Sergie then began removing his wife’s shirt and bra and trying to remove her 

pants, telling his wife to “spread [her] legs.”28 Sergie’s attack on his wife was witnessed 

by his sister and another family member, and was eventually stopped by the sister’s 

calling the police.29 At trial, the jury was instructed (in accordance with Guertin) that to 

convict Sergie of attempted first-degree sexual assault, the State was required to prove 

beyond a reasonable doubt that Sergie “intended to engage in sexual penetration with 

another person without regard to that person’s lack of consent.”30 

On appeal, Sergie argued that the mens rea of “intentionally” applied to 

both the phrase “sexual penetration with another” and the phrase “that person’s lack of 

consent.”31 In other words, Sergie argued that a defendant could only be found guilty of 

attemptedfirst-degreesexual assault ifthedefendant’sconsciousobjectivewas to engage 

in sexual penetration with a victim that he knew was unwilling — and that a defendant’s 

willingness to proceed with the sexual penetration regardless of the victim’s lack of 

consent was not enough. We rejected this claim, concluding that it was enough for the 

26 Sergie, 105 P.3d at 1153. 


27 Id. at 1152-53. 


28 Id.
 

29 Id. at 1152. 


30 Id. at 1153.
 

31 Id. 


– 12 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

State to prove that “Sergie intended to engage in sexual penetration with [his wife] 

whether she consented or not.”32 

As the parties in the current case both point out, our discussion in Sergie 

was not as complete as it could have been, because the decision says very little about the 

coercion element of “without consent.” Instead, the language of our decision focuses 

primarily on the victim’s subjective willingness or unwillingness to engage in the 

attempted sexual activity. Sergie did not directly address the issue of coercion, 

presumably because the defendant’s willingness to use force was already apparent under 

the facts of this case. 

The failure of either Sergie or Guertin to directly address the coercion 

element of “without consent” leads Mayfield to argue that these cases were wrongly 

decided and should be overruled by this Court.33 The State argues that Sergie and 

Guertin should be clarified rather than overruled. We agree with the State that our prior 

caselaw is potentially misleading and that additional clarification of the “without 

consent” coercion element is required. 

As has been recognized in other jurisdictions, to be guilty of attempted 

sexual assault, a defendant must intend — or at least conditionally intend — to use 

“whatever force is required to commit the sexual act against the victim’s will.”34 That 

32 Id. at 1155 (emphasis added). 

33 See Thomas v. Anchorage Equal Rights Comm’n, 102 P.3d 937, 943 (Alaska 2004) 

(“We will overrule a prior decision only when clearly convinced that the rule was originally 

erroneous or is no longer sound because of changed conditions, and that more good than 

harm would result from a departure from precedent.”) (internal quotations omitted). 

34 United States v. Bolanos-Hernandez, 492 F.3d 1140, 1147 n.5 (9th Cir. 2007) (internal 

citations omitted). See generally Laurie L. Levenson & Alex Ricciardulli, The Rutter Group, 

California Criminal Law § 7:12 (2018-2019 ed.) (“The specific intent required for a 

(continued...) 

– 13 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

is, the defendant must be willing to use force or threat of force to the extent necessary to 

achieve the desired sexual contact. 

As a general matter, the law views a qualified or conditional intent as just 

as culpable as an unconditional intent.35 Thus, if a defendant attempts to carry away an 

item of property not knowing whether it belongs to him or is simply a similar-looking 

item, and if the defendant intends to keep the item no matter to whom it belongs, then 

this is attempted theft.36 Likewise, if a defendant is aware of a substantial and 

unjustifiable risk that a victim is unwilling to engage in sexual contact, and if the 

defendant intends to use force or threat of force if necessary to effectuate their intended 

goal of sexual contact, then the defendant is guilty of attempted second-degree sexual 

assault. 

How the State proves such an intent or conditional intent will depend on 

the circumstances of the specific case. Proof that the defendant actually used force or 

threat of force in an attempt to achieve the unwanted sexual contact will, of course, be 

legally sufficient to prove the defendant’s willingness to use force or threat of force for 

purposes of defeating a motion for judgment of acquittal or a motion to dismiss an 

indictment based on insufficiency of the evidence. Butthe defendant’s “substantial step” 

toward commission of the completed crime need not necessarily involve the actual use 

of force or threat of force to survive such motions or to support a conviction. Rather, the 

question is whether, given all the circumstances, the State has proved that the defendant 

intended or conditionally intended to use force or threat of force if necessary to achieve 

34 (...continued) 

conviction for attempted sexual assault has been described as the intent to use whatever force 

is required to complete the sexual act against the victim’s will.”). 

35 See Rollin M. Perkins and Ronald N. Boyce, Criminal Law, 640 (3d ed. 1982). 

36 Id. 

– 14 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the sexual contact. In other words, although a defendant’s “substantial step” toward 

committing the sexual assault need not necessarily include an active use of force or the 

threat of force, the defendant’s actions must still be “strongly corroborative” of the 

defendant’s willingness to use force or threat of force if necessary to effectuate the 

intended sexual contact.37 

In sum, to prove that a defendant committed the crime of attempted seconddegree sexual assault under AS 11.41.420(a)(1), the State must establish that: 

(1) the defendant intended to engage in sexual contact with the victim; 

(2) the defendant recklessly disregarded a substantial and unjustifiable risk 

that the victim was unwilling to engage in the sexual contact; 

(3) the defendant intended to use force or threat of force if necessary to 

achieve the sexual contact; and 

(4) the defendant took a substantial step toward achievement of the 

completed crime. 

Application of this law to the current case 

Under AlaskaCriminal Rule 6(q), “[t]he grand jury shallfindan indictment 

when all the evidence taken together, if unexplained or uncontradicted, would warrant 

a conviction of the defendant.” In making the determination of whether an indictment 

37 See Avila v. State, 22 P.3d 890, 893-94 (Alaska App. 2001) (noting that although the 

Alaska criminal code does not explicitly define “substantial step,” Alaska generally follows 

the approach taken by the Model Penal Code: to qualify as a “substantial step,” the 

defendant’s act must be “strongly corroborative of the actor’s criminal purpose.” (quoting 

Alaska Criminal Code Revision, Tentative Draft, Part II at 72-73 (1977))); Iyapana v. State, 

284 P.3d 841, 848 (Alaska App. 2012); Beatty v. State, 52 P.3d 752, 755-56 (Alaska App. 

2002). 

– 15 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

was proper, the court must draw all legitimate inferences from the evidence in favor of 

the indictment, and determine whether there exists a “probability of guilt.”38 

In the current case, the superior court found that the evidence presented to 

the grand jury was insufficient to establish that Mayfield intended to use force or threat 

of force if necessary to achieve the sexual contact. 

On appeal, the State criticizes this ruling, arguing that the superior court 

erroneously required the State to prove that the “substantial step” underlying the 

attempted sexual assault included the active use of force or threat of force. We read the 

superior court’s order differently. Although the State is correct that a defendant’s 

“substantial step” need not involve the active use of force or threat of force, the conduct 

must still be “strongly corroborative” of the defendant’s willingness to use force or threat 

of force to effectuate the intended sexual contact.39 

Here, the evidence showed that Mayfield engaged in physical contact with 

H.R. — contact that alarmed and frightened her. Mayfield put the fingertips of his hand 

on H.R.’s hip between her pants and leggings — an action that H.R. described to her 

friends as Mayfield “grabb[ing] her butt.” But there is no indication that Mayfield 

reached toward H.R.’s genitals, or that his intent was to have contact with H.R.’s 

genitals. Nor is there any indication that Mayfield intended (or conditionally intended) 

to use force or the threat of force to touch H.R.’s genitals. 

In its briefing on appeal, the State compares this case to Nicholson v. 

State,

40 and argues that similar reasoning should apply here. But the circumstances in 

Nicholson were materially different from those presented here. Nicholson involved a 

38 Sheldon v. State, 796 P.2d 831, 836-37 (Alaska App. 1990). 

39 See Avila, 22 P.3d at 893-94; Iyapana, 284 P.3d at 848; Beatty, 52 P.3d at 755-56. 

40 Nicholson v. State, 656 P.2d 1209 (Alaska App. 1982). 

– 16 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

defendant who broke into a house in the early morning hours and proceeded to take his 

clothes off and climb into bed with the sleeping fifteen-year-old victim.41 The victim 

awoke to find the naked defendant in her bed, fondling her breasts and kissing her.42 

Taken by surprise, she hesitated for a moment, and then jumped up, waking her sister.43 

The two girls fled downstairs, where they armed themselves with butcher knives.44 

Nicholson was later convicted of second-degree sexual assault, as a lesser included 

charge of the charged attempted first-degree sexual assault.45 

On appeal, Nicholson argued that there was insufficient evidence to indict 

him for attempted first-degree sexual assault, arguing that his conduct only supported an 

inference that he wished to fondle the breast of the victim, not that he intended sexual 

penetration.46 We rejected this argument, concluding that: 

a jury could reasonably infer that Nicholson intended to 

“penetrate” K.R. and that entering her bed naked and 

uninvited and fondling her were “substantial steps” toward 

the commission of that crime. We are satisfied that a jury 

could conclude that if Nicholson had intended only sexual 

contact [as opposed to penetration], he would not have 

undressed before entering her bed and that if he did not 

intend to coerce her he would not have entered her home 

41 Id. at 1210. 


42 Id.
 

43 Id.
 

44 Id.
 

45 Id.
 

46 Id. at 1211-12. 


– 17 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

uninvited in the early morning hours when a jury could find 

that he knew her parents would be gone.47 

The circumstances of Mayfield’s case are far more ambiguous as to the 

defendant’s intent to use or threaten force to engage in sexual contact. Although the 

State refers to Mayfield “putting his hand down H.R.’s pants,” the testimony at the grand 

jury was that Mayfield put his fingertips between H.R.’s pants and leggings, and that he 

touched her only on her hip. Contrary to the State’s assertions on appeal, there is no 

indication that Mayfield’s hand would have impeded H.R.’s ability to stand up or to pull 

away from the unwanted touching. Nor is there any indication that Mayfield tried to 

continue to touch H.R. after she voiced her disapproval. There is also no way to tell 

what the intended goal of the touching was. H.R. herself apparently viewed it as an 

attempt to grab her “butt,” and she initially described it as such to her sister and friend. 

Onappeal, theStatepoints out thepotentiallycoercivecircumstancesunder 

which the touching occurred, focusing in particular on H.R.’s age and the fact that the 

movie theater was dark. We agree that such circumstances are relevant to a jury’s 

consideration of whether an intent (or conditional intent) to use force has been shown. 

Also relevant, however, is the fact that H.R. was in a public place, accompanied by her 

sister and her friend, and surrounded by other moviegoers. We also note that the State 

has not charged Mayfield with attempted sexual abuse of a minor or put forward any 

evidence suggesting that Mayfield was aware of H.R.’s age or that Mayfield viewed H.R. 

as particularly vulnerable. And, as already noted, the State put forward no evidence as 

to the intended goal of the touching, which was limited in nature (although undoubtedly 

frightening to H.R.). 

47 Nicholson, 656 P.2d at 1212. 

– 18 – 2643
 
 

 

 

 

 

 

 

 

 

 

 

 

 

In sum, even viewing the evidence in the light most favorable to the 

indictment, the evidence shows that Mayfield engaged in offensive and unwanted 

touching of H.R. — touching that was frightening to her — but it does not show that 

Mayfield acted with the intent to force his hand down H.R.’s pants and touch her genitals 

“without consent.” 

A person cannot be indicted (or convicted) based on mere conjecture or 

speculation.48 Because the evidence presented to the grand jury failed to show that 

Mayfield took a substantial step toward completing the crime of second-degree sexual 

assault, we agree with the superior court that this evidence was insufficient to support 

Mayfield’s indictment. Accordingly, we affirm the superior court’s dismissal of the 

indictment, and we remand this case to the superior court for further proceedings, as 

appropriate.49 

Conclusion 

The judgment of the superior court is AFFIRMED, and this case is 

REMANDED to the superior court for further proceedings consistent with this decision. 

48 See Alaska R. Crim. P. 6(q); Allen v. State, 420 P.2d 465, 467 (Alaska 1966). 

49 The record on appeal indicates that Mayfield has already pleaded no contest to 

second-degree harassment and violating conditions of release, and he has already been 

sentenced on those charges. 

– 19 – 2643