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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

AARON JAMES FEDOLFI, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-12586 

Trial Court No. 4BE-15-00780 CR 

O P I N I O N 

No. 2664 — December 20, 2019 

Appeal from the District Court, Fourth Judicial District, Bethel, 

Nathaniel Peters, Judge. 

Appearances: Laurence Blakely, Assistant Public Defender, and 

Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 

RuthAnne B. Bergt, Assistant Attorney General, Office of 

Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney 

General, Juneau, for the Appellee. 

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

Senior Judge. * 

Judge MANNHEIMER. 

* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska 

Constitution and Administrative Rule 23(a). 
In 2015, while Aaron James Fedolfi was on duty as an officer of the Bethel 

Police Department, he saw an intoxicated woman walking along the side of a road, 

headed home from a party. Fedolfi contacted this woman and offered her a ride home 

in his patrol car. But instead of driving the woman to her home, Fedolfi drove her to 

another location, where he exposed his erect penis and used his hands to try to direct the 

woman’s head toward his penis. The woman pushed Fedolfi away and ran into the 

bushes, where she hid until Fedolfi got back into his patrol car and drove away. 

Based on this episode, Fedolfi was charged with two offenses: attempted 

third-degree sexual assault and official misconduct. 

Count I charged Fedolfi with attempting to commit third-degree sexual 

assault as defined in AS 11.41.425(a)(4). This statute makes it a crime for a police 

officer to engage in sexual penetration with a person who is in the officer’s custody or 

apparent custody. 

Count II charged Fedolfi with official misconduct as defined in AS 11.56.­

850(a)(1). This statute makes it a crime for a public servant to perform an act relating 

to the public servant’s office, knowing that the act constitutes an unauthorized exercise 

of the public servant’s official functions. According to the charging document, Fedolfi’s 

unauthorized exercise of his police functions was his attempt to sexually assault the 

woman who was in his custody — i.e., Fedolfi’s commission of the crime charged in 

Count I. 

Fedolfi ultimately pleaded no contest to both charges. At sentencing, 

Fedolfi’s attorney argued that these two offenses should merge into a single conviction 

under the Alaska Supreme Court’s decision in Whitton v. State, 479 P.2d 302 (Alaska 

1970). However, the district court concluded that the sexual assault statute and the 

official misconduct statute protected distinct societal interests, so the court ruled that 

each of the two counts would support a separate conviction. 

– 2 – 2664
 
In this appeal, Fedolfi renews his argument that the two counts should 

merge into a single conviction. We agree. 

Fedolfi was charged with attempted sexual assault under a subsection of 

AS 11.41.425 that applies specifically to peace officers. This subsection, (a)(4), does not 

require proof that the officer committed an “assault” as that term is commonly 

understood. Rather, subsection (a)(4) applies even when the person in the officer’s 

custody ostensibly consents to the sexual penetration. 

As the chair of the Senate Judiciary Committee explained during the 

Committee’s consideration of subsection (a)(4), the purpose of this subsection was to 

“basically [tell] police officers that they can’t have sex with people who are in their 

custody. Period. ... [There is] no question of consent. ... [That person] cannot consent 

to have sex with you.” 1 

 

When a defendant pleads no contest to a criminal charge, the defendant’s 

plea “is an admission [for purposes of conviction and sentencing] of every essential 

element of the offense well-pleaded in the charging document.” 2 

 But the charge against 

Fedolfi (attempted sexual assault under subsection (a)(4) of the statute) did not 

encompass an allegation that Fedolfi attempted to coerce the woman to engage in sexual 

penetration, nor did it encompass an allegation that Fedolfi attempted to engage in sexual 

penetration with the woman when she was too intoxicated to effectively consent to an 

act of sexual penetration — two types of conduct that would have been criminal even if 

Fedolfi were not a police officer. 

1 Audio recording of the proceedings of the Senate Judiciary Committee on April 13, 

2011 @ 1:46 – 1:47 p.m. (statement of Senator Hollis French concerning House Bill 127). 

2 Jones v. State, 215 P.3d 1091, 1100 (Alaska App. 2009). 

– 3 – 2664
 
Rather, by pleading no contest, Fedolfi admitted only that he was engaged 

in his police duties, that he knew (or disregarded a substantial and unjustifiable risk) that 

the woman was in his custody, and that he attempted to engage in sexual penetration with 

her. 

And as we have already explained, the official misconduct charge against 

Fedolfi — the charge of committing an unauthorized act pertaining to his official duties 

— was based solely on the fact that Fedolfi engaged in attempted sexual assault as 

defined in subsection (a)(4). That is, Fedolfi was charged with official misconduct only 

because he was a police officer who attempted to engage in sexual penetration with 

someone who was in his custody. 

Thus, given the way this case was charged,the two criminal charges against 

Fedolfi protected the same societal interest — the legislature’s policy of not allowing 

police officers to engage in any sexual activity with a person who is in their custody, 

even if that sexual activity is not coerced by force or threat of force, and even if the 

person in custody is otherwise capable of consenting to the sexual activity. 

We therefore conclude that, under the double jeopardy test announced by 

our supreme court in Whitton v. State, Fedolfi’s two offenses will support only one 

criminal conviction. Whitton, 479 P.2d at 312. 

We note that both of Fedolfi’s offenses are class A misdemeanors. 3 

 That 

is, the legislature has classified them with the same degree of seriousness. Because of 

this, when Fedolfi’s case returns to the district court for amendment of the judgement and 

re-sentencing, the State can elect whether Fedolfi’s two offenses will merge into a 

3 Third-degree sexual assault is a class C felony, see AS 11.41.425(c), so an attempt to 

commit this offense is a class A misdemeanor, see AS 11.31.100(d)(5). Official misconduct 

is likewise a class A misdemeanor, see AS 11.56.850(b). 

– 4 – 2664
 
 

conviction for attempted third-degree sexual assault or a conviction for official 

misconduct. 4  

The district court’s double jeopardy decision is REVERSED, and this case 

is remanded to the district court for amendment of the judgement and re-sentencing. We 

do not retain jurisdiction of this case. 

See Douglas v. State, 215 P.3d 357, 365 (Alaska App. 2009) (“[I]n [Whitton] 

situations where it is not clear which offense the defendant should stand convicted of, Alaska 

case law suggests that the State should be able to choose the offense for which the court 

enters judgement and sentences the defendant.”). 

– 5 – 2664
 

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