State of Alaska v. Jherome Ladera

FOR PUBLICATION
In the Court of Appeals of the State of Alaska
T
Before: 	Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Jherome Ladera was prosecuted for first-degree sexual assault under
former AS 11.41.410(a)(1) and former AS 11.41.470(8)(B) based on the prosecution’s
theory that he sexually penetrated a fifteen-year-old girl, J.M., who was incapacitated
at a party and who had allegedly become incapacitated “as a result of an act of the
defendant.” 1 The prosecution’s theory was that Ladera (who was also underage) was
legally responsible for J.M.’s incapacitation because he had poured her (and others)
alcoholic drinks at the party.
In his initial motion for judgment of acquittal at trial, Ladera argued that
Alaska law required “something more” than just pouring drinks for a person in order to
support a finding that the defendant caused another person’s incapacitation for purposes
of former AS 11.41.470(8)(B). According to Ladera, the legislative history of this
statute showed that the legislature had intended for “incapacitation as a result of an act
of the defendant” to apply to circumstances involving “trickery” such as surreptitious
State of Alaska,
Petitioner,
v.
Jherome Ladera,
Respondent.
rial Court Case No. 3KO-19-00107CR
Court of Appeals No. A-14426
Order
Petition for Review
Date of Order: August 9, 2024
1 	See former AS 11.41.410(a)(1) (2017) (“An offender commits the crime of sexual
assault in the first degree if . . . the offender engages in sexual penetration with another
person without consent of that person[.]”); former AS 11.41.470(8)(B) (2017) (providing
that “‘without consent’ means that a person . . . is incapacitated as a result of an act of the
defendant”).

State v. Ladera – 8/9/2024
File No. A-14426 – pg. 2
or involuntary drugging.2 Ladera also pointed to an unpublished memorandum opinion
by this Court, State v. Armstrong, which rejected the State’s theory that a defendant’s
act of simply furnishing alcohol to a person was sufficient to make that person’s
incapacitation 	the 	“result 	of 	an 	act 	of 	the 	defendant” 	for 	purposes 	of 	former
AS 11.41.470(8)(B).3
The superior court initially dismissed Ladera’s arguments as without
merit. However, Ladera renewed his arguments in a second motion for judgment of
acquittal and a motion for a new trial after the jury convicted him of two counts of first-
degree sexual assault under former AS 11.41.410(a)(1) and former AS 11.41.470(8)(B).
In these motions, Ladera pointed to the legislative commentary and specific legislative
hearings, arguing that the legislature enacted former AS 11.41.470(8)(B) to criminalize
cases which involved involuntary drugging, like slipping another person “a Mickey.”4
At that point, the superior court granted the motion for a new trial, agreeing that the
legislative history and case law showed that the simple act of furnishing alcohol to a
person was insufficient, as a matter of law, to establish criminal liability for first-degree
sexual assault under former AS 11.41.410(a)(1) and former AS 11.41.470(8)(B), and
2 	See, e.g., Commentary to Alaska’s Revised Criminal Code, 1978 Senate Journal
Supp. No. 447 (June 12), at 23; Alaska Criminal Code Revision, Tentative Draft, Part I
(1977), at 80.
3 	State v. Armstrong, 2002 WL 31185806, at *4 (Alaska App. Oct. 2, 2002)
(unpublished), overruled on other grounds by Michael v. State, 115 P.3d 517 (Alaska 2005)
(“Based on the legislative commentary, we conclude that a victim does not become
‘incapacitated as a result of an act of the defendant’ merely because the defendant furnishes
alcoholic beverages to the victim.”).
4 	See, 	e.g., 	Minutes 	of 	House 	Judiciary 	Committee, 	H.B. 	661, 	statement 	of
Representative Fred Brown, Tape 1722 HJUD 78, at 1:22:33 (Mar. 20, 1978); Commentary
to Alaska’s Revised Criminal Code, 1978 Senate Journal Supp. No. 447 (June 12), at 23;
Alaska Criminal Code Revision, Tentative Draft, Part I (1977), at 80.

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File No. A-14426 – pg. 3
that, accordingly, the jury had been misinstructed on the meaning of “as a result of an
act of the defendant.”
The State now petitions for review of the trial court’s ruling, arguing that
the superior court erred when it granted Ladera’s motion for a new trial.
We have reviewed the trial record in this case, along with the statute and
accompanying legislative history, and we disagree with the State’s contention. As the
committee 	discussions 	demonstrate, 	the 	legislature 	envisioned 	former
AS 11.41.470(8)(B) as applying to circumstances such as where the defendant “slipped
[the victim] a Mickey and caused [their] incapacitation.”5 The commentary to the
Tentative Draft to Alaska’s Revised Criminal Code likewise refers to “slipping a
narcotic in a drink” when describing the alternative “without consent” definition. As
the Tentative Draft states:
[T]he definition also provides that sexual penetration or
contact is “without consent” if it is committed upon a victim
who 	was 	incapacitated 	by 	an 	act 	committed 	by 	the
defendant, i.e., slipping a narcotic in a drink.” [6]
The official legislative commentary includes a similar description. As the Senate
Journal states:
Additionally, sexual penetration will be “without consent”
when the victim is incapacitated . . . as a result of an act of
the defendant (i.e., knock-out drug placed in drink).[7]
5 	Minutes of House Judiciary Committee, H.B. 661, statement of Representative Fred
Brown, Tape 1722 HJUD 78, at 1:22:33 (Mar. 20, 1978); see also Minutes of House
Judiciary Committee, H.B. 661, statement of Barry Stern, Staff Counsel of the Criminal
Law Revision Subcommission, Tape 17-HJUD 780301-780304, at 1:24:28 (Mar. 2, 1978)
(providing the example of giving someone a “Mickey”).
6 	Alaska Criminal Code Revision, Tentative Draft, Part I (1977), at 80.
7 	Commentary to Alaska’s Revised Criminal Code, 1978 Senate Journal Supp.
No. 447 (June 12), at 23.

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File No. A-14426 – pg. 4
The legislative history also makes clear that the legislature intended to
distinguish between the serious crime of second-degree sexual assault8 — where a
defendant sexually penetrates a person who is incapacitated, thereby taking advantage
of their incapacitation — and the even more serious crime of first-degree sexual assault
— where the defendant sexually penetrates a person that they are responsible for having
made incapacitated.9
The State’s theory that Ladera (who was a minor) is legally responsible
for J.M.’s incapacitation under former AS 11.41.470(8)(B) simply by furnishing
alcohol to her at a party is inconsistent with this legislative history and the underlying
structure of these crimes.10 As this Court observed in State v. Armstrong,
We take judicial notice that, in our society, mutual
consumption of alcoholic beverages is commonly a prelude
(or 	an 	anticipated 	prelude) 	to 	sexual 	relations. 	The
legislature has justifiably declared that it is a felony—
second-degree sexual assault — for one party to take sexual
advantage when, because of this drinking, the other party
becomes incapacitated. But under the State’s construction of
the statute, all of these situations would be first-degree
sexual 	assault. 	They 	would 	be 	deemed 	equivalent 	in
8 	When the Legislature was revising the Alaska Criminal Code in 1978, this conduct
was labeled as third-degree sexual assault. In 2017, when the conduct against J.M. took
place, this conduct would fall under second-degree sexual assault. Compare former
AS 11.41.420 (1978) & AS 11.41.430 (1978) with former AS 11.41.420(a)(3)(B) (2017).
9 	See Minutes of House Judiciary Committee, H.B. 661, Tape 09-HJUD-780215, at
2:16:08 (Feb. 15, 1978); Minutes of House Judiciary Committee, House Bill 661, statement
of Barry Stern, Staff Counsel of the Criminal Law Revision Subcommission, Tape 17-
HJUD 780301-780304, at 1:22:53 (Mar. 2, 1978) (stating that an assault against “a girl
who was completely passed out” would qualify then as a third-degree sexual assault).
10 	See State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska 2019)
(“When ‘interpreting a statute, we consider its language, its purpose, and its legislative
history, in an attempt to give effect to the legislature’s intent, with due regard for the
meaning the statutory language conveys to others.’” (quotations omitted)).

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File No. A-14426 – pg. 5
blameworthiness to violent rape, and they would carry the
same penalty as violent rape. Under the State’s construction,
second-degree sexual assault would be restricted to instances
where there had been no interaction between the defendant
and the victim before the victim became incapacitated.
We do not believe that the legislature envisioned or
intended this expansive definition of first-degree sexual
assault and the correspondingly narrow definition of second-
degree sexual assault. Based on the legislative commentary,
we conclude that a victim does not become “incapacitated as
a result of an act of the defendant” merely because the
defendant furnishes alcoholic beverages to the victim. [11]
We note that Armstrong involved an adult man who took his daughter’s
thirteen-year-old friend shopping and then took her to his house and plied her with
alcohol to the point of incapacitation before sexually assaulting her.12 Although the
decision refers to “unwitting intoxication,” the decision also suggests that deception or
trickery 	are 	not 	necessarily 	required 	to 	establish 	criminal 	liability 	under
AS 11.41.470(8)(B).13 This suggestion is arguably in tension with the legislature’s use
of “i.e.” rather than “e.g.” in the official commentary.14
However, we need not resolve this apparent tension because it is enough,
for purposes of this petition, to reaffirm our holding in Armstrong that “a victim does
not become ‘incapacitated as a result of an act of the defendant’ merely because the
11 	State v. Armstrong, 2002 WL 31185806, at *3-4 (Alaska App. Oct. 2, 2002),
overruled on other grounds by Michael v. State, 115 P.3d 517 (Alaska 2005).
12 	Id. at 1.
13 	Id. at 2.
14 	See Commentary to Alaska’s Revised Criminal Code, 1978 Senate Journal Supp.
No. 447 (June 12), at 23; Alaska Criminal Code Revision, Tentative Draft, Part I (1977),
at 80.

State v. Ladera – 8/9/2024
File No. A-14426 – pg. 6
defendant furnishes alcoholic beverages to the victim.” 15 It was therefore error to allow
the jury to convict Ladera of first-degree sexual assault without clarifying this point of
law.
Accordingly, we GRANT the State’s petition and AFFIRM the superior
court’s granting of a new trial.
Entered at the direction of the Court.
cc: 	Trial Court Clerk
Publishers
Distribution:
Clerk of the Appellate Courts
________________________________
Meredith Montgomery
Black, Ann B.
Jura, Emily L.
15 	Armstrong, 2002 WL 31185806, at *4.