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HB 14: "An Act relating to assault in the first degree; relating to sex offenses; relating to the definition of 'dangerous instrument'; and providing for an aggravating factor at sentencing for strangulation that results in unconsciousness."

00                              HOUSE BILL NO. 14                                                                          
01 "An Act relating to assault in the first degree; relating to sex offenses; relating to the                              
02 definition of 'dangerous instrument'; and providing for an aggravating factor at                                        
03 sentencing for strangulation that results in unconsciousness."                                                          
04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
05    * Section 1. AS 11.41.200(a) is amended to read:                                                                   
06            (a)  A person commits the crime of assault in the first degree if                                            
07                 (1)  that person recklessly causes serious physical injury to another by                                
08       means of a dangerous instrument;                                                                                  
09                 (2)  with intent to cause serious physical injury to another, the person                                
10       causes serious physical injury to any person;                                                                     
11                 (3)  the person knowingly engages in conduct that results in serious                                    
12       physical injury to another under circumstances manifesting extreme indifference to the                            
13       value of human life; [OR]                                                                                         
14                 (4)  that person recklessly causes serious physical injury to another by                                
01       repeated assaults using a dangerous instrument, even if each assault individually does                            
02       not cause serious physical injury; or                                                                         
03                 (5)  that person knowingly causes another to become unconscious                                     
04       by means of a dangerous instrument; in this paragraph, "dangerous instrument"                                 
05       has the meaning given in AS 11.81.900(b)(15)(B).                                                              
06    * Sec. 2. AS 11.41.425(a) is amended to read:                                                                    
07            (a)  An offender commits the crime of sexual assault in the third degree if the                              
08       offender                                                                                                          
09                 (1)  engages in sexual contact with a person who the offender knows is                                  
10                      (A)  mentally incapable;                                                                           
11                      (B)  incapacitated; or                                                                             
12                      (C)  unaware that a sexual act is being committed;                                                 
13 (2)  while employed in a state correctional facility or other placement                                                 
14 designated by the commissioner of corrections for the custody and care of prisoners,                                    
15 engages in sexual penetration with a person who the offender knows is committed to                                      
16 the custody of the Department of Corrections to serve a term of imprisonment or                                         
17       period of temporary commitment;                                                                                   
18 (3)  engages in sexual penetration with a person 18 or 19 years of age                                                  
19 who the offender knows is committed to the custody of the Department of Health and                                      
20 Social Services under AS 47.10 or AS 47.12 and the offender is the legal guardian of                                    
21       the person;                                                                                                       
22 (4)  while employed in the state by a law enforcement agency as a                                                       
23 peace officer, or while acting as a peace officer in the state, engages in sexual                                       
24 penetration with a person with reckless disregard that the person is in the custody or                                  
25 the apparent custody of the offender, or is committed to the custody of a law                                           
26       enforcement agency;                                                                                               
27 (5)  while employed by the state or a municipality of the state as a                                                    
28 probation officer or parole officer, or while acting as a probation officer or parole                                   
29 officer in the state, engages in sexual penetration with a person with reckless disregard                               
30       that the person is on probation or parole; [OR]                                                                   
31 (6)  while employed as a juvenile probation officer or as a juvenile                                                    
01       facility staff, engages in sexual penetration with a person 18 or 19 years of age with                            
02       reckless disregard that the person is committed to the custody or probationary                                    
03       supervision of the Department of Health and Social Services; or                                               
04                 (7)  engages in masturbation in the presence of another person and                                  
05       ejaculates on that person without the consent of that person.                                                 
06    * Sec. 3. AS 11.41.438(a) is amended to read:                                                                      
07            (a)  An offender commits the crime of sexual abuse of a minor in the third                                   
08       degree if                                                                                                         
09                 (1)  being 17 years of age or older, the offender engages in sexual                                 
10 contact with a person who is 13, 14, or 15 years of age and at least four years younger                                 
11       than the offender; or                                                                                         
12                 (2)  the offender masturbates in the presence of a person                                           
13 (A)  under 18 years of age and ejaculates on that person,                                                           
14            and the                                                                                                  
15 (i)  offender is the victim's natural parent,                                                                       
16                 stepparent, adoptive parent, or legal guardian;                                                     
17 (ii)  victim at the time of the offense is residing in the                                                          
18 same household as the offender and the offender has authority over                                                  
19                 the victim; or                                                                                      
20 (iii)  offender occupies a position of authority in                                                                 
21                 relation to the victim; or                                                                          
22 (B)  under 16 years of age and ejaculates on that person,                                                           
23            and the victim is at least three years younger than the offender.                                        
24    * Sec. 4. AS 11.81.900(b)(15) is amended to read:                                                                  
25                 (15)  "dangerous instrument" means                                                                      
26 (A)  any deadly weapon or anything that, under the                                                                      
27 circumstances in which it is used, attempted to be used, or threatened to be                                            
28            used, is capable of causing death or serious physical injury; or                                             
29 (B)  hands, other body parts, or other objects when used to                                                         
30 impede normal breathing or circulation of blood by applying pressure on the                                             
31            throat or neck or obstructing the nose or mouth;                                                             
01    * Sec. 5. AS 12.10.010(b) is amended to read:                                                                      
02            (b)  Except as otherwise provided by law or in (a) of this section, a person may                             
03       not be prosecuted, tried, or punished for an offense unless the indictment is found or                            
04       the information or complaint is instituted not later than                                                         
05                 (1)  10 years after the commission of a felony offense in violation of                                  
06       AS 11.41.120 - 11.41.330, 11.41.425(a)(1), 11.41.425(a)(5) - (7) [11.41.425(a)(5),                          
07       11.41.425(a)(6)], or 11.41.450 - 11.41.458; or                                                                    
08                 (2)  five years after the commission of any other offense.                                              
09    * Sec. 6. AS 12.55.155(c) is amended to read:                                                                      
10 (c)  The following factors shall be considered by the sentencing court if proven                                        
11 in accordance with this section, and may allow imposition of a sentence above the                                       
12       presumptive range set out in AS 12.55.125:                                                                        
13 (1)  a person, other than an accomplice, sustained physical injury as a                                                 
14       direct result of the defendant's conduct;                                                                         
15 (2)  the defendant's conduct during the commission of the offense                                                       
16       manifested deliberate cruelty to another person;                                                                  
17 (3)  the defendant was the leader of a group of three or more persons                                                   
18       who participated in the offense;                                                                                  
19 (4)  the defendant employed a dangerous instrument in furtherance of                                                    
20       the offense;                                                                                                      
21 (5)  the defendant knew or reasonably should have known that the                                                        
22 victim of the offense was particularly vulnerable or incapable of resistance due to                                     
23 advanced age, disability, ill health, homelessness, consumption of alcohol or drugs, or                                 
24 extreme youth or was for any other reason substantially incapable of exercising                                         
25       normal physical or mental powers of resistance;                                                                   
26 (6)  the defendant's conduct created a risk of imminent physical injury                                                 
27       to three or more persons, other than accomplices;                                                                 
28 (7)  a prior felony conviction considered for the purpose of invoking a                                                 
29 presumptive range under this chapter was of a more serious class of offense than the                                    
30       present offense;                                                                                                  
31 (8)  the defendant's prior criminal history includes conduct involving                                                  
01 aggravated assaultive behavior, repeated instances of assaultive behavior, repeated                                     
02 instances of cruelty to animals proscribed under AS 11.61.140(a)(1) and (3) - (5), or a                                 
03 combination of assaultive behavior and cruelty to animals proscribed under                                              
04 AS 11.61.140(a)(1) and (3) - (5); in this paragraph, "aggravated assaultive behavior"                                   
05 means assault that is a felony under AS 11.41, or a similar provision in another                                        
06       jurisdiction;                                                                                                     
07                 (9)  the defendant knew that the offense involved more than one victim;                                 
08                 (10)  the conduct constituting the offense was among the most serious                                   
09       conduct included in the definition of the offense;                                                                
10 (11)  the defendant committed the offense under an agreement that the                                                   
11 defendant either pay or be paid for the commission of the offense, and the pecuniary                                    
12       incentive was beyond that inherent in the offense itself;                                                         
13 (12)  the defendant was on release under AS 12.30 for another felony                                                    
14 charge or conviction or for a misdemeanor charge or conviction having assault as a                                      
15       necessary element;                                                                                                
16 (13)  the defendant knowingly directed the conduct constituting the                                                     
17 offense at an active officer of the court or at an active or former judicial officer,                                   
18 prosecuting attorney, law enforcement officer, correctional employee, firefighter,                                      
19 emergency medical technician, paramedic, ambulance attendant, or other emergency                                        
20       responder during or because of the exercise of official duties;                                                 
21 (14)  the defendant was a member of an organized group of five or                                                       
22 more persons, and the offense was committed to further the criminal objectives of the                                   
23       group;                                                                                                            
24                 (15)  the defendant has three or more prior felony convictions;                                         
25 (16)  the defendant's criminal conduct was designed to obtain                                                           
26 substantial pecuniary gain and the risk of prosecution and punishment for the conduct                                   
27       is slight;                                                                                                        
28 (17)  the offense was one of a continuing series of criminal offenses                                                   
29 committed in furtherance of illegal business activities from which the defendant                                        
30       derives a major portion of the defendant's income;                                                                
31                 (18)  the offense was a felony                                                                          
01 (A)  specified in AS 11.41 and was committed against a spouse,                                                          
02 a former spouse, or a member of the social unit made up of those living                                                 
03            together in the same dwelling as the defendant;                                                              
04 (B)  specified in AS 11.41.410 - 11.41.458 and the defendant                                                            
05 has engaged in the same or other conduct prohibited by a provision of                                                   
06            AS 11.41.410 - 11.41.460 involving the same or another victim;                                               
07 (C)  specified in AS 11.41 that is a crime involving domestic                                                           
08 violence and was committed in the physical presence or hearing of a child                                               
09 under 16 years of age who was, at the time of the offense, living within the                                            
10 residence of the victim, the residence of the perpetrator, or the residence where                                       
11            the crime involving domestic violence occurred;                                                              
12 (D)  specified in AS 11.41 and was committed against a person                                                           
13 with whom the defendant has a dating relationship or with whom the defendant                                            
14            has engaged in a sexual relationship; or                                                                     
15 (E)  specified in AS 11.41.434 - 11.41.458 or AS 11.61.128 and                                                          
16            the defendant was 10 or more years older than the victim;                                                    
17 (19)  the defendant's prior criminal history includes an adjudication as a                                              
18       delinquent for conduct that would have been a felony if committed by an adult;                                    
19 (20)  the defendant was on furlough under AS 33.30 or on parole or                                                      
20 probation for another felony charge or conviction that would be considered a prior                                      
21       felony conviction under AS 12.55.145(a)(1)(B);                                                                    
22 (21)  the defendant has a criminal history of repeated instances of                                                     
23 conduct violative of criminal laws, whether punishable as felonies or misdemeanors,                                     
24 similar in nature to the offense for which the defendant is being sentenced under this                                  
25       section;                                                                                                          
26 (22)  the defendant knowingly directed the conduct constituting the                                                     
27 offense at a victim because of that person's race, sex, color, creed, physical or mental                                
28       disability, ancestry, or national origin;                                                                         
29 (23)  the defendant is convicted of an offense specified in AS 11.71 and                                                
30 (A)  the offense involved the delivery of a controlled substance                                                        
31 under circumstances manifesting an intent to distribute the substance as part of                                        
01            a commercial enterprise; or                                                                                  
02                      (B)  at the time of the conduct resulting in the conviction, the                                   
03            defendant was caring for or assisting in the care of a child under 10 years of                               
04            age;                                                                                                         
05                 (24)  the defendant is convicted of an offense specified in AS 11.71 and                                
06       the offense involved the transportation of controlled substances into the state;                                  
07                 (25)  the defendant is convicted of an offense specified in AS 11.71 and                                
08       the offense involved large quantities of a controlled substance;                                                  
09                 (26)  the defendant is convicted of an offense specified in AS 11.71 and                                
10 the offense involved the distribution of a controlled substance that had been                                           
11       adulterated with a toxic substance;                                                                               
12                 (27)  the defendant, being 18 years of age or older,                                                    
13 (A)  is legally accountable under AS 11.16.110(2) for the                                                               
14 conduct of a person who, at the time the offense was committed, was under 18                                            
15            years of age and at least three years younger than the defendant; or                                         
16 (B)  is aided or abetted in planning or committing the offense by                                                       
17 a person who, at the time the offense was committed, was under 18 years of                                              
18            age and at least three years younger than the defendant;                                                     
19 (28)  the victim of the offense is a person who provided testimony or                                                   
20       evidence related to a prior offense committed by the defendant;                                                   
21 (29)  the defendant committed the offense for the benefit of, at the                                                    
22       direction of, or in association with a criminal street gang;                                                      
23 (30)  the defendant is convicted of an offense specified in AS 11.41.410                                                
24 - 11.41.455, and the defendant knowingly supplied alcohol or a controlled substance to                                  
25 the victim in furtherance of the offense with the intent to make the victim                                             
26 incapacitated; in this paragraph, "incapacitated" has the meaning given in                                              
27       AS 11.41.470;                                                                                                     
28 (31)  the defendant's prior criminal history includes convictions for five                                              
29 or more crimes in this or another jurisdiction that are class A misdemeanors under the                                  
30 law of this state, or having elements similar to a class A misdemeanor; two or more                                     
31 convictions arising out of a single continuous episode are considered a single                                          
01 conviction; however, an offense is not a part of a continuous episode if committed                                      
02 while attempting to escape or resist arrest or if it is an assault on a uniformed or                                    
03 otherwise clearly identified peace officer or correctional employee; notice and denial                                  
04       of convictions are governed by AS 12.55.145(b) - (d);                                                             
05 (32)  the offense is a violation of AS 11.41 or AS 11.46.400 and the                                                    
06 offense occurred on school grounds, on a school bus, at a school-sponsored event, or                                    
07 in the administrative offices of a school district if students are educated at that office;                             
08       in this paragraph,                                                                                                
09                      (A)  "school bus" has the meaning given in AS 11.71.900;                                           
10                      (B)  "school district" has the meaning given in AS 47.07.063;                                      
11                      (C)  "school grounds" has the meaning given in AS 11.71.900;                                       
12 (33)  the offense was a felony specified in AS 11.41.410 - 11.41.455,                                                   
13 the defendant had been previously diagnosed as having or having tested positive for                                     
14 HIV or AIDS, and the offense either (A) involved penetration, or (B) exposed the                                        
15 victim to a risk or a fear that the offense could result in the transmission of HIV or                                  
16 AIDS; in this paragraph, "HIV" and "AIDS" have the meanings given in                                                    
17       AS 18.15.310;                                                                                                     
18 (34)  the defendant committed the offense on, or to affect persons or                                                   
19 property on, the premises of a recognized shelter or facility providing services to                                     
20       victims of domestic violence or sexual assault;                                                                   
21 (35)  the defendant knowingly directed the conduct constituting the                                                     
22       offense at a victim because that person was 65 years of age or older;                                             
23 (36)  the defendant committed the offense at a health care facility and                                                 
24 knowingly directed the conduct constituting the offense at a medical professional                                       
25 during or because of the medical professional's exercise of professional duties; in this                                
26       paragraph,                                                                                                        
27 (A)  "health care facility" has the meaning given in                                                                    
28            AS 18.07.111;                                                                                                
29 (B)  "medical professional" has the meaning given in                                                                    
30            AS 12.55.135(k);                                                                                         
31 (37)  the defendant knowingly caused the victim to become                                                           
01       unconscious by means of a dangerous instrument; in this paragraph, "dangerous                                 
02       instrument" has the meaning given in AS 11.81.900(b)(15)(B).                                                  
03    * Sec. 7. The uncodified law of the State of Alaska is amended by adding a new section to                          
04 read:                                                                                                                   
05 APPLICABILITY. AS 11.41.200(a), as amended by sec. 1 of this Act,                                                       
06 AS 11.41.425(a), as amended by sec. 2 of this Act, AS 11.41.438(a), as amended by sec. 3 of                             
07 this Act, AS 11.81.900(b)(15), as amended by sec. 4 of this Act, AS 12.10.010(b), as                                    
08 amended by sec. 5 of this Act, and AS 12.55.155(c), as amended by sec. 6 of this Act, apply                             
09 to offenses committed on or after the effective date of this Act.