Constantine Quisto Akelkok v. State of Alaska

NOTICE

Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy

v. State, 80 P.3d 757, 764 (Alaska App. 2002).

IN THE COURT OF APPEALS OF THE STATE OF ALASKA

CONSTANTINE QUISTO AKELKOK,

Appellant,

v.

STATE OF ALASKA,

Appellee.

Court of Appeals No. A-14060 Trial Court No. 3DI-19-00359 CR

MEMORANDUM OPINION

No. 7198 — June 3, 2026 Appeal from the Superior Court, Third Judicial District, Dillingham, Christina L. Reigh, Judge.

Appearances: George W.P. Madeira Jr., Assistant Public Defender, and Terrence Haas, Public Defender, Anchorage, for the Appellant. Madeline M. Magnuson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Harbison and Terrell, Judges. Judge TERRELL.

Constantine Quisto Akelkok was convicted, following a jury trial, of second-degree sexual assault for sexually penetrating K.F. while she was incapacitated

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by alcohol.¹Akelkok was also convicted at the same jury trial of second-degree sexual abuse of a minor for sexual contact with K.F.'s six-year-old daughter, K.J., that occurred on the same night.²

The superior court issued a pretrial protective order prohibiting Akelkok from arguing that K.F.'s consent to sex before she became incapacitated was a defense to his sexual assault of K.F. Akelkok later sought to introduce a number of statements that K.F. had made to a police officer immediately after the assault suggesting either that K.F. had consented to sex with Akelkok or that she would have been willing to consent. Pursuant to the protective order, the court excluded many of these statements. Akelkok now argues that these rulings were erroneous and that they violated his constitutional rights to present a defense and to confront the witnesses against him. For the reasons explained in this opinion, we agree that the court erred in excluding K.F.'s statements of consent and that this impaired Akelkok's constitutional right to present a defense. We nevertheless find the error harmless beyond a reasonable doubt given the overwhelming evidence at trial that K.F. was incapacitated and incapable of giving consent and that Akelkok acted in reckless disregard of that fact. Akelkok next argues that AS 11.41.420(a)(3), the statute criminalizing sexual penetration with a person who is incapacitated or unaware that sexual conduct is occurring, is unconstitutional as applied to him. We conclude that this claim is without merit and we uphold AS 11.41.420(a)(3) as applied to a defendant who sexually penetrates an incapacitated or unaware victim even if the victim gave prior consent to sex before she became incapacitated.

We then address Akelkok's three remaining claims — that his charges were improperly joined and the court erred in denying his motion for severance; that

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the court erred in failing to address his mid-trial request for counsel; and that his written judgment of conviction misstates his sentence. We reject these claims, with the exception of his challenge to the sentence stated on his written judgment; we agree that this judgment misstates the court's oral imposition of sentence.

We therefore affirm the judgment of the superior court, but we remand this case for correction of Akelkok's sentence.

Background facts and prior proceedings

K.F. lived with her two children (her eleven-year-old son and her six-year- old daughter, K.J.) and a roommate, T.K., in Dillingham. In the summer of 2019, K.F. became friends with Akelkok through Alcoholics Anonymous (A.A.). K.F. had struggled with alcoholism for several years. She described her relationship with Akelkok as "sober friends supporting sober friends," and she admired the way he spoke up in A.A. meetings.

On July 19, K.F. was having a particularly hard day; she testified that she felt like she could not stay sober and needed a safe place to go. She went to a support group meeting with her daughter K.J. and Akelkok. But after the meeting, she did not feel any better and "gave in to [her] temptation." She went with Akelkok back to her home, where they began drinking whiskey with K.F.'s roommate, T.K. K.F. took several shots straight from the whiskey bottle and then blacked out; she stated at trial that the last time she remembered looking at the clock it was 9:10 p.m. K.F.'s son was not present that evening, and at some point T.K. left the house, leaving K.F., K.J., and Akelkok alone in the house.

One of K.F.'s close friends, Gregory Wood, got off work at around 11:00 p.m. that night and saw that he had three missed calls from K.F. Wood tried to call her back but received no answer. He was concerned and immediately drove to K.F.'s residence. When he got there, the door to K.F.'s house was open, and Akelkok was walking out of the house. Wood went inside, where it "reeked like alcohol" and

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there "was alcohol on the floor." In the living room, Wood found K.F. and K.J. lying together. K.F. was "completely unconscious." Wood and K.J. spent ten minutes trying to wake up K.F. by calling her name and shaking her, but they were unsuccessful. Akelkok then came back inside and tried to climb on top of K.F. According to Wood's testimony, Akelkok tried to "force himself" on K.F. and kiss her while she was sleeping. K.J. tried to pull Akelkok off of K.F., and Wood told him to stay off of her, but Akelkok would not listen.

K.J. told Wood that she did not feel safe in the house. Wood left with K.J. and dropped her off at her aunt's house. Wood then called the Dillingham police and reported that Akelkok had attempted to force himself on K.F. Two Dillingham police officers, Officer Susan Newman and Sergeant Rodney Etheridge, responded to K.F.'s residence. The officers exited their car, walked through the open door of K.F.'s house, and announced themselves as the Dillingham Police Department. They called out "Hello? Hello?" and called for K.F. by name. Sergeant Etheridge asked, "[K.F.], are you awake?" and Akelkok responded, "No, it's me. Who's that?" K.F. did not respond when officers called her name. When Officer Newman entered the living room, she observed Akelkok having sexual intercourse with K.F., who was lying unconscious on the couch. (This incident was the basis for the second-degree sexual assault charge against Akelkok.) During the ensuing exchange with the officers, Akelkok stated, "This is my girlfriend." Sergeant Etheridge said, "She looks like she's passed out," and Akelkok responded, "I know. That's why I'm watching her." Sergeant Etheridge took Akelkok outside and Officer Newman stayed inside with K.F. K.F. responded "Hm?" when Officer Newman addressed her, and when Officer Newman said, "Sit up and talk to me," K.F. eventually sat up and began responding to Officer Newman's questions. K.F. described Akelkok as "Just a friend, a homeboy," and when Officer Newman asked,

"You're really drunk right now?" she responded, "Uhh, kinda."

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Officer Newman then stayed with K.F. and interviewed her for about forty minutes. Officer Newman asked multiple questions about what had happened with Akelkok. K.F. asserted at various points during the interview that she had not been sexually assaulted, that she did not have sex with Akelkok, that nothing bad had happened, and that Akelkok had not touched her or her daughter. At other points, she admitted that she and Akelkok had had sexual contact but stated it was consensual. For example, K.F. stated to Officer Newman: "We were naked together. It's no big deal. It's like, not he came onto me completely naked and I went onto him. It was a mutual agreement." She also stated, "I was about to get fucked up, and he was going to get fucked up with me. Because he likes me and I like him. And you know what? Big bitches need loving too." At another point, she told Officer Newman,

"There's never been a point where I didn't feel comfortable or feel right."

Officer Newman offered to take K.F. to the hospital for a Sexual Assault Response Team (SART) exam, but K.F. declined and climbed into her loft bed to go to sleep. Akelkok was arrested and taken to the police station. He was later released that same night and returned to K.F.'s house. T.K. had returned by that point, and T.K. testified at grand jury that Akelkok pushed her against a wall, reached into her pants, and inserted a finger in her vagina.

When K.F. woke up the next morning, Akelkok was in bed with her. She had no memory of what had happened after she cooked dinner the previous evening, but her body hurt, and it was painful when she urinated. She did not remember the police coming to her house or speaking with the police. That evening she went to the hospital for a SART examination, which revealed the presence of semen in her vaginal and cervical samples, but there was not enough semen to develop a DNA profile. K.J. was interviewed at the Child Advocacy Center (CAC). During this interview, K.J. informed her interviewer that after dinner, when T.K. had left, K.J. was lying in bed with both her mother and Akelkok. K.J. remembered that Akelkok first put his hand on K.F.'s "private property." (When reviewing the names of body parts during

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her CAC interview, K.J. identified "private property" as male and female genitalia.) K.J. told Akelkok to go away, but he did not. She said that instead Akelkok responded by slapping and kicking her all over her body, including her temple. Akelkok then reached his hand under K.J.'s pajama pants and underwear, and inside her body. When Akelkok asked her to touch his penis, K.J. refused, and Akelkok then turned his attention to the unconscious K.F.

Akelkok was charged with second-degree sexual assault of an incapacitated or unaware person for his conduct against K.F., second-degree sexual abuse of a minor for his conduct against K.J., and first-degree sexual assault of T.K.³A grand jury indicted him on all charges.

Akelkok waived his right to counsel and chose to represent himself at trial. The State filed a motion in limine to prohibit Akelkok from arguing that consent was a defense to his sexual assault of K.F., because consent is not legally a defense to sexually penetrating an incapacitated or unaware person. The State argued that "consent or lack of consent is not at issue" and that the statements K.F. made at the scene to Officer Newman were "irrelevant" because they "[did] not have any tendency to prove or disprove any element of the crime or fact at issue."

The court took up this motion at a pretrial hearing. The court noted that the statements K.F. made to the officer could be probative of her level of incapacitation, and remarked to the prosecutor, "But the responses of K.F. to the police, that evening

. . . isn't it also just going to her level of intoxication[?] . . . It doesn't necessarily need to mean that whether she consented or not. I agree. There's no relevance in whether she consented or not. But some of her responses, wouldn't those go directly to just how incapacitated she was?"

The prosecutor responded that whether K.F. was slurring or inarticulate might be probative of whether she was incapacitated but the content of her statements

AS 11.41.420(a)(3), AS 11.41.436(a)(2), and AS 11.41.410(a)(1), respectively.

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would not be, and that evidence of her consent would be unfairly prejudicial and confuse the jury. Akelkok, who was representing himself, did not offer a coherent response to this argument; he did not contend that the content of K.F.'s statements to Officer Newman, like her consent to have sex with him, could have been probative of her level of incapacitation or of his awareness of that incapacitation. Instead, Akelkok appeared to argue a theory of continuing consent — that because K.F. had consented before she became incapacitated, "that consent, at the beginning, that consent carries through the completion."

The court ruled in favor of the State and issued a protective order prohibiting Akelkok from arguing that K.F. had consented to sex with him. The court reasoned that prior consent was not a defense to the charge of sexual assault of an incapacitated person in this case and evidence that K.F. could "coax" the jury into relying on a legal defense that "just doesn't exist, isn't authorized." The court noted, however, that K.F.'s statements to Officer Newman were potentially probative of her level of intoxication, and the court stated, "K.F.'s responses to the officers, they are relevant. . . . It's assessing her — whether she was actually incapacitated or not." The court said that as the evidence came in, the parties would have to navigate a "really fine line" when asking questions about K.F.'s statements that were relevant to her level of incapacitation because the court would have to exclude "irrelevant and confusing"

evidence of consent as a legal defense to the charge.

The court followed this oral ruling with a written protective order stating that Akelkok "shall not pursue a defense of consent" to his charge of second-degree sexual assault against K.F. The order clarified: "Questions regarding K.F.'s statements to officers are limited to testimony that addresses incapacitation. Any questions or arguments regarding whether K.F. consented to the sexual encounter are prohibited."

The court dismissed the first-degree sexual assault charge regarding T.K. because T.K. failed to appear for trial.

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Before opening statements, the court reminded Akelkok about the protective order prohibiting him from arguing that K.F. consented:

The Court: Any questions or arguments regarding whether K.F. consented to the sexual encounter are prohibited. And that can be a little — there's — I think we talked about that before. There's kind of a fine line there. The issue here is whether or not she was incapacitated. The issue here is not whether or not she consented. So whether she consented before, whether she consented after, that's not an issue, and that if there's an objection to that kind of questioning or that kind of argument, the court will sustain that and you will be directed not to address that because it's potentially confusing to the jury when the issue is incapacitation. Does that make sense?

Akelkok: Yes.

Akelkok's theories of defense at trial were at times confusing and self- contradictory. However, it is clear that one of his theories of defense was that K.F. was not incapacitated or unaware because, although a person blacks out from alcohol and has no memories of what happened, they may still be conscious and appear coherent to others. In his opening statement, Akelkok stated that the evidence would show that K.F. was awake and that when people are blacked out they can still be "functioning, they're still talking, talking coherent." Akelkok began to tell the jury that K.F. initiated sexual activity with him, and the State objected; the court sustained the objection. The State called several witnesses, including Officer Newman, Gregory Wood, and K.F. The State played K.J.'s CAC interview for the jury and called K.J. as a witness. By the time of trial, K.F. had no memories of what had occurred the night of the assault after blacking out from alcohol consumption sometime after 9:00 p.m. She had no memories of the police arriving or of speaking to the police. Before cross-examination of K.F., Akelkok offered thirteen clips from Officer Newman's body camera footage containing K.F.'s statements that she had not been raped, that nothing bad had happened, that lying naked together was a "mutual

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agreement," and that "big bitches need loving too," among other similar statements. The court addressed the admissibility of each clip in turn and either excluded, admitted, or partially admitted portions of each clip on various evidentiary grounds (including hearsay, the rape shield law, and Alaska Evidence Rule 403). Pursuant to the protective order, the court excluded many of K.F.'s statements that she had consented to sex with Akelkok as more prejudicial than probative. While cross-examining K.F., Akelkok played the portions of Officer Newman's body camera footage that the court had admitted.

Akelkok's arguments in closing were somewhat scattered; the court sustained numerous objections when Akelkok began testifying to facts not in evidence, citing to constitutional rights, and explicitly inviting jury nullification. But Akelkok did repeat his defense theory that K.F. had not been incapacitated; he stated, "As this jury heard, [K.F.] was aware and responding to questions by Ms. Newman and Mr. Etheridge for thirty-five to forty-five minutes." He later stated, "[K.F.] was aware, naked, next to me."

The jury returned guilty verdicts on both counts: second-degree sexual assault of K.F. and second-degree sexual abuse of K.J., a minor. At sentencing, the court orally imposed a sentence of 34.5 years to serve.

Akelkok appeals his convictions. Akelkok also argues that the written judgment should be amended to reflect the sentence that was orally imposed. Akelkok's claim that the superior court erred in excluding evidence of K.F.'s consent and that this violated his constitutional rights to present a defense and to confront adverse witnesses

Akelkok was charged and convicted of second-degree sexual assault under AS 11.41.420(a)(3), i.e., sexually penetrating a person who is incapacitated or unaware that a sexual act is taking place. There are three essential elements to this crime that the State was required to prove beyond a reasonable doubt: (1) that Akelkok

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knowingly sexually penetrated K.F., (2) that K.F. was incapacitated or unaware that a sexual act was being committed, and (3) that Akelkok recklessly disregarded the risk that K.F. was incapacitated or unaware.⁴

This case requires us to explore the possible ways that a defendant might seek to use evidence that a victim consented to sexual penetration with the defendant before the victim became incapacitated or unaware in defending against a prosecution for sexual assault under AS 11.41.420(a)(3). While some of these possible uses of prior consent evidence may be irrelevant or impermissible, others are potentially highly probative to a legitimate defense against sexual assault under AS 11.41.420(a)(3). First, evidence that a victim consented to sex before they became incapacitated might be used to argue that a defendant is not guilty of sexual assault because that prior consent somehow persists even after the victim has become incapacitated or unaware. As we explain further below, there is no legal basis to this contention; consent evidence may not be put to this purpose in a trial for sexual assault under AS 11.41.420(a)(3) because, if after consenting the victim became incapacitated or unaware and the defendant recklessly disregarded that fact, a victim's prior consent is not a defense.

But evidence that a victim consented to sex may be used for the permissible purpose of negating an essential element of the crime. For example, evidence that a victim consented to sex can be used to show that the victim was not incapacitated because they were conscious and communicating consent to the defendant. Evidence of a victim's consent that is used for this purpose is therefore probative of an essential element of the crime (that the victim was incapacitated or

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unaware during sexual penetration) and could be used by the defendant to argue that the State had not proven this element beyond a reasonable doubt. Likewise, evidence that a victim consented to sex could be probative of another essential element of the crime: that the defendant recklessly disregarded that the victim was incapacitated or unaware. If at some point before and/or during the sexual penetration the victim was actively communicating consent to the defendant, even if the victim later became incapacitated or unaware during sexual penetration (like passing out from alcohol consumption), a defendant may not have the requisite mental state of reckless disregard if they reasonably believed the victim to be conscious and aware. Evidence of a victim's consent that is used for this purpose — that is, negating the essential element of the crime of the defendant's culpable mental state — is generally relevant and probative, and often crucial to a defense. We acknowledge that a jury may confuse consent evidence that is put to the proper purposes of disproving an essential element of the offense of sexual assault under AS 11.41.420(a)(3) (that is, uses number two and three above; permissible) as an implicit argument that prior consent is a legal defense to the crime (use number one above; impermissible). But this risk of possible confusion can be remedied by clearly instructing the jury that prior consent is not a defense. And the risk of jury confusion pales in comparison to the potential harm caused to a defendant by wholesale exclusion of any evidence that a victim consented to sexual contact. A ruling to this effect could hobble a defendant in arguing to the jury that the State failed to prove beyond a reasonable doubt that a victim was incapacitated or that the defendant recklessly disregarded the risk that a victim was incapacitated or unaware. It is important to keep these different uses of consent evidence in mind in assessing Akelkok's claims for relief.

As explained above, the State filed a motion in limine requesting that Akelkok be prohibited from arguing that consent was a defense to his charge of sexual assault. In assessing the motion at a pretrial hearing, the court acknowledged that

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evidence of K.F.'s consent could be put to the improper purpose of arguing to the jury that prior consent was a legal defense to the crime, but the court also recognized that it could be used for the proper purpose of showing whether or not K.F. was, in fact, incapacitated; in other words, this evidence could be used to negate an essential element of the crime. In granting the pretrial motion, the court predicted that navigating the permissible and impermissible uses of evidence of K.F.'s consent would be a "fine line"

for the parties to navigate as the case unfolded.

During trial, Akelkok was prevented from arguing to the jury that K.F. had consented to sex with him at several points. For example, in opening statements, as he began to tell the jury that K.F. had "initiated sexual contact," the State objected and the court sustained the objection, striking the statement.

But most important to Akelkok's defense case were the statements that K.F. made to Officer Newman and which were captured on Newman's body camera footage. Akelkok offered thirteen clips from this footage containing K.F.'s statements that Akelkok had not raped her, that nothing bad had happened, and that their sexual contact had been consensual. Among the statements that the court excluded because they contained evidence that K.F. had consented were: (1) "He has never put the moves on me or done nothing to me. He didn't assault me. He's just a friend."; (2) "It's no big deal. It's like, not he came onto me completely naked and I went onto him. It was a mutual agreement."; (3) "Because he likes me and I like him. And you know what? Big bitches need loving too."; (4) "If I was uncomfortable with [Akelkok] or I didn't want him here, I would have called you guys. And there's never been a point where I didn't feel comfortable or feel right." And, although Akelkok did not seek to introduce this statement, we note that K.F. also told Officer Newman, "Like I remember the beginning of it and I wanted it and towards the end I may have blacked out but I still wanted it."

These statements, although they contain evidence that K.F. consented to sex with Akelkok, also contain evidence that K.F. was awake and aware before and at the beginning of sexual contact with Akelkok. Her statement that she remembered the

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beginning of sex but may have blacked out towards the end was particularly probative of whether she was incapacitated at the start of sexual penetration with Akelkok, and therefore probative of whether Akelkok recklessly disregarded the risk that she was incapacitated. But even if one of K.F.'s statements were probative of whether she was incapacitated or whether Akelkok recklessly disregarded her incapacitation, the court ruled such a statement was barred under the protective order if it contained evidence that K.F. had consented to sex before passing out.

We conclude that the court erred in applying the protective order against consent evidence so stringently. Although the court correctly noted that Akelkok was not permitted to argue as a defense theory that K.F.'s prior consent excused later having sex with her while she was incapacitated, the court's rulings deprived Akelkok of evidence crucial to potentially negating the essential elements of his crime that K.F. was incapacitated or unaware and/or that he was reckless in disregarding the risk that she was incapacitated or unaware. Without this evidence, Akelkok was limited in his ability to argue these valid defense theories to the jury. This evidence was more probative than prejudicial, and these rulings deprived Akelkok of his constitutional right to present a defense.⁵

When a prosecutor requests a protective order as sweeping as the one in this case, we urge courts to keep in mind the nuances of how potentially problematic evidence — in this case, evidence of K.F.'s consent to sex — may nonetheless be permissible and even crucial for a valid defense theory. Although the court correctly concluded that Akelkok could not argue the legal defense that K.F.'s prior consent carried through to when she became incapacitated, the court could have remedied any possible confusion on this point by clearly instructing the jury that K.F.'s prior consent was not a defense. But through the superior court's stringent application of the protective order, evidence that was probative of K.F.'s level of incapacitation and

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Akelkok's reckless disregard was kept from the jury. (We further acknowledge, however, that the court was not assisted in navigating this nuanced distinction by defense counsel because Akelkok, pro se, did not clearly make this argument at trial.) Despite the constitutional magnitude of this error, however, the evidence in this case was overwhelming that Akelkok sexually penetrated K.F., that K.F. was unconscious (i.e., incapacitated or unaware), and that Akelkok recklessly disregarded the risk that K.F. was incapacitated or unaware.⁶Officer Newman testified that when she entered the living room of K.F.'s house, she observed Akelkok having sexual intercourse with K.F., who was lying unconscious on the couch. Officer Newman testified that she had to say K.F.'s name and physically scratch her to get her to wake up. Wood testified that, before police arrived at the house, he found K.F. lying unconscious in the living room and he spent ten minutes trying and failing with K.J. to wake her up. Finally, when police entered the room and saw Akelkok having sexual intercourse with an unconscious K.F., Sergeant Etheridge stated, "It looks like she's passed out," Akelkok responded, "I know. That's why I'm watching her."

In light of this evidence, we have no difficulty in concluding that even if the jury had heard K.F.'s statements that she consented to sex prior to becoming

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incapacitated, it would have found Akelkok guilty of sexual assault. The court's error was harmless beyond a reasonable doubt.⁷

Akelkok's as-applied claim that AS 11.41.420(a)(3) violates his substantive due process rights to privacy and personal autonomy Akelkok next raises an as-applied constitutional challenge to AS 11.41.420(a)(3), arguing that the statute unconstitutionally impairs his substantive due process rights of privacy and personal autonomy.

In assessing this claim, we distinguish between two scenarios presenting different types of prior consent: first, the case where a person consents to having sex and then becomes incapacitated or unaware but has not consented specifically to having sex while they are incapacitated or unaware. And second, the case where a person, while awake and aware, consents specifically to having sex after they become incapacitated or unaware. That is, communicating consent to a sexual partner to the effect of: "I am going to become incapacitated and I want you to continue having sex with me once I have become incapacitated."

To the extent Akelkok is arguing that AS 11.41.420(a)(3)

unconstitutionally criminalizes having sex with a person who has previously consented to sex but then becomes incapacitated — the first of the two possible types of consent outlined above — this argument has no merit. A statute regulating a non-fundamental aspect of privacy and liberty⁸must have a "legitimate interest and a close and substantial

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relationship between its interest and its chosen means of advancing that interest."⁹Here, the legitimate state interest is in prohibiting sex with a person who is incapable of withdrawing their consent, making that sex necessarily nonconsensual.¹⁰The means is in criminalizing sexual penetration with a person who is incapacitated or unaware that sexual conduct is occurring and thus, necessarily, incapable of communicating non- consent. This chosen means bears a close and substantial relationship to the interest. We hold that AS 11.41.420(a)(3) does not unconstitutionally infringe on the privacy rights of a person who sexually penetrates an unconscious or unaware victim, even if the victim previously consented to having sex before becoming incapacitated. As for the second possible theory of consent — consent specifically to have sex once a person has become incapacitated or unaware, or consent to

"incapacitated sex" — we conclude that we need not reach the question of whether AS 11.41.420(a)(3) would unconstitutionally infringe on the privacy and personal autonomy rights of a person accused of sexual assault of an incapacitated person who has communicated this type of prior consent.

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In his brief, Akelkok cites a prior unpublished decision, Petla v. State, where this Court was faced with a similar challenge to AS 11.41.420(a)(3).¹¹Petla was convicted of second-degree sexual assault of an incapacitated person.¹²His theory at trial was that the victim had in fact been awake and consenting during their sexual activity.¹³On appeal, he argued for the first time that he was unconstitutionally prevented from raising the theory of defense at trial that the victim had consented to having incapacitated sex.¹⁴

On appeal, we did not decide whether there is a substantive due process right to have sex with a person who has specifically consented to having sex while incapacitated.¹⁵Instead, we decided that the claim was unpreserved because Petla had not argued this theory of consent to incapacitated sex at trial, and in fact, his defense at trial was that the victim was not incapacitated at all.¹⁶The trial court had no opportunity to develop facts related to the victim's possible consent to incapacitated sex, and, given this "factual vacuum," we held that the court did not plainly err under this theory of substantive due process rights.¹⁷

Akelkok argues that his case does not suffer from the same infirmities as Petla did and that we should hold in his case that his conduct with K.F. was constitutionally protected by substantive due process. But, as in Petla, Akelkok did not

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preserve this constitutional argument in the superior court and he did not argue at trial (nor was there any evidence) that K.F. had consented specifically to having incapacitated sex.

Akelkok argues that he preserved this claim by arguing at trial that K.F.'s

"consent at the beginning, that consent carries through the completion." But Akelkok did not base this argument in any legal theory and did not mention the Alaska Constitution. The court therefore had no reason to consider a substantive due process challenge to AS 11.41.420 and did not have reason to allow further factual development of the precise nature of K.F.'s consent; to the contrary, it expressly prohibited evidence of K.F.'s consent. Thus, for the same reasons we noted in Petla, this claim suffers from a "factual vacuum" of the facts necessary to determine whether K.F. consented to incapacitated sex.

Akelkok argues to the contrary that the evidence that K.F. consented to having sex with him provides the required facts to consider this claim on appeal. But the issue raised in Petla was whether it is constitutionally protected behavior to have sex with an incapacitated person when that person consented specifically to incapacitated sex, not that they consented to having sex while they were awake and aware and then became incapacitated. And that is all that Akelkok argues — that K.F. consented to having sex and then became incapacitated. He does not argue, and there is no evidence, that she specifically consented to incapacitated sex. Further, as in Petla, Akelkok's defense theory at trial directly contradicts the theory that K.F. consented to having incapacitated sex. Although his defense theories were somewhat muddled, in opening he stated that the evidence would show that K.F. was awake, and in closing he argued that K.F. was awake and aware during their intercourse.

Thus, for the same reasons that we declined in Petla to consider whether there is a constitutional privacy right to have sex with a person who has consented to

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having incapacitated sex, we decline to answer that question in this case because it amounts to a "hypothetical set of facts that [Akelkok] never attempted to prove."¹⁸ Akelkok's claim that the superior court erred in joining his charges under Alaska Criminal Rule 8 and denying his motion for severance under Alaska Criminal Rule 14

Akelkok was initially charged for his conduct against K.F., K.J., and T.K. in three separate criminal cases. A grand jury indicted Akelkok on all three charges, and the superior court dismissed two of the cases in order to consolidate all three charges into the remaining case. (The court later dismissed the charge alleging sexual assault of T.K. because T.K. failed to appear for trial.)

Akelkok filed a "Motion For Relief From Prejudicial Joinder" in which he argued that joinder of the three charges was improper under Criminal Rule 8 and would prejudice his defense. He requested severance of the charges under Criminal Rule 14. The superior court denied Akelkok's motion for relief from prejudicial joinder in a written order, finding that the charges were properly joined under Alaska Criminal Rule 8(a)(3), which permits joinder when the conduct for separate charges consists of "two or more acts . . . connected together or constituting part of a common scheme or plan." The court further concluded that joinder of the charges did not prejudice Akelkok because each assault was relevant to understanding the others and would not impair the jury's ability to impartially decide the case. On appeal, Akelkok argues that joinder was improper and that the court should have severed his charges because evidence of his sexual abuse of K.J. was prejudicial to his sexual assault charge against K.F.

This claim is without merit. The court properly joined Akelkok's charges as separate acts "connected together": his charges against K.F. and K.J. were closely

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connected in time and place — they occurred within hours of each other and in the same room in K.F.'s home. According to K.J.'s CAC interview, Akelkok was beginning to touch K.F.'s "private property" when K.J. tried to intervene and protect her mother. Akelkok retaliated against K.J. by sexually abusing her. He also told K.J. to touch his penis, and when she refused, he went back to attempting to have sexual contact with K.F. It is clear that evidence of each charge would have been cross-admissible in the trial for the other.¹⁹

Akelkok's claim that the superior court erred in declining to consider his request to consult with counsel

Akelkok next argues that the superior court abused its discretion in failing to properly consider Akelkok's mid-trial request to consult with counsel. Akelkok knowingly waived his right to counsel and proceeded to trial pro se. As explained above, Akelkok offered thirteen separate clips from Officer Newman's body camera footage to use for impeachment of K.F.'s testimony. After K.F.'s direct testimony but before cross-examination, the court excused the jury in order to rule on the admissibility of each of Akelkok's proposed clips. When the court had ruled on nine of these clips, Akelkok made a comment suggesting that he might like to speak with counsel, and the superior court reminded him that he had waived his right to counsel:

Akelkok: But I've been debating — I've been debating

with myself if I should have a, quote, counsel on this,

because if the court gives this — gives a determination on

denying some of those, I'm going to need some kind of

counsel too, because I — for my defense, I need someone as

a professional to help me in this situation . . .

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The Court: So Mr. Akelkok, this is what we've talked about for years, now, is that —

. . . .

The Court: — in the midst of trial, I mean, this is when you waived your right to counsel.

Akelkok: I did waive my right for counsel but at the time in point I need counsel because I don't want to make a decision that's going to put me away for a long time for something I didn't do. I'm not going to allow that to happen, plain and simple. It's my life on the line here. The Court: I understand, and —

Akelkok: And you could allegedly put me away for thirty to eighty years for something I didn't do. And I'm not — no, I'm not fine with that. I've been debating, I need some type of counsel because I need everything even now. Yes, we've discussed it but I can make that choice. I have a right to make that choice.

The court stated that there were only a few more clips to rule on, and it chose to rule on those clips first. The court then returned to the issue of Akelkok's request for counsel and inquired whether Akelkok still wanted to speak to an attorney. Akelkok initially responded, "At the moment, yes," but then he explained that he was

"just going through emotions" and that he had spoken in "a burst of emotion." He then stated, "no, I won't be pursuing counsel."

The court asked whether Akelkok needed a break, and, after briefly addressing another evidentiary issue, the court and the parties agreed to break for the day so that Akelkok could collect himself. Before going off the record, the court double- checked that Akelkok was not requesting counsel, and Akelkok confirmed that he was not.

After going on record the next morning, the court again checked that Akelkok wished to proceed pro se, and Akelkok again confirmed that he wanted to proceed without counsel. The court then explained that it was not an option for Akelkok to remain self-represented and to merely consult with an attorney as co-counsel; it

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explained, "You're either representing yourself or there's a lawyer that's representing you. There's no kind of hybrid counsel like we once had."

Akelkok argues on appeal that the court abused its discretion in weighing Akelkok's request for counsel because its statement that there is no "kind of hybrid counsel" — or as we have termed it in the past, "consultative counsel" — was incorrect and that "[w]hen the trial court fails to recognize the alternatives from which it may choose, it cannot be said that discretion was in fact exercised."²⁰ We acknowledge that Alaska law is not clear whether a trial court has the authority to appoint consultative counsel to a defendant who has chosen to represent themselves at trial pro se.²¹But it is clear from the record that Akelkok did not, in fact, ask to consult with counsel. And to the extent that he did, he unequivocally withdrew that request.

His initial statement was that he had been debating with himself whether he needed counsel because if the court ruled against him on his proposed clips from Officer Newman's body camera footage, he might need professional help. This falls short of a clear request to be represented by counsel or to be appointed consultative counsel.

The court then decided to rule on the admissibility of the remaining video clips before turning to the request to speak with counsel, as it was almost finished ruling on the admissibility of thirteen clips. Choosing to finish the evidentiary issues before turning to the new request for counsel was not an abuse of discretion. After turning back to the representation issue, the court confirmed twice that Akelkok was not requesting the assistance of counsel, and Akelkok twice

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confirmed that he did not want counsel and wanted to proceed pro se. Although the court then explained that "hybrid representation" was not an option in Alaska, any potential legal error in this statement was harmless because Akelkok had not, in fact, requested to be appointed consultative counsel.

Akelkok's claim that his written judgment misstates his sentence Akelkok argues, and the State concedes, that we should remand his final judgment to correct his sentence. The State's concession is well-founded.²²During Akelkok's sentencing hearing, the court orally imposed a sentence of 28 years with 7.5 years suspended (20.5 years to serve) for the first count and imposed the same sentence for the second count. The court then determined that there should be a significant amount of consecutive time because there were two victims and stated that 14 years on the second count would run consecutively, resulting in a total of 34.5 years to serve. The court later issued a corrected judgment that is inconsistent with this orally imposed sentence. The corrected judgment lists a total period of 41 years to serve; the court appears to have added the 20.5 years of unsuspended time on each count together, rather than listing the composite amount of unsuspended time as reflected in the partially consecutive, partially concurrent structuring of the sentences.²³Where there is a conflict between an orally imposed sentence and the written judgment, "it is well settled that the oral pronouncement of sentence must govern."²⁴Here, the written

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judgment lists a total period of 41 years to serve, but the court orally imposed a total period of 34.5 years to serve.

The court's oral sentencing pronouncement clearly indicates that the total time to serve is 34.5 years, but was ambiguous in addressing the suspended term, and therefore the total composite sentence. We remand to the superior court to correct Akelkok's sentence in the written judgment to accurately reflect the total composite sentence, including the total unsuspended term of 34.5 years and the total suspended term (which was never clearly articulated). The written judgment should clarify the portion of the suspended time for the second count that is consecutive or concurrent to the suspended time for the first count.

Conclusion

We REMAND this case to the superior court for correction of Akelkok's sentence. In all other respects, we AFFIRM the judgment of the superior court.

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