Rodriquez v. State
In Rodriquez v. State, 741 P.2d 1200 (Alaska App. 1987) Carlos Rodriquez was convicted of twenty-five offenses, primarily for lewd and lascivious acts toward children. One set of convictions related to an evening when Rodriquez performed fellatio twice on thirteen-year-old T.J.P., once in Rodriquez's living room and once in his sauna.
After initially resisting, T.J.P. performed fellatio on Rodriquez in the sauna. Rodriquez then forcibly sodomized T.J.P. Another set of convictions related to Rodriquez's actions toward S.D.W. Rodriquez handcuffed S.D.W. and performed fellatio on S.D.W. against his will. S.D.W. then resisted while Rodriquez attempted to sodomize him.
Rodriquez first argued that his act of fellatio on T.J.P. should merge with the sodomy conviction. On appeal, this court held that "the fellatio performed on T.J.P. was not a necessary or inevitable predecessor to the later sodomy." The Court also concluded that "the later sodomy count involved a complete change in the character of the interaction" since the fellatio count involved "reluctant cooperation" by T.J.P. and the later sodomy involved the use of force. The Court accordingly concluded that the acts were sufficiently severable to allow for the entry of two convictions.
Rodriquez also claimed that the conviction related to the fellatio on S.D.W. should merge with the attempted sodomy conviction.
The Court concluded that "the attempted rape charge was not based on acts leading up to the subsequent rape charge." The attempted rape "was not an initial step or an inherent part of the completed rape because the attempt followed the earlier completed rape."
The Court therefore concluded that Rodriquez could be convicted for two separate offenses.