Yearty v. State
In Yearty v. State, 805 P.2d 987, 993 (Alaska App. 1991) the Court examined whether an act of completed fellatio should merge with an unsuccessful effort to engage in anal penetration. Richard Yearty confronted twelve-year-old J.L. near Goose Lake in Anchorage. Yearty then pulled J.L. off his bike and dragged him into the woods. Yearty pulled down J.L.'s pants and proceeded to perform fellatio on him. Yearty ultimately pulled his own pants down and unsuccessfully attempted to insert J.L.'s penis into his anus. Yearty was convicted of first-degree sexual assault and first-degree sexual abuse of a minor for performing fellatio on J.L., and attempted first-degree sexual assault and attempted first-degree sexual abuse of a minor for the attempted anal penetration.
Yearty argued that his convictions for attempted sexual assault and abuse should merge with his convictions for the corresponding completed offenses. But the Court concluded that the two attempt counts involved different conduct than the two completed offenses: two of the counts were for the completed act of fellatio and two of the counts were for Yearty's unsuccessful efforts at anal intercourse.
The Court held that, "because Yearty's attempt convictions were based on distinctly different types of sexual penetration than those involved in his sexual assault and abuse convictions, the attempts do not merge with the completed offenses."