from the Superior Court, Third Judicial District, Anchorage,
Michael R. Spaan, Judge. Court of Appeals No. A-11054 Trial
Court No. 3AN-08-13856 CR
Michael Schwaiger, Assistant Public Defender, and Quinlan
Steiner, Public Defender, Anchorage, for the Appellant.
E. de Lucia, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Michael C. Geraghty,
Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
District Court Judge. [*]
Ray Thompson was convicted of multiple counts of first- and
second-degree sexual abuse of a minor, plus multiple counts
of exploitation of a minor and possession of child
first-degree sexual abuse convictions were based on the
alternative theories that he either (1) occupied a
"position of authority" over his teenage victim as
defined in AS 11.41.470(5), or that he (2)
"resid[ed]" in the same household as the victim and
had authority over her. See AS 11.41.434(a)(3)(A)
& (B). In this appeal, Thompson contends that his jury
was misinstructed regarding the meaning of these two terms
("position of authority" and "reside"),
and thus his first-degree sexual abuse convictions should be
regard to the meaning of "position of authority",
we conclude that Thompson's jury was correctly instructed
regarding this term.
regard to the meaning of "reside", the trial judge
failed to tell the jurors what this term meant. Instead, the
judge allowed the attorneys to argue competing definitions of
"reside" during their summations to the jury - and
then, in response to a jury request for further instruction
on the correct legal meaning of this term, the judge told the
jurors that it was up to them to decide what
"reside" meant. We agree with Thompson that the
judge's actions constituted obvious error.
given the way the prosecutor argued this issue to the jury,
we conclude that this error was harmless.
raises several separate double jeopardy claims - contending
that many of his separate convictions must be merged. We
agree with some of these double jeopardy claims.
Specifically, we hold that Thompson's separate
convictions for penetration of the victim's vagina with
his fingers, his penis, and the insertion of
"ben-wa" balls must merge, and we further hold that
Thompson's separate convictions for exploitation of a
minor and possession of child pornography must merge when
they are based on evidence that Thompson (1) took a sexually
explicit photograph of his victim and then (2) kept this
appeal, Thompson does not challenge the allegations that he
engaged in sexual conduct with J.C., but he argues that his
crimes were of a lesser degree because he was not in a
"position of authority" over J.C., and because he
did not "reside" with her. For this reason, our
statement of the underlying facts assumes the truth of the
allegations of sexual conduct, and it focuses on the evidence
describing the type of relationship that existed between
Thompson and J.C.
Thompson challenges the sufficiency of the State's
evidence to support his "position of authority"
convictions, we present the evidence on that issue in the
light most favorable to the jury's verdicts.
Dana Thompson was in his mid-forties, he maintained a sexual
relationship with a teenage girl, J.C., from the time she was
14 years old (June 2005) until close to the time she was 18
(in the fall of 2008). Thompson was able to do this because
he was living with, and taking care of, his mother Rita, and
because J.C.'s mother Laura (we are using a pseudonym)
often entrusted J.C. to Rita's care and, later, to
Thompson's care for various purposes.
met Rita at a meditation group in Anchorage, several years
before J.C. was born. Rita provided emotional support to
Laura, and Laura came to view Rita as a mother figure.
Although Laura later moved from Anchorage to Wasilla, Laura
maintained her friendship with Rita. When J.C. was an infant,
Laura would sometimes run errands in Anchorage and leave J.C.
the time J.C. was 4 years old until she was 10, Laura would
travel to Anchorage once or twice a month to teach
basket-weaving classes, or to run errands. During these trips
to Anchorage, Laura would stay with Rita, and she would leave
J.C. in Rita's care when she was teaching her class or
time, Laura knew Thompson (because he was Rita's son),
but she had only limited interactions with him because he was
not living with Rita. Laura's daughter J.C. met Thompson
for the first time at Thompson's wedding, when she was 8
their lack of familial relation, J.C. would call Rita
"Grandma Rie", and she would call Thompson
2004, Laura and J.C. moved to a remote cabin in Trapper
Creek. In the winter, this cabin was accessible only by
snowmachine or dog sled. J.C. was home-schooled, and after
this move she rarely interacted with children her own age.
2004, Thompson moved in with his mother Rita. They lived in
Rita's trailer, where Thompson had his own room.
and 2005 (when J.C. was 13 and 14 years old), she would stay
in Rita's trailer from one to five times per month,
because her mother Laura would come to Anchorage to sell
baskets at a Saturday market. Sometimes, Laura would drop
J.C. off at Rita's trailer and return to Trapper Creek.
During this time, Laura came to view Thompson as J.C.'s
"personal bodyguard", and she entrusted him with
making sure that no harm came to J.C. while the girl was
staying in Anchorage.
year 2004 also marked the beginning of Thompson's
inappropriate behavior toward J.C. That year, J.C. went to
Anchorage to attend an event connected to her home schooling
program, but Laura could not leave Trapper Creek due to a
snow storm. Laura called Rita to ask if J.C. could stay with
her, and Rita agreed, so Thompson drove to retrieve J.C. from
the event and bring her to Rita's trailer. During this
ride, Thompson told 13-year-old J.C. that she had grown up,
and he asked her about her bra size. Later that night,
Thompson mentioned to J.C. that he wanted a sex slave.
J.C. turned 14, Thompson began talking to J.C. about
pornography and master-slave relationships. Thompson also
showed J.C. adult pornography.
in 2005, Thompson's mother Rita began to experience a
series of health problems that made it difficult for her to
walk, so Thompson became Rita's caregiver. Thompson also
became the person who was primarily in charge of maintaining
the residence and looking after J.C. According to Laura's
later testimony, "as [Rita's] health deteriorated,
[Thompson] morphed into [the] person [who] was in charge of
[J.C.], and in charge of her safety."
2005, while J.C. was staying at the trailer, she and Thompson
had their first sexual encounter. Thompson pulled J.C. onto
his lap, shoved his hand down J.C.'s pants, and touched
her genitals. J.C. started crying, and she curled up in a
ball. When J.C. returned home to Trapper Creek the next
morning, she did not tell anyone what happened because she
later, J.C. returned to Anchorage to stay at Rita's
trailer for about two months (without her mother). J.C.'s
home schooling program required her to obtain a job to earn
"life skills" credit. To enable J.C. to fulfill
this requirement, Thompson arranged a job for her at an
Anchorage store called Rainbow Earth. J.C. also enrolled in a
computer camp during this two-month stay in Anchorage.
June 27, 2005, during the time that J.C. was staying at the
trailer, Thompson's mother Rita was hospitalized. When
Thompson returned to the trailer from the hospital, Thompson
woke J.C. and demanded that she perform oral sex on him.
Thompson also digitally penetrated J.C. and rubbed his penis
against her body.
the events of June 27, 2005, Thompson began engaging in more
sexual activity with J.C. Also around this time, Thompson
started taking nude and sexually suggestive photographs of
J.C.'s fifteenth birthday, she and Thompson went to
Planned Parenthood so that J.C. could obtain birth control.
After leaving Planned Parenthood, J.C. and Thompson had
multiple types of sexual intercourse.
J.C. turned 15, she started staying more often at Rita's
trailer without her mother, because her school work often
required her to be in Anchorage. J.C.'s mother Laura
would often communicate with Thompson to make sure that J.C.
was completing her course work. During this time, J.C. and
Thompson talked about getting married and having a family.
summer of 2006, J.C. spent approximately one continuous month
living at the Anchorage trailer in order to prepare for a
backpacking trip through the Arctic National Wildlife Refuge
(as part of her home schooling program). Thompson helped J.C.
with her school work and he also helped her physically train
for her backpacking trip. During this time, J.C. and Thompson
repeatedly had sex.
J.C. returned from the back packingtrip, Thompson began
renovating his room in the trailer to isolate it from the
main part of the trailer, thus making it easier to hide his
sexual relationship with J.C.
time J.C. was 16 years old, she was alternating every two
weeks between living with her mother in Trapper Creek and
living at the Anchorage trailer with Thompson and Rita.
Thompson's relationship with J.C. came to light in the
summer of 2008, when J.C. spoke with a childhood friend who
described being molested by an older man. J.C. "broke
up" with Thompson and moved back in with her mother.
J.C. eventually told her mother all that had happened between
her and Thompson in Anchorage. Laura called the police, and
this initiated the criminal investigation.
of the investigation, the police obtained a Glass
warrant to record a conversation between J.C. and Thompson.
During this conversation, Thompson admitted to having a
sexual relationship with J.C., beginning when she was 14
police also obtained a warrant to search the Anchorage
trailer. During their search, the police seized a digital
camera and two memory cards. On these, the police found nude
photographs of J.C. and two other children. (The State did
not allege that Thompson took the photographs of these other
children - only that he possessed them.)
on the foregoing, the State charged Thompson with eighteen
counts of sexual abuse of a minor in the first degree
(covering the time when J.C. was under the age of 16), based
on the alternative theories that Thompson was either in a