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Thompson v. State

Court of Appeals of Alaska

June 24, 2016

DANA RAY THOMPSON, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal 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.

          Tamara 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. [*]

          OPINION

          MANNHEIMER JUDGE

         Dana 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 pornography.

         Thompson's 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 reversed.

         With regard to the meaning of "position of authority", we conclude that Thompson's jury was correctly instructed regarding this term.

         With 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.

         However, given the way the prosecutor argued this issue to the jury, we conclude that this error was harmless.

         Thompson 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 photograph.

         Underlying facts

         On 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.

         Because 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. [1]

         When 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.

         Laura 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. with Rita.

         From 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 running errands.

         At this 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 years old.

         Despite their lack of familial relation, J.C. would call Rita "Grandma Rie", and she would call Thompson "Uncle Dana".

         In 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.

         Also in 2004, Thompson moved in with his mother Rita. They lived in Rita's trailer, where Thompson had his own room.

         In 2004 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.

          The 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.

         When J.C. turned 14, Thompson began talking to J.C. about pornography and master-slave relationships. Thompson also showed J.C. adult pornography.

         Beginning 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."

         In June 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 was scared.

         A week 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.

          On 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.

         After 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.

         On 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.

         After 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.

         In the 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.

         After 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.

         By the 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.

         As part of the investigation, the police obtained a Glass warrant to record a conversation between J.C. and Thompson. [2] During this conversation, Thompson admitted to having a sexual relationship with J.C., beginning when she was 14 years old.

         The 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.)

         Based 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 position ...


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