Cross-Petitions for Hearing from the Court of Appeals of the
State of Alaska, on appeal from the Superior Court of the
State of Alaska, Third Judicial District, Anchorage, Michael
R. Spaan, Judge. Court of Appeals No. A-11054 Superior Court
No. 3AN-08-13856 CR
Tamara
E. DeLucia, Chief Assistant Attorney General, Anchorage, and
Jahna Lindemuth, Attorney General, Juneau, for Petitioner and
Cross-Respondent.
Sharon
Barr, Assistant Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Respondent and Cross-Petitioner.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
CARNEY, JUSTICE
I.
INTRODUCTION
Dana
Thompson was convicted of 13 counts of first degree sexual
abuse of a minor and 4 counts of second degree sexual abuse
of a minor stemming from a 4-year sexual relationship with
the daughter of a family friend. The first degree sexual
abuse of a minor convictions were based on the alternative
theories that Thompson either (1) occupied a "position
of authority"[1] over the victim[2] or (2) resided in the same
household as the victim and had authority over
her.[3]
Thompson
argued to the court of appeals that Wurthmann v.
State, [4] the leading case interpreting the phrase
"position of authority," was wrongly decided. He
alternatively argued that the jury was improperly instructed
about the meaning of the phrase "position of
authority" under Wurthmann. The court of
appeals rejected both arguments.[5]
Thompson
also argued to the court of appeals that the superior court
erred by failing to merge many of his convictions. The court
of appeals rejected his argument that the rules for merger in
sexual abuse of a minor cases should be different than the
rules for merger in sexual assault cases. The court
reaffirmed that for both types of cases the unit of
prosecution is the distinct act of sexual penetration of
different bodily orifices. But the court of appeals found
that the superior court had misapplied the rules for merger
and held that Thompson's convictions for digital
penetration, penis-to-genital penetration, and penetration
with an object during the same time period merged because the
same orifice was involved and the evidence was ambiguous as
to whether each act "accompanied" the other
acts.[6]
The
State petitioned for review of the court of appeals'
merger ruling, advocating a rule allowing separate
convictions for penetration with different objects or body
parts, regardless of the time period. Thompson
cross-petitioned. He argues that the court of appeals'
rulings on "position of authority" - affirming
Wurthmann and concluding that the jury was properly
instructed - were erroneous; he also argues that the unit of
prosecution for merger purposes should be the "sexual
episode" and that many of his convictions should
therefore merge.
We
affirm the court of appeals' decision on both
"position of authority" issues. We reject
Thompson's argument that the unit of prosecution for
sexual abuse of a minor cases and sexual assault cases should
be different, and that more of his convictions should
therefore merge. We extend our recent decision in Johnson
v. State[7] and hold that separate convictions and
sentences may be imposed for each distinct act of penetration
when either the penetrating object or body part or the
penetrated orifice has changed. We reverse the court of
appeals' holding that Thompson's convictions for
digital penetration, penis-to-genital penetration, and
penetration with an object during the same time period
merged.
II.
FACTS AND PROCEEDINGS
We
adopt the facts outlined in the court of appeals'
opinion.[8] We reproduce here the facts most relevant
to the petitions before us:
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[9] . . . often
entrusted J.C. to Rita's care and, later, to
Thompson's care for various purposes.
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. . . . 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 .... 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.
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....
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 .... 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. . . .
On J.C.'s [15th] 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 .... 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 backpacking trip, 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 .... 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.
... [T]he State charged Thompson with [18] 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 of authority
over J.C. or residing in the same household with her (or
both).
The State also charged Thompson with 10 counts of
second-degree sexual abuse of a minor (covering the time when
J.C. was between 16 and 18 years old), based on the theory
that Thompson was in a position of authority over
her.[10]
Thompson's
case was tried in late May and early June 2010. In its
closing argument the State emphasized that whether Thompson
had knowingly engaged in sexual penetration with J.C, and
whether she was under 16 and he was over 18 at the time, were
not in dispute. The parties disputed only whether Thompson,
at the time of the offense, either was in a position of
authority in relation to J.C, or resided in the same
household as her and had authority over her.
The
relevant statute, AS 11.41.434(a)(3), provides:
An offender commits the crime of sexual abuse of a minor in
the first degree if. . . being 18 years of age or older, the
offender engages in sexual penetration with a person who is
under 16 years of age, and
(A) the victim at the time of the offense is residing in
the same household as the offender and the offender has
authority over the victim; or
(B) the offender occupies a position of authority in
relation to the victim.[11]
Another
statute, AS 11.41.470(5), defines "position of
authority" as: "an employer, youth leader, scout
leader, coach, teacher, counselor, school administrator,
religious leader, doctor, nurse, psychologist, guardian ad
litem, babysitter, or a substantially similar position, and a
police ... or probation officer [in certain
circumstances]."[12]
The
State pointed out to the jury that "[t]here are two
theories, the first is that she resided with him and he had
authority over her, ... [and the second is] that he occupied
this position of authority that's set out in the
definitions." In its consideration of the position of
authority requirement, the State suggested that the jury
"think of what ... a position substantially similar to a
babysitter would be"; it revisited this theme throughout
closing arguments.
Thompson's
argument recited the examples of position of authority from
the statute and then urged the jury to focus on the fact
"that each and every one of these positions is a
professional or a quasi professional role. These aren't
laypeople. You notice that parent [or] relative isn't
included in here. These are people who have some position of
authority by virtue of the title that they hold."
Thompson argued that the evidence showed that Laura would not
have entrusted J.C. to Thompson's care; that J.C. did not
believe that Thompson was her babysitter or had authority
over her; and that Rita, not Thompson, was the authority in
the home when J.C. was at the trailer.
During
deliberations the jury asked three substantive questions. The
jury's first question was: "Instruction #31 could
you please clarify'substantially.' If someone
though[t] 'slightly' similar to one or more examples
would this qualify?"[13] After discussing the question
with parties, the superior court responded: "Please
refer to Instruction 31." A few hours later the jury
asked: "Does' substantially similar position'
pertain to the listed titles, or does it leave it open to our
consideration of a broader list of authority
figures/roles." After again discussing the question and
the statute's legislative history with the parties, the
court responded: "The jury may consider a broader list
of authority figures/roles in its deliberation but the roles
must be substantially similar, not slightly similar, to the
list in instruction #31." The next day, the jury asked a
question about the definition of the term
"residing." After discussing the question with the
parties, the court responded: "The definition of
residing is a question of fact for the jury. Please refer to
instruction number 2. Sorry I could not be of more
assistance."
The
jury convicted Thompson of 13 of the 18 counts of first
degree sexual abuse and 4 of the 10 counts of second degree
sexual abuse.[14]
Thompson
appealed the trial court's decision regarding the meaning
of "position of authority" and related jury
instructions, its refusal to merge some of his convictions
for sentencing, and his sentence. The court of appeals
declined to revisit its interpretation of "position of
authority" and affirmed the trial court's jury
instructions, but reversed some of the merger decisions and
remanded for resentencing.[15]
The
State petitioned for our review of the court of appeals'
treatment of the merger issues, urging us to define the unit
of prosecution in sexual abuse cases as penetration by a
distinct object or body part regardless of whether the same
orifice was penetrated.[16] Thompson opposed the State's
petition and filed a cross-petition, asking us to reexamine
both the court of appeals' interpretation of
"position of authority" and the trial court's
and court of appeals' application of merger principles to
his convictions. We granted both petitions.
III.
STANDARD OF REVIEW
Statutory
interpretation involves questions of law to which we apply
our independent judgment.[17] We review "[t]he
correctness of jury instructions . . . de
novo."[18] "Whether two convictions should
merge on double-jeopardy grounds is a mixed question of law
and fact."[19] We review de novo "[t]he ultimate
legal question of merger under the double-jeopardy
clause"; we review for clear error "the questions
of fact underlying the conviction for the specific counts of
statutory violations."[20]
IV.
DISCUSSION
A.
The Facts Of Thompson's Case Do Not Implicate Wurthmann
v. State.
Thompson
first asserts that Wurthmann v. State[21] was wrongly
decided and that we should "hold that 'position of
authority' is limited to people in professional or
quasi-professional roles that are either listed in the
statute or are substantially similar to the professional or
quasi-professional positions listed in the statute."
In
Wurthmann the defendant was convicted under former
AS 11.41.43 8(a)(2) of third degree sexual abuse of a minor
for having sexual intercourse with the daughter of the woman
with whom he lived when the victim was 16 and 17 years
old.[22] Wurthmann argued that his convictions
should be reversed because he did not occupy a "position
of authority" over the victim, as required by the
statute.[23] The court of appeals, however, noted
that Wurthmann had "assumed the role of [the
victim's] stepfather" and "primary
caretaker."[24] Under these circumstances, the court of
appeals determined that a "live-in boyfriend who assumes
the position of a stepfather" might exert enough
influence over the victim to occupy a position of authority
as it applies to the sexual abuse context.[25]
In
contrast, Thompson was charged under alternative theories of
first degree sexual abuse of a minor for engaging in sexual
penetration with J.C. when she was under the age of 16. The
indictment alleged that at the time of the offenses, either
she resided in the same household with Thompson and he had
authority over her, or else he occupied a position of
authority in relation to her.[26] The State did not allege, as
in Wurthmann, that Thompson's authority was
based upon his assuming "the role of [the victim's]
stepfather."[27]
Thompson
argues that Wurthmann was wrongly decided and should
be overturned, asserting that "position of
authority" under AS 11.41.434(a)(3)(B) should be limited
to professional or quasi-professional adults who have
authority over an underage person by virtue of their
profession. But AS 11.41.470(5) defines the term to mean
"employer, youth leader, scout leader, coach, teacher,
counselor, school administrator, religious leader, doctor,
nurse, psychologist, guardian ad litem, babysitter,
or a substantially similar position, and a police
officer or probation officer other than when the officer is
exercising custodial control over a
minor."[28] The statute does not require the adult
to occupy a professional or quasi-professional position.
We do
not find it necessary to revisit Wurthmann, as doing
so would not invalidate Thompson's convictions. First,
the State argued that, as J.C.' s "city
guardian," Thompson filled a role in her life
substantially similar to that of a babysitter pursuant to AS
11.41.470(5). The court of appeals noted that the evidence
showed that Thompson "effectively functioned as
J.C.'s surrogate parent or full-time sitter for weeks,
and even months, while J.C. was living in Anchorage, away
from her mother."[29] Thompson has not challenged the
sufficiency of the evidence on this point; he also has not
clearly explained how disavowing Wurthmann's
holding that "position of authority" can apply to
live-in boyfriends would materially affect the State's
theory that he occupied a role substantially similar to that
of a babysitter.
Moreover,
the only issue relevant to Thompson's case that was
presented in Wurthmann's appeal was the scope of the term
"position of authority"; Wurthmann was not
prosecuted or convicted under alternative
theories.[30] But the State in this case did not rely
solely on the "position of authority" prong of AS
11.41.434(a)(3)(B). It also charged Thompson under an
alternative theory: that he "resided" with J.C. and
"had authority" over her pursuant to AS
11.41.434(a)(3)(A). The State presented evidence and argued
this theory to the jury in addition to its presentation and
argument of the "position of authority" theory. The
court of appeals' interpretation in Wurthmann of
"position of authority" - a term appearing in a
different subsection of the statute-has no effect on this
alternative theory of prosecution. Even if we were to adopt
Thompson's proposed reading of "position of
authority," it would not affect his convictions based
upon this second theory. We are not persuaded to revisit or
overrule Wurthmann.
B.
The Jury Was Properly Instructed On The Phrase "Position
Of Authority."
Thompson
separately argues that the superior court "incorrectly
responded to the jury's question[s]. It should have . . .
referred them back to the instruction, and [told] them that
'substantially similar' pertains to the definitions
in the instruction." The court of appeals held that the
superior ...