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State v. Thompson

Supreme Court of Alaska

January 25, 2019

STATE OF ALASKA, Petitioner and Cross-Respondent,
v.
DANA R. THOMPSON, Respondent and Cross-Petitioner.

          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 ...


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