Summary
acknowledging that courts may consider a defendant's position of authority over a victim in evaluating the least serious mitigator, but noting that its existence alone may not disqualify a defendant from receiving the mitigator
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Court of Appeals No. A-11598 No. 6731
11-21-2018
KARL LEE THIELE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Randall S. Cavanaugh, Kalamarides & Lambert, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3HO-12-173 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Homer, Jane F. Kauvar, Judge. Appearances: Randall S. Cavanaugh, Kalamarides & Lambert, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Karl Lee Thiele was convicted of third-degree sexual assault for touching the genitals of his sleeping eighteen-year-old stepdaughter, K.M., and first-degree harassment for momentarily touching her genitals after she awoke. He now appeals his convictions, the sentencing judge's rejection of a proposed statutory mitigator, and various conditions of his probation.
First, Thiele appeals the judge's denial of his motion for a mistrial. After the parties completed the jury selection process by exercising their peremptory challenges, Thiele's defense attorney moved for a mistrial, arguing that the jury venire was not representative of the community. For reasons that we explain herein, we conclude that the judge did not err in denying this motion.
Second, Thiele argues that the judge erred when she ruled that first-degree harassment is not a lesser included offense of third-degree sexual assault when the defendant is charged with engaging in sexual contact with an unconscious person. We conclude that the judge did not err.
AS 11.61.118(a)(2).
AS 11.41.425(a)(1)(C).
Third, Thiele argues that the judge erred when she ruled that Thiele's conduct was not among the least serious within the definition of the offense, mitigator AS 12.55.155(d)(9). We conclude that even if the judge erred, Thiele suffered no prejudice.
Lastly, Thiele appeals various special conditions of his probation as insufficiently supported by the record. Of the conditions that Thiele challenges, he objected to only one — Special Condition 11 — in the trial court. With respect to that condition, we direct the superior court to consider less restrictive alternatives.
But because Thiele did not object to any of the other probation conditions that he now challenges, he must show plain error. Thiele affirmatively acquiesced to some of these conditions if they were limited to the duration of his sex offender treatment. And he acquiesced to other conditions if they were at the discretion of his probation officer. The judge limited the probation conditions in the ways that Thiele requested. Under these circumstances, we conclude that imposition of the conditions was not plain error.
State v. Ranstead, 421 P.3d 15, 21-23 (Alaska 2018).
Background facts
Thiele is an Alaska Native who resided in Port Graham, a village located southwest of Homer. After a night of drinking in April 2012, he returned home and found his eighteen-year-old stepdaughter K.M. asleep on a couch in the living room. She was clad in pajamas with underwear underneath. Thiele reached through a hole in K.M.'s pajamas and touched her external genitals. K.M. awakened and rolled away.
Thiele was charged with second-degree sexual assault (for momentarily touching K.M.'s genitals after she awakened), and with third-degree sexual assault (for touching her genitals while she was asleep).
AS 11.41.420(a)(1) and AS 11.41.425(a)(1)(C), respectively.
In preparation for Thiele's trial in Homer, the court issued jury summonses to approximately 100 people whose names appeared on the September 2012 sub-list of the Homer master jury list. That master list was drawn from residents of Homer and the surrounding communities, including various rural villages.
The weather was stormy on the day of trial and only forty-seven of the approximately 100 potential jurors who had been summoned for jury service appeared, including one villager, an Alaska Native from Port Graham. At the outset of the jury selection proceeding, the defense attorney asked Superior Court Judge Jane F. Kauvar whether residents of the "villages" had appeared. The judge stated, "as long as we [summoned] jurors from the villages to come, I think the fact they didn't show up is not a reason why he [would be] denied a fair trial ... the fact that we know they were included in the panel is about all we can do." The judge further suggested that, because the persons on the master list had each been assigned to a different month of the year for jury service, the number of village jurors assigned to any given month might vary. The defense attorney responded:
And I understand under Alvarado, you know, the best we can do is try. I'm just trying to create a record, if possible, of how many people actually — let's assume the best case scenario, the weather wasn't terrible like it is and everyone was able to make it from the village, how many would have showed up. If the answer is only one ... then I would submit that in a forty-six-person venire having only one from the villages is insufficient to assure a fair trial for Mr. Thiele. Just making a record, Judge.The defense attorney then turned to a different issue, without asking the court to resolve the question that he had just posed — whether the jury venire was representative of the community where the crime occurred.
Alvarado v. State, 486 P.2d 891, 903 (Alaska 1971).
Throughout the rest of the jury selection process, the defense attorney never established the number of villagers on the master jury list or its September sub-list. And he did not request the judge to take steps to increase village representation on the jury venire, such as by resuming voir dire after the storm abated and any jurors who had been weathered-in were able to travel.
As the jury selection process progressed, thirteen additional jurors arrived in time for a second round of voir dire. The judge then stated that she believed they would have enough potential jurors to select a jury, and she suggested to the parties that they proceed with this expanded venire. The defense attorney agreed that this was "[a]bsolutely reasonable."
After the judge denied a challenge for cause to the prospective juror from Port Graham, the defense attorney peremptorily challenged him. When the parties finished exercising their peremptory challenges, sufficient persons remained to constitute the jury.
Before the jury was sworn, the defense attorney moved for a mistrial, again stating that he was doing so "to make my record." The attorney argued that "having only one juror from the rural villages is insufficient constitutionally to assure a fair cross-section of the community for Mr. Thiele." Although the attorney once referred to "the one Alaska Native rural villager who was here," his motion appeared to be based on the absence of "people from the villages," and not on any under-representation of Alaska Natives.
The judge denied this motion (technically not a mistrial motion because the jury had not yet been sworn), ruling that while due process requires that the master jury list encompass a fair cross-section of the community, no due process violation occurred if only one villager actually appeared for jury duty. The judge stated that "as long as the jurors are called in, I do not believe there's a requirement that we keep trying until more of them actually respond. It's if they were excluded from the jury pool, [from] which they clearly were not excluded."
At trial's end, the judge refused Thiele's request for an instruction that first-degree harassment was a lesser included offense of the charged offense of third-degree sexual assault (for touching K.M.'s genitals while she slept); the jury convicted Thiele of third-degree sexual assault. The jury acquitted Thiele of second-degree sexual assault (for touching K.M.'s genitals without her consent after she awakened), but convicted him of first-degree harassment as a lesser included offense of second-degree sexual assault.
The propriety of this lesser included offense instruction is not challenged on appeal.
At sentencing, Thiele asked the judge to find mitigator AS 12.55.155(d)(9), that Thiele's conduct was "among the least serious conduct included in the definition of the offense." The judge rejected this mitigator.
This appeal followed.
Because Thiele did not ask for a continuance so that additional village jurors could supplement the venire, the judge did not err in denying his mistrial motion
The right to an impartial jury in criminal cases is secured by article I, section 11 of the Alaska Constitution. A jury is impartial if it is drawn from a representative cross-section of the community where the crime occurred.
Alvarado v. State, 486 P.2d 891, 903 (Alaska 1971).
On appeal, Thiele does not argue that the Homer master jury list and the September 2012 sub-list were unrepresentative of the community. Thiele instead contends that, because only one village resident actually appeared for jury duty, the judge was required to "look into the alternatives" to secure a larger turnout from village residents. For example, Thiele now suggests that the judge might have ordered the jury clerk to "check on" the jurors who did not respond to their summonses, or to make some sort of announcement on the radio. Thiele argues that because the judge did not take these or other steps sua sponte, she should have granted his motion for a mistrial.
Thiele's attorney never contended in the trial court that the jury list was unrepresentative of the community. At the outset of the trial, the defense attorney mentioned the possibility that the group of prospective jurors who actually appeared for jury duty might not constitute a representative venire — but the attorney did not ask for any specific relief. And after fourteen jurors had been selected, the defense attorney again failed to request a continuance so that additional jurors who might have been delayed by weather could appear. Accordingly, the attorney did not preserve the issue of the alleged under-representation of villagers in the jury venire.
See, e.g., Moreno v. State, 341 P.3d 1134, 1139 (Alaska 2015); Pierce v. State, 261 P.3d 428, 430-31 (Alaska App. 2011).
The situation might have been different if Thiele had established that villagers on the jury list were available for jury service but were temporarily unable to appear because of the weather. But Thiele established none of those things, and he did not request a continuance on that basis. Accordingly, the judge did not err when she denied Thiele's motion for a mistrial.
See Napoka v. State, 2013 WL 4041130, at *1-3 (Alaska App. Aug. 7, 2013) (unpublished) (reversing a judge's denial of a continuance to allow weathered-in jurors to arrive by plane).
Why we affirm the court's ruling that first-degree harassment was not a lesser included offense of third-degree sexual assault
The judge granted a defense request for an instruction on first-degree harassment as a lesser included offense of second-degree sexual assault (for touching K.M.'s genitals after she awakened). The jury acquitted Thiele of second-degree sexual assault, but convicted him of first-degree harassment.
But the judge refused a defense request to also instruct the jury that, on the facts of this case (i.e., where Thiele was accused of touching K.M.'s genitals while she slept), first-degree harassment was a lesser included offense of third-degree sexual assault. Thiele appeals the denial of this requested instruction.
The relevant elements of the crime of third-degree sexual assault are sexual contact with a person who is unaware of the contact, and whom the offender knows to be unaware of the contact. Sexual contact is knowingly touching, directly or through clothing, a victim's genitals, anus, or the female breast.
AS 11.41.425(a)(1)(C).
AS 11.81.900(b)(59)(A)(i).
First-degree harassment, in contrast, is a specific-intent crime. It occurs when an offender, acting with the intent to harass or annoy a person, subjects a person to offensive physical contact through clothing to the genitals, buttocks, or female breast.
AS 11.61.118(a)(2); AS 11.61.120(a)(5).
When a defendant makes a timely request, the trial court must instruct the jury on those offenses "which are necessarily included in the offense charged." Three requirements must be satisfied before a lesser included offense instruction is given:
Dolchok v. State, 763 P.2d 977, 979 (Alaska App. 1988) (citations omitted).
A defendant is entitled to a jury instruction on a lesser included offense when (1) the defendant necessarily committed the lesser offense if he or she committed the charged offense in the manner alleged by the State; (2) the defendant actually disputes the element or elements distinguishing the charged offense from the lesser[;] and (3) the evidence would support a reasonable conclusion that the
defendant is guilty of only the lesser offense and not the charged offense.
Petersen v. State, 930 P.2d 414, 433 (Alaska App. 1996); see also State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985); Elisovsky v. State, 592 P.2d 1221, 1225-26 (Alaska 1979); Blackhurst v. State, 721 P.2d 645, 648 (Alaska App. 1986).
In State v. Minano, the Alaska Supreme Court held that, on the facts of the case, theft was not a lesser included offense of the charged robbery. Minano stole a cab from its driver under circumstances suggesting joyriding. Since theft, but not robbery, requires an intent to permanently deprive the owner of property, Minano could have been guilty of robbery without committing a theft. Accordingly, the supreme court held that he was not entitled to an instruction that theft was a lesser included offense of robbery.
Minano, 710 P.2d at 1016.
Id. at 1014-15.
Id. at 1016.
Id.
In the present case, as in Minano, the proposed lesser offense of first-degree harassment requires something more than the charged offense of third-degree sexual assault: an intent to harass or annoy the victim. Thus, Thiele might be found guilty of third-degree sexual assault even though he had not committed the proposed lesser offense of first-degree harassment. For this reason, the judge correctly ruled that first-degree harassment was not a lesser included offense of the third-degree sexual assault charge.
Why we conclude that the judge's rejection of the least serious conduct mitigator did not prejudice Thiele at his sentencing
After an evening of drinking, Thiele returned in the early morning hours to the home he shared with his wife and her children. He found his eighteen-year-old stepdaughter K.M. asleep on a couch in the living room. She was clad in pajamas with underwear underneath. Thiele reached through a hole in K.M.'s pajamas and touched her external genitals. K.M. awakened and rolled away.
Thiele then went to the bedroom that he shared with K.M.'s mother. According to K.M.'s testimony at trial, K.M. went to the kitchen and armed herself with a kitchen knife. When Thiele emerged from the bedroom, K.M. brandished the knife and told him never to touch her sexually again. Later that morning, K.M. reported the incident to village authorities.
As noted above, the jury convicted Thiele of third-degree sexual assault for touching K.M.'s genitals while she was asleep, and of first-degree harassment for the momentary touching that ensued after K.M. awakened. As a first felony offender, Thiele faced a presumptive sentencing range of 2 to 12 years' imprisonment for third-degree sexual assault.
AS 12.55.125(i)(4)(A).
At Thiele's sentencing hearing, Thiele's defense attorney asked the court to find mitigator AS 12.55.155(d)(9), that Thiele's conduct was "among the least serious conduct included in the definition of the offense." Relying on testimony from trial, the attorney argued that Thiele only touched K.M.'s external genitals for an instant before the touch awakened K.M., after which he immediately withdrew his hand.
After hearing this argument, the judge agreed that Thiele's contact with K.M. was brief. But the judge concluded that the duration of the conduct was not determinative of whether Thiele's conduct was among the least serious, choosing instead to focus on Thiele's status as K.M.'s stepfather. The judge reasoned that K.M. was "for all purposes his child ... [and Thiele] had been for some time the father figure in the home. And the court has to reaffirm societal norms that ... fathers are not supposed to be having this kind of contact with their daughters."
Based on Thiele's status as a stepfather, the judge rejected the proposed mitigator. She imposed a sentence of 8 years with 4 years suspended, and 8 years' probation. The judge also imposed a concurrent 6-month sentence for Thiele's first-degree harassment conviction.
On appeal, Thiele renews his argument that mitigator (d)(9) should apply since the sexual contact was brief.
Alaska Statute 12.55.155(d)(9) provides that, if a defendant proves by clear and convincing evidence that "the conduct constituting the offense was among the least serious conduct included in the definition of the offense," a judge has discretion to sentence the defendant below the minimum presumptive sentence.
AS 12.55.155(d)(9), (f)(1).
"[T]he structure of presumptive sentencing presumes that, for any offense, there is conduct that qualifies as 'among the least serious' as well as conduct that qualifies as 'among the most serious.'" Application of mitigator (d)(9) to a particular sexual offense "does not mean that the [offense] is somehow 'not serious' or that the victim has not been harmed." Rather, the question is whether, compared to the entire range of conduct included in the definition of the offense, the defendant's conduct is considered "among the least serious" by comparison.
See Voyles v. State, 2017 WL 2709730, at *4 (Alaska App. June 21, 2017) (unpublished) (citing AS 12.55.155(c)(10) (allowing a sentencing court to find a factor in aggravation "if the conduct constituting the offense was among the most serious conduct included in the definition of the offense")).
Simants v. State, 329 P.3d 1033, 1036 (Alaska App. 2014).
Id.
In Voyles v. State, we concluded that the defendant's conduct — a single act of digital penetration that was slight and of brief duration — qualified as among the least serious conduct included in the definition of first-degree sexual abuse of a minor. Here, the judge agreed that Thiele's sexual contact with K.M. was brief, but the judge nonetheless rejected mitigator (d)(9) because Thiele was K.M.'s stepfather.
Voyles, 2017 WL 2709730, at *5.
In these circumstances, it is unclear whether Thiele's relationship to K.M. should have disqualified him from asserting mitigator (d)(9) based on the concededly brief duration of the sexual contact. The sad truth to be drawn from this Court's cases is that a substantial portion of child sexual abuse is perpetrated by relatives, household members, and other persons having authority over the child. Thus, the fact that K.M. was sexually abused by someone in a position of authority or trust does not necessarily make her case significantly different from a typical sexual abuse of a minor prosecution.
But even assuming that the sentencing judge should have found mitigator (d)(9) based on the brevity of Thiele's sexual contact with K.M., the judge's next step would be to assess how much weight to give to this mitigator, given the entire context of Thiele's case.
See our discussion of this point in Machado v. State, 797 P.2d 677, 689 (Alaska App. 1990).
On this issue, the judge would be able to consider the fact that Thiele was K.M.'s stepfather. And based on the judge's stated reasons for rejecting mitigator (d)(9) — remarks made shortly before the judge imposed Thiele's sentence — the record convincingly shows that even if the judge had found mitigator (d)(9), it would not have changed her sentencing decision.
The judge acknowledged that Thiele's sexual contact with K.M. "was of fairly short duration," and that "there wasn't force used." The judge stated that these were "factors to be considered." But the judge then declared that there were countervailing factors in Thiele's case. In particular, the judge stated that the relationship between Thiele and K.M. — the fact that K.M. was his stepchild — "balances out ... the fact that [this] was a fairly short offense." The judge also pointed out that Thiele had a long-standing drinking problem, and the judge concluded that Thiele's intoxication was a significant factor in causing him to engage in sexual contact with K.M.
The judge stated that the sentencing goal of reaffirming societal norms required a sentence greater than 2 years to serve (the low end of the applicable presumptive sentencing range). She then imposed 4 years to serve, with an additional 4 years suspended.
Given the judge's assessment of the facts of Thiele's case, we conclude that even if the judge had found mitigator (d)(9) based on the brevity of Thiele's sexual contact with K.M., there is no realistic possibility that she would have imposed a lesser sentence. Instead, as reflected in her sentencing remarks, the judge actively weighed the brevity of the sexual contact against the other aspects of Thiele's case, and she affirmatively concluded that Thiele should not receive a sentence below the presumptive range.
We accordingly conclude that any error in the judge's rejection of the least serious conduct mitigator due to the fact that Thiele was K.M.'s stepfather did not prejudice Thiele at his sentencing.
Thiele's conditions of probation
The sentencing judge imposed an 8-year probationary term. Thiele challenges several special conditions of probation imposed by the judge, generally arguing that these conditions lack an adequate nexus to his crime or his rehabilitation.
"A probation condition must be 'reasonably related to the rehabilitation of the offender and the protection of the public and must not be unduly restrictive of liberty.'" Conditions that restrict constitutional rights are subject to special scrutiny, requiring the judge to "affirmatively consider and have good reason for rejecting lesser restrictions."
Diorec v. State, 295 P.3d 409, 412 (Alaska App. 2013) (quoting Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977)).
Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995); see also Diorec, 295 P.3d at 412.
Thiele objected at his sentencing hearing to Special Condition 11, which reads as follows:
Defendant shall not marry, date, or have any romantic involvement with anyone who resides with or has physical custody of an individual age 18 or under unless you first obtain written permission from a probation officer and/or treatment provider.
This condition restricts Thiele's constitutionally protected freedom of association, and so is subject to special scrutiny. With respect to a different condition, the judge stated, "[Thiele] may want to be around children of his sisters or whatever, and I haven't found that he, in fact, is a danger to just anybody's child." The judge then addressed Special Condition 11. Her brief remarks suggested that her concern was to justify the condition's inclusion of eighteen-year-olds within its scope, as opposed to younger children.
Diorec, 295 P.3d at 412.
We conclude that the judge could have accomplished the goal of precluding Thiele from engaging in romantic relationships that would afford him access to adolescent females in a less restrictive way. The condition broadly applies to the custodians of children under age nineteen, boys as well as girls, and to all other persons who happen to live with such a custodian. We see no reason, for example, why Thiele should be required to ask his probation officer's permission to date the roommate of the mother of an eighteen-year-old boy. We accordingly remand the case and direct the superior court to consider less restrictive alternatives to this condition.
Special Condition 12 bars Thiele from establishments purveying sexually explicit material, and Special Condition 13 bars his possession of sexually explicit material. Thiele did not object to these conditions and so he must show plain error.
State v. Ranstead, 421 P.3d 15, 21-23 (Alaska 2018).
We have previously ruled that language barring "sexually explicit material" is unconstitutionally vague and remanded the case for clarification of that term. But here, the judge was at first critical of these conditions, not because of their vagueness, but because no evidence suggested that sexually explicit material was a trigger for Thiele's crimes. Hearing this, the probation officer noted that Thiele's sex offender treatment provider might enforce similar guidelines as part of the program's treatment protocol. The judge accordingly ruled that Special Condition 12 would apply, but only if the treatment provider imposed it as part of the treatment protocol.
Diorec, 295 P.3d at 417.
Rather than objecting to this condition as modified, Thiele's attorney then requested a like modification of Special Condition 13's prohibition against Thiele's possession of sexually explicit material, and the judge agreed to this modification. By responding in this fashion, the attorney implied that he approved of the condition so long as it was limited to the time that Thiele was in treatment. For this reason, we conclude that Thiele has not shown plain error as to Special Conditions 12 and 13.
Special Condition 14 bars Thiele from accessing the internet without his probation officer's permission. We approved such a limitation on internet access in Diorec, a case where the defendant employed a feigned online profile of a sixteen-year-old boy as a technique for contacting minors, and also downloaded child pornography onto his computer. We noted that these facts established a demonstrable nexus between Diorec's computer usage, his crime, and his rehabilitation.
Id. at 418.
Id. --------
That nexus is absent here. The record is devoid of an articulable relationship between Thiele's crime, his rehabilitation, and his access to the internet. But Thiele did not object to this condition, and so he must show plain error. The condition is limited to the time that Thiele actively participates in sex offender treatment, and it is contingent on the jointly exercised discretion of the treatment program and the probation officer. As noted above, Thiele affirmatively acquiesced to other conditions so long as they were limited to the duration of his sex offender treatment. Under these circumstances, we find no plain error.
Special Conditions 17 through 20 restrict Thiele's association with children under the age of eighteen. Thiele's attorney did not argue that these conditions restricted Thiele's right of association. Instead, the attorney requested that these restrictions be made subject to the discretion of Thiele's probation officer — and the judge agreed to this modification. Because Thiele affirmatively told the judge that he was satisfied with these conditions if they were modified as he suggested, we find no plain error.
(We do, however, construe these four conditions as giving Thiele the right to ask the sentencing court to review his probation officer's exercise of discretion if Thiele believes that the probation officer has acted unreasonably.)
Special Condition 22 requires Thiele, if ordered by his treatment provider, to submit to a search directed by his probation officer for pornography or evidence of sexual solicitation. Thiele did not object to this condition. Given that he affirmatively acquiesced to other conditions of probation precluding his access to sexually explicit material so long as the conditions were limited to the duration of his sex offender treatment, we conclude that the judge did not commit plain error in adopting this similarly time-limited probation condition.
Conclusion
We direct the superior court to reconsider Special Condition of Probation 11, but we otherwise AFFIRM the judgment of the superior court.