Opinion
Court of Appeals Nos. A-9563, A-9564.
August 1, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court Nos. 4FA-05-327 Cr, 4FA-05-1194 Cr.
David K. Allen, Assistant Public Advocate, Fairbanks, and Joshua Fink, Public Advocate, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Charles J. Henry exposed his genitals and masturbated in front of several children and women on January 27, 2005 and in front of another child and several other women on January 31, 2005. Based on this conduct, Henry was convicted of two counts of first-degree (felony) indecent exposure, AS 11.41.458(a), and one count of second-degree (misdemeanor) indecent exposure, AS 11.41.460(a).
(One of the first-degree indecent exposure counts and the second-degree indecent exposure count were consolidated counts that encompassed several victims.)
First-degree indecent exposure under AS 11.41.458 is a "sex offense" for purposes of Alaska's sex offender registration law, AS 12.63.
See AS 12.63.100(6)(C)(iii).
(Henry's other crime, second-degree indecent exposure under AS 11.-41.460, can also be a "sex offense" for purposes of the registration law, but only under certain circumstances: only if the offense occurs in front of a child under the age of 16 and the offender has a previous conviction for second-degree indecent exposure. See AS 12.63.100(6)(C)(iv).)
Because of Henry's convictions for first-degree indecent exposure under AS 11.41.458, he is required to register as a sex offender. However, AS 12.63.020(a) draws a distinction among sex offenders: under subsection (a)(2) of this statute, some sex offenders are required to register for 15 years following their conviction, while under subsection (a)(1) of the statute, other sex offenders are required to register for life.
At Henry's sentencing hearing, the judge concluded that Henry fell within this latter category, and so the judge directed Henry to register as a sex offender during his entire life. In this appeal, Henry argues that he should only be subject to the registration requirement for 15 years.
AS 12.63.020(a)(1) declares (in pertinent part) that the duty to register "continues for the lifetime of a sex offender . . . convicted of . . . two or more sex offenses". Seemingly, this provision applies to Henry — since he stands convicted of two counts of first-degree indecent exposure, and these two counts arise from conduct that occurred on different days and involved different victims.
Henry nevertheless argues that his two convictions should only be counted as one for purposes of this statute. He bases this argument on the Alaska Supreme Court's decision in Whitton v. State.
479 P.2d 302 (Alaska 1970).
The Whitton decision deals with the problem presented when a defendant's single act violates two criminal statutes. Whitton provides the ground rules for determining whether, in these circumstances, the two statutes should be viewed as defining a single "offense" for double jeopardy purposes — with the result that the defendant should suffer only one conviction and sentence.
Id. at 312.
But as the supreme court explained in State v. Dunlop, 721 P.2d 604, 608-09 (Alaska 1986), and as this Court explained in Erickson v. State, 950 P.2d 580, 583 (Alaska App. 1997), the Whitton decision does not govern the separate issue of whether a defendant can properly be convicted of separate crimes when the defendant violates the same criminal statute more than once.
For purposes of deciding Henry's appeal, we will assume (without deciding) that a single act of first-degree indecent exposure viewed by two or more children would only support a single conviction under Alaska law. But Henry's two counts of first-degree indecent exposure are based on two separate acts that were committed four days apart.
It may be true that Henry's motivation and modus operandi were the same on each occasion. Nevertheless, Henry can be separately convicted and punished for these two separate events — just as a serial burglar can be separately convicted and punished for burglaries committed on different days.
This disposes of Henry's contention on appeal. However, the facts of Henry's case present another potential issue of statutory interpretation.
As explained above, AS 12.63.020(a)(1)(B) imposes a lifetime registration obligation on an "offender . . . convicted of . . . two or more sex offenses". Conceivably, this lifetime obligation applies only to offenders who commit their second sex offense after having been sentenced for their first sex offense. Henry mentions this possibility in his brief, but he devotes only a single paragraph to this issue, and he cites no authority in support of his argument. We therefore note the issue but do not resolve it.
See State v. Carlson, 560 P.2d 26, 30 (Alaska 1977) (interpreting the "habitual criminal" statutes that were in force before the enactment of Alaska's current criminal code to require proof that the defendant was sentenced for the prior offense before the defendant committed the present offense); Gonzales v. State, 582 P.2d 630, 636 (Alaska 1978) (applying this same rule to the provisions imposing enhanced punishment for repeat drug offenders); State v. Rastopsoff, 659 P.2d 630, 640-41 (Alaska App. 1983); Sawyer v. State, 663 P.2d 230, 231 (Alaska App. 1983) (holding that, for purposes of determining a defendant's status under Alaska's presumptive sentencing laws, a defendant is not "previously convicted" of a felony unless the defendant has been sentenced for that felony); Smith v. State, 83 P.3d 12, 15-16 (Alaska App. 2004) (applying the same rule to an out-of-state felony even though, under the law of that other state, the felony would have been counted as a prior conviction).
For the reasons explained here, we AFFIRM the order of the superior court directing Henry to register as a sex offender for the rest of his life.