Opinion
No. A-16.
February 17, 1984.
Appeal from the Superior Court, Third Judicial District, J. Justin Ripley, J.
James L. Johnston, Anchorage, for appellant.
Elizabeth H. Sheley, Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
OPINION
Paul M. Higgs was convicted of three counts of sexual abuse of a minor, AS 11.41.440(a)(1), and one count of contributing to the delinquency of a minor, AS 11.51.130(a)(4). He received a sentence of four years' imprisonment on each count of sexual abuse. The sentences on the two remaining counts were consecutive to count I but concurrent to each other. Part of the total sentence was suspended. Higgs received a total sentence of eight years' imprisonment with four years suspended. He appeals, contending that the sentence is excessive. We disagree and affirm.
The record establishes that Higgs twice performed anal intercourse on M.S., his thirteen-year-old nephew. In addition, Higgs performed fellatio on M.S. between twelve and fifteen times, and had the boy perform fellatio on him and engage in mutual masturbation on numerous occasions during a two-month period. No force or threat of force was used.
At the time Higgs sexually abused M.S. his crimes were class C felonies with maximum penalties of five years' imprisonment. Presumptive sentences were two and three years for second and third offenders, respectively. AS 12.55.125(e). Judge Ripley specifically found that the circumstances of Higgs's offenses warranted a sentence exceeding the statutory presumptive sentences for recidivists. See Austin v. State, 627 P.2d 657 (Alaska App. 1981).
Under current law, Higgs's primary offenses would be class B felonies. AS 11.41.436. Had his victim been a year younger, Higgs's conduct would have constituted class A felonies. AS 11.41.434. Given the number of incidents, the relative ages of the parties, and the fact that Higgs's conduct bordered on more serious offenses, we have concluded that a total sentence of eight years with four years suspended was not clearly mistaken. See Goulden v. State, 656 P.2d 1218, 1221-22 (Alaska App. 1983).
The sentence of the superior court is AFFIRMED.