Opinion
Court of Appeals No. A-10730 Trial Court No. 4FA-08-3787 CRNo. 5877
09-12-2012
JUSTIN D. LINCECUM, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge.
Appearances: Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
In June 2008, Justin D. Lincecum, age nineteen, began a sexual relationship with A.B., age thirteen. Approximately twice a month from August until November 2008, A.B. would sneak out of her house at night and meet Lincecum. At each meeting, they engaged in three types of sexual penetration: vaginal intercourse, fellatio, and cunnilingus.
Their sexual relationship ended when Lincecum was arrested in November 2008. A grand jury indicted Lincecum on thirteen counts of sexual abuse of a minor in the second degree. Count I charged that Lincecum had engaged in vaginal intercourse with A.B. in June 2008. Counts II through IV charged Lincecum with engaging in vaginal intercourse, fellatio, and cunnilingus with A.B. during a sexual encounter in August 2008. Counts V through VII, VIII through X, and XI through XIII charged that Lincecum had engaged in those same three acts during sexual encounters that occurred in September 2008, October 2008, and November 2008, respectively.
In a bench trial, Superior Court Judge Michael A. MacDonald found there was insufficient evidence to convict Lincecum of Counts II through IV, the charges involving the alleged August 2008 sexual encounter. But he convicted Lincecum on all of the remaining charges. Judge MacDonald sentenced Lincecum to a composite sentence of five years and nine months of imprisonment, followed by ten years' probation.
Double Jeopardy issues
On appeal, Lincecum points out that many of his convictions are based on separate acts of penetration that occurred during a single sexual encounter. For instance, Lincecum was convicted of three counts of sexual abuse of a minor for engaging in vaginal intercourse, fellatio, and cunnilingus with A.B. during a single incident in September 2008. Lincecum argues that convicting him of three separate offenses in these circumstances violates his double jeopardy right to be protected from multiple punishments for the same offense. He argues that the separate counts charging him with vaginal intercourse, fellatio, and cunnilingus with A.B., which arose from a single sexual encounter, should have merged.
Lincecum recognizes that in Erickson v. State, we held that each distinct type of sexual penetration arising out of a single criminal episode constitutes a separate chargeable offense. But Lincecum argues that Erickson was incorrectly decided and urges us to overrule Erickson.
950 P.2d 580 (Alaska App. 1997).
Id. at 584.
Erickson, like Lincecum, was charged with multiple counts of sexual abuse of a minor in the second degree. The four counts in Erickson "arose from a single episode of sexual abuse, but each count alleged a different form of sexual penetration."Erickson argued that, because the four counts of sexual abuse of a minor arose from the single episode of sexual abuse, the counts should merge into a single conviction.Erickson conceded that this court had rejected the argument he was raising in a prior case, Yearty v. State.
Id. at 582.
Id.
Id.
Id. (citing Yearty v. State, 805 P.2d 987, 995 (Alaska App. 1991)).
In Erickson, we rejected Erickson's contention that convicting him of different offenses for each separate act of sexual penetration arising in a single episode violated his double jeopardy rights. We also rejected Erickson's contention that allowing separate convictions was improper as a matter of statutory interpretation. In reaching this decision, we pointed out that we had directly held in Yearty, "that different forms of sexual penetration constitute different forms of indignity and violation, and they thus merit separate punishment."
Id. at 584-87.
Id. at 587.
Id.
We went on to concede "that reasonable people might differ on this question." But we observed "that in the years since Yearty was decided, the Alaska Legislature has taken no action to indicate its disagreement with this court's conclusion."
Id.
Id.
We also discussed the doctrine of stare decisis, the rule of law that explains that courts adhere to a prior decision unless there are substantial reasons to overrule that decision:
Under the doctrine of stare decisis, a litigant who asks an appellate court to overrule a prior decision must demonstrate convincing reasons why the existing rule "was originally erroneous or is no longer sound because of changed conditions". The litigant must also demonstrate "that more good than harm would result from a departure from precedent".
Id. (citations omitted).
Lincecum argues that, absent Erickson, our prior cases suggest that convictions for sexual abuse of a minor would "merge if they are for acts undertaken within a continuous episode in a single location." But this is a misreading of our prior decisions. It is true that we have previously held that an act of digital penetration, if it is immediately preparatory to another act of sexual penetration, can merge with the later act. For instance, in Oswald v. State, Oswald was convicted on three counts of sexual assault in the first degree under a former statute. (Under today's statutes, Oswald's offenses would be charged as sexual abuse of a minor in the first degree.) Oswald was convicted of two counts of sexual assault in the first degree for digitally penetrating an underage girl's vagina and moments later engaging in vaginal intercourse with her.The State conceded that the digital penetration "encompassed foreplay leading to the act of sexual intercourse ... and consequently could not support a separate conviction." We accepted the State's confession of error. We held that the conviction for digital penetration should merge with the conviction for vaginal intercourse that immediately followed the digital penetration.
715 P.2d 276 (Alaska App. 1986).
Id. at 277; former AS 11.41.410(a)(3); current AS 11.41.434(a)(1).
Oswald, 715 P.2d at 280-81.
Id. at 280.
Id.
In Newsome v. State, the defendant was convicted of three counts of sexual abuse of a minor for touching a girl's breasts with his hands, inserting two fingers into her vagina, and touching her genitals with his tongue. Newsome argued that these three convictions constituted a single offense of sexual abuse of a minor in the second degree. Again, the State confessed error, and we accepted the State's concession. In Newsome, we summarized the holding of our prior cases as follows:
782 P.2d 689 (Alaska App. 1989).
Id. at 691.
Multiple convictions for sexual contact and sexual penetration which occur as part of a single transaction cannot stand. Separate convictions for multiple acts of penetration involving different openings of the victim's or the defendant's body are permissible. Reading these cases together, we conclude that two acts of sexual contact performed as part of a single transaction with a single incident of sexual penetration permit but one conviction for the most serious contact, in this case the sexual penetration.
Id. (quoting Johnson v. State, 762 P.2d 493, 495 (Alaska App. 1988)).
Thus, in Oswald, we held that when digital penetration of the vagina is followed closely by penile penetration of the vagina, this conduct constitutes only a single punishable act of sexual penetration; while in Newsome, we held that when an act of sexual contact is followed closely by an act of sexual penetration, the sexual contact is merged into the punishable act of sexual penetration.
But in Rodriquez v. State, we rejected a broad reading of the principle suggested by Oswald and Newsome. That is, we rejected the proposition that Alaska law uniformly forbids the entry of more than one conviction for any and all acts of sexual conduct that "were part of a continuous transaction".
741 P.2d 1200 (Alaska App. 1987).
Id. at 1206.
Specifically, we upheld Rodriquez's separate convictions for (1) a consensual act of fellatio performed on a minor and (2) an ensuing act of forcible sodomy (i.e., anal penetration) of the same minor. We explained that the act of fellatio "was not a necessary or inevitable predecessor to the later sodomy," and that "the later sodomy ... involved a complete change in the character of the interaction" because it "involved the use of force."
Id. at 1207.
Similarly, we upheld Rodriquez's separate convictions for two different types of sexual penetration committed during a single transaction: an act of fellatio, followed by an act of attempted anal penetration.
Id. at 1208.
Nevertheless, we applied the Oswald / Newsome rule to the facts of Rodriquez when we held that Rodriquez could be convicted of only a single count for (1) masturbation of a minor (i.e. sexual contact by manual manipulation of the minor's penis), followed by (2) fellatio (i.e., sexual penetration) performed on the same minor during the same transaction.
Id. at 1207.
Later in Yearty v. State, we reaffirmed our earlier decisions that separate convictions are proper when a defendant engages in distinct types of sexual penetration during a single transaction. And we acknowledged in a footnote that our decision in Yearty was inconsistent with the broader potential interpretations of Oswald.
Yearty, 805 P.2d at 995.
Id. at 995 n.3.
We note that numerous other jurisdictions have held that different types of sexual penetration committed during a continuing criminal episode will support separate convictions.
See, e.g., People v. Harrison, 768 P.2d 1078, 1080-85 (Cal. 1989); Sanchez-Rengifo v. United States, 815 A.2d 351, 353-59 (D.C. 2002); Jordan v. State, 936 So. 2d 368, 374 (Miss. App. 2005); Deeds v. State, 626 P.2d 271, 272 (Nev. 1981); Nelson v. Commonwealth, 589 S.E.2d 23, 34-35 (Va. App. 2003); State v. Tili, 985 P.2d 365, 369-72 (Wash. 1999); Hamill v. State, 602 P.2d 1212, 1215-16 (Wyo. 1979). But see Herron v. State, 805 P.2d 624, 628-29 (N.M. 1991); State v. Petty, 512 S.E.2d 428, 435 (N.C. App. 1999).
Lincecum does not challenge Yearty's holding that multiple types of factually nonconsensual sexual penetration require separate convictions. But he argues that sexual abuse of a minor where the victim agrees to the sexual penetration represents an entirely different situation because it is free from the indignities and violation of bodily integrity that inhere in sexual assault. In other words, Lincecum argues that, if he had forced A.B. to engage in vaginal intercourse, fellatio, and cunnilingus, he could be convicted of three separate acts; but since A.B. agreed to these sexual acts, the three acts should merge into a single conviction.
But Lincecum's argument is inconsistent with the policy behind prohibiting sexual abuse of minors.
In Yearty, we explained:
The sexual abuse and the sexual assault statutes are aimed at the same basic purpose: to protect victims from socially unacceptable sexual contacts. The sexual assault statute, focusing on potential victims regardless of age, achieves this purpose by requiring that the victim's lack of consent be affirmatively proved. The sexual abuse of a minor statute, focusing more narrowly on children, achieves the same
purpose by substituting the child's age (and the age of the defendant) for proof of actual lack of consent.
Yearty, 805 P.2d at 994-95.
As Lincecum recognizes, the argument he raises that his convictions for sexual abuse of a minor should merge is the same argument we rejected in Erickson, where we concluded:
Moreover, it is not enough for Erickson to show that the Yearty decision was honestly debatable at the time, and that it might have gone the other way. Under the doctrine of stare decisis, a litigant who asks an appellate court to overrule a prior decision must demonstrate convincing reasons why the existing rule "was originally erroneous or is no longer sound because of changed conditions". The litigant must also demonstrate "that more good than harm would result from a departure from precedent".
Erickson, 950 P.2d at 587.
In Erickson, we concluded that the defendant had not met this burden. We reach a similar conclusion in Lincecum's case.
Whether Lincecum proved mitigating factor (d)(9)
Judge MacDonald convicted Lincecum of ten counts of sexual abuse of a minor in the second degree. Sexual abuse of a minor in the second degree is a class B felony. Lincecum had no prior criminal record and was thus subject to sentencing as a first felony offender. He therefore faced a presumptive sentencing range of five to fifteen years for each of his ten convictions.
AS 12.55.125(i)(3)(A).
Lincecum proposed a mitigating factor, that his offenses were among the least serious conduct included in the definition of the offense. Lincecum argued that he was relatively immature, that he was not significantly older than A.B., and that their relationship had not only been consensual, but had been positive and supportive.
AS 12.55.155(d)(9).
Judge MacDonald found that Lincecum had not established the mitigating factor by clear and convincing evidence. He found that Lincecum was "an adult military personnel member who knowingly involved himself in sexual relations with a junior high school girl in the community who was 13 years old at the time." He found that Lincecum knew that A.B. was thirteen years old when he initiated sexual relations with her, that the sexual abuse continued over a significant period of time, and that Lincecum would have continued to engage in sexual relations with A.B. had the authorities not intervened. He found that Lincecum's relationship with A.B. was "sexual exploitation of a 13-year-old and nothing more."
AS 12.55.155(f)(1).
Judge MacDonald concluded that, although Lincecum had not established that his offenses were mitigated, his potential for rehabilitation was good. He ultimately imposed a composite sentence of five years and nine months to serve, with an additional three years suspended. The sentence is near the bottom of the five- to fifteen-year presumptive range for a single conviction of sexual abuse of a minor in the second degree.
On appeal, Lincecum argues that Judge MacDonald erred in rejecting the mitigating factor. We have reviewed the record and conclude that Judge MacDonald did not err in finding that Lincecum did not establish the mitigating factor by clear and convincing evidence.
See Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
Conclusion
The judgment of the superior court is AFFIRMED.