Summary
concluding that the defendant established the "least serious" mitigating factor with respect to his first-degree sexual assault conviction where the defendant got into bed with his daughter's close friend, touched her breasts, and penetrated her with his fingers for about five or ten seconds
Summary of this case from Skeek v. StateOpinion
Court of Appeals No. A-7890.
March 7, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-S99-409 CR.
Phillip Weidner and A. Cristina Weidner Tafs, Weidner Associates, Inc., Anchorage, for the Appellant.
Ben M. Herren and Timothy W. Terrell, Assistant Attorneys General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bothelo and David W. Márquez, Attorneys General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
In an earlier decision in this case, Michael v. State, the Alaska Supreme Court directed us to apply a de novo standard of review to the superior court's legal conclusion that under the facts of the case, Peter Ramon Michael had not proven statutory mitigating factor AS 12.55.155(d)(9) (now renumbered as AS 12.55.155(d)(8)). This factor requires Michael to prove that his conduct constituting the offense was among the least serious within the definition of his offense, first-degree sexual assault.
115 P.3d 517 (Alaska 2005).
Id. at 519.
AS 11.41.410(a)(1).
Applying de novo review to the given set of facts discussed by the supreme court in its order, we conclude that Michael's conduct was among the least serious within the definition of the offense. Accordingly, we remand the case to the superior court for reconsideration of Michael's sentence in light of our conclusion that Michael has proven mitigating factor (d)(9).
Background of the case
A jury convicted Michael of one count of first-degree sexual assault and one count of second-degree sexual assault. Michael is a first felony offender, and under the sentencing law in effect at the time of his offense, the presumptive sentence for first-degree sexual assault was 8 years' imprisonment.
AS 11.41.420(a)(1).
Former AS 12.55.125(i)(1).
On appeal, Michael argued that the superior court erred when it rejected mitigating factor (d)(9) because Michael digitally penetrated his victim only slightly and for only a short time, and because he did not cause his victim any significant physical injury. He contended that his conduct was "more appropriately categorized as a clumsy attempt at foreplay."
See Michael v. State, Alaska App. Memorandum Opinion and Judgment No. 4615 (Sept. 4, 2002), 2002 WL 2015287.
When Superior Court Judge Michael L. Wolverton rejected this proposed mitigating factor, his comments were terse, but he specifically discussed two factors that struck him as significant: that Michael committed the first-degree sexual assault through a breach of trust (Michael's daughter was the best friend of the victim, L.R., and Michael was a father figure to the victim) and that Michael was so much older than the victim (Michael was 51; his victim was 18).
Applying the clearly erroneous standard of review, we upheld the superior court's rejection of the least serious mitigating factor.
See id. at 13, 2002 WL 2015287 at *6.
The supreme court described Michael's conduct and offense as follows:
L.R. . . . was a close friend of Michael's daughter. The night before she left Anchorage for college, L.R. and Michael's daughter got together with some friends, where L.R. drank some alcohol. The two returned to the Michael house early in the morning of August 16, 1998. L.R. went to bed in a downstairs guestroom. Before she fell asleep, Michael got into the bed with her. He then reached under her shirt and touched her breasts. L.R. said no and "nudg[ed] him away," but Michael persisted. He then pulled down L.R.'s shorts and underwear and penetrated her with his fingers. The penetration lasted, according to L.R.'s testimony, "[t]en seconds, five seconds," and involved "[o]ne, maybe two" fingers. L.R. continued to tell Michael to stop and elbowed him. He stopped the penetration, but returned to touching her breasts. L.R. continued to protest and then "nudged him pretty hard with [her] elbow." Michael then stopped, kissed her on the cheek again, apologized, and left. There was no allegation that physical force was used.
Michael, 115 P.3d at 518.
The supreme court also noted the superior court's findings that Michael was a veteran with a steady employment record, had no previous criminal history, and had excellent prospects for rehabilitation. The supreme court apparently concluded that the relationship of trust between Michael and his victim and the age difference were outweighed by favorable factors.
Id.
Id. at 521.
Given these facts, we conclude that Michael has sustained his burden of proof on the least serious mitigating factor. Accordingly, we vacate Michael's sentence on first-degree sexual assault and remand the case to the superior court for resentencing. We do not retain jurisdiction.
Conclusion
Michael's sentence for first-degree sexual assault is VACATED. The superior court shall resentence Michael for this offense.