Opinion
A-13313 7089
01-24-2024
BRYON DOUGLAS PETE, Appellant, v. STATE OF ALASKA, Appellee.
Rachel Cella, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Trial Court No. 3AN-16-05448 CR
Rachel Cella, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
TERRELL Judge
Bryon Douglas Pete was convicted, following a jury trial, of second-degree sexual abuse of a minor, attempted second-degree sexual abuse of a minor, and fourth-degree assault. Pete sexually assaulted a young girl, tried to assault a second young girl, and physically assaulted a young boy when the children were present in an Anchorage hotel room where Pete was drinking with their adult female relative. For these offenses, the superior court sentenced Pete to a composite term of 11 years and 180 days to serve with an additional 12 years suspended and a 10-year probation period. Pete now appeals, challenging both his convictions and sentence.
As to his convictions, Pete challenges, on constitutional and rule-based grounds, the admission at trial of videotaped interviews with the children conducted at a Child Advocacy Center (CAC). He notes that the interviews were hearsay at his trial and inadmissible under the federal and Alaska Confrontation Clauses unless the children testified and were available for cross-examination regarding the statements. He argues that two of the childrens' inability to remember facts regarding the events at trial rendered them unavailable as witnesses for Confrontation Clause purposes. He also argues that the superior court erred by not applying a clear and convincing evidence standard and by making insufficient findings as to the foundational admissibility requirements set out in Alaska Evidence Rule 801(d)(3) for CAC interview videos.
"Child advocacy center" is defined in AS 47.17.033(1) as "a facility operated with a child-focused, community partnership committed to a multidisciplinary team approach that includes representatives from law enforcement, child protection, criminal prosecution, victim advocacy, and the medical and mental health fields who collaborate and assist in investigating allegations of sexual or other abuse and neglect of children." They are designed to elicit evidence of abuse while the events are still fresh in the child's mind, and to do so in a child-friendly environment with interviewers who are trained in interviewing children. See State v. Powell, 487 P.3d 609, 612 (Alaska App. 2021).
As to his sentence, Pete argues that the superior court erred in rejecting his proposed mitigating factor that his second-degree sexual abuse of a minor and attempted second-degree sexual abuse of a minor offenses were among the least serious conduct included within the definition of those offenses. Pete also challenges a probation condition prohibiting him from having firearms and several probation conditions which effectively prohibit him from having contact with his children without his probation officer's approval. Pete last argues that the presentence report should be corrected to remove a sentence stating that the police officers who responded to the hotel thought that Pete had attempted to have sexual relations with the childrens' adult female relative.
AS 12.55.155(d)(9).
Finding that the bulk of Pete's claims do not warrant relief, we affirm Pete's convictions and sentence. But in light of the State's correct concessions, we remand so that the court may reconsider several of Pete's probation conditions. In particular, we remand the case to the superior court to reconsider the conditions that prohibit Pete from contacting his children, and direct the court to apply special scrutiny to those conditions since they impact his constitutional right of familial association. We also remand for the court to reconsider Pete's request to modify the probation condition prohibiting him from possessing firearms. We also direct the court to correct the presentence report to strike the sentence that Pete challenges.
Background facts and proceedings
On the last weekend of February 2016, Jolene Steve-Pete had four children in her care: twelve-year-old K.N. (her niece), ten-year-old Lu.T. (her son), eight-year-old La.T. (her granddaughter), and one-year-old M.S.P. (her grandson and adopted son).Steve-Pete met up with Pete (not a relative, but whom she knew from her hometown) at a hotel in Anchorage.
The offenses took place one day before La.T.'s eighth birthday and we will refer to her as being eight years old for the purpose of noting her relative age level.
K.N. testified at trial (and stated in her CAC interview video, which was played at trial) that Pete and Steve-Pete drank beer together in a hotel room. Steve-Pete passed out in the bed, lying next to Pete who was awake and watching television with the children. Pete then initiated a series of assaults on the children. La.T. stated in her CAC interview video, which was played for the trial jury, that Pete first touched her genitalia and buttocks through clothing while she was on the bed. La.T. stated that Pete then got up to use the bathroom, and when he came back into the hotel room he did this again to her, while she was standing up watching television. Lu.T. stated in his CAC interview video, which was played at trial, that he then tried to intervene, attempting to remove Pete's hand from La.T., to which Pete responded by punching Lu.T. in the stomach, slapping him, and pulling his hair. K.N. stated in her CAC interview video and at trial that when she was in the bathroom, Pete tried to force his way into the bathroom, telling her "I'm going to do something to you" and attempting to make contact with her genitalia with his hand, but not succeeding because she moved his hand away.
K.N. corroborated La.T.'s version of events in her trial testimony and CAC interview video.
The childrens' testimony differs slightly as to the placement of Pete's hitting Lu.T. in the sequence of events. That is, in their CAC interview videos, Lu.T. and La.T. describe this as happening after Lu.T. tried to intervene in Pete's touching of La.T. K.N. was slightly more ambiguous in her CAC interview and her trial testimony, describing the event as Lu.T. and Pete having some kind of verbal exchange which resulted in Pete hitting Lu.T.
K.N. testified that she then picked up the baby and led the other children out of the room and to the front desk. They told the front desk clerk that Pete touched them, leading the clerk to call 911. Anchorage Police Department officers responded to the scene and found Pete in bed with a passed out Steve-Pete.
K.N., Lu.T., and La.T. were interviewed at a CAC in Anchorage several days after the incident (the Alaska CARES program at Providence Hospital).
Pete was tried for (1) second-degree sexual abuse of a minor (for touching La.T.'s genitals through clothing), (2) attempted second-degree sexual abuse of a minor (for attempting to touch K.N.'s genitals), (3) fourth-degree assault (for hitting and slapping Lu.T.), and (4) second-degree harassment (for hitting and slapping Lu.T.).
AS 11.41.436(a)(2), AS 11.41.436(a)(2) & AS 11.31.100(a), AS 11.41.230(a)(1), and AS 11.61.120(a)(5), respectively.
Prior to trial, the State moved to admit the CAC interview videos under Evidence Rule 801(d)(3). Pete opposed admission of the interviews, arguing that the State had not shown that the requirements of Rule 801(d)(3) were satisfied. He argued that "[i]t is not clear that each person who participated in the taking of ten-year-old L[u].T.'s statement is identified on the recording," as required by Rule 801(d)(3)(E). Further, he asserted that "[i]t is not clear that the interests of justice are best served by admitt[ing] K.N.'s recording into evidence," as required by Rule 801(d)(3)(H), because her grand jury testimony showed that she was capable of testifying in detail about the events at trial. Pete also cited Judge Mannheimer's concurrence in Augustine v. State for two propositions: (1) that the State must prove by clear and convincing evidence the facts relied on to establish the foundational requirements for admitting CAC interviews, and (2) that the State must "elicit[] sufficient testimony regarding the allegations to establish that the witness now makes the same accusation against the defendant that he or she made on the recorded statement."
See Augustine v. State, 355 P.3d 573, 591-92 (Alaska App. 2015) (Mannheimer, C.J., concurring).
The court heard argument on the motion prior to the start of trial and concluded that the State had satisfied the requirements of Evidence Rule 801(d)(3) and that the CAC interview videos would be admissible at trial. The court did not address Pete's claim regarding the standard of proof.
At trial, the State presented the testimony of Steve-Pete and all three children, as well as the hotel desk clerk and the police officers who responded to the scene. The State also played the CAC interview videos for all three children. The oldest child, K.N., had some memory of the events and gave substantive testimony at trial, but Lu.T. and La.T. stated that they could not remember the incidents and provided no substantive testimony at trial. After La.T. testified, Pete objected to the introduction of her CAC interview on Confrontation Clause grounds, stating that "due to the witness's lack of memory, the defense has not had a chance to confront her, and as a result of that, the video of her statement to Alaska CARES should be struck from the record." Pete later made this same objection with respect to the introduction of Lu.T.'s CAC interview.
See U.S. Const. amend. VI; Alaska Const. art. I, § 11.
Pete's defense was that the childrens' testimony was simply too vague and contradictory to be credited and that because it was thus impossible to know precisely what happened in the hotel room, the State had not carried its burden of proving the charges beyond a reasonable doubt.
The jury convicted Pete of all charges. At sentencing, the court merged the second-degree harassment conviction into the fourth-degree assault conviction. Pete was sentenced for second-degree sexual abuse of a minor, attempted second-degree sexual abuse of a minor, and fourth-degree assault.
As a second-felony offender, Pete was subject to a presumptive range of 10 to 25 years for second-degree sexual abuse of a minor and 8 to 15 years for attempted second-degree sexual abuse of a minor. He asked the court to find the mitigating factor set out in AS 12.55.155(d)(9), that his conduct was among the least serious conduct included in the definitions of those offenses, and to impose a sentence below the bottom ends of the presumptive ranges. The court rejected the proposed mitigating factor and sentenced Pete to a composite sentence of 11 years and 180 days to serve.
AS 12.55.125(i)(3)(B) and (i)(4)(B), respectively.
Pete appeals.
Why we reject Pete's Confrontation Clause claim
Both the United States and Alaska Constitutions guarantee a criminal defendant the right "to be confronted with the witnesses against him." In Crawford v. Washington, the United States Supreme Court noted that admission at trial of a witness's prior out-of-court testimonial statements does not infringe a defendant's right to confrontation if the witness testifies at trial and is "available" for cross-examination.Accordingly, Evidence Rule 801(d)(3) allows for statements of child victims at CAC interviews to be admitted only if "the victim is available for cross-examination." The question in this case concerns when a witness who testifies at trial is "unavailable." The United States Supreme Court has held that even when a witness has fairly substantial memory deficits - due to a traumatic brain injury, amnesia, dementia, or other medical conditions - such deficits generally do not render the witness "unavailable" for purposes of the Confrontation Clause. Alaska's courts have agreed with this view.
U.S. Const. amend. VI; Alaska Const. art. I, § 11.
Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004).
United States v. Owens, 484 U.S. 554, 559-60 (1988).
See, e.g., Vaska v. State, 135 P.3d 1011, 1021 (Alaska 2006); Lee v. State, 507 P.3d 483, 493-95 (Alaska App. 2022).
Pete nevertheless argues that under the Alaska Constitution, memory deficits should render a witness "unavailable" for Confrontation Clause purposes when they are substantial, particularly when child witnesses have little recall of an event. He contends that the court should have treated La.T. and Lu.T. as unavailable and declined to allow the State to introduce their prior testimonial statements in their CAC interview videos. Pete also argues that the prosecutor must elicit specific testimony from the child witness on direct examination, fleshing out the details of the child's accusation against the defendant, before the defense questions the child. He asserts that this standard was not met as to La.T. and Lu.T. For the reasons we explain below, we reject these claims.
1. Procedural history of this claim
At trial, the CAC interview videos of K.N., Lu.T., and La.T. were authenticated via the testimony of an Alaska CARES employee who observed the interviews. The videos were then played for the jury. After the videos were played, the State called La.T. as a witness. The prosecutor began by emphasizing the need to tell the truth but at the same time not to fabricate answers, telling her that if she did not remember something she should say that. The prosecutor then moved on to asking basic questions used with child witnesses to establish their age and understanding and to put the child at ease. The prosecutor asked for her age at the time of testifying (ten), when her birthday was, what kind of birthday cake she had, what grade she was in, and what kind of things she liked to do at school.
The prosecutor then moved on to questioning La.T. about her memory of the CAC interview and the underlying events. In response to the prosecutor's questions, La.T. stated that she did not remember being in the hotel room with her grandmother and Lu.T. and K.N., she did remember watching a replay of her CAC interview at the prosecutor's office the day prior to testifying, she remembered being in the room and participating in the CAC interview, and she had no memory of what she said in that interview. She testified that two years ago seemed like a "long time" to her. The prosecutor concluded by asking her, "Are these things that you don't remember or things that you don't want to remember because they're hard to think about?" La.T. responded, "I don't remember."
Pete's questioning of La.T., in its entirety, consisted of asking La.T. if she recognized Pete. La.T. replied that she did not. After the jury was excused, counsel then stated his objection "that due to the witness's lack of memory, the defense has not had a chance to confront her, and as a result of that, the video of her statement to Alaska CARES should be struck from the record."
Lu.T. was then called to testify by the State. As he had with La.T., the prosecutor emphasized the duty to tell the truth and also to not fabricate answers, stating that "if you don't remember, say you don't remember." The prosecutor asked Lu.T.'s age at trial (twelve), and questions about his background and interests. The prosecutor then turned to the events at issue. Lu.T. stated that he did not remember being in a hotel room with his mother, K.N., and La.T. He remembered being in a room with someone named Bryon and other people, but did not remember what happened in that room. The prosecutor asked, "When you say you don't remember what happened in there, is that something that you don't remember or something that you don't really want to talk about?" Lu.T. responded, "I don't remember." Lu.T. remembered coming to the prosecutor's office the day before testifying and seeing a few minutes of his CAC interview, and he remembered participating in the interview. He did not remember what he said at that interview. The prosecutor then asked, "Is that something you don't really remember what you talked about, or is it something that you don't really want to talk about because it's hard to talk about?" Lu.T. responded, "I don't remember."
Pete asked Lu.T. two questions: if he recognized Pete and if he knew Pete's name. Lu.T. responded "Yes" and "Bryon."
At oral argument in this appeal, Pete framed his Alaska Constitution-based Confrontation Clause argument by arguing for a rule that "when the prosecution seeks to admit a CAC interview under [Evidence] Rule 801(d)(3), the prosecution must elicit sufficient information from the child on direct to conclude that the child is defending or explaining the prior accusation," in order to treat the child as "available for cross-examination." Pete correctly treats the "available for cross-examination" language in the evidence rule as referring to the concept of witness availability under the federal and Alaska Confrontation Clauses. He argues that under the Alaska Constitution, such availability requires the child witness to have sufficient memory of the offense and the CAC interview such that they can "defend or explain" their interview statements at trial. And he argues that the prosecutor must elicit the essentials of the child's accusation on direct examination, lest the burden of proof be impermissibly shifted to the defendant.
The "defending or explaining" language comes from Crawford, 541 U.S. at 59 n.9, where the Court stated that the Confrontation Clause did not "bar admission of a statement so long as the declarant is present at trial to defend or explain it."
2. Federal and Alaska law on memory and witness unavailability for Confrontation Clause purposes
A witness's mere presence in the courtroom after testifying for the prosecution does not in and of itself make the witness available for cross-examination for purposes of the constitutional right to confront adverse witnesses. For example, if the witness refuses to answer any questions from the defense, or if they assert a privilege not to answer questions from the defense, then that witness is not available for cross-examination.
See, e.g., Douglas v. Alabama, 380 U.S. 415, 419-20 (1965).
Pete's appeal focuses on a specific type of unavailability for Confrontation Clause purposes, unavailability due to lack of memory. The Supreme Court discussed the effect of lack of memory in evaluating whether a witness is available in United States v. Owens. In Owens, a prison counselor was attacked and brutally beaten over the head, sustaining skull fractures and requiring hospitalization for over a month. He was interviewed by an FBI agent a week after the attack and then again two and a half weeks later. In the second interview, he named the defendant as his assailant and identified him in a photo array. At trial, the counselor could recall his actions before the attack, the feeling of the blows to his head, and identifying the defendant as his assailant in the second interview. But, at the time of trial, he had no memory of his assailant and no memory of most of his hospital visitors.
Owens, 484 U.S. 554.
Id. at 556.
The Supreme Court addressed whether a witness's memory loss may be so significant as to make their trial testimony a violation of the Confrontation Clause. The Court held that the Confrontation Clause only required an effective opportunity for cross-examination, stating:
[T]hat opportunity [for cross-examination] is not denied when a witness testifies as to [their] current belief but is unable to recollect the reason for that belief. It is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, [their] lack of care and attentiveness, [their] poor eyesight, and even (what is often a prime objective of cross-examination) the very fact that [they have] a bad memory.
Id. at 559 (citation omitted).
The Court concluded by stating, "The weapons available to impugn the witness' statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee." The Court determined that the defendant received an opportunity for cross-examination, as "demonstrated by defense counsel's summation . . ., which emphasized [the witness's] memory loss and argued that his identification of [the defendant] was the result of the suggestions of people who visited him in the hospital."
Id. at 560.
Id.
While the Supreme Court may yet conclude that an extreme level of memory loss would effectively preclude a cross-examination that would satisfy any of the core purposes of the Confrontation Clause, it suffices to say that as a matter of federal law, in general memory loss does not render a witness "unavailable" for Confrontation Clause purposes.
See, e.g., United States v. Shaffers, 22 F.4th 655, 659-63 (7th Cir. 2022); Yanez v. Minnesota, 562 F.3d 958, 963-65 (8th Cir. 2009).
Alaska's courts have thus far taken the same view of the effect of a witness's memory loss as is reflected in the federal cases discussed above. As a basic matter of witness competency to testify under Alaska Evidence Rule 602, the Alaska Supreme Court has agreed with our holding in "Tucker v. State that defects in recollection do not generally render witness testimony inadmissible but are instead a proper subject for cross-examination and impeachment." And more specifically, both the Alaska Supreme Court and this Court have treated general memory loss similar to that reflected in La.T.'s and Lu.T.'s trial testimony as insufficient to render a witness (including child witnesses) "unavailable" for Confrontation Clause purposes. By contrast, particularly with very young children, the child's total lack of memory coupled with extreme reluctance to testify and evasive behavior on the stand may justify treating the child as unavailable for Confrontation Clause purposes.
L.C.H. v. T.S., 28 P.3d 915, 921 (Alaska 2001) (citing Tucker v. State, 721 P.2d 639, 642 (Alaska App. 1986)).
See, e.g., Vaska v. State, 135 P.3d 1011, 1021 (Alaska 2006) (stating that "a finding of unavailability under [Evidence] Rule 804(a)(3) does not necessarily equate to a legal determination that the witness could not have been meaningfully cross-examined in a way that would satisfy the accused's constitutional right of confrontation," and citing Owens, 484 U.S. at 561-63); Lee v. State, 507 P.3d 483, 493-95 (Alaska App. 2022); Brandon v. State, 839 P.2d 400, 412 (Alaska App. 1992); Van Hatten v. State, 666 P.2d 1047, 1051-52 (Alaska App. 1983); Dushkin v. State, 2015 WL 996189, at *3-5 (Alaska App. Mar. 4, 2015) (unpublished); Wonhola v. State, 2014 WL 1420229, at *3 (Alaska App. Apr. 9, 2014) (unpublished); Oxereok v. State, 1989 WL 1595177, at *4 (Alaska App. Oct. 19, 1989) (unpublished).
See, e.g., People v. Giron-Chamul, 200 Cal.Rptr.3d 159, 183-89 (Cal.App. 2016) (holding that defendant was denied meaningful confrontation where five-year-old child only answered a handful of the many questions asked, provided extremely vague - and often contradictory or nonsensical - answers, repeatedly disappeared under the witness chair, and repeatedly told both the prosecutor and defense counsel that she did not want to talk about it in response to questions).
3. Why we conclude that the Confrontation Clause was not violated
In this case, no evidence demonstrates that La.T. or Lu.T. were reluctant to testify or unwilling to answer the defense attorney's questions. On appeal, Pete argues that the prosecutor should have been required to elicit specific testimony from the child witnesses on direct examination, fleshing out the details of the child's accusation against him, in order to satisfy the Confrontation Clause. Pete did not make this argument in the trial court and he must therefore show plain error on appeal.
As support for his argument, Pete cites to a Washington decision, State v. Rohrich. In that case, the prosecutor called the child witness to the stand and asked her several questions, including what school she went to, what she got for her birthday, and what her cat's name was. But the prosecutor did not ask her questions about any alleged abuse, and the defense attorney did not cross-examine the child. Rohrich recognized that this was insufficient to satisfy the Confrontation Clause.
State v. Rohrich, 939 P.2d 697 (Wash. 1997).
Id. at 699.
The Rohrich court relied on Lowery v. Collins, in which the Fifth Circuit explained that
forcing a defendant to call a child complainant to testify in order to cross-examine that individual creates a risk of inflaming the jury against a criminal defendant and also unfairly requires a defendant to choose between his right to cross-examine a complaining witness and his right to rely on the State's burden of proof in a criminal case.
Lowrey v. Collins, 988 F.2d 1364, 1368 (5th Cir. 1993) (quoting Lowery v. State, 757 S.W.2d 358, 358-59 (Tex. Crim. App. 1988)).
In other words, the prosecutor must call the child as a witness and must question the child witness about the offense in a manner such that the defendant has full scope to question the child witness on cross-examination about the offense.
But this case is unlike Rohrich and Lowery. Here, the prosecutor did call the children as witnesses during the State's case-in-chief, and the prosecutor questioned each of them about their memory of the events forming the basis of the charges against Pete. The children answered the prosecutor's questions and the questions of the defense attorney, and they did so without extreme reluctance or evasion. While it may have been preferable for the prosecutor to ask the children more questions about the event and their prior statements, Pete's attorney never made such a request. We accordingly find no Confrontation Clause violation on the record before us.
See, e.g., State v. Price, 146 P.3d 1183, 1192 (Wash. 2006) (holding that "when a witness is asked questions about the events at issue and about his or her prior statements, but answers that he or she is unable to remember the charged events or the prior statements, this provides the defendant sufficient opportunity for cross-examination to satisfy the confrontation clause"); State v. Clark, 985 P.2d 377, 381 (Wash. 1999) (concluding that there is no Confrontation Clause violation if the hearsay declarant is asked about both the event as well as their hearsay statements).
Why we reject Pete's arguments regarding Evidence Rule 801(d)(3)
Hearsay, an out of court statement "offered in evidence to prove the truth of the matter asserted," is generally inadmissible under the Alaska Rules of Evidence.However, Alaska Evidence Rule 801(d)(3) provides that a recorded statement ofavictim who is less than sixteen years old is not hearsay if the proponent of the evidence establishes eight foundational matters, including that "the taking of the statement as a whole was conducted in a manner that would avoid undue influence of the victim" and "the court has had an opportunity to view the recording and determine that it is sufficiently reliable and trustworthy and that the interests of justice are best served by admitting the recording into evidence." Pete argues that the superior court made insufficient findings regarding these requirements for admission of the CAC interview videos.
Alaska. R. Evid. 801(c); Alaska R. Evid. 802.
Alaska R. Evid. 801(d)(3)(F), (d)(3)(H).
In his written opposition to the State's motion to admit the CAC interview videos, Pete did not argue that any of the interviews were conducted in a manner that unduly influenced the childrens' testimony. And he argued that the interests of justice would not be served only with respect to the admission of K.N.'s interview, arguing that K.N. had enough memory of what occurred that admitting the interview would be duplicative. When the parties took up the motion at a pretrial hearing, Pete again made no argument regarding undue influence and argued only that the "interests of justice" factor was not met as to K.N.'s interview. The court found that the State met the criteria of Rule 801(d)(3), and admitted the interviews. Pete did not ask the court to make specific findings.
On appeal, Pete argues that the court did not sufficiently set out the basis for its conclusion that the CAC interview videos met the admissibility requirements of Evidence Rule 801(d)(3). However, we have repeatedly declined to overturn admission of CAC interview videos on these grounds where it is apparent that the superior court did not abdicate its duty in considering the pertinent factors set out in the rule and where the appellant did not argue these issues in the superior court and request specific findings (or where the appellant only made conclusory arguments, as Pete did regarding the admission of K.N.'s interview video). We do so again here.
See Cole v. State, 452 P.3d 704, 709 (Alaska App. 2019); McIntyre v. State, 2018 WL 1357355, at *3 (Alaska App. Mar. 14, 2018) (unpublished); Leopold v. State, 2013 WL 6576733, at *3-4 (Alaska App. Dec. 11, 2013) (unpublished).
Finally, in his opposition to the State's motion to admit the CAC videos, Pete cited Judge Mannheimer's concurrence in Augustinev. State for theproposition that the State must establish the foundational requirements of Evidence Rule 801(d)(3) by clear and convincing evidence. To the extent that a clear and convincing standard is required, we see no basis to conclude that the superior court did not apply that standard.
Augustine v. State, 355 P.3d 573, 591-92 (Alaska App. 2015) (Mannheimer, C.J., concurring).
Why we affirm Pete's sentence but remand as to probation conditions
1. The superior court correctly rejected Pete's proposed least serious mitigating factor
In his sentencing memorandum, Pete argued that the court should apply the mitigating factor set out in AS 12.55.155(d)(9), i.e., that "the conduct constituting the offense was among the least serious conduct included in the definition of the offense," to his convictions for completed and attempted second-degree sexual abuse of a minor. Pete asserted that "[u]nlike other mitigators that focus on the motivation or consequences of a defendant's crime, the 'least serious' mitigator focuses on the defendant's conduct." Pete argued that the touching of La.T. was less serious than it otherwise could have been because Pete touched her over her clothes rather than under them. And Pete argued that his conduct in both offenses did not suggest manipulation or grooming of the children for purposes of sexual gratification, but rather represented variant forms of harassment that occurred in a single event, and that this conduct was "relatively less serious than the core conduct contemplated by the statutes."
At sentencing, the State argued that the fact that Pete touched La.T. over her clothing may have made Pete's conduct less serious than skin-to-skin touching but that it did not make it least serious. The State also noted that the victims were all young children, and that the conduct in each case was only a component part of a criminal episode that involved multiple offenses.
In response, Pete argued that it was not only the over-the-clothing aspect of Pete's offenses that made them least serious, but also that the contact with the victims was brief and fleeting, with Pete trying to grab at them. Pete argued that this conduct was different than the typical conduct in such cases, i.e., sustained rubbing or fondling designed to sexually gratify the perpetrator. He also argued that his conduct was different than other conduct within the core of the offenses, in that it did not involve an abuse of trust or contact with a child who was sleeping or unable to resist. Last, Pete argued that the court should assess the seriousness of the offenses in isolation and not in the context of the other offenses.
The superior court rejected Pete's request to find the least serious mitigating factor. The court noted that Pete's individual offenses were part of a criminal episode involving multiple offenses. The court stated that "for children in that circumstance . . . that was a horrifying, impactful night." The court noted that Pete's mindset during these offenses involved a determination to proceed even in the face of resistance, stating that Pete was "doing what he darn well pleases" and that Pete was "going to have his way, period." And the court looked at Pete's criminal history, which included twenty-three prior convictions, and noted that Pete's mindset in this episode was consistent with his mindset in many of his prior offenses.
On appeal, Pete challenges the superior court's rejection of the least serious mitigating factor. Pete argues that the individual points that the court noted in denying his proposed mitigating factor do not demonstrate that the court engaged in the required analysis of considering the nature of his conduct relative to other instances of the same crime, and in fact show that the court "rejected the proposed mitigator based upon considerations unrelated to the conduct and circumstances of the offenses in question." Pete also argues that even if the factors relied on by the court were factors that were permissible to take into account in analyzing the least serious mitigating factor, they were nonetheless outweighed by the factors that he asserted in support of the mitigator - that his conduct was brief, the touching (and attempted touching) was over the clothing, and that he did not engage in the conduct to gratify his own sexual desires. For the reasons set out below, we affirm the superior court's ruling.
Neither the statutory text nor the legislative history of the least serious mitigating factor and its companion most serious aggravating factor in AS 12.55.155(c)(10) provide a bright-line rule for what makes an offense most or least serious. But we have previously noted that these factors do not require that an offense be the least serious or the most serious, but rather only that they are "among the least serious" and "among the most serious." At the same time, "[t]he legislature intended for the 'most serious' aggravating factor and the 'least serious' mitigating factor to have a limited scope." In general,
See Peetook v. State, 655 P.2d 1308, 1311 n.3 (Alaska App. 1982) (making this point with respect to the most serious aggravating factor).
State v. Parker, 147 P.3d 690, 695 (Alaska 2006).
The presumptive term for any given class of case represents the appropriate sentence for typical cases in that class, a relatively broad category into which most cases will fall; . . . aggravating and mitigating factors define the peripheries of this category, identifying relatively narrow circumstances that tend to make a given case atypical and place it outside the relatively broad presumptive middle ground.
Id. (quoting Knight v. State, 855 P.2d 1347, 1349 (Alaska App. 1993)).
And "the word 'conduct' [in the least serious mitigating factor and the most serious aggravating factor] includes the defendant's mental state and motive, as well as the consequences (or potential consequences) of the defendant's conduct."
Joseph v. State, 315 P.3d 678, 684 (Alaska App. 2013) (citations omitted).
Turning to Pete's specific assertions of error, his first claim involves the method of analysis that the superior court employed. Pete is correct that the court was required to assess the facts of his offense relative to the range of conduct that is included within the definition of the offense. But this did not require the court to lay out an extensive oral or written articulation of all the types of conduct that fit within the definition of the offense, and a point-by-point comparison of the facts of his case to the types of conduct included in the definition of the offense. The fact that the court only discussed a few specific factors in rejecting the proposed mitigating factor does not convince us that the judge failed to analyze all the relevant considerations in evaluating whether Pete's offenses met the criteria for the least serious conduct mitigating factor.
Furthermore, the factors that the superior court relied on were factors that could be taken into account in analyzing an offense's seriousness. The fact that Pete's offenses were not stand-alone offenses but rather were part of a criminal episode was a surrounding circumstance that heightened the seriousness of the offenses. The court also properly took into account that his mindset was dangerous and lacked social utility.
See, e.g., Parker, 147 P.3d at 696; id. at 700 (Bryner, C.J., concurring).
Pete focuses on the physical conduct involved in his offenses, arguing that it was brief and involved touching (or attempted touching) that was over the victims' clothing. But brevity of conduct is not necessarily entitled to dispositive weight in a conduct analysis when that brevity is due to fortuitous events or the intervention of others, rather than a change of heart on the part of the defendant. As to Pete's conviction for attempted second-degree sexual abuse of a minor, for attempting to touch K.N. as she was coming out of the bathroom, we have repeatedly recognized that conduct that may tend to make a completed offense least serious will be within the core of typical conduct for an attempt to commit that offense. And as to Pete's point that his conduct involved over-the-clothing contact, while this makes his conduct less serious than under-the-clothing contact, it does not make his conduct among the least serious.
See, e.g., Nyako v. State, 2013 WL 5972358, at *3 (Alaska App. Nov. 6, 2013) (unpublished) (concluding that the least serious mitigating factor did not apply to an attempted sexual assault conviction because "the attempt did not go further because the victim fought back and because someone else was apparently nearby, not because Nyako had a change of heart").
See, e.g., Moore v. State, 123 P.3d 1081, 1092 (Alaska App. 2005); Miller v. State, 44 P.3d 157, 158 (Alaska App. 2002).
Looking at all the aspects of Pete's offenses, we agree with the superior court's conclusion that while one can envision more serious conduct that fits within the definition of these offenses, it nonetheless cannot be said that Pete's offenses fit within the narrow band of conduct that is "among the least serious." We therefore affirm the court's denial of the least serious mitigating factor.
2. The superior court abused its discretion in declining to modify a probation condition to remove an affirmative prohibition on firearms possession that would prohibit Pete from possessing a firearm for subsistence hunting
The presentence report writer recommended that the court impose a general probation condition providing:
The defendant shall not own, possess, purchase, transport, handle or have in your custody, residence, or vehicle, any firearm, ammunition, explosives, or weapon(s) that is capable of inflicting bodily harm or incapacitation. The defendant shall not carry any deadly weapon on your person except a pocket knife with a 3" or shorter blade. You must submit to any search for the aforementioned weapons.
In his sentencing memorandum, Pete objected to this condition, arguing that it should be modified to allow him to possess and use firearms for subsistence purposes. Pete asserted that he has a constitutional right to bear arms, citing to Alaska Constitution Article I, Section 19. Pete stated that he "recognizes that federal law might bar him from possessing a firearm," but stated that "federal law may change, and Pete wishes to be able to possess the tools needed for subsistence hunting in case that happens."
At sentencing, Pete noted that this was a standard probation condition and that it was appropriate to impose it in the cases of violent offenses, but argued that given a constitutional right to possess firearms, "there's this tension between the general condition that's designed for protection of the public and this constitutional right." Pete further argued that narrowly tailoring the condition to allow firearm use and possession for subsistence hunting purposes was the appropriate way to balance these considerations. And the State conceded that modification of the proposed condition so that Pete could "possess some kind of long rifle or hunting rifle" would be appropriate, noting that "[o]bviously he should be aware that that's still a federal crime, but . . . that could change."
The court declined to modify or remove the proposed condition, stating only that "[w]ith respect to the firearm condition, I'm going to keep that in as a standard condition." The court noted that probationers sometimes come to court seeking modification of this condition, thus implying that Pete could pursue that remedy when he was actually on probation and that the request could then be assessed under the applicable law at that time.
Pete appeals the court's ruling regarding this condition, and the State on appeal again concedes that the superior court should have modified the condition.
Pete at sentencing did not propose specific language that should be added or deleted from the proposed condition, but we interpret his request narrowly, as simply seeking to carve out an exception, from the affirmative prohibition on possessing firearms, for possession and use of firearms for subsistence hunting purposes. We interpret his request as being predicated on the recognition that such firearms possession would for the foreseeable future remain a violation of federal law - and hence a violation of his probation condition requiring him to obey federal, state, and local law - and designed simply to avoid the need to return to court to modify his probation conditions to allow him to possess firearms for subsistence purposes, if federal law changes to permit this in the future.
So understood, we conclude that the superior court abused its discretion in declining to accept the State's concession of error regarding this condition, which was entitled to "great weight." We remand this case to the superior court to revise this probation condition. We leave it to the superior court and the parties to work out the appropriate wording of the modified probation condition.
See Schlagel v. State, 13 P.3d 275, 276 (Alaska App. 2000) (noting that a State's concession of error is entitled to "great weight," but that a court must independently evaluate the record and the law to make sure that the concession is well-founded).
3. The superior court should reconsider the probation conditions prohibiting contact with minors, applying special scrutiny to the degree they affect his right to familial association with his children
The presentence report writer recommended that the superior court impose three special conditions of probation that would have impacted Pete's ability to have contact with his minor children. In his sentencing memorandum, Pete objected to these conditions on the basis that they improperly interfered with his constitutional right to familial association and were unjustified because his offenses in this case involved children unrelated to him.
Specifically, Proposed Special Condition No. 15 provided in relevant part:
The defendant shall not knowingly have any contact with a person under sixteen (16) years old, unless in the immediate presence of another adult who knows the circumstances of your crime (including the assault cycle of the crime, if appropriate). This adult must be approved by a probation officer, who must provide written permission in order for contact to occur. This restriction regarding in-person contact with minors includes employment, recreational and residential situations, and subsistence activities, unless the contact with a minor has been pre-approved in writing by the probation officer.
Proposed Special Condition No. 18 stated: "The defendant shall not reside in a dwelling in which a minor under the age of sixteen (16) is residing or staying without the permission of the probation officer, sex offender treatment provider and the parent/guardian of the minor."
Proposed Special Condition No. 19 stated: "The defendant shall not accept employment, educational programming, or engage in any volunteer community activity, to include subsistence activities where minors under sixteen (16) years of age are present without the prior permission of the probation officer."
At sentencing, the State argued that the probation conditions were appropriate in light of the nature of Pete's offenses and given the fact that a probation officer could authorize Pete's contact with his children. The court appears to have agreed with the State's reasoning and imposed the conditions.
On appeal, Pete cites our decision in Simants v. State for the proposition that probation conditions that substantially burden a defendant's right of familial association are subject to special scrutiny, and argues that the challenged conditions should be vacated because there is no indication that the superior court applied such scrutiny when it imposed the conditions. The State agrees with Pete that the superior court erred in imposing these conditions without subjecting them to special scrutiny, but argues that the proper remedy is not to vacate the conditions outright but rather to remand this case to the superior court so that the propriety of these conditions can be properly analyzed. We agree and therefore remand the case to the superior court to consider these conditions under the appropriate standard.
Simants v. State, 329 P.3d 1033, 1039 (Alaska App. 2014).
4. The superior court on remand should strike a sentence from the presentence report that it previously agreed to strike and then failed to strike
The State originally charged Pete with two sexual offenses involving Jolene Steve-Pete. The State dismissed these charges and did not pursue them at trial, but the presentence report contained several statements related to these allegations, among them the statement that "[o]fficers went to room 113 and found the defendant with Ms. Steve-Pete. Neither had pants on and it appeared the defendant was attempting to have sexual intercourse with Ms. Steve-Pete." In Pete's sentencing memorandum, he objected to this statement as unfounded and reiterated this objection at sentencing. The court agreed with Pete that this statement should be stricken from the report, because it was based on a situation where each of the responding officers erroneously thought that the other officer had observed such conduct.
Despite the superior court's order, this statement was for unknown reasons not stricken from the approved version of the presentence report, and Pete challenges that on appeal. The State construes Pete's brief as challenging multiple statements in the report, but Pete only challenges the inclusion of the statement noted above. We find Pete's point to be well-taken and direct the superior court on remand to strike that statement from the approved version of the presentence report.
We note that instead of appealing Pete could have moved the superior court pursuant to Criminal Rule 36 to remedy the oversight and strike the sentence from the report.
Conclusion
For the reasons stated above, Pete's convictions and sentence of imprisonment are AFFIRMED. The probation condition prohibiting Pete from possessing firearms is REVERSED and REMANDED, and we direct the superior court to reconsider the probation conditions prohibiting contact with minors, at least insofar as those conditions prohibit Pete from having contact with his minor children. Last, we direct the superior court to strike from the presentence report the sentence stating that officers observed Pete attempting to have sexual intercourse with Jolene Steve-Pete.