Opinion
Court of Appeals No. A-10590 Trial Court No. 3PA-07-2359 CR No. 5819
03-14-2012
DANA M. SPINDLER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Hanley Smith, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, 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, Third Judicial District, Palmer,
Kari Kristiansen, Judge.
Appearances: Hanley Smith, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Ann B. Black, 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 a bench trial Superior Court Judge Kari Kristiansen found Dana M. Spindler guilty of sexual abuse of a minor in the second degree for touching eight-year-old C.H.'s genitals. She also convicted Spindler of indecent exposure in the first degreefor exposing his genitals and masturbating in C.H.'s presence. Judge Kristiansen sentenced Spindler to thirty-five years with ten years suspended for the sexual abuse of a minor conviction and to eighteen years with three years suspended for the indecent exposure conviction. These sentences are concurrent.
AS 11.41.436(a)(2).
AS 11.41.458(a)(1).
Prior to trial, Spindler filed a notice that he would present an affirmative defense that he had made a reasonable mistake of fact: that he believed that the person he was touching was not C.H., but rather the girl's mother, who was of age and was capable of consenting to the sexual contact. Spindler presented this defense at trial. Judge Kristiansen rejected it.
On appeal, Spindler argues that he mischaracterized his defense as an affirmative defense, thus leading Judge Kristiansen to believe Spindler bore the burden of proof. He argues that his defense that he reasonably believed that the person he was touching was not C.H., but rather the girl's mother, was simply a defense (rather than an affirmative defense) to the charge that he had knowingly engaged in sexual contact with a person who was under thirteen years of age.
Spindler points out that if his defense was an affirmative defense, the burden was on him to establish the defense by a preponderance of the evidence. On the other hand, if his defense was properly characterized as disputing the element of the offense that he had knowingly engaged in sexual contact with C.H., the State had the burden of establishing this element beyond a reasonable doubt. He argues that, because his defense was mischaracterized as an affirmative defense, Judge Kristiansen committed plain error by mis-allocating the burden of proof to Spindler, and, thus, relieving the State of the burden of proving this element beyond a reasonable doubt.
AS 11.81.900(b)(2)(B).
But it is clear from Judge Kristiansen's findings at the conclusion of the trial that she found beyond a reasonable doubt that Spindler had knowingly engaged in sexual contact with C.H. Specifically, Judge Kristiansen concluded that the State "proved ... beyond a reasonable doubt that [Spindler] did knowingly engage in sexual contact with C.H. by touching her genitals ... ." She went on to state that she was "convinced that [Spindler] did know that C.H. was in fact the individual that he was touching at the time and that she was in fact under thirteen years of age." A few sentences later, Judge Kristiansen again "specifically [found] [Spindler] knew he was touching C.H. when he was touching her." Therefore, there is no merit to Spindler's contention that Judge Kristiansen applied the wrong standard of proof.
Spindler next contends that there was insufficient evidence presented at trial to support his convictions for sexual abuse of a minor and indecent exposure. We are to affirm the trial court's verdict if it is supported by relevant evidence which is adequate for a reasonable mind to find the defendant's guilt beyond a reasonable doubt.
Helmer v. State, 608 P.2d 38, 39 (Alaska 1980).
Spindler claims that his conviction for sexual abuse of a minor in the second degree was unsupported by the evidence. Spindler's challenge is based solely on claims that C.H. was not credible. He points to several instances in the record where C.H.'s statements were inconsistent. But, "[the] assessment of witness credibility is exclusively within the province of the [fact-finder]." Thus, on appeal, we do not reevaluate the credibility of witnesses.
Anthony v. State, 521 P.2d 486, 492 (Alaska 1974).
In her findings, Judge Kristiansen recognized that there were "some inconsistencies" in C.H.'s statements. But Judge Kristiansen found that in all significant matters, "[C.H.'s statements] were consistent." She stated that ultimately, she believed C.H.'s testimony. She rejected Spindler's testimony, finding that the testimony he gave at trial was inconsistent with statements he gave to the police and that his statements were "evidence of a guilty mind." Judge Kristiansen's findings are supported by substantial evidence and were sufficient to support her conclusion that Spindler was guilty of sexual abuse of a minor in the second degree beyond a reasonable doubt.
Spindler also argues that there was insufficient evidence to support his conviction for indecent exposure in the first degree. To commit the crime of indecent exposure in the first degree a person must: (1) knowingly expose his or her genitals in the presence of another person; (2) with reckless disregard for the offensive, insulting, or frightening effect the act may have; (3) this exposure must occur in the presence of a person under 16; and (4) the offender, while exposing themselves, must "knowingly masturbate[]."
AS 11.41.458(a)(1); AS 11.41.460(a).
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Judge Kristiansen found Spindler guilty of indecent exposure in the first degree:
The court does find the state has met its burden of proof and does find the defendant guilty of the crime of indecent exposure in the first degree, specifically that he knowingly exposed his penis to C.H., that he masturbated in front of her when her testimony was that he was rubbing [his penis],
breathing heavily, and that he was touching himself when he was touching her, that he recklessly disregarded that it was offensive and obviously frightening to a little child. And it was done to an individual that was under 16 years of age.
These findings are supported by the record and are sufficient to uphold Spindler's conviction for indecent exposure in the first degree.
The judgment of the superior court is AFFIRMED.