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NOTICE The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts: 303 K Street, Anchorage, Alaska 99501 Fax: (907) 264-0878 E-mail: corrections @ akcourts.us IN THE COURT OF APPEALS OF THE STATE OF ALASKA RYAN MICHAEL THOMAS BROWN, Court of Appeals No. A-12068 Appellant, Trial Court No. 1KE-13-662 CR v. O P I N I O N STATE OF ALASKA, Appellee. No. 2562 - August 18, 2017 Appeal f rom the Superior Court, First Judicial District, Ketchikan, William B. Carey, Judge. Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Stephen R. West, District Attorney, Ketchikan, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. * Judge SUDDOCK, writing for the Court. Judge MANNHEIMER, concurring. Ryan Michael Thomas Brown pleaded guilty to one count of distribution of child pornography after authorities discovered files containing child pornography on * Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d). ----------------------- Page 7----------------------- 12 dangerous assignments. Davidge responded that "service members who are in a combat theatre are eligible for consideration for combat-related PTSD, because anyone in a combat situation deals with an enormous amount of stress." 13 The committee held a second meeting on March 20, 2014. During the meeting, the representatives discussed expanding the mitigator so that it applied to all 14 "service-related" PTSD. But a number of representatives expressed concern that the 15 mitigator could then apply to situations unrelated to combat situations. For example, one representative suggested that the amended version could apply to a defendant who suffered PTSD as a result of an off-base car accident occurring while the defendant was 16 working a desk job in the United States. The committee ultimately rejected the 17 amendment. The committee then heard further public testimony. Michael Kocher, a 18 veteran from Eagle River, testified in support of the bill. Kocher explained that, under the policies of the Department of Veterans' Affairs, a person is considered a "combat veteran" any time they are deployed to a combat zone - even if the person "never left 19 the base," or did not directly encounter enemy forces. 12 Id. at 1:33:09 - 1:36:49 p.m. 13 Id. 14 Minutes of House Special Comm. on Military and Veterans' Affairs, House Bill 313, 1:06:36 - 1:11:04 p.m. (Mar. 20, 2014). 15 Id. at 1:27:14 - 1:52:19 p.m. 16 Id. at 1:20:06 - 1:22:31 p.m. 17 Id. at 1:20:06 - 1:53:31 p.m. 18 Id. at 1:53:45 - 1:56:02 p.m. 19 Id. - 7 - 2562 ----------------------- Page 8----------------------- Representative Dan Saddler responded to Kocher's comments: You have answered a very important question for all of us in the committee and for the sponsors, to say pointedly that, if you were in Iraq in the sandbox, almost no matter where you were, you were considered combat-related and therefore any PTSD generated there would be covered by the bill as it currently sits before us. I very much appreciate that clarification.20 Representative Les Gara - the bill's sponsor - added: Mr. Kocher's testimony, I think, complies with our intent. And if it complies with the committee's intent I think that would be helpful if any litigation were to ever come up, that the committee also intends it to cover what Mr. Kocher 21 defined as the military's definition of combat-related. 22 The committee then voted to move the bill forward as originally drafted. Thus, when the legislature limited the mitigator to PTSD "resulting from combat," it intended to include soldiers who suffered PTSD as a result of events occurring while they were stationed in a combat zone, even though the triggering events were not direct combat. Based on our review of this legislative history, we conclude that the superior court erred when it concluded that Brown's sexual assault in Kuwait could not be considered "combat-related." The court had found that Brown was sexually assaulted while stationed at a military base in Kuwait, and that Kuwait was part of a combat zone 20 Id. at 1:56:06 - 1:56:33 p.m. 21 Id. at 1:56:30 - 1:56:56 p.m. 22 Id. at 2:01:45 p.m. - 8 - 2562 ----------------------- Page 9----------------------- 23 at that time. In addition, the superior court found that Brown's sexual assault led to his downloading of child pornography. Given these facts, we conclude that the court erred in rejecting the proposed mitigator. We note another issue in the case. The defense expert witness, Dr. McClung, testified that Brown's PTSD symptoms were originally caused by Brown's combat experiences in Iraq. Dr. McClung further testified that the sexual assault on Brown in Kuwait, a different combat theater, both reactivated and exacerbated Brown's PTSD symptoms. Because we conclude that Brown's post-traumatic stress from the sexual assault in Kuwait was "combat-related" for purposes of this mitigator because Kuwait was a combat zone, we need not reach Brown's alternative claim that his sexual assault was causally related to combat because it "reactivated" or exacerbated the post-traumatic stress that he suffered from his combat experience in Iraq. Conclusion We REMAND Brown's case for resentencing consistent with this opinion. 23 See Exec. Order No. 12,744, 56 Fed. Reg. 2,663 (Jan. 23, 1991) (designating Kuwait as a "combat zone"). - 9 - 2562 ----------------------- Page 10----------------------- Judge Mannheimer, concurring. I agree with my colleagues that, given the evidence in this case, Brown's post-traumatic stress disorder falls within the category of "combat-related" as the legislature understood that phrase when they created mitigator AS 12.55.155(d)(20)(B). I write separately because I question whether the legislature can validly limit the mitigating effects of post-traumatic stress disorder to instances where the disorder is combat-related. There is no doubt that our country owes a debt of gratitude to all the men and women who volunteer to serve in the armed forces, and especially to those who are deployed in combat zones. And it is completely proper for the legislature to recognize that post-traumatic stress disorder can significantly alter a person's behavior, and that this disorder can mitigate the blameworthiness of criminal conduct. ButI question whether thelegislaturecanvalidlylimit themitigating effects of PTSD solely to defendants whose disorder arises from military service in combat zones. Many people serve our society in occupations that are fraught with danger. For example, in Kelly v. Alaska Department of Corrections, 218 P.3d 291 (Alaska 2009), our supreme court dealt with a case where a corrections officer succumbed to post- traumatic stress disorder after an incident in which he was threatened with serious physical injury, and possible death, by an inmate who had been convicted of murder and who was armed with a weapon. For purposes of assessing a criminal defendant's degree of blame- worthiness, the pertinent questions are whether the defendant's criminal behavior was significantly influenced by PTSD, and whether the blameworthiness of the defendant's crime is therefore mitigated. In answering these questions, the origin of the defendant's - 10 - 2562 ----------------------- Page 11----------------------- disorder - whether through service in the military, or through service in a police or fire department, or through service as a corrections officer, or otherwise - seems to have no particular relevance. The equal protection clause of the Alaska constitution (Article I, Section1) limits the power of the legislature to draw distinctions among groups of people, by requiring equal treatment of people who are similarly situated. In AS 12.55.155(d)(20)(B), the legislature has taken the group of defendants whose behavior was affected by PTSD and divided them into two groups - those whose PTSD arises frommilitary service in a combat zone, and those whose PTSD arises from other causes. When the legislature enacts this kind of law, courts must identify the legislature's reasons for treating the two groups differently, and evaluate those reasons against the importance of treating the two groups equally. Our supreme court has enunciated a three-part test for performing this 1 analysis. But with respect to mitigator (d)(20)(B), the real question is whether the goals of sentencing and the policies of the criminal law justify the legislature's distinction between PTSD arising from military service in a combat zone and PTSD arising from other causes. It appears to me that, for purposes of assessing the blameworthiness of criminal conduct committed by a person who suffers from PTSD, there is no valid distinction between a defendant whose PTSD arises from military service in a combat zone and a defendant whose PTSD arises from other causes. 1 See Alaska Pacific Assurance Co. v. Brown , 687 P.2d 264, 269-270 (Alaska 1984). - 11 - 2562
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