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Brown v. State (8/18/2017) ap-2562

Brown v. State (8/18/2017) ap-2562

                                                                          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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