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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Parker (11/10/2006) sp-6071
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) Supreme Court No. S-11503 |
| ) | |
| Petitioner, | ) Court of Appeals No. A-8114 |
| ) | |
| v. | ) Superior Court No. |
| ) 3AN-S98-9775 CR | |
| DAVID L. PARKER, | ) |
| ) O P I N I O N | |
| Respondent. | ) |
| ) No. 6071 - November 9, 2006 | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: Timothy W. Terrell, Assistant
Attorney General, Anchorage, Gregg D. Renkes,
Attorney General, Juneau, and David W.
M…rquez, Attorney General, Juneau, for
Petitioner. Averil Lerman, Assistant Public
Advocate, Anchorage, and Joshua Fink, Public
Advocate, Anchorage, for Respondent.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
BRYNER, Chief Justice, with whom FABE, Justice, joins,
concurring.
I. INTRODUCTION
A criminal defendant convicted of exploitation of a
minor and possession of child pornography argued at sentencing
that his crimes were mitigated because the victim was sixteen and
seventeen years of age when the photographs and videos of her
were made, and because the materials were intended only for
private use. The superior court disagreed. But the court of
appeals reversed the superior courts judgment. Because we agree
with the superior court that the defendants conduct was not among
the least serious included in the definition of the offenses of
exploitation of a minor and possession of child pornography, we
reverse the court of appealss decision in this case and affirm
the superior courts rejection of the mitigating factor. We
therefore remand this case to the court of appeals to address an
issue the correctness of the defendants composite sentence that
it did not address previously.
II. FACTS AND PROCEEDINGS
A. Facts
David Parker, a fifty-eight-year-old Anchorage
resident, made approximately 100 photographs and three videotapes
of V.M., who was sixteen and seventeen years old when the
pictures and videos were made.1 The pictures and videos show
V.M. exposing her genitals, masturbating, and engaging in
intercourse with Parker. Parker began making the pictures and
videos in early 1998, when V.M., then age sixteen, visited his
house frequently.
Parkers son and another teenage girl, A.B., found the
pictures and videos of V.M. in a briefcase in Parkers house, and
gave the briefcase to A.B.s mother, who took them to the police.
Also found in the briefcase were a picture of A.B., at age
fifteen or sixteen, exposing part of her buttock, and several
pictures of another girl, J.O., who was approximately sixteen
years old, including one of J.O. in her underwear. Several
months after receiving the briefcase, police received a call from
Parkers ex-wife, who reported that Parker had hidden LSD in the
briefcase.
After obtaining a search warrant based on the ex-wifes
report, police found seventy-six hits of LSD in Parkers
briefcase. All three girls, V.M., A.B., and J.O., stated that
Parker had given them LSD. V.M. and A.B. also stated that Parker
gave them marijuana, alcohol, and cigarettes. According to the
presentence report:
Although [Parker] did not contract with
[V.M.] to take the photos by giving her
drugs, alcohol and cigarettes, she said that
he freely gave her the items when she
performed in the pictures. Toward the end,
it was apparent the giving of cigarettes,
drugs and alcohol was conditional on her
engaging in these acts.
Parker has a previous conviction for taking suggestive
pictures of underage girls. In 1995 he faced charges stemming
from his activities with two girls, ages fourteen and twelve or
thirteen. Parker gave them wine coolers in his apartment, and
when they were intoxicated, he took pictures of the girls
partially nude in sexually suggestive poses. These pictures were
discovered after Parker took the film to a photo lab to be
developed. He pled no contest and was convicted of attempted
unlawful exploitation of a minor,2 spending six months in jail
(on an eighteen month sentence with twelve months suspended).
B. Proceedings
Parker was originally indicted in this case for eight
felonies and several misdemeanors, including, among the felonies,
misconduct involving a controlled substance,3 unlawful
exploitation of a minor, possession of child pornography,4 and
interference with official proceedings5 (after Parker offered to
pay V.M. to marry him so that she would not be able to testify
against him).
Appearing before Superior Court Judge Larry D. Card,
Parker sought to suppress the evidence from the briefcase,
arguing that the police had illegally obtained it. He also filed
a motion to dismiss the counts of exploitation and possession of
child pornography on privacy grounds. He argued that his sexual
contact with V.M. was legal since she was over sixteen6 and the
pictures were for his private use, not for distribution or any
commercial purpose. The superior court denied both motions.
Those decisions are not on appeal.
Following negotiations with the state, Parker pled no
contest to three offenses: first degree attempted misconduct
involving a controlled substance,7 unlawful exploitation of a
minor, and possession of child pornography. Parker faced
presumptive sentences for these convictions because of his 1995
conviction.8 He later sought to withdraw his no contest plea,
claiming that he had not understood the pleas effect on his
ability to appeal the convictions. After hearings, the superior
court denied Parkers motion to withdraw the no contest plea. The
court of appeals affirmed the superior courts decision.9
As part of the plea agreement, Parker stipulated to two
statutory aggravating factors for Count I (controlled substance):
(1) he knew that the offense involved more than one victim,10
since he distributed the LSD to three people; and (2) the conduct
constituting the offense was among the most serious conduct
included in the definition of the offense.11 Parker also agreed
to a statutory aggravator for Count II (exploitation of a minor),
because the felony offense was based on specified sexual conduct
and Parker had previously engaged in the same or other specified
sexual conduct involving the same or another victim.12
At sentencing, Parker sought a statutory mitigator for
both the exploitation and possession sentences, arguing that his
conduct was among the least serious conduct included in the
definition of the offense.13 As the proponent of the statutory
mitigator, Parker bore the burden of proof by clear and
convincing evidence.14 Parkers attorney argued that the superior
court should mitigate the exploitation and possession offenses
because the photos and videos depicted legal, consensual sexual
behavior and the images were intended for private rather than
commercial use.
For the exploitation of a minor offense, Judge Card
noted that the older the victim, the more likely that the court
might find the least serious mitigating factor. However, even
though V.M. was approaching adulthood (defined as age eighteen in
the child pornography statutes), she was still entitled to the
protection of the exploitation statute:
I find the conduct typical. It may be on the
lower end of the typical scale, but its not
least serious. I think I could probably find
it least serious the closer they get to 18,
this youngster was 16 going on 17 during the
time the pictures were taken. And so, its
getting on the higher end, but its I find
it typical. The legislature says that
children of that age need protection also,
not just children who are too young to have
minds of their own . . . [sixteen- and
seventeen-year-olds] are also highly
impressionable by adults.
For the possession of child pornography offense, the
superior court declined to find the least serious mitigator for
several reasons. Parker not only possessed the pictures, he also
produced them. Parkers purpose in possessing the images was
irrelevant, since the statute does not distinguish between
possession for private versus commercial purposes. Judge Card
stated, [T]he statute doesnt talk about what you do with them, it
just talks about . . . the mere possession. Furthermore, each
photograph and video could warrant a separate charge under the
possession statute.15 Therefore, considering the substantial
number of pornographic images, the conduct was not least serious.16
In total, the superior court applied two aggravators to
Count I and one aggravator each to Counts II and III. The
superior court sentenced Parker to nineteen years with eight
years suspended.17
Parker appealed several issues to the court of appeals,
including the one before us now: whether the superior court erred
in failing to find the least serious conduct mitigator as to both
the exploitation and possession offenses. The court of appeals
agreed with Parker, holding that his conduct was among the least
serious included in the definition of the offenses.18 It remanded
to the superior court for resentencing.19
We granted the states petition for hearing on the least
serious conduct mitigator issue.
III. STANDARD OF REVIEW
We apply a de novo standard to review Parkers proposed
mitigating factors. After the court of appealss decision in
Parker II, but prior to oral argument before this court, we
clarified the standard of appellate review for mitigating
factors, particularly for the least serious mitigating factor at
issue in this case. In Michael v. State,20 we held that
determining the existence of a mitigating factor is a mixed
question of law and fact. The finding of a mitigator involves a
two step process: 1) the superior court assesses the nature of
the defendants conduct, which is a question of fact, reviewed for
clear error; and 2) it determines whether a mitigating factor
applies to the defendants conduct, which is a question of law,
reviewed de novo.21
We have not directly addressed procedures for finding
mitigating factors. In Michael we remanded the case to the court
of appeals, directing it to apply a de novo standard of review,
rather than a clear error standard of review, to the superior
courts rejection of the least serious mitigator.22
IV. DISCUSSION
A. The Superior Court Did Not Err in Rejecting the Least
Serious Mitigator.
Because V.M. was two years younger than the cutoff age
for exploitation of a minor when many of the photos were taken,
because of the substantial number of pornographic photos and
videos of V.M. that Parker both produced and possessed, and
because intent to distribute is not an element of either the
exploitation of a minor statute or the possession of child
pornography statute, we hold that the superior court did not err
in rejecting the least serious mitigating factor.
1. Parkers conduct was less serious than commercial
production of child pornography, but this does not
render his conduct least serious.
In Parker II, the court of appeals reversed the
superior court and found that Parkers conduct was among the least
serious included in the definition of the offense because Parkers
sexual relations with the sixteen- and seventeen-year-old V.M.
were lawful and there was no evidence that he distributed the
images to anyone else.23 Furthermore, the court of appeals
accepted Parkers argument that his conduct was minimally serious
when compared to the chief evils targeted by [the child
pornography] statutes: the commercial creation of child
pornography and its distribution to pedophiles.24 Finally, the
court of appeals discounted the states argument that Parker had
manipulated V.M. in order to get her to pose, since this argument
was really an attack on the legislatures decision to establish
sixteen as the age of consent.25
We disagree. Even if some aspects of Parkers conduct
were less serious than the chief evils targeted by these
statutes, it does not follow that his acts were among the least
serious in the definitions of the exploitation and possession
statutes as required by AS 12.55.155(d)(9). As the states
attorney observed at sentencing, The fact that something is not
most serious . . . does not make it least serious.
2. Parkers case falls into the broad category of
typical cases to which the presumptive sentence
applies.
The presumptive term for a second felony conviction
will apply in the majority of cases. As the court of appeals
noted in Knight v. State:
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;
statutory 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.[26]
The legislature intended for the most serious
aggravating factor and the least serious mitigating factor to
have a limited scope. The potential scope of these factors is
most clearly indicated in criminal statutes which are defined by
number or value. For instance, according to the legislative
commentary on Alaskas Revised Criminal Code:
Under subsections [AS 12.55.155](c)(10) and
(d)(9) a presumptive term may be aggravated
or mitigated if the conduct constituting the
offense was among the most or least serious
conduct included within the definition of the
offense. For example, if the defendant was
convicted of a felony two years earlier, and
is now being sentenced for the theft of
$24,999, theft in the second degree, a class
C felony, the fact that the conduct
constituting the offense was among the most
serious conduct included in theft in the
second degree may aggravate the presumptive
term.[27]
Similarly, when it rejected the least serious
mitigator, the superior court focused on easily quantifiable
elements of Parkers offenses: the victims age and the number of
pictures that Parker produced and possessed. The superior court
was entitled to consider the fact that many of the pictures were
taken when V.M. was sixteen, two years shy of adulthood and less
than twelve months past the age of consent. As the superior
court noted, V.M.s age places the crime toward the lower end of
typical child pornography offenses, but not necessarily among the
least serious. Additionally, the superior court noted the
substantial number of photos in Parkers briefcase. Even assuming
that only sixty of the photos qualified as pornographic, as
Parker now argues, (an issue we do not decide) this number goes
more than halfway to establishing a prima facie case of intent to
distribute child pornography.28 (And this calculation does not
include the three pornographic videotapes of the victim that
Parker produced and possessed.)
Furthermore, where a no contest plea results from a
plea bargain, as in Parkers case, an underlying course of conduct
comprising multiple potential offenses not all of which are
charged, may also weigh against the least serious mitigator. We
have already noted that each pornographic photograph and video
found in Parkers briefcase could support a separate violation of
AS 11.61.127. Additional information from Parkers presentence
report might have led to further charges: His briefcase contained
semi-nude photos of two other underage girls in addition to the
pornographic pictures and videos of V.M., and he allegedly gave
two of the girls marijuana and alcohol, in addition to the LSD
for which he was convicted.
3. Parkers alleged lack of intent to distribute the
images does not mandate the least serious
mitigator.
The statutes forbidding production29 and possession30 of
child pornography seek to protect everyone under age eighteen by
deterring both privately and commercially produced child
pornography. Therefore, Parkers alleged lack of intent to
distribute the photographs and videos, purportedly evidenced by
his concealment of them in a locked briefcase in a closet in his
house, even if proven by clear and convincing evidence, does not
mandate a least serious mitigator.
In 1983 the legislature passed HB 270 to expand
prohibitions on child pornography.31 House Bill 270 raised the
age of a minor from sixteen to eighteen for purposes of
exploitation; extended the prohibition to cover child pornography
created for private purposes by deleting the requirement that the
images be produced for any commercial purpose; raised
exploitation from a Class C felony to a Class B felony; and
created a new Class C felony prohibiting the distribution of
child pornography.32 Parker offers legislative records and news
articles indicating that when HB 270 was introduced in 1983 child
prostitution and pornography rings had received considerable
attention in the legislature and the media.
However, even if HB 270 was a reaction to the chief
evils of commercial creation of child pornography and its
distribution to pedophiles,33 this does not end the inquiry. Lack
of intent to distribute child pornography does not necessarily
render exploitation least serious. For instance, in Harris v.
State,34 the defendant took four nude photos of the thirteen-year-
old daughter of the woman who lived with him.35 The pictures
depicted a mans hand touching the childs genitals.36 A jury
convicted Harris of two counts of exploiting a minor.37 Harris
sought unsuccessfully to mitigate his sentence, arguing that his
conduct was among the least serious in the definition of the
offense.38
As the court of appeals noted in Harris, given that
Harris had taken only four photographs, none of which depicted
sexual penetration, Harriss conduct could tend toward the least
serious range, especially if the photographs were not intended
for distribution.39 But Harris had also indicated that another
man was present when the photographs were taken and that it was
the other mans hand touching the child in the photographs.40
Noting these facts, the court of appeals declined to rule that
the least serious mitigator applied:
[W]hile commercial exploitation or mass
distribution of pictures taken in violation
of the statute might serve to enhance or
aggravate the offense, we are not prepared to
say on this record that taking four
photographs on three separate days during a
one-week period necessarily constitutes the
least serious conduct within the
contemplation of the statute.[41]
Therefore, although production of child pornography for
public distribution is more serious than production for private
use, private use does not per se demand a least serious mitigator
finding; lack of intent to distribute is a defense against the
separate crime of distribution of child pornography. Production
of child pornography is a separate crime and, until recently, was
a more serious crime than distribution.42 This belies Parkers
argument that private use renders his conduct least serious. As
the Harris court observed, the statutory scheme created by HB 270
indicates that the legislature regarded the creation of a
permanent record as one of the most harmful aspects of child
pornography, irrespective of its eventual use:
Alaska Statute 11.41.455 as originally
enacted banned only commercial exploitation
of children. It was amended in 1983 to
prohibit exploitation for private purposes .
. . . It is significant that the legislature
has made the taking of such pictures a class
B felony . . . but their distribution a class
C felony . . . . Thus, it is the creation of
a permanent record that is the more serious
crime and not its distribution or
exploitation thereafter.[43]
4. The victims age does not require the least serious
mitigator.
Parker focuses on the alleged absurdity of a legal
regime that permits him to have sex with someone between the ages
of sixteen and eighteen, but prevents him from taking pictures of
his sexual activity with that person. He argues that the
exploitation and possession statutes have two independent
purposes: to deter persons from taking any lewd photographs of
persons under the age of 16, and to deter persons from taking
lewd photographs of 16 and 17 year olds for the purposes of
distribution. Under this strained interpretation, it is only
incidental that his photography and filming of V.M. are
punishable at all.
Parker urges us to adopt his interpretation under the
rule of lenity, according to which words are given their ordinary
meaning and . . . any reasonable doubt about the meaning is
decided in favor of anyone subjected to a criminal statute.44 Yet
the relevant statute must be reasonably susceptible to the
meaning proferred by the defendant.45
We disagree with Parkers interpretation of the
statutes, and conclude that the statutes are not reasonably
susceptible to his interpretation. The relevant statutes simply
refer to a child under 18 years of age,46 and they do not
distinguish between child pornography produced or possessed for
private purposes and that intended for distribution. Even if, as
Parker contends, the legislature originally raised the victim age
from sixteen to eighteen in order to make it easier to obtain
convictions in cases where the child in a pornographic photograph
cannot be identified (on the theory that it is easier to prove
that a person is under eighteen than it is to prove that a person
is under sixteen), this does not automatically mean that sixteen-
and seventeen-year-olds are entitled to less protection. A
recent amendment to AS 11.41.455 only increases the penalty for
exploitation of a minor, without distinction on account of the
victims age.47 We find no indication in the language or history
of the statute that the legislature intended to treat private
production and use of pornographic images of sixteen- and
seventeen-year-olds more leniently than similar activity
involving younger children.
The decision of the court of appeals in Shaw v. State48
is instructive here. In that case, the superior court rejected a
least serious mitigator for first-degree misconduct involving
weapons. Shaw, a convicted felon, was prohibited from owning a
handgun. In an attempt to mitigate his sentence, Shaw pointed to
the purpose of the felon in possession statute: to prevent the
concealment and use of firearms in violent crime.49 Shaw argued
that because he did not intend to use the handgun for a violent
crime or any other illegal purpose, his possession of the handgun
should be deemed least serious. The court of appeals noted that
brief possession, such as finding a weapon and returning it to
its owner might be least serious. But a trial court was entitled
to find that extended possession, even with no other illegal
purpose in mind, was neither least serious nor most serious.50
That is, it was typical. We view Parkers conduct in the same
light, acknowledging that while it falls short of the most
serious conduct in the exploitation and possession statutes, it
exceeds least serious conduct as well.
B. Issues Not Raised Until the Reply Brief Are Waived.
By pleading no contest to exploitation of a minor and
possession of child pornography, Parker waived his right to argue
that the statutes are unconstitutional.51 However, in his reply
brief to the court of appeals in Parker II and in his brief to
this court, Parker argues that his sentence should be mitigated
since the exploitation and possession statutes intrude on his
constitutional rights to free speech, free association, and
privacy. This is merely an attempt to revive the previously
waived constitutional arguments. Further, we do not consider
arguments raised for the first time in a reply brief.52 Alaska
Appellate Rule 212(c)(3) mandates that a reply brief may raise no
contentions not previously raised in either the appellants or
appellees briefs. Consequently, by failing to raise them in a
timely manner, Parker has waived these arguments.
V. CONCLUSION
Because the superior court did not err in rejecting the
least serious conduct mitigator, we REVERSE the court of appealss
decision holding that Parkers conduct was among the least serious
conduct included in the definition of the offenses.
Because the court of appeals did not address Parkers
claim that his composite sentence should be reduced,53 we remand
to the court of appeals to consider that claim.
BRYNER, Chief Justice, with whom FABE, Justice, joins,
concurring.
I agree with the result of todays opinion but would
reach that result by a somewhat different approach: Under AS
12.55.155(f), Parker bore the burden of proving his alleged
mitigating factor by clear and convincing evidence.1 Parker
failed to meet this burden.
Parker offered no evidence to support his claim that he
privately created and kept the disputed photos and videos
exclusively for his own personal use. He relied instead on the
conclusory and unsworn claims he made in his presentence report
and while he was being investigated by the police. The only hard
evidence supporting his claims appears to be that his photos and
videos of V.M. were kept in a locked briefcase in Parkers
bedroom. But the record further suggests that Parkers son knew
that the photos existed and where they were kept: he evidently
became angry at Parker, broke into the briefcase so that he could
use the photos against him, and proceeded to share them with
friends. The totality of this evidence hardly instills
confidence in Parkers self-serving claim that he created and kept
the photos and videos exclusively for his own private use.
Parker similarly offered nothing but conclusory claims
to support his assertions that V.M. was his girlfriend and lover.
And V.M.s description of their relationship provides compelling
evidence refuting these claims. By her own account, V.M. was
neither a lover nor girlfriend to Parker: she came to his house
and was willing to pose for sexually explicit photos and videos
simply because he continuously plied her with LSD, marijuana, and
tobacco.
Despite Parkers failure to present any solid evidence,
let alone clear and convincing proof, to support his claims of a
lovers relationship with V.M. and of private possession, the
court of appeals accepted his claims at face value and used them,
together with V.M.s age which the court viewed as making her
sexual relations with Parker lawful as the core facts supporting
its conclusion that the proposed mitigating factor applied to
Parkers case.
In reaching its decision, the court of appeals
evidently overlooked Parkers burden and standard of proof. The
courts opinion does not mention these points. In fact, the
opinion appears to have faulted the state for failing to present
evidence refuting Parkers argument that the proposed mitigator
applied:
In arguing for mitigator (d)(9), Parker
noted that all of the photographs and videos
seized by the State depicted V.M., Parkers
seventeen-year-old girlfriend. As we have
explained, Parkers sexual relations with V.M.
were lawful (because she was over the age of
consent). Parker further noted that the
State produced no evidence that Parker had
distributed or shown these photos and videos
to anyone else (besides V.M.). Parker argued
that, considering all of the conduct
encompassed by the statutes defining
exploitation of a minor and possession of
child pornography, Parkers private creation
and private possession of photographic and
videographic images for the personal use of
himself and his lover was among the least
serious conduct.
We agree. . . . Parker was . . .
entitled to argue that, given the lawfulness
of his sexual relations with V.M., and given
the lack of evidence that Parker distributed
these images to anyone else (whether
commercially or non-commercially), his
conduct was minimally serious when compared
to the chief evils targeted by these
statutes[.][2]
In short, I would affirm the superior courts rejection
of Parkers proposed mitigating factor on the ground that Parker
failed to present clear and convincing evidence that his conduct
was among the least serious in its class. Parker offered no
clear and convincing evidence that V.M. was his girlfriend or
lover; nor did he prove that he created and kept her photos and
videos solely for his own private use. And although his
relations with V.M. may have been lawful in the narrow sense that
V.M. was over the age of legal consent to have sex, Parker hardly
proved that they were lawful in any broader sense. Parker
obtained V.M.s consent by constantly giving her tobacco and drugs
conduct amounting to an unclassified felony and then took
advantage of her consent to involve her in a lengthy course of
criminal conduct involving the production of child pornography.
When viewed in its totality from any perspective but
Parkers, this conduct is not among the least serious included in
the definition of his crimes. And even from Parkers perspective,
the record discloses no evidence providing clear and convincing
support for his claim that this factor applies.
I concur with the court on this ground.
_______________________________
1 In their briefs, the parties dispute the scope of
evidence available for our review. When sentencing Parker, the
superior court relied upon facts contained in Parkers presentence
report, which was prepared by the Department of Corrections
pursuant to Alaska Criminal Rule 32.1(b). Both parties approved
the reports contents. Both parties also had the opportunity to
give notice of any evidence outside the presentence report upon
which they intended to rely at sentencing. Alaska R. Crim. P.
32.1(c)(3), (d)(4). Accordingly, we rely solely on facts
contained in the presentence report.
2 According to AS 11.41.455(a):
A person commits the crime of unlawful
exploitation of a minor if, in the state and
with the intent of producing a live
performance, film, audio, video, electronic,
or electromagnetic recording, photograph,
negative, slide, book, newspaper, magazine,
or other material that visually or aurally
depicts the conduct listed in (1)(7) of this
subsection, the person knowingly induces or
employs a child under 18 years of age to
engage in, or photographs, films, records, or
televises a child under 18 years of age
engaged in, the following actual or simulated
conduct:
(1) sexual penetration;
(2) the lewd touching of another persons
genitals, anus, or breast;
(3) the lewd touching by another person
of the childs genitals, anus, or breast;
(4) masturbation;
(5) bestiality;
(6) the lewd exhibition of the childs
genitals; or
(7) sexual masochism or sadism.
3 AS 11.71.010(a)(2).
4 AS 11.61.127(a):
A person commits the crime of possession of
child pornography if the person knowingly
possesses any material that visually or
aurally depicts conduct described in AS
11.41.455(a) knowing that the production of
the material involved the use of a child
under 18 years of age who engaged in the
conduct.
5 AS 11.56.510(a)(2)(A).
6 In Alaska, sixteen is the age at which a person is
legally competent to consent to sex. AS 11.41.434(a)(3).
7 AS 11.71.010(a)(2) & AS 11.31.100.
8 Former AS 12.55.125(d)(1) & (e)(1) (amended and
renumbered as (d)(2) & (e)(2) by ch. 2, 5 & 6, SLA 2005).
9 Parker v. State, Alaska App. Memorandum Opinion No.
4850 (March 31, 2004), 2004 WL 720111 (Parker I).
10 AS 12.55.155(c)(9).
11 AS 12.55.155(c)(10).
12 AS 12.55.155(c)(18)(B) ([T]he offense was a felony . .
. specified in AS 11.41.41011.41.458 and the defendant has
engaged in the same or other conduct prohibited by a provision of
AS 11.41.41011.41.460 involving the same or another victim.).
The range of sexual offenses for this aggravator includes
unlawful exploitation of a minor. AS 11.41.455.
13 Former AS 12.55.155(d)(9) (renumbered as (d)(8) by ch.
2, 19, SLA 2005).
14 Juneby v. State, 665 P.2d 30, 32 (Alaska 1983); former
AS 12.55.155(f).
15 AS 11.61.127(c) provides:
Each film, audio, video, electronic, or
electromagnetic recording, photograph,
negative, slide, book, newspaper, magazine,
or other material that visually or aurally
depicts conduct described in AS 11.41.455(a)
[unlawful exploitation of a minor] that is
possessed by a person knowing that the
production of the material involved the use
of a child under 18 years of age that engaged
in the conduct is a separate violation of
this section.
16 Judge Card indicated that Parkers production and
possession of the images would probably not merit the most
serious aggravator, either. AS 12.55.155(c)(10).
17 The superior court sentenced Parker as follows: Count
I (controlled substance), fifteen years with five years
suspended, ten years to serve presumptive; Count II
(exploitation), six years with three years concurrent to Count I
and the other three years consecutive, two years of which are
suspended and one year consecutive to Count I to serve; Count III
(possession), three years with two years concurrent to Count I
and Count II and one year consecutive to Counts I and II,
suspended.
18 Parker v. State, 90 P.3d 194, 200 (Alaska App. 2004)
(Parker II).
19 Parker II, 90 P.3d at 200.
20 115 P.3d 517, 519 (Alaska 2005).
21 Id.
22 Id. at 520. Michael was convicted of first-degree
sexual assault for groping and digitally penetrating an eighteen-
year-old female friend of his daughter. The penetration lasted
no more than ten seconds and Michael stopped his assault after
the victims repeated protests. The superior court rejected
Michaels proposed least serious mitigator because of the age
difference and relationship of trust between Michael and the
victim. Id. at 518. The court of appeals affirmed, holding that
it was not clear error for the superior court to reject the
mitigator. Michael v. State, 2003 WL 294411 at *1 (Alaska App.
2003) (unpublished).
23 Parker II, 90 P.3d at 200. However, the court of
appeals may have also relied upon an inaccurate view of the
facts. According to Parker II, Parker noted that all of the
photographs and videos seized by the State depicted V.M. Id. at
200. But Parkers presentence report indicates that, in addition
to the nude photos and videos of V.M., Parkers briefcase also
contained several semi-nude photos of two other minor teenage
girls.
24 Id. (emphasis added).
25 Id.
26 Knight v. State, 855 P.2d 1347, 1349 (Alaska App.
1993).
27 Commentary on the Alaska Revised Criminal Code, Senate
Journal Supp. No. 47 at 161, 1978 Senate Journal following p.
1413. This comment refers to the fact that theft of $24,999 is
only $1 short of first degree theft, which is a class B felony.
Compare AS 11.46.120 (first degree theft) and AS 11.46.130
(second degree theft). See also Braaten v. State, 705 P.2d 1311,
1325 (Alaska App. 1985) (Singleton, J., concurring) (conduct
approaching lesser-included offense should warrant least serious
mitigator).
28 AS 11.61.125(c) provides:
The possession of 100 or more films, audio,
video, electronic, or electromagnetic
recordings, photographs, negatives, slides,
books, newspapers, magazines, or other
materials, including a combination of these
items totaling 100 or more, is prima facie
evidence of distribution and intent to
distribute [child pornography] . . . .
29 AS 11.41.455.
30 AS 11.61.127.
31 Ch. 57, 1, SLA 1983.
32 Ch. 57, 2, SLA 1983.
33 Parker II, 90 P.3d at 200.
34 790 P. 2d 1379 (Alaska App. 1990).
35 Id. at 1380.
36 Id.
37 Id. at 1379-80.
38 Id. at 1382.
39 Id. at 1383-1384 (relying on New York v. Ferber, 458
U.S. 747, 758-59 (1982)).
40 Id.
41 Id.
42 Unlawful exploitation of a minor is a class B felony.
AS 11.41.455(c)(1). Before June 11, 1998, distribution of child
pornography was a class C felony. Former AS 11.61.125(e)(1). It
was increased to a class B felony. AS 11.61.125(e)(1); ch. 81,
6, SLA 1998.
43 Harris, 790 P. 2d at 1384 (emphasis added).
44 3 Norman J. Singer, Statutes and Statutory Construction
59:3, at 126-31 (6th ed. 2000). The rule of lenity applies to
sentencing provisions as well as provisions defining crimes.
State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985), opinion
adopted by State v. Andrews, 723 P.2d 85, 86 (Alaska 1986).
45 See Brookins v. State, 600 P.2d 12, 17-18 (Alaska
1979).
46 See AS 11.41.455(a): . . . the person knowingly induces
or employs a child under 18 years of age; AS 11.61.127(a): the
person possesses pornographic materials described in AS 11.41.455
knowing that the production of the material involved the use of a
child under 18 years of age who engaged in the conduct.
47 A 2004 amendment to AS 11.41.455 added subsection
(c)(2), increasing the crime to a class A felony if the defendant
has been previously convicted of unlawful exploitation of a
minor. Ch. 131, 1, SLA 2004. We have previously noted that the
sentences authorized by a new criminal code are a factor which
may be considered in imposing sentence under the old criminal
code. Whittlesey v. State, 626 P.2d 1066, 1068 (Alaska 1980);
Law v. State, 624 P.2d 284, 287 (Alaska 1981). See also Qualle
v. State, 652 P.2d 481, 485 (Alaska App. 1982).
48 677 P.2d 259 (Alaska App. 1984).
49 Id. at 260.
50 Id.
51 See Parker II, 90 P. 3d at 200.
52 Rausch v. Devine, 80 P.3d 733, 740 n.32 (Alaska 2003).
53 The court of appeals understandably did not reach the
composite sentence issue because its holding on the least serious
conduct mitigator made it unnecessary to do so.
1 At the time of Parkers sentencing, AS 12.55.155(f)
provided, in relevant part: [F]actors in aggravation and factors
in mitigation must be established by clear and convincing
evidence[.] The court of appeals has consistently interpreted
this provision to mean that each alleged factor must be proved by
clear and convincing evidence, and the proponent of the factor
bears the burden of proof. Juneby v. State, 665 P.2d 30, 32
(Alaska App. 1983); see also Lewandowski v. State, 18 P.3d 1220,
1223 (Alaska App. 2001).
2 Parker v. State, 90 P.3d 194, 199-200 (Alaska App.
2004) (emphasis added).
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