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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Thompson (1/25/2019) sp-7330

State v. Thompson (1/25/2019) sp-7330

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  

                                                                                                                    

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



STATE  OF  ALASKA,                                               )  

                                                                 )     Supreme  Court  Nos.  S-16624/16643  

                              Petitioner  and                    )     Court  of  Appeals  No.  A-11054  

                              Cross-Respondent,                  )  

                                                                                                                               

                                                                 )     Superior Court No. 3AN-08-13856 CR  

          v.	                                                    )  

                                                                 )                         

                                                                       O P I N I O N  

                                                                 )  

DANA R. THOMPSON,  

                                                                 )                                           

                                                                       No. 7330 - January 25, 2019  

                                                  

                              Respondent and                     )  

                              Cross-Petitioner.                  )  

                                                                 )  



                                                                                                            

                    Cross-Petitions 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,  

                                                  

                    Michael R. Spaan, Judge.  



                                                                                                   

                    Appearances:  Tamara E. DeLucia, Chief Assistant Attorney  

                                                                                                 

                    General,   Anchorage,                and   Jahna   Lindemuth,   Attorney  

                                                                                                                 

                    General,  Juneau,   for   Petitioner   and   Cross-Respondent.  

                                                                                                     

                    Sharon Barr, Assistant Public Defender, and Quinlan Steiner,  

                                                                                                      

                    Public  Defender,  Anchorage,  for  Respondent  and  Cross- 

                    Petitioner.  



                                                                                                     

                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                         

                    and Carney, Justices.  



                                       

                    CARNEY, Justice.  


----------------------- Page 2-----------------------

I.            INTRODUCTION  



                            Dana Thompson was convicted of 13 counts of first degree sexual abuse  

                                                                                                                                                                       



of a minor and 4 counts of second degree sexual abuse of a minor stemming from a  

                                                                                                                                                                                



4-year sexual relationship with the daughter of a family friend.  The first degree sexual  

                                                                                                                                                                     



abuse of a minor convictions were based on the alternative theories that Thompson either  

                                                                                                                                                                       

(1)  occupied  a "position  of authority"1   over  the victim2   or  (2)  resided  in  the same  

                                                                                                                                                                       

household as the victim and had authority over her.3  

                                                                                                   



                                                                                                                                                                        4  

                            Thompson argued to the court of appeals that  Wurthmann v. State,  the  

                                                                                                                                                                            



leading case interpreting the phrase "position of authority," was wrongly decided.  He  

                                                                                                                                      



alternatively argued that the jury was improperly instructed about the meaning of the  

                                                                                                                                                                            



              1  

                           AS 11.41.470(5) provides: " '[P]osition of authority' means an employer,                                                           

youth leader, scout leader, coach, teacher, counselor, school administrator, religious                                                                          

leader, doctor, nurse, psychologist,                                        guardian   ad   litem,   babysitter,   or   a substantially   

similar position, and a police officer or probation officer other than when the officer is                                                                                     

exercising custodial control over a minor."                             



              2            See AS 11.41.434(a)(3)(B).  An offender who is at least 18 years of age  

                                                                                                                                                                           

commits  first  degree  sexual  abuse  of  a  minor  if  the  offender  engages  in  sexual  

                                                                                                                                                                    

penetration with a person under the age of 16 and, at the time of the offense, "occupies  

                                                                                                                                                              

a position of authority" over the victim.  

                                                                    



              3            See AS 11.41.434(a)(3)(A).  An offender who is at least 18 years of age  

                                                                                                                                                                           

commits  first  degree  sexual  abuse  of  a  minor  if  the  offender  engages  in  sexual  

                                                                                                                                                                    

penetration with a person under the age of 16 and, at the time of the offense, resides with  

                                                                                                                                                                          

and "has authority over" the victim.  

                                                                              



              4  

                            27 P.3d 762, 766 (Alaska App. 2001) (holding that live-in boyfriend of  

                                                                                                                                                                              

sexual abuse victim's mother occupied a "position of authority" within the scope of  

                                                                                                                                                                              

AS 11.41.470(5)).  

         



                                                                                      -2-                                                                               7330
  


----------------------- Page 3-----------------------

phrase "position of authority" under                          Wurthmann.    The court of appeals rejected both                         

arguments.5  



                      Thompson also argued to the court of appeals that the superior court erred  

                                                                                                                                      



by failing to merge many of his convictions.  The court of appeals rejected his argument  

                                                                                                                               



that the rules for merger in sexual abuse of a minor cases should be different than the  

                                                                                                                                         



rules for merger in sexual assault cases. The court reaffirmed that for both types of cases  

                                                                                                                                      



the unit of prosecution is the distinct act of sexual penetration of different bodily orifices.  

                                                                                                                                                



But the court of appeals found that the superior court had misapplied the rules for merger  

                                                                                                                                   



and   held   that   Thompson's   convictions   for   digital   penetration,   penis-to-genital  

                                                                                                                   



penetration, and penetration with an object during the same time period merged because  

                                                                                                                                  



the same orifice was involved and the evidence was ambiguous as to whether each act  

                                                                                                               

"accompanied" the other acts.6  

                                           



                      The State petitioned for review of the court of appeals' merger ruling,  

                                                                                                                                   



advocating a rule allowing separate convictions for penetration with different objects or  

                                                                                                                                           



body parts, regardless of the time period.  Thompson cross-petitioned.  He argues that  

                                                                                                                             



the court of appeals' rulings on "position of authority" - affirming  Wurthmann and  

                                                                                                                                        



concluding that the jury was properly instructed - were erroneous; he also argues that  

                                                                                                                                        



the unit of prosecution for merger purposes should be the "sexual episode" and that many  

                                                                                                                                      



of his convictions should therefore merge.  

                                                           



                      We affirm the court of appeals' decision on both "position of authority"  

                                                                                                                              



issues.  We reject Thompson's argument that the unit of prosecution for sexual abuse of  

                                                                                                                                           



a  minor  cases  and  sexual  assault  cases  should  be  different,  and  that  more  of  his  

                                                                                                                                         



           5          Thompson v. State             , 378 P.3d 707, 712-12 (Alaska App. 2016).                     



           6  

                                                                                                                                      

                      Id. at 716-17 (citing Oswald v. State, 715 P.2d 276, 280-81 (Alaska App.  

                                                                                                                                        

 1986), recognized as overruled on other grounds by Yearty v. State, 805 P.2d 987, 995  

                                                                                          

n.3 (Alaska App. 1991)), reh'g denied (Feb. 7, 2017).  



                                                                     -3-                                                              7330
  


----------------------- Page 4-----------------------

convictions should therefore merge.                       We extend our recent decision in                    Johnson v. State         7  



                                                                                                                                     

and hold that separate convictions and sentences may be imposed for each distinct act  



                                                                                                                               

of penetration when either the penetrating object or body part or the penetrated orifice  



                                                                                                                                     

has changed. We reverse the court of appeals' holding that Thompson's convictions for  



                                                                                                                    

digital penetration, penis-to-genital penetration, and penetration with an object during  



                                   

the same time period merged.  



                                   

II.        FACTS AND PROCEEDINGS  



                                                                                                                8  

                                                                                                                          

                     We adopt the facts outlined in the court of appeals' opinion.                                 We reproduce  



                                                                                        

here the facts most relevant to the petitions before us:  



                                                                                            

                                When  Dana  Thompson  was  in  his  mid-forties,  he  

                                                                                                             

                     maintained a sexual relationship with a teenage girl, J.C.,  

                                                                                                                  

                     from the time she was 14 years old (June 2005) until close to  

                                                                                                              

                     the time she was 18 (in the fall of 2008). Thompson was able  

                                                                                                                

                     to do this because he was living with, and taking care of, his  

                                                                                                [9]  

                                                                           

                     mother Rita, and because J.C.'s mother Laura                                    . . . often  

                                                                                                           

                     entrusted J.C. to Rita's care and, later, to Thompson's care  

                                                                                                              

                     for various purposes.  

                                        



                                . . . .  

                                       



                                Despite their lack of familial relation, J.C. would call  

                                                                                                               

                     Rita "Grandma Rie," and she would call Thompson "Uncle  

                                                                                                         

                     Dana."  



                                In 2004, Laura and J.C. moved to a remote cabin in  

                                                                                                       

                     Trapper Creek. . . .  J.C. was home-schooled, and after this  

                                                                                                               

                     move she rarely interacted with children her own age.  

                                                                                                     



           7         328  P.3d  77,  89  (Alaska  2014).  



           8         Thompson,  378  P.3d  at  709-11.  



           9         We  have  adopted  the  initials  and  pseudonyms  used  by  the  court  of  appeals  



to  protect  the  privacy  of  the  parties  and  witnesses.   



                                                                  -4-                                                            7330
  


----------------------- Page 5-----------------------

                                                                           

          Also in 2004, Thompson moved in with his mother  

                                                                                        

Rita.  They lived in Rita's trailer, where Thompson had his  

         

own room.  



                                                                                      

          In 2004 and 2005 (when J.C. was 13 and 14 years old),  

                                                                                       

she would stay in Rita's trailer from one to five times per  

                                                                                   

month . . . .  Sometimes, Laura would drop J.C. off at Rita's  

                                                                                   

trailer and return to Trapper Creek.  During this time, Laura  

                                                                       

came to view Thompson as J.C.'s "personal bodyguard[,"]  

                                                                                          

and she entrusted him with making sure that no harm came to  

                                                    

J.C. while the girl was staying in Anchorage.  



                 

          . . . .  



                                                                                       

          When J.C. turned 14, Thompson began talking to J.C.  

                                                                                             

about        pornography             and      master-slave            relationships.  

                                                      

Thompson also showed J.C. adult pornography.  



                                                                                          

          Beginning in 2005, Thompson's mother Rita began to  

                                                                                

experience a series of health problems that made it difficult  

                                                                                             

for  her  to  walk,  so  Thompson  became  Rita's  caregiver.  

                                                                                         

Thompson  also  became  the  person  who  was  primarily  in  

                                                                                    

charge  of  maintaining  the  residence  and  looking  after  

              

J.C. . . .  



                                                                                       

          In June 2005, while J.C. was staying at the trailer, she  

                                                                            

and Thompson had their first sexual encounter.  Thompson  

pulled J.C. onto his lap, shoved his hand down J.C.'s pants,  

                                                                                   

and touched her genitals.  J.C. started crying, and she curled  

                                                                                        

up in a ball.  When J.C. returned home to Trapper Creek the  

                                                                                 

next morning, she did not tell anyone what happened because  

              

she was scared.  



                                                                                         

          A week later, J.C. returned to Anchorage to stay at  

                                                                                             

Rita's  trailer  for  about two  months (without her  mother).  

                                                                                        

J.C.'s home schooling program required her to obtain a job  

                                                                                      

to  earn  "life  skills"  credit.             To  enable  J.C.  to  fulfill  this  

                                                                                       

requirement,  Thompson  arranged  a  job  for  her  at  an  

                                                                                    

Anchorage store . . . .  J.C. also enrolled in a computer camp  

                                               

during this two-month stay in Anchorage.  



                                            -5-                                                         7330
  


----------------------- Page 6-----------------------

                                                                     

          On  June  27,  2005,  during  the  time  that  J.C.  was  

                                                                                   

staying   at   the   trailer,   Thompson's   mother   Rita   was  

                                                                                   

hospitalized.  When Thompson returned to the trailer from  

                                                                                     

the hospital, Thompson woke J.C. and demanded that she  

                                                                           

performoral sex on him. Thompson also digitally penetrated  

                                                         

J.C. and rubbed his penis against her body.  



                                                                                  

          After the events of June 27, 2005, Thompson began  

                                                                     

engaging in more sexual activity with J.C. . . .  



                                                                                        

          On J.C.'s [15th] birthday, she and Thompson went to  

                                                                                            

Planned Parenthood so that J.C. could obtain birth control.  

                                                                                     

After leaving Planned Parenthood, J.C. and Thompson had  

                                      

multiple types of sexual intercourse.  



                                                                                        

          After J.C. turned 15, she started staying more often at  

                                                                                   

Rita's trailer without her mother, because her school work  

                       

often required her to be in Anchorage.  J.C.'s mother Laura  

                                                                                     

would often communicate with Thompson to make sure that  

                                                                                     

J.C. was completing her course work.  During this time, J.C.  

                                                                             

and Thompson talked about getting married and having a  

family.  



                                                                                     

          In the summer of 2006, J.C. spent approximately one  

                                                                                        

continuous month living at the Anchorage trailer in order to  

                                                                                     

prepare for a backpacking trip . . . .  Thompson helped J.C.  

                                                                                    

with her school work and he also helped her physically train  

                                                                                    

for  her  backpacking  trip.                  During  this  time,  J.C.  and  

                                         

Thompson repeatedly had sex.  



                                                                                   

          After   J.C.   returned   from   the   backpacking   trip,  

                                                                                 

Thompson began renovating his room in the trailer to isolate  

                                                                                        

it from the main part of the trailer, thus making it easier to  

                                                   

hide his sexual relationship with J.C.  



                                                                           

          By the time J.C. was 16 years old, she was alternating  

                                                                               

every two weeks between living with her mother in Trapper  

                                                                                      

Creek and living at the Anchorage trailer with Thompson and  

Rita.  



                                                                                      

          Thompson's relationship with J.C. came to light in the  

                                                                                     

summer of 2008 . . . .  J.C. eventually told her mother all that  



                                           -6-                                                        7330
  


----------------------- Page 7-----------------------

                                had   happened   between  her   and   Thompson   in Anchorage.                                                                                     

                                Laura   called   the   police,  and   this   initiated   the   criminal  

                                investigation.  



                                                 . . . .  



                                                 . . . [T]he State charged Thompson with [18] counts of                                                                      

                                sexual abuse of a minor in the first degree (covering the time                                                                         

                                when J.C. was under the age of 16), based on the alternative                                                            

                                theories that Thompson was either in a position of authority                                                               

                                over   J.C.   or   residing   in   the   same   household   with   her   (or  

                                both).  



                                                The State also charged Thompson with [10] counts of                                                                         

                                second-degree sexual abuse of a minor (covering the time                                                                              

                                when J.C. was between 16 and 18 years old), based on the                                                                                  

                                theory that Thompson was in a position of authority over                                                                              

                                her.[10]  



                                Thompson's case was tried in late May and early June 2010. In its closing  

                                                                                                                                                                                                



argument the State emphasized that whether  Thompson had knowingly engaged in  

                                                                                                                                                                                                            



sexual penetration with J.C., and whether she was under 16 and he was over 18 at the  

                                                                                                                                                                                                          



time, were not in dispute.  The parties disputed only whether Thompson, at the time of  

                                                                                                                                                                                                            



the offense, either was in a position of authority in relation to J.C., or resided in the same  

                                                                                                                                                                                                     



household as her and had authority over her.  

                                                                                                               



                                The relevant statute, AS 11.41.434(a)(3), provides:  

                                                                                                                                                              



                                An offender commits the crime of sexual abuse of a minor in  

                                                                                                                                                                             

                                the first degree if . . . being 18 years of age or older, the  

                                                                                                                                                                         

                                offender engages in sexual penetration with a person who is  

                                                                                                                                                                             

                                under 16 years of age, and  

                                                                                                  



                                                (A) the victim at the time of the offense is residing in  

                                                                                                                                                                             

                                the same household  as the  offender  and  the offender  has  

                                                                                                                                                                        

                                authority over the victim; or  

                                                                                                       



                10  

                                                                                                              

                                 Thompson, 378 P.3d at 709-11.  



                                                                                                     -7-                                                                                             7330  


----------------------- Page 8-----------------------

                                (B)   the offender occupies a                 position of authority               in  

                     relation to the victim.            [11]  



Another statute, AS 11.41.470(5), defines "position of authority" as:  "an employer,  

                                                                                                                          



youth leader, scout leader, coach, teacher, counselor, school administrator, religious  

                                                                                                                            



leader, doctor,  nurse,  psychologist, guardian ad  litem,  babysitter,  or  a substantially  

                                                                                                                      

similar position, and a police . . . or probation officer [in certain circumstances]."12  

                                                                                                        



                     The State pointed out to the jury that "[t]here are two theories, the first is  

                                                                                                                                        



that she resided with him and he had authority over her, . . . [and the second is] that he  

                                                                                                                                       



occupied this position of authority that's set out in the definitions."  In its consideration  

                                                                                                                     



of the position of authority requirement, the State suggested that the jury "think of what  

                                                                                                                                   



. . . a position substantially similar to a babysitter would be"; it revisited this theme  

                                                                                                                                 



throughout closing arguments.  

                                                   



                     Thompson's argument recited the examples of position of authority from  

                                                                                                                                   



the statute and then urged the jury to focus on the fact "that each and every one of these  

                                                                                                                                   



positions is a professional or a quasi professional role.  These aren't laypeople.  You  

                                                                                                                                   



notice that parent [or] relative isn't included in here.  These are people who have some  

                                                                                                                                  



position of authority by virtue of the title that they hold."  Thompson argued that the  

                                                                                                                              



evidence showed that Laura would not have entrusted J.C. to Thompson's care; that J.C.  

                                                                                                                                     



did not believe that Thompson was her babysitter or had authority over her; and that Rita,  

                                                                                                                                   



not Thompson, was the authority in the home when J.C. was at the trailer.  

                                                                                                                        



                     During deliberations the jury asked three substantive questions. The jury's  

                                                                                                                                  



first question was: "Instruction #31 could you please clarify 'substantially.' If someone  

                                                                                                                             



           11        AS   11.41.434(a)(3)  (emphasis  added).  



           12  

                     AS   11.41.470(5).  



                                                                   -8-                                                                7330  


----------------------- Page 9-----------------------

                                                                                                                                                                                                                                                                                                 13  

though[t]   'slightly'   similar   to   one   or   more   examples   would   this  qualify?"                                                                                                                                                                                                              After  



discussing the question with parties, the superior court responded:                                                                                                                                                                                               "Please refer to                                       



Instruction 31." A few hours later the jury asked: "Does 'substantially similar position'                                                                                                                                                                                                       



pertain to the listed titles, or does it leave it open to our consideration of a broader list of                                                                                                                                                                                                                         



authority figures/roles." After again discussing the question and the statute's legislative                                                                                                                                                                                                



history with the parties, the court responded:   "The jury may consider a broader list of                                                                                                                                                                             



authority figures/roles in its deliberation but the roles must be substantially similar, not                                                                                                                                                                                                                         



slightly similar, to the list in instruction #31."  The next day, the jury asked a question                                                                                                                                                                        



about the definition of the term"residing." After                                                                                                                                discussing thequestion                                                                with the parties,  



the court responded: "The definition of residing is a question of fact for the jury. Please                                                                                                                                                                                                              



refer to instruction number 2.                                                                                 Sorry I could not be of more assistance."                                                                                                                     



                                                  The jury convicted Thompson of 13 of the 18 counts of first degree sexual                                                                                                                                                                               

abuse and 4 of the 10 counts of second degree sexual abuse.                                                                                                                                                                     14  



                                                  Thompson appealed the trial court's decision regarding the meaning of  

                                                                                                                                                                                                                                                                                                                        



"position of authority" and related jury instructions, its refusal to merge some of his  

                                                                                                                                                                                                                                                                                                                     



convictions for sentencing, and his sentence.  The court of appeals declined to revisit its  

                                                                                                                                                                                                                                                                                                                         



interpretation of "position of authority" and affirmed the trial court's jury instructions,  

                                                                                                                                                                                                                                                                                   

but reversed some of the merger decisions and remanded for resentencing.15  

                                                                                                                                                                                                                                                                                             



                                                  The State petitioned for our review of the court of appeals' treatment of the  

                                                                                                                                                                                                                                                                                                                      



merger issues, urging us to define the unit of prosecution in sexual abuse cases as  

                                                                                                                                                                                                                                                                                                                        



                         13                       Instruction #31 was based on the language of AS 11.41.470(5) and read:                                                                                                                                                                                                             



" 'Position of authority' means an employer, youth leader, scout leader, coach, teacher,                                                                                                                                                                                                            

counselor, school administrator, religious leader, doctor, nurse, psychologist, guardian                                                                                                                                                                                                        

ad litem, babysitter, or a substantially similar position."                                                                                                                                                      See  AS 11.41.470(5).                                                               



                         14                       Thompson, 378 P.3d at 711.  

                                                                                                                                          



                         15                      Id. at 712-13, 716-18.  

                                                                                                      



                                                                                                                                                            -9-                                                                                                                                                7330
  


----------------------- Page 10-----------------------

penetration by a distinct object or body part regardless of whether the same orifice was                                                                                  

penetrated.16  Thompson opposed the State's petition and filed a cross-petition, asking  



                                                                                                                                                                          

us to reexamine both the court of appeals' interpretation of "position of authority" and  



                                                                                                                                                                                   

the trial court's and court of appeals' application of merger principles to his convictions.  



                                                               

We granted both petitions.  



                                                     

III.          STANDARD OF REVIEW  



                                                                                                                                                                           

                            Statutory interpretation involves questions of law to which we apply our  



                                                 17  

                                                                                                                                                                             

independent  judgment.                                   We  review  "[t]he  correctness  of  jury  instructions  .  .  .  



                    18 

                                                                                                                                                                           

de novo."                "Whether two convictions should merge on double-jeopardy grounds is a  



                                                                  19  

                                                                                                                                                                              

mixed question of law and fact."                                        We review de novo "[t]he ultimate legal question of  



                                                                                                                                                        

merger under the double-jeopardy clause"; we review for clear error "the questions of  



                                                                                                                                                              20  

                                                                                                                                       

fact underlying the conviction for the specific counts of statutory violations." 



              16           We previously held in a sexual assault case that nonconsensual penetration                                                      



of different orifices supports separate convictions.                                                      Johnson v. State                   , 328 P.3d 77, 89              

(Alaska   2014).     But   that   case   dealt   with   separate   convictions   for   vaginal   and   oral  

penetration; it did not require us to consider merger issues for penetration of the same                                                                               

orifice by different objects or body parts.                                           Id.  at 86.          



              17           State v. Fyfe, 370 P.3d 1092, 1094 (Alaska 2016).  

                                                                                                                                    



              18           Lindbo v. Colaska, Inc., 414 P.3d 646, 650 (Alaska 2018) (quoting Ayuluk  

                                                                                                                                                                    

v.  Red  Oaks  Assisted  Living,  Inc.,  201  P.3d  1183,  1197  n.30  (Alaska  2009));  see  

                                                                                                                                                                          

Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012) ("Jury instructions involve  

                                                                                                                                                                  

questions of law to which we apply our independent judgment.").  

                                                                                                             



              19           Johnson, 328 P.3d at 81.  

                                                                        



              20           Id.  



                                                                                    -10-                                                                               7330
  


----------------------- Page 11-----------------------

IV.        DISCUSSION
  



                                                                                                                                 

           A.        The Facts Of Thompson's Case Do Not Implicate Wurthmann v. State.  

                                                                                              21 was wrongly decided and  

                                                                                                                                    

                     Thompson first asserts that Wurthmann v. State 



that we should "hold that 'position of authority' is limited to people in professional or  

                                                                                                              



quasi-professional roles that are either listed in the statute or are substantially similar to  

                                                                                                                                       



the professional or quasi-professional positions listed in the statute."  

                                                                                                               



                     In      Wurthmann              the       defendant           was       convicted           under         former  

                                                                                                                           



AS 11.41.438(a)(2) of third degree sexual abuse of a minor for having sexual intercourse  

                                                                                                                        



with the daughter of the woman with whom he lived when the victim was 16 and 17  

                                                                                                                                     

years old.22        Wurthmann argued that his convictions should be reversed because he did  

                                                                                                                                     

                                                                                                                              23   The  

not occupy a "position of authority" over the victim, as required by the statute.                                                  

                                                                                                                    



court of appeals, however, noted that Wurthmann had "assumed the role of [the victim's]  

                                                                                                                            

stepfather" and "primary caretaker."24                        Under these circumstances, the court of appeals  

                                                                                                                              



determined that a "live-in boyfriend who assumes the position of a stepfather" might  

                                                                                                                                



exert enough influence over the victim to occupy a position of authority as it applies to  

                                                                                                                                       



           21        27 P.3d 762 (Alaska App. 2001).            



           22  

                                                                                                                                        

                     Id.  at 763-64.  An offender was guilty of third degree sexual abuse of a  

                                                                                                                                 

minor under former AS 11.41.438(a)(2) if the offender, "being 18 years of age or older,  

                                                                                                                                    

. . . engage[d] in sexual penetration with a person who [was] 16 or 17 years of age and  

                                                                                                                                      

at least three years younger than the offender, and the offender occupie[d] a position of  

                                                                                            

authority in relation to the victim."  The statute was later recodified as sexual abuse of  

                                                                                                                                 

a minor in the second degree at AS 11.41.436(a)(6) (2006).  See Ch. 88,  1, SLA 2006;  

                                       

Ch. 14,  1, SLA 2006.  



           23         Wurthmann, 27 P.3d at 764.  

                                                                    



           24  

                     Id. at 763.  

                               



                                                                 -11-                                                            7330
  


----------------------- Page 12-----------------------

the sexual abuse context.               25  



                                                                                                                                  

                      Incontrast,Thompsonwas charged under alternativetheories offirstdegree  



                                                                                                                                    

sexual abuse of a minor for engaging in sexual penetration with J.C. when she was under  



                                                                                                                                 

the age of 16.  The indictment alleged that at the time of the offenses, either she resided  



                                                                                                                              

in the same household with Thompson and he had authority over her, or else he occupied  

                                                                 26   The State did not allege, as in  Wurthmann,  

                                                                                                                        

a position of authority in relation to her. 



that Thompson's authority was based upon his assuming "the role of [the victim's]  

                                                                                                                              

stepfather."27  

                       



                      Thompson argues that  Wurthmann was wrongly decided and should be  

                                                                                                                                        



overturned, asserting that "position of authority" under AS 11.41.434(a)(3)(B) should  



be  limited  to  professional  or  quasi-professional  adults  who  have  authority  over  an  

                                                                                                                                        



underage person by virtue of their profession.  But AS 11.41.470(5) defines the term to  

                                                                                                                                         



mean  "employer,  youth  leader,  scout  leader,  coach,  teacher,  counselor,  school  

                                                                                                                                



administrator, religious leader,doctor,nurse, psychologist,guardian ad litem, babysitter,  

                                                                                                                            



or a substantially similar position, and a police officer or probation officer other than  

                                                                                                                                     

when the officer is exercising custodial control over a minor."28                                         The statute does not  

                                                                                                                                       



require the adult to occupy a professional or quasi-professional position.  

                                                                                                        



                       We do not find it necessary to revisit Wurthmann, as doing so would not  

                                                                                                                                       



invalidateThompson's convictions. First,theStateargued that,as J.C.'s "city guardian,"  

                                                                                                                            



Thompson filled a role in her life substantially similar to that of a babysitter pursuant to  

                                                                                                                                         



AS 11.41.470(5).  The court of appeals noted that the evidence showed that Thompson  

                                                                                                                           



           25        Id . at 765.       



           26  

                             

                      AS 11.41.434(a)(3).  



           27         Wurthmann, 27 P.3d at 763.  

                                                             



           28  

                                                                                 

                      AS 11.41.470(5) (emphasis added).  



                                                                   -12-                                                             7330
  


----------------------- Page 13-----------------------

"effectively functioned as J.C.'s surrogate parent or full-time sitter for weeks, and even                                                 



                                                                                                                    29  

months, while J.C. was living in Anchorage, away from her mother."                                                                           

                                                                                                                         Thompson has  



                                                                                                                                       

not challenged the sufficiency of the evidence on this point; he also has not clearly  



                                                                                                                                         

explained how disavowing Wurthmann's holding that "position of authority" can apply  



                                                                                                                                            

to live-in boyfriends would materially affect the State's theory that he occupied a role  



                                                                          

substantially similar to that of a babysitter.  



                                                                                                                                  

                      Moreover, the only issue relevant to Thompson's case that was presented  



                                                                                                                              

in Wurthmann's appeal was the scope of the term "position of authority"; Wurthmann  

                                                                                                    30  But the State in this case  

                                                                                                                                           

was not prosecuted or convicted under  alternative theories. 



did not rely solely on the "position of authority" prong of AS 11.41.434(a)(3)(B). It also  

                                                                                                                                            



charged Thompson under an alternative theory:  that he "resided" with J.C. and "had  

                                                                                                                                          



authority" over her pursuant to AS 11.41.434(a)(3)(A).  The State presented evidence  

                                                                                                                                   



and argued this theory to the jury in addition to its presentation and argument of the  

                                                                                                                                             



"position of authority" theory.  The court of appeals' interpretation in  Wurthmann of  

                                                                                                                                               



"position of authority" - a term appearing in a different subsection of the statute - has  

                                                                                                                                             



no effect on this alternative theory of prosecution. Even if we were to adopt Thompson's  

                                                                                                                              



proposed reading of "position of authority," it would not affect his convictions based  

                                                                                                                                         



upon this second theory.  We are not persuaded to revisit or overrule  Wurthmann.  

                                                                                                                                            



           B.	         The  Jury  Was  Properly  Instructed  On  The  Phrase  "Position  Of  

                                                                                                                                             

                      Authority."  



                       Thompson separately argues that the superior court "incorrectly responded  

                                                                                                                                 



to the jury's question[s].  It should have . . . referred them back to the instruction, and  

                                                                                                                                            



[told] them that 'substantially similar' pertains to the definitions in the instruction." The  

                                                                                                                                            



           29          Thompson  v.  State,  378  P.3d  707,  712  (Alaska  App.  2016).  



           30          Wurthmann,  27  P.3d  at  764;  see  also  former  AS   11.41.438(a)(2).  



                                                                     -13-                                                                     7330  


----------------------- Page 14-----------------------

court of appeals held that the superior court's instructions to the jury in response to their                                                                                                                                



questions were correct:                   



                                    The judge told the jurors that, if they found that Thompson's                                                                   

                                    relationship to J.C. did not put him in any of the authority                                                                             

                                    roles specifically listed in Instruction No. 31 (i.e., the ones                                                                                      

                                    specifically listed in AS 11.41.470(5)), then the jurors could                                                                                     

                                    consider whether Thompson's position amounted to some                                                                                             

                                    other authority role, but only if that other authority role was                                                                                        

                                    "substantially similar" to the ones listed in Instruction No.                                                          

                                    31.  . . . This is precisely what the statutory definition says.                                                                                           [31]  



                                    We use our independent judgment to determine the correctness of jury  

                                                                                                                                                                                                                              

instructions.32   But we agree with the court of appeals' conclusion that the superior court  

                                                                                                                                                                                                                            



followed the statutory text in both of its responses to the jury's questions about the  

                                                                                                                                                                                                                                

phrase "position of authority."33  

                                                     

                                                                                         



                                    Because the relevant statutory section ends its list with a general phrase  

                                                                                                                                                                                                                       

including "substantially similar position[s],"34 we turn to statutory canons to interpret its  

                                                                                                                                                                                                                                   



meaning.  Under the ejusdem generis canon, the general phrase "substantially similar  

                                                                                                                                                                                                                      

position" is qualified by the preceding specific list of positions.35                                                                                                            Thus, as the superior  

                                                                                                                                                                                                                   



                  31                Thompson,  378  P.3d  at  712-13.
  



                  32                Long  v.  Arnold, 386 P.3d 1217, 1220  n.5  (Alaska 2016)  (quoting  Thompson
  



v.  Cooper,  290  P.3d  393,  398  (Alaska  2012)).  



                  33                Thompson,  378  P.3d  at  712-13.  



                  34                AS   11.41.470(5).  



                  35                See   Cable   v.   Shefchik,   985   P.2d  474,   480   (Alaska   1999)   (stating   that  



pursuant to the statutory construction doctrine of  ejusdem  generis, "a general term . . .  

when  modified  by  specific  terms  .  .  .  will  be  interpreted  in  light  of  those  specific  terms,  

absent  a  clear  indication  to  the  contrary"  (quoting  State  Farm  Fire  & Cas.  Co.  v.  Bongen,  

925  P.2d   1042,   1046  (Alaska 1996)));  Alaska State Emps.  Ass'n v. Alaska Pub.  Emps.  

                                                                                                                                                                                                     (continued...)  



                                                                                                               -14-                                                                                                         7330
  


----------------------- Page 15-----------------------

court instructed:  "The jury may consider a broader list of authority figures/roles in its   



deliberation but the roles must be substantially similar, not slightly similar, to the list in                                                                                                     



instruction #31."                        



                                  Thompson argues that the jury could not consider                                                                            "a broader list of                  



authority figures or roles . . . [and that] 'substantially similar' refers to the listed roles"                                                                                          



 exclusively.   If Thompson were correct, then the phrase "substantially similar position"                                                                                        



would be superfluous.                                 But we "presume that no words or provisions [in a statute] are                                                                            



 superfluous and that the legislature intended 'every word, sentence, or provision of a                                                                                                             



                                                                                                                  36  

 statute to have some purpose, force, and effect.' "                                                                     



                               The superior court's instruction and its response to the jury's questions  

                                                                                                                                                                                 



 followed the text of the statute.  We therefore affirm the court of appeals' holding that  

                                                                                                                           



the jury was properly instructed by the superior court.  

                                                                                                                              



                C.	            Distinct  Acts  Of  Penetration  Can  Support  Separate  Convictions,  

                                                                                                                                                                       

                               Regardless Of The Penetrating Object Or Body Part.  

                                                                                                                                                     



                               1.	            Constitutional framework for merger issues  

                                                                                                                                                             



                               The Fifth Amendment of the United States Constitution provides that "[n]o  

                                                                                                                                                                                            



person shall . . . be subject for the same offence to be twice put in jeopardy of life or  

                                                                                                                                                                                                  

limb . . . ."37   The federal double jeopardy clause binds the states through the Fourteenth  

                                                                                                                                                                              



                35             (...continued)  



                                                                                                                                                                                                   

Ass'n , 825 P.2d 451, 460 (Alaska 1991) (defining ejusdem generis as "the general is  

                                                                       

controlled by the particular").  



                36             State v. Fyfe, 370 P.3d 1092, 1099 (Alaska 2016) (quoting Adamson v.  

                                                                                                                                                                                                   

Municipality of Anchorage, 333 P.3d 5, 16 (Alaska 2014)).  

                                                                                                                        



                37             U.S. Const. amend. V.  

                                                                             



                                                                                               -15-	                                                                                       7330
  


----------------------- Page 16-----------------------

                         38  

Amendment.                    Article I, section 9 of the Alaska Constitution also provides that "[n]o                                                      



                                                                                                                    39  

person shall be put in jeopardy twice for the same offense."                                                                                                    

                                                                                                                         In Johnson v. State we  



                                                                                                                                                        

elaborated:  "The constitutional protection against double jeopardy . . . protects against  

                                                                                     40  We delineated the steps required of the  

                                                                                                                                                                       

                                           

multiple punishments for the same offense." 



court to determine whether separate convictions must merge for sentencing in Whitton  

                                                                                                                                                       



               41  

v. State.          Johnson reaffirmed that the Whitton rule remains the standard for determining  

                                                                                                                                               



whether convictions must merge pursuant to the Alaska Constitution:  

                                                                                                            



                          [I]n order to determine whether multiple punishment violates  

                                                                                                                              

                         the Alaska Constitution, a court must first look to the intent,  

                                                                                                                                 

                          conduct,  and  societal  interests  at  stake  in  the  multiple  

                                                                                                                           

                          offenses (or multiple counts of a single offense) that were  

                                                                                                                                   

                          defined by the legislature.  A court must then independently  

                                                                                                                 

                          determine  whether  the  differences  among  these  purposes  

                                                                                                                          

                         underlying the multiple offenses or counts are great enough  

                                                                                                            

                         that multiple punishments for the criminal conduct should  

                                                                                                                               

                          lie.[42]  

                                      



             38          Benton   v.   Maryland,   395   U.S.   784,   794   (1969).     Thompson  does   not  



specifically raise a federal double jeopardy claim.                                             But to the extent this case implicates             

federal   constitutional   questions   we   note   that   the   federal   double   jeopardy   clause  

authorizes courtsto enforcethelegislature's intentto                                               permit or preclude multiple charges                  

or convictions relating to a single course of conduct.                                               Johnson v. State               , 328 P.3d 77, 86-          

87   (Alaska   2014)   (citing   Whalen   v.   United   States,   445   U.S.  684,   688-89   (1980)).   

"Legislative intent is 'dispositive' of the federal constitutional question."                                                                     Id.   at 87  

(quoting   Whalen, 445 U.S. at 689).                      



             39          Alaska Const. art. I,  9.  

                                                                          



             40           328 P.3d 77, 86 (Alaska 2014) (quoting N. Carolina v. Pearce, 395 U.S.  

                                                                                                        

711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989)  

                                                                                                                                                         

(internal quotation marks omitted)).  

                                                                       



             41           479 P.2d 302, 312 (Alaska 1970).  

                                                                               



             42  

                         Johnson, 328 P.3d at 87-88 (citing Whitton, 479 P.2d at 312).  

                                                                                                                                                 



                                                                               -16-                                                                         7330
  


----------------------- Page 17-----------------------

                             2.            Issues presented on appeal                    



                             In  Johnson  weheld that "theharmsfromnon-consensualsexualpenetration                                                                



 of distinct orifices of the victim's body are so independently significant that multiple                                                                               



 counts of sexual assault are permissible under the Alaska Constitution to vindicate the                                                                                           



                                                                                                                                                                              43  

 societal interest in preventing those harms and punishing the [harmful] conduct."                                                                                                 



                                                                                                                                                                          

                             Thompson and the State present competing arguments about our merger  



                                                                                                                                                                  

jurisprudence in the sexual assault and sexual abuse of a minor contexts.  Thompson  



                                                                                                                                                          

 argues that we should hold that the rule announced in Johnson v. State does not apply  



                                                                                                                                                                            

to sexual abuse of a minor cases.  He urges us to create a rule in such cases that would  



                                                                                                                                                                                      

require merger of all convictions from a single episode of sexual activity.  Referring to  



                                                                                                                                                                       

 Whitton, Thompson argues that "the 'intent, conduct, and societal interests at stake' as  



                                                                                                                                                                                  

 'defined by the legislature' of sexual assault differ fromsexual abuse." He continues that  



                                                                                                                                                                        

 statutes criminalizing "sexual assault protect[] against . . . non-consensual sex, meaning  



                                                                                                                                                         

 coerced sex. But what sexual abuse [laws] protect[] against is sex that is non-consensual  



                                                                                                                                                            

by operation of law."  He argues that the harm targeted by sexual abuse statutes is not  



                                                                                                                                                                               

 "forcible  or  coerced"  sex  but  rather  the  abuse  of  the  power  adults  may  hold  over  



                                                                                                                                                                           

 children.  The prohibited conduct in Thompson's view is the "break of trust and misuse  



                                                                                                                                                                                

 of power."  He therefore urges us to hold that this power "is not separately abused with  



                                                                                                                                                                                     

 each  distinct  act  that  occurs  in  a  criminal  episode,  or  each  distinct  orifice  that  is  



                                                                                                                                                                     

penetrated."  Thompson instead argues that there is a single violation of law each time  



                                                                                                                                                                    

 an adult engages in an episode of sexual activity, regardless of the type and number of  



                                           

 acts of penetration.  



               43  

                                                  

                             Id. at 89.  



                                                                                         -17-                                                                                         7330  


----------------------- Page 18-----------------------

                       In  its  petition   the   State   urges   us   to   disavow   the   "distinct   orifices"  



                                                                           44  

framework of             Johnson  and  Oswald v. State                                                                                              

                                                                               and hold instead that each separate act of  



                                                                                                                                                 

penetration supports its own  conviction  and  punishment, regardless of whether  the  



                                                                                                                                                         

distinct acts of penetration occurred in a single bodily orifice or separate bodily orifices.  



                                                                          

The State argues that Johnson 's rationale supporting separate convictions for separate  



                                                                                                                                                 

acts of penetration in different orifices, like fellatio and vaginal intercourse, applies just  



                                                                                                                                    

as persuasively to separate acts of penetration in the same orifice, like digital penetration  



                                            

and vaginal intercourse.  



                                                                                                                                               

                       3.	         The  same  rules  for  merger  apply  to  both  sexual  abuse  of  a  

                                                                                   

                                   minor and sexual assault convictions.  



                                                                                                                                         

                       Thompson argues that the policy goals and interests protected by different  



categories of sexual offense are so unique that they warrant different treatment for the  



                                                                                                                                            

purposes of merger.  He asserts that sexual abuse of a minor cases differ from sexual  



                                                                                                                                                    

assault cases because, in sexual abuse cases, sex that "is not forcible or coerced . . . is  



                                                                                                                                              

nevertheless considered non-consensual because it is an abuse of power by an older  



                                   

person of a child."  



                                                                                                                                        

                       Thompson mischaracterizes the law in arguing that it is force or coercion  



                                                                                                                                               

that justifies different merger rules for sexual abuse of a minor and sexual assault. First,  



                                                                                                                                                    

his assumption that sexual abuse cases do not involve coercion is faulty.  Coercion is  



                                                                                                                                                    

defined as the "[c]ompulsion of a free agent by physical, moral, or economic force or  

                                          45  "Undue influence" is defined as "[t]he improper use of power  

                                                                                                                                             

                                

threat of physical force." 



            44  

                       715 P.2d 276, 280 (Alaska App. 1986),                                overruled in part as recognized by                     

Yearty v. State          , 805 P.2d 987, 995 n.3 (Alaska App. 1991).                        



            45         Coercion, BLACK 'S   LAW   DICTIONARY   (10th ed. 2014) (also listing the                                                 

                                           

phrase   "undue   influence"   as   a   corollary   definition   to   the   related   phrases   "implied  

coercion" and "moral coercion").                            



                                                                        -18-	                                                                 7330
  


----------------------- Page 19-----------------------

or trust in a way that deprives a person of free will," or "the exercise of enough control"                                                                                           



to overmaster another's free agency and induce that person to performan act that "would                                                                                                 

                                                                                    46  The concepts overlap, and both may characterize  

not have otherwise been performed."                                                                                                                                           



the coercive effect of an adult abuser's influence over a child.  The "abuse of power" in  

                                                                                                                                                                                                     



many sexual abuse cases thus stems from the undue, coercive influence that the abuser  

                                                                                                                                                                                          

exercises over the victim.47  

                                                                  



                               Conversely, Thompson's argument ignores that sexual assault cases may  

                                                                                                                                                                                 



not involve force or threat of force. For example, the definition of second degree sexual  

                                                                                                                                                                                          



assault  includes  "sexual  penetration  with  a  person  who  the  offender  knows  is  

                                                                                                                                                                                                   



(A) mentally incapable; (B) incapacitated; or (C) unaware that a sexual act is being  

                                                                                                                                                                                     

committed."48                      None of these prohibited actions are "forcible":  they do not involve the  

                                                                                                                                                                                                  



use or threat of physical violence.  But such penetrations still violate an incapacitated  

                                                                                                                                                                          



victim's autonomy and bodily integrity.  

                                                                        



                46              Undue Influence                       , B   LACK 'S  LAW  DICTIONARY  (10th ed. 2014).                                                           



                47             See, e.g.          ,  State v. Jackson                     , 776 P.2d 320, 328 (Alaska 1989) (emphasizing                                  



the "breach of trust" inherent in defendant's sexual abuse of his gymnastics student);  

                                                                                                                                                                                    

 Wurthmann v. State, 27 P.3d 762, 766 (Alaska App. 2001) ("[A] reasonable jury could  

                                                                                                                                                                                            

conclude that [Wurthmann] exercised undue influence over" the victim as her stepfather                                                                                             

and primary caretaker).       



                48             AS11.41.420(a)(3). "[I]ncapacitated"isdefinedas"temporarily incapable  

                                                                                                                                                                                   

of  appraising  the  nature  of  one's  own  conduct  or  physically  unable  to  express  

                                                                                                                                                                                      

unwillingness to act." AS 11.41.470(2). "[M]entally incapable" is defined as "suffering  

                                                                                                                                                                                  

from a mental disease or defect that renders the person incapable of understanding the  

                                                                                                                                                                                                  

nature or consequences of the person's conduct, including the potential for harm to that  

                                                                                                                                                                                                 

person."  AS 11.41.470(4).  

                                                                 



                                                                                                -19-                                                                                         7330
  


----------------------- Page 20-----------------------

                       The court of appeals addressed a related argument about the policy goals                 



                                                                                                           49  

of the sexual assault and sexual abuse statutes in                                Yearty v. State         .                                

                                                                                                               There the State argued  



                                                                                                                                             

that convictions for sexual assault and sexual abuse of a minor relating to the same  



                                                                                                                                        

course of conduct should not merge because the two types of offenses "involve different  

                                                                                                          50    The  court  of  appeals  

                                                                                                                                         

statutory  elements  and  protect  differing  societal  interests." 



disagreed, noting that both statutes serve the same basic aim: "protect[ing] victims from  

                                                                                                                                              

socially unacceptable sexual contacts."51  

                                                   



                       The court in Yearty acknowledged that the sexual assault statute achieved  

                                                                                                                                       



this purpose by requiring affirmative proof of the victim's lack of consent, while the  

                                                                                                                                                 



sexual abuse of a minor statute did so "by substituting the child's age (and the age of the  

                                                                                                                                                 

defendant) for proof of actual lack of consent."52                                    But it rejected the argument that this  

                                                                                                                                                



difference  reflected  any  shift  in  the  purpose  of  the  statute,  instead  noting  "the  

                                                                                                                                              



legislature's practical recognition that a child of under thirteen years is incapable of  

                                                                                                                                                  

                                                                               53  The court then concluded that because  

giving meaningful consent to sexual contact."                                                                                            

                                                                



every sexual abuse of a minor case is thus legally nonconsensual, "it is difficult to  

                                                                                                                                                  



conceive of a situation in which an act of sexual abuse on a child would not also be an  

                                                                                                                                                  

act of sexual assault"54 - a conclusion that reaffirmed the shared purpose of both types  

                                                                                                                                             



of statute.  

      



            49         805 P.2d 987, 994 (Alaska App. 1991).                     



            50         Id.  



            51         Id.  

                              



            52         Id.  

                              



            53         Id.  



            54         Id .  



                                                                       -20-                                                                  7330
  


----------------------- Page 21-----------------------

                           We agree with the                        Yearty   court's explication of the intent and societal                                     



interests prongs of                     Whitton  in sex crimes and we see no reason to disturb it.                                                         The basic   



purpose of both sexual assault and sexual abuse of a minor statutes is to protect victims                                                                        



from offensive sexual conduct.                                  Whether charged as sexual assault or sexual abuse of a                                                       



minor, each offensive act is a violation of the victim's dignity, personal freedom, and                                                                                 

                                 55  We therefore hold that sexual abuse of a minor cases should be treated  

bodily integrity.                                                                                                                                                 



in the same manner as sexual assault cases to determine whether separate convictions  

                                                                                                                                                        



should merge. The rule announced in Johnson applies to the same extent in both sexual  

                                                                                                                                                                   

assault cases and sexual abuse of a minor cases.56  

                                                                                      



                           4.	           Separate  convictions  may  stand  for  each  separate  act  of  

                                                                                                                                                                          

                                         penetration, regardless of whether it is the same or a different  

                                                                                                                                      

                                         orifice.  

                                                          



                           The court of appeals relied on its previous decision in Oswald v. State when  

                                                                                                                                                                     



it merged Thompson's convictions for acts of digital penetration, penetration by object,  

                                                                                                                                                                  

and penile penetration that occurred over similar time periods.57  The State urges us to  



                                                                                                              

disavow Oswald's characterization of an initial act of digital penetration as "foreplay"  



                                                                                                                                                                            

and its conclusion that such a preparatory step toward another act of penetration had to  



                                                                                                                                                               

merge with the later act.   In its place the State asks us to adopt a rule that separate  



                                                                                                                                                                      

convictions can enter for each separate act of penetration, regardless of whether the same  



                                                                             

or a different orifice was penetrated.  



              55           Johnson v. State                 , 328 P.3d 77, 89 (Alaska 2014).                      



              56  

                                                                                                                                                                            

                           We note as well that applying the Johnson rule to sexual abuse cases is  

                                                                                                                                                                         

consistent with legislative intent as required for federal double jeopardy purposes. See  

                                             

Johnson, 328 P.3d at 87-88.  



              57           Thompson v. State, 378 P.3d 707, 716-17 (Alaska App. 2016).  

                                                                                                                                                            



                                                                                    -21-	                                                                            7330
  


----------------------- Page 22-----------------------

                                a.         Oswald v. State           and its progeny     



                      In  Oswald  the court of appeals accepted a concession from the State that                                      



"Count   I   [digital   penetration]   encompassed   foreplay   leading   to   the   act   of   sexual  



intercourse   charged   in   Count   II,   and   consequently   could   not   support   a   separate  

                    58  In contrast, the court found that a separate conviction should stand for a  

conviction."                                                                                                                               

second act of sexual intercourse following a break in time from the first.59  

                                                                                                              



                      A few years later in Rodriquez v. State the court of appeals differentiated  

                                                                                                                       

between convictions for multiple instances of fellatio and anal penetration.60                                              The court  

                                                                                                                                    



held that because "fellatio . . . was not a necessary or inevitable predecessor to the later  

                                                                                                                                     

sodomy," these counts did not merge.61                           For two different incidents of fellatio and anal  

                                                                                                                                      



penetration, the court held that separate convictions were appropriate because, as in  

                                                                                                                                         

                                                                                                               62   The court thus  

Oswald, there was a sufficient break in time between the two acts.                                                                    

                                                                                                        



concluded that a completed sexual act followed by another, different, sexual act could  

                          

support two convictions.63  

                     



                      In  Yearty  v.  State the  court  of  appeals  again  considered  whether  two  

                                                                                                                                      



separate sexual acts - fellatio followed by attempted anal penetration - could support  

                                                                                                                                 



            58        Oswald  v.  State,  715  P.2d  276,  280  (Alaska  App.  1986),  acknowledged  as  



overruled  in  part  by  Yearty  v.  State,  805  P.2d  987,  995  n.3  (Alaska  App.   1991).  



            59       Id.  at  281.  



            60        741  P.2d   1200,   1207  (Alaska  App.   1987).   



            61       Id.  



            62       Id.  

                            



            63       Id.  at   1207-08.  



                                                                   -22-                                                             7330
  


----------------------- Page 23-----------------------

                                   64  

separate convictions.                   The court of appeals held that they could, stating that separate                            



convictions  and   sentences   from   a   single   episode   of   sexual   assault   or   abuse   were  

                                                                                                                 65   In a footnote the  

permissible when they were for different types of sexual penetration.                                                                        



court acknowledged that the State had pointed out a potential inconsistency between  

                                                                                                                                   



                                          66  

Rodriquez  and  Oswald.                          The  court  stated  that  "[t]o  the  extent  that  Oswald  is  

                                                                                                                                              



inconsistent with our subsequent decision in [Rodriquez], we hold that the latter case  

                                                                                                                                          

overrules Oswald."67  

                  



                      The court of appeals  more recently  reiterated  in Iyapana v.  State  that  

                                                                                                                                           



"[s]eparate convictions for multiple acts of penetration involving different openings of  

                                                                                                                                              

the victim's . . . body are permissible,"68 explaining the acts merited separate punishment  

                                                                                                                              

because "different types of penetration constitute different forms of indignity."69                                                       In a  

                                                                                                                                               



concurring  opinion  Chief  Judge  Mannheimer  explained  his  understanding  of  the  

                                                                                                                                           



relationship between the court of appeals' decisions in Oswald, Rodriquez, and Yearty,  

                                                                                                                                      



clarifying that merger based upon the preparatory nature of a sexual act was appropriate  

                                                                                                                               



only when both acts involved the same orifice:  

                                                                   



                       Oswald  has  been  overruled  only  to  the  extent  that  it  is  

                                                                                                                       

                      inconsistent with Rodriquez - that is, only to the extent that  

                                                                                                                     

                       Oswald would apparently require a merger of counts even  

                                                                                                       

                      when  a  defendant's  preparatory  act  of  sexual  penetration  

                                                                                                        



           64          805  P.2d  987,  993  (Alaska  App.   1991).  



           65         Id.  at  993-94  (citing  Rodriquez,  741  P.2d  at   1207-08).  



           66         Id.  at  995  n.3.  



           67         Id.  



           68         284  P.3d  841,  850  (Alaska  App.  2012)  (quoting  Johnson  v.  State,  762  P.2d  



493,  495  (Alaska  App.   1988)).  



           69         Id.  



                                                                     -23-                                                               7330
  


----------------------- Page 24-----------------------

                              involved a different                       type  of penetration from the defendant's                      

                             ultimate act of sexual penetration.               



                                            Thus,   even   after   Rodriquez   and   Yearty,   the   result  

                             reached    in    Oswald    remains    correct:       the    defendant's  

                             preparatory act of penetrating the victim's vagina with his                                                                   

                              finger merged with the defendant's ensuing act of penetrating                                               

                             the   victim's   vagina   with   his   penis   -   because   the   first  

                             penetration was preparatory to the second, and because both                                                                

                              acts involved penetration of the same orifice.                                                     [70]  



                             Against this history we were asked in Johnson v. State to review the court  

                                                                                                                                                                                    



of  appeals'  decision  upholding  separate  convictions  for  nonconsensual  fellatio  and  

                                                                                                                                                                                      

vaginal intercourse.71                             We affirmed the separate convictions, holding that "the harms  

                                                                                                                                                                                 



from non-consensual sexual penetration of distinct orifices of the victim's body are so  

                                                                                                                                          



independently significant that multiple counts of sexual assault are permissible . . . to  

                                                                                                                                                                                        



vindicate the societal interest in preventing those harms and punishing the [harmful]  

                                                                                                                                                                          

conduct."72  



                             Neither  party  in  Johnson,  however,  asked  that  we  examine  whether  

                                                                                                                                                                            



penetration of separate orifices was required to impose separate sentences.  The facts of  

                                                                                                                                                                                           



that case were based upon the penetration of different orifices.  But in agreeing with the  

                                                                                                                                                                                         



court of appeals, we emphasized the policy goals of "preventing the loss of [the victim's]  

                                                                                                                                                                            



autonomy, dignity, free will, and bodily integrity," and observed that these harms "are  

                                                                                                                                                                                      

revisited upon the victimwith each distincttypeofnon-consensualsexual penetration."73  

                                                                                                                                                                                                



               70            Id.  at 853 (Mannheimer, J., concurring) (emphasis in original).                                                                             



               71  

                                                                                     

                              328 P.3d 77, 89 (Alaska 2014).  



               72            Id.  

                                     



               73            Id.  



                                                                                           -24-                                                                                     7330
  


----------------------- Page 25-----------------------

 We are now asked directly if penetration of separate orifices is required to support                                                                                                   



 separate sentences.                           We hold that it is not.                    



                                               b.	            Distinct types of penetration, whether distinguished by                                                                              

                                                               penetrating object or body part, penetrated orifice, or                                                                              

                                                               both, do not merge.            



                               Applying Johnson 's "separate penetration" rule to the penetrating object                                                                                   



 or body part as well as to the penetrated orifice is consistent with both the federal and                                                                                                       



 state double jeopardy provisions.                                             As we acknowledged in                                     Johnson, the federal double                      

jeopardy question turns on legislative intent.                                                          74               

                                                                                                              We determined there that "[n]othing in  



                                                                                                                                                                                                   

 the criminal statute or the legislative history" evinced an intent to punish only once for  



                                                                                                                          75  

                                                                                                              

penetration of multiple orifices of the victim's body. 



                                                                                                                                                                                          

                               Johnson did not raise the question of whether the same reasoning applies  



                                                                                                                                                                   76  

                                                                                                                                                                                                    

 to penetration of the same orifice by multiple objects or body parts,                                                                                                  but we see no  



                                                                                                                                                                                        

reason that it should not. Indeed, the legislature defined "sexual penetration" as "genital  



                                                                                                                                                                                                    

 intercourse, cunnilingus, fellatio, anal intercourse, or an intrusion, however slight, of an  



                                                                                                                                                                                      

 object or any part of a person's body into the genital or anal opening of another person's  



                77  

                                                                                                                                                                                                     

body."                 This language demonstrates its intent to treat changes in both the manner of  



                                                                                                                                                                                

penetrationandthepenetrated orificeasseparately punishableacts. Multipleconvictions  



                                                                                                                                                                                       

 and sentences for distinct methods of penetration are therefore not required to merge.  



                                                                                                                                                                                        

                                To  determine   whether   the  legislature's  intent  satisfies  the  Alaska  



                                                                                                                                                                                                   

 Constitution's double jeopardy clause, the Whitton test first requires us to "identify the  



                74             Id.  at  86-87.   



                75             Id.  at  87.   



                76             Id.  at  89-90  (addressing  only  whether  separate  punishments  could  stand  for  



 Johnson's  sexual  penetration  of  the  victim's  vagina  and  mouth).   



                77             AS   11.81.900(b)(60)(A)  (emphasis  added).  



                                                                                                -25-	                                                                                         7330
  


----------------------- Page 26-----------------------

societal interests at stake in charging, convicting on, and punishing multiple counts of                                                 



sexual [abuse] in the first degree, including differences in [Thompson]'s intent and                                                               

                                                                                78   Second, we must decide "whether those  

conduct and the consequences of his actions."                                                                                                    



societal interests are great enough" to justify multiple punishments for the conduct at  

                                                                                                                                                       

issue, or whether multiple punishments are unconstitutional.79  

                                                                              



                        The sexual abuse of a minor statutes, like the sexual assault statutes, aim  

                                                                                                                                                    

"to protect victims from socially unacceptable sexual contacts."80                                                      The purpose of the  

                                                                                                                                                     



statutes is to acknowledge and punish the distinct harms that are "revisited upon the  

                                                                                                                                                    

victim with each distinct type of non-consensual sexual penetration."81                                                              Each act of  

                                                                                                                                                      



penetration subjects a victim of sexual abuse to an additional "loss of autonomy, dignity,  

                                                                                                                                             

free will, and bodily integrity."82                        This is no less true when the acts of penetration differ  

                                                                                                                                                



by penetrating object or body part - such as digital followed by penile penetration -  

                                                                                                                                                      



than when they differ by penetrated orifice.  And it is no less true of acts of penetration  

                                                                                                                                      

that would be considered "preparatory" under the Oswald framework.83  

                                                                                                         



                        Thompson argues that a rule allowing separate convictions for distinct  

                                                                                                                                             



penetrations of the same or separate bodily orifices will result in "every thrust of a penis  

                                                                                                                                                



            78         Johnson, 328 P.3d at 89 (citing                        Whitton v. State            , 479 P.2d 302, 312 (Alaska           



 1970)).  



            79         Id.  



            80          Yearty v. State, 805 P.2d 987, 994 (Alaska App. 1991).  

                                                                                                                            



            81         Johnson, 328 P.3d at 89.  

                                                                      



            82         Id.  

                              



            83          See Iyapana v. State, 284 P.3d 841, 853 (Alaska App. 2012) (Mannheimer,  

                                                                                                                                 

J., concurring) (characterizing defendant's act of digital penetration in Oswald, which  

                                                                                                                                               

was held to merge with subsequent act of penile penetration, as "preparatory").  

                                                                                                                                              



                                                                         -26-                                                                    7330
  


----------------------- Page 27-----------------------

 during penile-vaginal or penile-anal intercourse" potentially amounting to a "separate                                                                                                                                 



 conviction and sentence."                                                  He analogizes to the application of the merger principle in                                                                                                        



 assault cases, characterizing the relevant question as "whether the assaults occurred                                                                                                                                     

                                                                                                        84  He argues that a similar framework should apply  

 during a single, continuous episode."                                                                                                                                                                                                



 in sexual abuse cases. But as the Washington Supreme Court noted in rejecting a similar  

                                                                                                                                                                                                                                



 argument, this argument "ignores key differences between the crimes of rape and assault.  

                                                                                                                                                                                                                                                        



 Unlike the rape statute, the assault statute does not define the specific unit of prosecution  

                                                                                                                                                                                                                    

 in terms of each physical act against a victim."85  Thompson's argument likewise ignores  

                                                                                                                                                                                                                                 



 that the unit of prosecution in sexual abuse cases is still defined as an act of "sexual  

                                                                                                                                                                                                                               

 penetration."86  



                                      This  case  for  the  first  time  squarely  presents  the  question  whether  

                                                                                                                                                                                                                            



 penetrations of the same orifice with different objects or body parts can support separate  

                                                                                                                                                                                                                              



 convictions.  In Johnson, when we specifically affirmed separate convictions for the  

                                                                                                                                                                                                                                            



 penetration of different orifices, the facts did not require us to consider merger given  

                                                                                                                                                                                                                                     



                    84                See, e.g.              ,  Mill v. State                    , 585 P.2d 546, 552 & n.4 (Alaska 1978) (holding that                                                                                     



 where defendant aimed a gun at victim, shot victim in leg, and then stood over victim to                                                                                                                                                      

 demand money, this "short and continuous sequence" of acts "amount[ed] to a unitary                                                                                           

 criminal   episode";   and   noting   that   separate   convictions   would   likely   raise   double  

jeopardy concerns);                                       Miller v. State                          , 312 P.3d 1112, 1118 (Alaska App. 2013) (holding                                                                         

 that where defendant pushed victim against wall, strangled her, and then stepped on her                                                                                                                                                    

 chest, defendant's conduct was properly treated as "a single, continuous assault" and                                                                                                                                                    

 would have supported only a single conviction).                                                       



                    85                State v. Tili, 985 P.2d 365, 371 (Wash. 1999).  

                                                                                                                                                                          



                    86                We also take notice of the State's explicit concession at oral argument that  

                                                                                                                                                                                                                                           

 it does not interpret its own proposed rule to support charging every thrust as a separate  

                                                                                                                                                                                                                            

 offense, nor does it advocate such a rule.  

                                                                                                                      



                                                                                                                     -27-                                                                                                              7330
  


----------------------- Page 28-----------------------

                                                                                     87  

penetration by different objects or body parts.                                            And in         Oswald, which did involve           



penetration of the same orifice by different body parts, the court of appeals accepted the                                                             

                                                                                                                                                  88    In  

State's concession that these acts would merge if not separated by a gap in time.                                                                       



Johnson wereasonedthat penetrationofdifferentorificeswarranted separateconvictions  

                                                                                                                                        



becauseeach"distinct typeofnon-consensualpenetration"visited additionalharmsupon  

                                                                                                                                                    

the victim.89             We recognize now that whether the convictions Thompson challenges  

                                                                                                                                         



reflect "distinct types of non-consensual penetration" does not depend solely on the  

                                                                                                                                                      



orifice  that  was  penetrated.                          Rather,  the  required  inquiry  is  whether  each  act  of  

                                                                                                                                                       



penetration is sufficiently distinct from other acts to merit separate treatment.  

                                                                                                                         



                        After considering the interests of society to be vindicated or protected by  

                                                                                                                                      



the sexual abuse of a minor statutes (and sexual assault statutes), we conclude that a  

                                                                                                                                                          



separate and distinct act of penetration occurs each time the penetrated orifice or the  

                                                                                                                                                      



penetrating  object  or  body  part  changes.                                   Each  change  in  either  the  orifice  or  the  

                                                                                                                                                      



penetrating object or body part inflicts a distinct violation of the victim's "autonomy,  

                                                                                                                                       



dignity,  free  will,  and  bodily  integrity"  and  is  sufficiently  significant  to  warrant  a  

                                                                                                                                                         

separate  conviction.90                      We  therefore  reverse  the  court  of  appeals'  holding  that  

                                                                                                                                                    



Thompson's convictions must merge and remand for further proceedings consistent with  

                                                                                                                                                     



this opinion.  

         



            87          Johnson, 328 P.3d at 89-90.             



            88  

                                                                                                                                                

                        Oswald v. State, 715 P.2d 276, 280 (Alaska App. 1986) ("The [S]tate  

                                                                                                                                                        

concedes that Count I [digital penetration] encompassed foreplay leading to the act of  

                                                                                                                                                       

sexual intercourse charged in Count II . . . [and] asks that the conviction for Count I be  

                                                                                                                                                         

vacated, and Oswald joins in this request.  We . . . conclude that the parties' position is  

correct.").  



            89          Johnson, 328 P.3d at 89.  

                                                                



            90          Id. at 89-90.  

                                   



                                                                          -28-                                                                     7330
  


----------------------- Page 29-----------------------

V.       CONCLUSION  



                 We REVERSE the court of appeals' holding on the merger issues for  

                                                                                                              



Thompson's sexual abuse of a minor convictions but otherwise AFFIRM its decision.  

                                                                                                      



                                                       -29-                                                7330
  

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