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Simants v. State (7/3/2014) ap-2419

Simants v. State (7/3/2014) ap-2419


          The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  


          errors to the attention of the Clerk of the Appellate Courts.   

                                    303 K Street, Anchorage, Alaska  99501

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CARRIE D. SIMANTS,                                       )  

                                                         )            Court of Appeals No. A-11404 

                                      Appellant,         )            Trial Court No. 1SI-11-381 CR  


                  v.                                     )                         O P I N I O N  


STATE OF ALASKA,                                         )  


                                Appellee.                )               No. 2419  -  July 3, 2014 


                   Appeal from the Superior Court, First Judicial District, Sitka,  

                   David V. George, Judge.  

                   Appearances:  Brooke Berens, Assistant Public Advocate, and  

                   Richard Allen, Public Advocate, Anchorage, for the Appellant.  

                   Jean E. Seaton, Assistant District Attorney, Sitka, and Michael  


                   C. Geraghty, Attorney General, Juneau, for the Appellee.  

                   Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  



                   District Court Judge.*  


                   Judge ALLARD.  

     *    Sitting  by  assignment  made  pursuant  to  article  IV,  section  16  of  the  Alaska  

Constitution and Administrative Rule 24(d).  

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

                    Carrie  D.  Simants  was  thirty-three  years  old  when  she  had  sexual  

intercourse with R.H., a seventeen-year-old boy who was living in her home.  At the  


time, R.H. had been adjudicated a delinquent, and Simants had agreed to oversee his  


compliance with his delinquency case plan.  A jury therefore found that Simants was in  


a "position of authority" over R.H. and convicted her of one count of second-degree  

sexual abuse of a minor.1  

                                       Simants was sentenced to 8 years with 3 years suspended (5  

years to serve) and 10 years' probation for this offense.  

                    On appeal, Simants challenges her sentence on three grounds.  She asserts  


that  the  superior  court  erred  by  rejecting  the  two  statutory  mitigating  factors  she  


proposed at sentencing.  She argues, in the alternative, that the court should have referred  

her case to the statewide three-judge sentencing panel for consideration of a sentence  

below the applicable presumptive range.  Lastly, she challenges a condition of probation  


that could potentially preclude her from living with her own children after her release.  


                    For  the  reasons  explained  below,  we  conclude  that  the  superior  court  

applied the wrong legal analyses when it rejected the two statutory mitigating factors and  


imposed  the  challenged  probation  condition.    Accordingly,  we  vacate  the  probation  

condition and remand this case to the superior court for further proceedings consistent  


with this opinion.  Because Simants may be resentenced, we do not reach the merits of  


her three-judge sentencing panel arguments at this time.  

          Background facts and proceedings  

                    Seventeen-year-old  R.H.  was  adjudicated  a  delinquent  on  a  charge  of  


criminal mischief.  At the time of his adjudication, R.H. was living with Simants, whom  


     1    AS 11.41.436(a)(6).  

                                                               2                                                           2419  

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

he  referred  to  as  his  "aunt,"  although  the   two   were   not  related.    Following  his  

adjudication, R.H. was placed on probation and ordered to live with his mother until he       

turned eighteen years old.  

                       R.H. left his mother's house within a few days and moved back in with  


Simants because he felt like his mother did not treat him with respect.  He later testified  


that he preferred living with Simants because she "never came at [him] with authority"  


and did not set rules for him.  R.H.'s probation officer met with R.H., his mother, and  

Simants.  Because R.H.'s mother was planning to move out of town, R.H.'s probation  


officer agreed to allow R.H. to live with Simants. The probation officer developed a case  


plan for R.H., which was signed by R.H.'s mother and Simants.  

                       About two weeks after R.H. moved back into Simants's house, the two  

began having sexual intercourse.  This sexual relationship lasted for a few months, until  


R.H.  decided to move out following an argument.  During this time Simants became  

pregnant, and she told R.H. that he was the father.  

                       R.H. did not believe the baby was his, and he told Simants so.  Simants then  


sent R.H. text messages that he believed to be threatening, so he contacted the police  

about  obtaining  a  no-contact  order.    R.H.  told  the  police  that  his  relationship  with  

Simants had been sexual.  R.H. then assisted the police in recording Simants's statements  


to R.H. under a  Glass warrant.2  


                                                           In  that recorded conversation, Simants admitted to  

having had sexual intercourse with R.H.  


                       Simants was charged with three counts of sexual abuse of a minor in the  


second degree.  Under AS 11.41.436(a)(6), a person is guilty of sexual abuse of a minor  

      2     See  State v. Glass, 583 P.2d 872 (Alaska 1978),                                 on rehearing, 596 P.2d 10 (Alaska  

1979) (holding that the Alaska Constitution requires police to obtain judicial authorization     

before electronically monitoring or recording a person's private conversations).  

                                                                          3                                                                        2419  

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

in  the  second  degree  if  the  person  engages  in  sexual  penetration   with  a  sixteen-  or  

seventeen-year-old while occupying "a position of authority in relation to the victim."  

                   At  trial,  Simants  disputed  that  she  was  in  "a  position  of  authority"  in  

relation to R.H.  She acknowledged that she had signed his probation case plan, but  


claimed that she had not participated in the development of the plan and had never  

asserted any authority over him.  In response, the State argued that while Simants may  


have been a poor authority figure, she nevertheless voluntarily assumed a position of  

authority over R.H. by signing his probation plan.  

                   The jury convicted Simants of one count of second-degree sexual abuse of  


a minor, but was unable to reach a decision as to the other two counts, which were later  

dismissed by the State.  

                   At sentencing, Simants faced a presumptive range of 5 to 15 years for her  


              Simants asked the superior court to impose a sentence below the presumptive  


range based on two statutory mitigating factors(1) AS 12.55.155(d)(9) - "the conduct  


constituting the offense was among the least serious conduct included in the definition  


of the offense"; and (2) AS 12.55.155(d)(12) - "the facts surrounding the commission  

of the offense and any previous offenses by the defendant establish that the harm caused  


by the defendant's conduct is consistently minor and inconsistent with the imposition of  


a substantial period of imprisonment."  In the alternative, Simants asked the superior  

court to refer her case to the statewide three-judge sentencing panel.4  


                   The  superior  court  rejected  Simants's  proposed  mitigating  factors  and  

declined to refer the case to the three-judge panel.  The court found, however, that jail  

     3   AS 12.55.125(i)(3)(A).  

     4   See AS 12.55.165; AS 12.55.175.  

                                                            4                                                         2419  

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

time was not needed to isolate or deter Simants; instead, rehabilitation should be the     

primary  goal  of  Simants's  sentence  under  the   Chaney   criteria,  with  community  

condemnation a secondary goal.5  

                     The  court  imposed  a  sentence  at  the  lowest  end  of  the  applicable  

presumptive range:  8 years with 3 years suspended, 5 years to serve, with 10 years of  

supervised  felony  probation.6                                                                                        

                                                    As  a  result  of  her  conviction,  Simants  is  required  to  


register as a sex offender for 15 years.   


                     Over  Simants's  objection,  the  superior  court  also  imposed  a  special  


condition of probation prohibiting Simants from "resid[ing] in a dwelling in which a  

minor  is  residing  or  staying"  unless  she  obtains  "the  permission  of  [her]  probation  

officer, [her] sex offender treatment provider, and the parent/guardian of the minor."  


Simants objected to this condition on the ground that it could potentially prevent her  


from living with her own children, ages 15, 13, and 1.  The court imposed the condition  

but  encouraged  Simants's  attorney  to  "petition  the  court  to  revisit  [the  probation  


condition]" if this became an issue.  

     5     See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970) (setting forth criteria to   

guide sentencing, including the seriousness of the offense; the relative need for rehabilitation,  

isolation, and deterrence; community condemnation and the reaffirmation of societal norms;   

and  harm  to  and  restoration  of  the  victim  and  the  community);  see  also  AS  12.55.005  

(codifying the Chaney sentencing factors).  



           See AS 12.55.125(i)(3)(A) (requiring presumptive range of 5  to 15 years for first  

felony offender convicted of second-degree sexual abuse of a minor); AS 12.55.125(o)(2)  


(requiring sentencing court to impose 3 years suspended time and 10 years probation for all  

class A and B felony sex offenses).  

     7     See AS 12.63.010(a); AS 12.63.020(a)(2).  

                                                                    5                                                            2419

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

           Why we conclude that a remand for further proceedings is needed on the                          

           two statutory mitigating factors  

                      A sentencing judge is authorized to impose a sentence below the applicable  



presumptive range if the judge finds a mitigating factor.  

                                                                                              Here, Simants proposed two  

statutory mitigating factors, both of which were rejected by the superior court.   

                      The proposed (d)(9) mitigating factor  

                      To   establish   the   "least   serious"   statutory   mitigating   factor   under  

AS 12.55.155(d)(9), a defendant must prove by clear and convincing evidence that "the  


conduct constituting the offense was among the least serious conduct included in the  

definition of the offense."  Application of this mitigator to a particular case does not  


mean that the case is somehow "not serious" or that the victim has not been harmed.  


Rather, the determination of the "seriousness" of the defendant's conduct is a relative one  


- the defendant's conduct is considered "among the least serious" only in contrast to  


the range of conduct included within the definition of the offense.9 

                                                                                                           Indeed, the structure  

of presumptive sentencing presumes that, even for the most serious felonies subject to  

presumptive sentencing, there will necessarily be conduct that ranks "among the least  


serious," just as there will be conduct that ranks "among the most serious."                                                   


                      In the current case, Simants was charged with sexual abuse of a minor in  


the second degree, a class B  felony, for engaging in sexual penetration with R.H., a  

      8    AS 12.55.155(d).  

     9     AS 12.55.155(d)(9);  see, e.g., Michael v. State , 115 P.3d 517, 521 (Alaska 2005)  


(Bryner, J., concurring) ("By any realistic measure, Michael's overall conduct ranks among  

the  least  serious  within  the  class  of  defendants  actually  convicted  of  first-degree  sexual  

assault.") (emphasis in original).    

      10   AS 12.55.155(c)(10); AS 12.55.155(d)(9).  

                                                                     6                                                              2419

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


seventeen-year-old, while she occupied a position of authority over him.                                             The age of  

sexual consent in Alaska is sixteen; therefore, the sexual relations between R.H. and   

Simants would not have been criminal under Alaska law except for Simants's decision       

to  voluntarily  sign  R.H.'s  delinquency  case  plan  and  thereby  assume  a  position  of  

authority over him.  

                     The prohibition against sexual contact with sixteen- and seventeen-year- 

olds by persons who occupy "positions of authority" relative to their victims was added  


to Alaska's sexual abuse laws in 1990.12  

                                                                 The legislative intent behind the prohibition  

was to ensure that young people were not subjected to sexual abuse by teachers, coaches,  


ministers, or other "substantially similar" adults in a position to exercise undue influence  


over them.     The prohibition was premised on the recognition that while sixteen- or  

seventeen-year-olds might otherwise be considered old enough to consent to sexual  

activity, they remain vulnerable to sexual exploitation by people in positions of authority  


over them.  

                     Here, however, the superior court found that while Simants occupied a  


"position of authority" over R.H., the exercise of authority was never connected with  


their sexual relationship.  The court specifically found that the State failed to demonstrate  

that Simants used her position of authority, either explicitly or implicitly, to commit or  

facilitate the sexual offense.  

     11   AS 11.41.436(a)(6)(b); see also  AS 11.41.470(5) (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, and a police officer or probation officer").  

     12   See Ch. 151,  2, SLA 1990.  

     13   See  Letter of Intent for S.B. 355, 1990 House Journal 4199; 1990 Senate Journal  

4220; see also Wurthmann v. State , 27 P.3d 762, 764 (Alaska App. 2001).  

                                                                  7                                                           2419

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

                       The court also found that R.H., who was close to eighteen years old, was         

"by all accounts and testimony a tremendously independent though troubled youth who                     

had little respect for authority."  The court noted that R.H. was described as a person                                            

"who basically did what he wanted when he wanted," and that R.H. did not appear to     

suffer from any particular psychological or physical vulnerabilities.  

                       After making these findings, the superior court nevertheless rejected the  

proposed mitigator, concluding that this case did not qualify as "among the least serious  


[within its] class" because the sexual relationship between R.H. and Simants was not  


simply a one-time event but was instead an "ongoing thing."  The court concluded that  


this factor took the case "out of the realm of least serious offense" because Simants had  


multiple opportunities to withdraw from a sexual relationship she knew was wrong and  


did not do so.  

                       When we review a sentencing court's decision rejecting or accepting a  

statutory  mitigating  factor,  we  review  the  court's  factual  findings  concerning  the  

defendant's conduct for clear error.14  

                                                                Our determination of whether the mitigator applies  


given those facts, however, is a question of law that we review de novo.                                                          


                       Here, we conclude that the court's factual findings regarding the nature of  


Simants's conduct are well-supported by the record and not clearly erroneous.  However,  


these findings are seemingly inconsistent with the superior court's legal conclusion that  

the (d)(9) mitigator should not apply in this case.  If Simants had used her position of  

authority, implicitly or explicitly, to facilitate her sexual relationship with R.H., we might  


agree with the trial court that the ongoing nature of the conduct could be a significant  

      14   Michael , 115 P.3d at 519.  

      15   Id.  

                                                                          8                                                                       2419  

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

factor in removing Simants's offense from the category of "among the least serious  

included in the definition of the offense,"16 because the longer the relationship endured  

the more Simants would have exploited her position of authority and the more R.H.  

would  have  been  harmed.    But  given  the  superior  court's  finding  that  the  sexual  


relationship existed independent of Simants's position of authority, we disagree as a  


matter of law with the sentencing court's ruling that the "ongoing nature" of Simants's  


and R.H.'s sexual relationship was sufficient - standing alone - for the court to reject  

the "least serious" mitigator.   

                    Given the apparent inconsistencies between the superior court's findings  


of fact with regard to this proposed mitigator and its conclusion of law, we remand this  


case to the superior court for reconsideration of this proposed mitigating factor.   

                    The proposed (d)(12) mitigating factor  

                    To establish the "consistently minor harm" statutory mitigating factor under  

AS 12.55.155(d)(12), a defendant must prove by clear and convincing evidence that "the  


facts  surrounding  the  commission  of  the  offense  and  any  previous  offenses  by  the  


defendant establish that the harm caused by the defendant's conduct is consistently minor  

and inconsistent with the imposition of a substantial period of imprisonment."  Unlike  


the "least serious" mitigating factor, which is concerned primarily with the nature of the  


defendant's criminal conduct, this mitigating factor focuses solely on its consequences  


- not just the "actual physical injuries or property losses occasioned by the defendant's  

     16   See Joseph v. State, 315 P.3d 678, 684 (Alaska App. 2013).  

                                                               9                                                           2419  

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

criminal conduct, but also 'the risks ... [and the] disruption of the social fabric' that the           

defendant's criminal conduct entailed."17  

                     The superior court rejected this proposed mitigator because Simants had a  


prior felony offense - a drug possession conviction from seventeen years earlier, when  


 Simants was eighteen years old, for which Simants received 18 days of jail time.  The  

superior court's remarks suggest that the court erroneously believed that, as a matter of  


law, a defendant who has been convicted of a felony cannot prove the (d)(12) mitigator.  


                     We do not read AS 12.55.155(d)(12) so narrowly.  We recognize that when  

the legislature declares that an offense is punishable as a felony, it has made a broad  

judgment that the offense is serious enough to warrant imposition of a substantial term  


of imprisonment.  But we do not believe that the legislature intended the "consistently  


minor harm" mitigating factor to be unavailable to any offender who has a prior felony  


                     The legislature created statutory mitigating factors because it recognized  


that presumptive sentencing, if rigidly applied, might lead to unfairness in particular  


cases.        We think it reasonable to infer from this statutory scheme that the legislature  


intended sentencing courts to assess the harm caused by a defendant's criminal conduct  


on a case-by-case basis, rather than based on a mechanical assessment of whether the  

defendant's conduct is punishable as a misdemeanor or felony offense.  

                     This interpretation is supported by the language of AS 12.55.155(d)(12).  

Under the statute, to establish the "consistently minor harm" mitigator, the defendant  

must show not only that the harm caused by past  crimes was consistently minor, but also  


      17   Id.  at 684-85 (quoting Ison v. State , 941 P.2d 195, 198 (Alaska App. 1997)).  

      18   See,  e.g.,  Dancer  v.  State,  715  P.2d  1174,  1178  (Alaska  App.  1986)  (discussing  

legislative history of presumptive sentencing).  

                                                                  10                                                               2419  

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

that the harm caused by the defendant's current offense or offenses was minor.  The  

defendant's current offense or offenses will always be a felony - because statutory  

mitigating factors only apply to presumptive sentencing, and presumptive sentencing  


only applies to felonies.  We think it unlikely that the legislature would have worded the  


statute  this  way  if  it  intended  to  limit  the  "consistently  minor  harm"  mitigator  to  


offenders who have no prior felony convictions.  

                   This interpretation is also supported by the legislative history of the statute.  


In  the  commentary  accompanying  the  "consistently  minor  harm"  mitigator,  the  

legislature provided one example of when this mitigator might apply"when the defendant  

has committed a number of felony property offenses, such as check forgeries, but they  

all involve relatively small amounts of money."19                                                        

                                                                        Clearly, the legislature would not have  

used this example if it intended to preclude the application of this mitigating factor to  

offenders with one or more prior felony convictions.  

                   We conclude that the superior court rejected the "consistently minor harm"  


mitigator for an improper reason.  On remand, therefore, we direct the superior court to  


reconsider under the correct legal standard whether Simants established this mitigating  



          Why we vacate the special condition of probation barring Simants from  


          residing in a home where minors are present  


                    Simants challenges a special condition of her probation that prohibits her  


from residing in a home where a minor is present without the permission of her probation  


officer, her sex offender treatment provider, and the minor's parent or guardian.  Simants  

     19   Joseph , 315 P.3d at 685 (quoting 1980 Senate Journal Supp. No. 44 at 26).  

                                                              11                                                          2419  

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

argues that this probation condition is unconstitutional as applied to her because it could  

prevent her from living with her own minor children.  

                     To be valid, a condition of probation must be "reasonably related to the  


rehabilitation of the offender and the protection of the public" and must "not be unduly  


restrictive of liberty."20  


                                    A probation condition that infringes a defendant's constitutional  

rights  by  restricting  the  defendant's  family  associations  is  reviewed  with  special  


                  The court must find that such a condition is both "reasonably related to the  


rehabilitation of the offender and protection of the public" and "narrowly tailored to  



avoid unnecessary interference with [the defendant's] family relationships."                                               In this  


analysis, the court must affirmatively consider, and have good reason for rejecting, any  


less restrictive alternatives.                 

                     The  superior  court  did  not  apply  this  heightened  level  of  scrutiny  in  

Simants's case.  The judge asked the probation officer who proposed this condition of  


probation whether the officer intended to preclude Simants from living with her own  


children,  and  the  probation  officer  said  that  he  did  -  at  least  until  a  sex  offender  


treatment provider determined that it was safe for Simants to live with her children.  The  


probation officer conceded that this determination would not necessarily be made until  

after Simants was released from prison and already on probation.  

     20   Diorec v. State , 295 P.3d 409, 412 (Alaska App. 2013) (quoting                               Roman v. State , 510  

P.2d 1235, 1240 (Alaska 1977)).  

     21   Diorec , 295 P.3d. at 414.  

     22   Id. ; see also Hinson v. State , 199 P.3d 1166, 1174-75 (Alaska App. 2008);                                    Dawson  

v. State , 894 P.2d 672, 680-81 (Alaska App. 1995); Roman , 570 P.2d at 1240-41.  

     23   Peratrovich v. State , 903 P.2d 1071, 1079 (Alaska App.1995); see also Diorec , 295  

P.3d at 414; Dawson , 894 P.2d at 680-81.  

                                                                 12                                                          2419

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

                   In  other  words,  the  record  shows  that  the  superior  court  imposed  this  


condition of probation based solely on the probation officer's uncorroborated speculation  

that, because Simants engaged in a consensual sexual relationship with a seventeen-year- 


old boy, she might also pose a sexual danger to her own children.  The superior court  


apparently adopted the probation  officer's view that Simants's relationship with her  


children should therefore be restricted until it was affirmatively established that Simants  


did not pose a danger to her children.  

                   This  approach  is  the  opposite  of  what  the  law  requires.    Given  the  

constitutional  importance  of  a  person's  right  to  maintain  familial  relationships,  the  

superior court could not impose this kind of restriction unless the State affirmatively  

demonstrated good reason to believe that Simants would, in fact, pose a danger to her  

children when she was released from prison.  Nothing in the current record supports such  

a conclusion.   

                   We accordingly vacate this condition of Simants's probation to the extent  


that it applies to her own children (the  specific ground on which the condition was  

challenged below and on appeal).   


                   We REMAND this case to the superior court for reconsideration of whether  

Simants established the proposed statutory mitigating factors of "least serious conduct"  


and "consistently minor harm."  If the superior court concludes that Simants established  


one  or  both  mitigating  factors  and  that  a  mitigated  sentence  is  called  for,  it  shall  


resentence Simants. Our resolution of these issues makes it unnecessary for us to address  


at this juncture Simants's alternative claim that the superior court erred by refusing to  


refer her case to the statewide three-judge panel.  

                                                              13                                                       2419

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

                    We VACATE the special condition of probation limiting Simants from  


residing in a home where a minor is present to the extent that the condition bars her from  

living with her own children.  If the State wishes to renew its request for a probation  

condition that restricts Simants's contact with her children, the State must affirmatively  


show (1) that there is good reason to believe Simants will pose a danger to her children  


when she is released from prison, and (2) that the State's proposed condition of probation  


is narrowly tailored to avoid unnecessary interference with Simants's relationship with  


her children.  

                    We retain jurisdiction.   


                                                                14                                                        2419

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