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Thompson v. State (6/24/2016) ap-2505

Thompson v. State (6/24/2016) ap-2505


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

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

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

                                                         303 K Street, Anchorage, Alaska  99501  

                                                                           Fax:  (907) 264-0878  

                                                              E-mail:  corrections@  

                                IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                



                                                                                                                 Court of Appeals No. A-11054  


                                                           Appellant,                                       Trial Court No. 3AN-08-13856 CR  


                                                                                                                                O  P  I  N  I  O  N  



                                                           Appellee.                                                 No. 2505 - June 24, 2016  


                              Appeal   from  the   Superior   Court,  Third  Judicial                                                            District,  


                              Anchorage, Michael R. Spaan, Judge.  


                              Appearances:                    Michael Schwaiger, Assistant Public Defender,  


                              and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for   the  


                              Appellant.               Tamara E.  de  Lucia,  Assistant  Attorney General,  


                              Office   of   Special   Prosecutions   and   Appeals,   Anchorage,  


                              and Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  the  




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


                              District Court Judge. *  



                              Judge MANNHEIMER.  

        *      Sitting by assignment pursuant to Article IV, Section 16 of                                                                    the Alaska Constitution     

and Administrative Rule 24(d).                                    

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


                     Dana Ray Thompson was convicted of multiple counts of first- and second- 


degree sexual abuse of a minor,  plus multiple counts of exploitation of a minor and  


possession of child pornography.  


                     Thompson's  first-degree  sexual  abuse  convictions  were  based  on  the  


alternative theories that he either (1) occupied a "position of authority" over his teenage  


victim as defined in AS 11.41.470(5), or that he (2) "resid[ed]" in the same household  


as the victim and had authority over her.  See AS 11.41.434(a)(3)(A) & (B).   In this  


appeal, Thompson contends that  his jury was misinstructed regarding the meaning of  


these two terms ("position of authority" and "reside"), and thus his first-degree sexual  


abuse convictions should be reversed.  


                     With regard to the meaning of "position of  authority", we conclude that  


Thompson's jury was correctly instructed regarding this term.  


                     With regard to  the  meaning of "reside", the trial judge failed to tell the  


jurors what this term meant.  Instead, the judge allowed the attorneys to argue competing  


definitions of "reside" during their summations to the jury - and then, in response to a  


jury request for further instruction on the correct legal meaning of this term, the judge  


told the jurors that it was up to them to decide what "reside" meant.   We agree with  


Thompson that the judge's actions constituted obvious error.  


                     However, given the way the prosecutor argued this issue to the jury, we  


conclude that this error was harmless.  


                     Thompson raises several separate double jeopardy claims - contending  


that many of his separate convictions must be merged.   We agree with some of these  


double jeopardy claims.  Specifically, we hold that Thompson's separate convictions for  


penetration  of  the  victim's  vagina  with  his  fingers,  his  penis,  and  the  insertion  of  


"ben-wa" balls must merge, and we further hold that Thompson's separate convictions  


for exploitation of a minor and possession of child pornography must merge when they  

                                                               - 2 -                                                          2505

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

are based on evidence that Thompson (1) took a sexually explicit photograph of his                                                                                                                                                                                                                                                             

victim and then (2) kept this photograph.                                                                                                                             

                            Underlying facts   

                                                      On appeal, Thompson does not challenge the allegations that he engaged                                                                                                                                                                                              

in sexual conduct with J.C., but he argues that his crimes were of a lesser degree because                                                                                                                                                                                                                                  

he was not in a "position of authority" over J.C., and because he did not "reside" with                                                                                                                                                                                                                                                  

her.   For this reason, our statement of                                                                                                                      the   underlying facts assumes the truth of the                                                                                                                                

allegations of sexual conduct,                                                                                             and it focuses on the evidence describing the                                                                                                                                                 type   of  

relationship that existed between Thompson and J.C.                                                                                                                                                                    

                                                      Because Thompson challenges the sufficiency of the State's evidence to                                                                                                                                                                                                                       

 support his "position of authority" convictions, we present the evidence on that issue in                                                                                                                                                                                                                                                         


the light most favorable to the jury's verdicts.                                                                                                                                              

                                                      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 mother Rita,  and because J.C.'s  


mother Laura (we are using a pseudonym) often entrusted J.C. to Rita's care and, later,  


to Thompson's care for various purposes.  


                                                      Laura met Rita at a meditation group in Anchorage, several years before  


J.C. was born.  Rita provided emotional support to Laura, and Laura came to view Rita  


              1            See,  e.g.,  Augustine v. State                                                                               , 355 P.3d 573, 587 (Alaska App. 2015) ("The question                                                                                                                             

on appeal is whether, viewing [the evidence] (and the reasonable inferences to be drawn from                                                                                                                                                                                                                                             

 [it]) in the light                                            most   favorable to upholding the jury's verdicts, reasonable jurors could                                                                                                                                                                                             

conclude that the State had proved its allegations beyond a reasonable doubt.").                                                                                                                                                                                                                            

                                                                                                                                                                      - 3 -                                                                                                                                                                 2505

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


as a mother figure.             Although Laura later moved from Anchorage to Wasilla,  Laura  


maintained her friendship with Rita.  When J.C. was an infant, Laura would sometimes  


run errands in Anchorage and leave J.C. with Rita.  


                    From the time J.C. was 4 years old until she was 10, Laura would travel  


to Anchorage once or twice a month to teach basket-weaving classes, or to run errands.  


During these trips to Anchorage, Laura would stay with Rita, and she would leave J.C.  


in Rita's care when she was teaching her class or running errands.  


                    At this time, Laura knew Thompson (because he was Rita's son), but she  


had only limited interactions with him because he was  not  living with Rita.   Laura's  


daughter J.C. met Thompson for the first time at Thompson's wedding, when she was  


8 years old.  


                    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.  In the  


winter, this cabin was accessible only by snowmachine or dog sled.   J.C. was home- 


schooled, and after this move she rarely interacted with children her own age.  


                    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, because her mother Laura would come  


to Anchorage to sell baskets at a Saturday market.  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.  

                                                              - 4 -                                                         2505

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


                    The year  2004 also marked the beginning of Thompson's inappropriate  


behavior toward J.C. That year, J.C. went to Anchorage to attend an event connected to  


her home schooling program, but Laura could not leave Trapper Creek due to a snow  


storm.  Laura called Rita to ask if J.C. could stay with her, and Rita agreed, so Thompson  


drove to retrieve J.C. from the event and bring her to Rita's trailer.   During this ride,  


Thompson told 13-year-old J.C. that she had grown up, and he asked her about her bra  


size.  Later that night, Thompson mentioned to J.C. that he wanted a sex slave.  


                    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.   According to Laura's later testimony,  


"as [Rita's] health deteriorated, [Thompson] morphed into [the] person [who] was in  


charge of [J.C.], and in charge of her safety."  


                    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 called Rainbow Earth.   J.C. also enrolled  


in a computer camp during this two-month stay in Anchorage.  

                                                              - 5 -                                                          2505

----------------------- 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 perform oral 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.               Also around this time,  Thompson started taking nude and  


sexually suggestive photographs of J.C.  


                    On  J.C.'s   fifteenth  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 through the  


Arctic National Wildlife Refuge (as part of her home schooling program).   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 backpackingtrip, 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.  

                                                              - 6 -                                                          2505

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

                                    Thompson's relationship with J.C. came to light in the summer of 2008,                                                                                                             

when J.C. spoke with a childhood friend who described being molested by an older man.                                                                                                                                                    

J.C.  "broke up" with Thompson and moved back in with her mother. J.C. eventually told                                                                                                                                      

her   mother all that had happened between her and Thompson in Anchorage.                                                                                                                                         Laura  

called the police, and this initiated the criminal investigation.                                                                                                

                                    As part of the investigation, the police obtained a                                                                              Glass  warrant to record                        

                                                                                                                            2      During this conversation,  Thompson  

a conversation between J.C.                                                    and Thompson.                                                                                                             

admitted to having a sexual relationship with J.C., beginning when she was 14 years old.  


                                    The police also obtained a warrant to search the Anchorage trailer.  During  


their search, the police seized a digital camera and two memory cards.   On these, the  


police found nude photographs of J.C. and two other children.  (The State did not allege  


that Thompson took the photographs of these other children - only that he possessed  




                                    Based on the foregoing, the State charged Thompson with eighteen 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 ten 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.  


                                    In  addition,  the  State  charged  Thompson  with  fifteen  counts  of  child  


exploitation based on his acts of taking sexual photographs of J.C. while she was under  


         2        See   State   v.   Glass,   583   P.2d 872                                                  (Alaska 1978)                          (holding that,                       under   the   Alaska  

Constitution, the police must obtain a warrant before electronically monitoring or recording                                                                                                                  

a private conversation, even when one or more participants to the conversation consent to the                                                                                                                                  

police surveillance).                                

                                                                                                             - 7 -                                                                                                         2505

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


the age of 18.  And for each of these photographs, the State also charged Thompson with  


a separate count of possessing child pornography.  


                     (The State also filed another five charges of possessing child pornography  


based on two photographs found in Thompson's possession that were not of J.C., and  


three photographs of J.C. that had been digitally altered.)  


                    At   Thompson's  trial,  the  main  points  of  contention  were  whether  


Thompson's relationship to J.C. constituted a "position of authority" for purposes of the  


sexual abuse statute, and whether J.C. had been "residing" at the Anchorage trailer.  


                    The jury convicted Thompson of thirteen counts of first-degree  sexual  


abuse,  four  counts  of  second-degree  sexual  abuse,  and  all  of  the  counts  of  child  


exploitation and child pornography possession.  


          Thompson's various attacks on the State's "position of authority" theory  


          of prosecution  


                    All of the sexual abuse charges against Thompson contained the allegation  


that  Thompson  occupied  a  "position  of  authority"  in  relation  to  J.C.                                    On  appeal,  


Thompson challenges this element of the State's proof on various grounds.  


                    Initially, Thompson asserts that Wurthmann v. State, 27 P.3d 762 (Alaska  


App.  2001)  -  this  Court's  primary  decision  interpreting the  statutory  definition  of  


"position of authority" - was wrongly decided.   Thompson  asks us to overturn the  


interpretation of the statute adopted in Wurthmann and, instead, adopt the interpretation  


advocated in the  Wurthmann dissent.  


                    More particularly, Thompson argues that "position of authority" should be  


limited to adults who play a professional or quasi-professional role in caring for a child  


(as advocated in the dissent), and that "position of authority" should not include live-in  

                                                               - 8 -                                                          2505

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


boyfriends or other members of the household who function as quasi-parents by virtue  


of "the dynamics of the household, the personalities of the individuals involved, and the  


amount of authority the legal or biological parent delegates".   Wurthmann, 27 P.3d at  




                    We have considered Thompson's arguments, but those arguments are not  


so convincing as to clearly demonstrate that  Wurthmann was wrongly decided.   More  


specifically,  we  conclude  that  we  would  defeat  the  legislature's  intent,  rather  than  


advance it, if we construed the statute so that it did not cover the situation presented in  


Thompson's case.  Here, the evidence (viewed in the light most favorable to the State)  


showed that Thompson effectively functioned as J.C.'s surrogate parent or full-time sitter  


for weeks, and even months, while J.C. was living in Anchorage, away from her mother.  


We are convinced that the legislature intended the term "position of authority" to apply  


to an adult caretaker  in  these circumstances.   We therefore stand by our decision in  




                    Thompson  next  argues  that  even  if  we  adhere  to  the  interpretation  of  


AS 11.41.470(5) that we adopted in  Wurthmann, we must still reverse his convictions  


because  the  trial judge  gave  the  jurors  an  incorrect  instruction  on  the  meaning of  


"position of authority".  


                    Here is the definition of "position of authority" contained in AS 11.41.- 


470(5).  We have italicized the phrase that Thompson relies on to support his argument  


that his trial judge misinstructed the jury:  



                    "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 other than when the officer  


                    is exercising custodial control over a minor[.]  

                                                               - 9 -                                                          2505

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


                     At the end of Thompson's trial, the judge gave the jurors an instruction -  


Instruction No. 31 - which defined the term "position of authority" in the words of the  


statute.  But after the jurors began their deliberations, they sent a note to the judge asking  


for clarification of this definition - in particular, clarification of the language that we  


italicized above:  



                               We the jury would like to pose this question to you:  


                     Does  "substantially  similar  position"  pertain  to  the  listed  


                     titles,  or  does  it  leave  ...  open  to  our  consideration  ...  a  


                     broader list of authority figures/roles?  


After consulting the attorneys, the trial judge answered the jurors as follows:  



                               The  jury  may  consider  a  broader  list  of  authority  


                     figures/roles  in  its  deliberation[s,]  but  the  roles  must  be  


                     substantially  similar,   not   slightly  similar,   to  the  list   in  


                     Instruction #31.  


                     Thompson  argues  that  the  judge's  response  was  incorrect  -  that  it  


improperly allowed the jurors to consider whether Thompson's position vis-a-vis J.C.  


resembled any type of authority figure or authority role, even if that role was not listed  


in the statute.  


                     We do not read the judge's response in that fashion, nor do we think there  


is any reasonable possibility that the jurors did either.  


                     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  

                                                              -  10 -                                                         2505

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


if that other authority role was  "substantially similar" to the ones listed in Instruction  


No. 31.  


                     This is precisely what the statutory definition says.  We therefore conclude  


that the judge's answer to the jurors' question was proper.  


                    Finally,  Thompson  argues  that  the  State's  evidence  was  not  legally  


sufficient to support the conclusion that Thompson held a position of authority in relation  


to J.C. at the times specified in Counts 2 and 3 (June 27, 2005), Counts 5 through 7 (July  


through October 2005), Counts 11 through 13 (November 2005 through July 2006), and  


Counts 14 through 18 (August 2006 through October 27, 2006).  


                    We have already summarized the  State's evidence - in particular,  the  


various  times  when  J.C.  stayed  in  the  Anchorage  trailer  without  her  mother,  and  


Thompson looked after her.  The prosecutor's theory of this case was that Thompson  


occupied a position substantially similar to a "babysitter" during these times - one of  


the  authority  figures  or  roles  specifically  identified  as  a  "position  of  authority"  in  


AS 11.41.470(5).  


                    In his brief to this Court, Thompson argues that the State's evidence did not  


necessarily prove that his role during these time periods was substantially similar to the  


role of a babysitter.   But Thompson's  argument hinges on viewing the evidence in a  


manner favorable to himself, while we are obliged to view the evidence in the light most  


favorable to the jury's verdicts.  Viewing the evidence in that light, we conclude that it  


was  sufficient  to  convince  fair-minded  jurors  that  the  State  had  proved,  beyond  a  


reasonable  doubt,  that  Thompson  occupied  a  role  substantially  similar  to  that  of  a  


babysitter  taking care  of  an  older  child  during the  specified  periods  of  time.                                     The  


evidence was therefore legally sufficient to establish the "position of authority" element  


of the charged crimes.  

                                                              -  11 -                                                         2505

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


                    In sum, we reject all of Thompson's attacks on the State's "position  of  


authority" theory of prosecution.  


          Thompson's attacks on the State's "residing in the same household"theory  


          of prosecution  


                    Of  the  twenty-eight  sexual abuse  charges  against  Thompson,  the  first  


eighteen charges involved allegations of sexual penetration that occurred before  J.C.  


reached the age of 16.  Each of these eighteen charges alleged alternative theories of the  


crime:       first,  that  Thompson  resided  in  the  same  household  as  J.C.  and  exercised  


authority over her, and  second, that Thompson occupied a "position of authority" in  


relation to J.C.  


                    In their summations to the jury, the prosecutor and the defense attorney  


argued differing interpretations of what it meant to "reside in the same household" as a  




                    The defense attorney acknowledged that J.C. had stayed at Thompson's  


mother's trailer from time to time, but he argued that "[her] visits [were] temporary in  


duration ... , much the same [as] if you go and stay at a hotel."  Overall, the defense  


attorney argued that the trailer could not have been J.C.'s residence because the word  


"reside" connotes "permanence".  


                    In response, the prosecutor argued that the summer of 2005 was a two- 


month period of time when the Anchorage trailer was definitely J.C.'s "residence", even  


though the trailer might not have been her permanent residence.  The prosecutor noted  


that J.C. lived continuously  in  the trailer during those months, working for Rainbow  


Earth.       The prosecutor told the jurors that, according to the testimony, J.C. referred to  

                                                              -  12 -                                                         2505

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


Anchorage as her "home" during this time, and J.C. listed Thompson's address (i.e., the  


trailer's address) as her home address in her Planned Parenthood records.  


                     Given the attorneys' differing positions as to whether the term "residence"  


should be limited to permanent residences, it is  unsurprising that the jurors asked the  


judge for clarification of this issue.  The jurors sent the following note to the trial judge:  



                               We the jury would like to request a legal definition of  


                     the word "residing".  


                     When the judge consulted the attorneys about the jury's question, each of  


the attorneys (unsurprisingly) asked the judge to respond to the jury's question with an  


answer that favored their own position:  the prosecutor advocated a flexible definition  


of "residing", while Thompson's defense attorney asked the judge to tell the jurors that  


a "residence" had to be permanent.  


                     Unable to reach consensus, the trial judge decided to tell the jurors that the  


definition of "residing" was "a question of fact for [them] to  resolve".                                           Here is the  


judge's exact response to the jury:  



                               The definition of "residing" is a question of fact for the  


                     jury.  Please refer to Instruction #2.  Sorry I could not be of  


                     more assistance.  


(The pertinent portion of Instruction No. 2 reads:  "In considering the evidence in this  


case[,] you are not to set aside your own observations and experience in the affairs of  


life,  but  you  have  a  right  to  consider  all of  the  evidence  in  the  light  of  your  own  


observations and experiences.")  


                     The judge's answer to the jury's question was obvious error.  The proper  


interpretation of the word "residing" (as that term is used  in  AS  11.41.434(a)(3)(A))  


is clearly not a "question of fact" for the jury to resolve.   It is a question of statutory  

                                                               -  13 -                                                         2505

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


interpretation - i.e., a question of law.  And as we held in Roth v. State, 329 P.3d 1023,  


1026 (Alaska App. 2014), when a jury asks the court to clarify the meaning of a statute,  


it is the judge's duty to answer the jury's question - not tell the jurors that they must  


interpret the statute for themselves, using their "experience in the affairs of life".  


                    We must next decide whether the judge's error - his decision not to tell  


the jurors what "residing" meant - might have affected the jury's verdicts in this case.  


                    On  appeal,  Thompson  no  longer  argues  that  a  "residence"  must  be  


permanent.          He acknowledges that the word "residing"  can have many definitions,  


depending on the context and purpose of the underlying statute or regulation in which  


the word is used.  But Thompson argues that, at least for purposes of Alaska's sexual  


abuse  of  a  minor  statutes,  the  word  "residing"  must  be  interpreted  as  referring to  


something  other  than  "intermittent  sojourning"  or  "crashing"  at  someone  else's  




                    We do not construe the "residing" clause of AS 11.41.434(a)(3)(A) as  


requiring proof of a permanent abode.  The purpose of this statute is to prohibit adults  


from improperly taking sexual advantage of children.  Thus, the focus of the "residing"  


clause should be the nature and duration of the cohabiting relationship between the adult  


and the child, not the particular geographic location or locations where that cohabiting  


relationship takes place.               For instance,  a homeless or transient adult and child could  


"reside" together for years, even though they never stayed at one location more than a  


few days or weeks.  


                    Because the focus of the statute is the cohabitingrelationship, we agree with  


Thompson that the term "residing" should not cover any and all instances where a child  


might temporarily stay in the same dwelling as an adult (or vice-versa).  But we conclude  


that, given the facts of Thompson's case, we need not decide the precise contours of  


"residing" for purposes of AS 11.41.434(a)(3)(A).  

                                                              -  14 -                                                         2505

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


                     Thompson's case presents the following situation: At Thompson's trial, his  


attorney argued that a "residence" for purposes of the statute had to be permanent.  The  


prosecutor argued that a person could "reside" at a location even though the residence  


was not permanent, and the prosecutor told the jurors that there had been two periods of  


time covered by the indictment when Thompson and J.C. resided together:  the two- 


month period in the summer of 2005 when J.C. lived at the Anchorage trailer while she  


worked  at  Rainbow  Earth,  and  the  month  in  the  summer  of  2006  when  J.C.  was  


preparing for her trip into the Arctic National Wildlife Refuge.  


                     The trial judge improperly refused to resolve this dispute - telling the  


jurors to figure out for themselves what "residing" meant.  As a practical matter, though,  


the judge's error could only have affected the jury's resolution of one issue: whether the  


prosecutor was correct when she argued that Thompson and J.C. resided together during  


the two months in the summer of 2005 and the one month in the summer of 2006.  


                     Thus, we need only decide whether, when Thompson and J.C. were jointly  


living in his mother's Anchorage trailer for two months in the summer of 2005, and for  


one month in the summer of 2006, this constituted "residing in the same household" for  


purposes of the sexual abuse statute.   If the answer is "yes", then the judge's error in  


failing to give the jury a better definition of "residing" was harmless.  


                     We conclude that, even viewing the evidence in the light most favorable to  


Thompson, Thompson's and J.C.'s cohabitancy of the trailer duringthe summer of 2005  


and the summer of 2006 constituted "residing in the same household" for purposes of the  


first-degree sexual abuse statute.  These were not brief visits or sleep-overs; J.C. was not  


temporarily "crashing" at the trailer before moving on.   J.C.'s mother negotiated her  


daughter's weeks-long stays at the trailer so that her daughter could live in a residence  


where there were adults to take care of her and look after  her while she fulfilled the  


requirements of her home schooling.  

                                                              -  15 -                                                         2505

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

                                                   As we said earlier, we believe that the focus of the "residing in the same                                                                                                                                                                                     

household" clause is the nature and duration of the cohabiting relationship between the                                                                                                                                                                                                                                   

adult and the child.                                                       Although this clause may not cover brief visits or sleep-overs, we                                                                                                                                                                             

conclude that it does cover the two-month and one-month living arrangements at issue                                                                                                                                                                                                                               


                                                   Accordingly, we conclude that the judge's error in Thompson's case was                                                                                                                                                                                              

harmless beyond a reasonable doubt.                                                                                                           

                          Thompson's double jeopardy claims relating to his convictions for sexual                                                                                                                                                                                   


                                                   In  Erickson v. State                                                     , 950 P.2d 580, 587 (Alaska App. 1997), this Court re-                                                                                                                                        

affirmed that the unit of prosecution in sexual assault and sexual abuse cases                                                                                                                                                                                                                                 is the   

penetration of separate bodily orifices.                                                                                                            That is, a defendant's penetration of separate                                                                                                    

orifices during the same criminal episode will support separate convictions.                                                                                                                                                                                                               

                                                   Thompson argues that the                                                                        Erickson  decision waserroneous and should now                                                                                                                      

be overruled.                                       In recent years, this Court has repeatedly addressed this issue, and each                                                                                                                                                                                       

time we rejected the argument that                                                                                                  Erickson  was so clearly erroneous that it should be                                                                                                                                     

                                        3        But more importantly, in  Johnson v. State, 328 P.3d 77, 89-90 (Alaska  


2014),  the Alaska  Supreme Court expressly endorsed the rule 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 under the  


Alaska Constitution[.]"  


             3           See Joseph v.State                                                  ,293              P.3d488,                           492 (Alaska                                App. 2012);  Iyapana v. State                                                                          ,284 P.3d          

 841, 851-52 (Alaska App. 2012).                                                                                         

                                                                                                                                                         -  16 -                                                                                                                                                       2505

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


                    Because of the supreme court's decision in Johnson, we could not overrule  


Erickson even if we thought it was wrongly decided (which we do not).  


                     Thompson next argues that even if the Erickson rule continues to define the  


proper unit of prosecution in sexual assault cases, the rule should be different in sexual  


abuse of a minor cases, at least where the sexual activity is not coerced by force or threat  


of force.  We rejected this same argument in an unpublished decision, Lincecum v. State,  


2012 WL 4039820 (Alaska App. 2012), and we again reject it here.  


                    As we noted in Lincecum, both the sexual assault statutes and the sexual  


abuse  statutes  protect  the  same  underlying  societal  interest:                                   the  prevention  or  


punishment of socially unacceptable sexual acts.  Id. at *4. In cases of sexual assault, the  


sexual conduct  is  prohibited  either  because  it  is  achieved  through  coercion  (direct  


application  of  force,  or  the  threat  of  imminent  force),  or  because  the  victim  is  


incapacitated and either  unaware  that anything sexual is happening,  or incapable of  


giving meaningful consent.   In cases of sexual abuse, the sexual conduct is prohibited  


because the child is too young to meaningfully consent.   We are not convinced that these  


distinctions imply, much less constitutionally require, a different rule defining the unit  


of prosecution.  


                    Finally,  Thompson  argues  that  he  should  not  have  received  separate  


convictions for penetrating the same orifice during the same episode of sexual activity.  


                     Specifically, Thompson points out that he was convicted of three separate  


counts (Counts 8, 9, and 10) for an episode of sexual activity that occurred on October  


28,  2005 - one conviction for penile penetration,  one for cunnilingus,  and one for  


digital penetration.  Thompson was also convicted of three separate counts (Counts 11,  


 12, and 13) for sexual activity that occurred sometime between November 2005 and July  


2006 - one conviction for penile penetration, one for digital penetration, and one for  


penetration of J.C.'s vagina with "ben-wa" balls -  a  device designed to produce or  

                                                              -  17 -                                                         2505

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


enhance sexual stimulation.                                                                                                And Thompson was convicted of another three separate                                                                                                                                                           

counts (Counts 14,                                                                     16,   and 17) for sexual activity that occurred sometime between                                                                                                                                                                                 

August 2006 and October 27, 2006                                                                                                                           -   one conviction for penile penetration, one for                                                                                                                                                   

cunnilingus, and one for penetration of J.C.'s vagina with ben-wa balls.                                                                                                                                                                                                              

                                                         Thompson argues that, for each of these three episodes, he should receive                                                                                                                                                                                                              

only a single conviction because the separate counts in each episode involved the same                                                                                                                                                                                                                                                                  


                                                         We partially agree with Thompson.                                                                                                                    Under this Court's decision in                                                                                                 Oswald  

v.  State, 715 P.2d 276, 280-81 (Alaska App. 1986), digital penetration that accompanies                                                                                                                                                                                                                                

penile penetration will not support a separate conviction.                                                                                                                                                                                      The State's evidence did not                                                                                   

go into sufficient detail for the jurors to know whether Thompson's digital penetration                                                                                                                                                                                                                                       

of   J.C.   did   or   did   not   fall within                                                                                                            the   Oswald   rule.     Because   the   record   does   not  

affirmatively establish that the State was entitled to separate convictions, Thompson's                                                                                                                                                                                                                                

convictions for digital and penile penetration must merge.                                                                                                                                                                                    See Wiglesworth v. State                                                                                   , 249   

P.3d 321, 330 (Alaska App. 2011);                                                                                                                    Simmons v. State                                                            , 899 P.2d 931, 937 (Alaska App.                                                                                        


                                                         Attempting to avoid this result, the State asks us to overrule                                                                                                                                                                                              Oswald.    We  

decline to do so.                                                       

                                                         Although we                                              agree with Thompson that he should not have received a                                                                                                                                                                                                

 separate   conviction   for   the   digital   penetrations,   we   reject   his   contention   that   his  

convictions    for    cunnilingus    should    also    merge    with    his    convictions    for    penile  

penetration.   In  Yearty v. State                                                                                              , 805 P.2d 987, 992, 995 (Alaska App. 1991), we treated                                                                                                                                                         

cunnilingus   as   a   form   of   sexual   penetration   that   is   distinct   from   penile   or   digital  

penetration of the female genitals.                                                                                                              This is because, in                                                              Murray v. State                                                      , 770 P.2d 1131,                              

              4             See   

                                                                                                                                                                            -  18 -                                                                                                                                                                          2505

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


1138-39 (Alaska App. 1989), this Court rejected the contention that cunnilingus requires  


proof  of  physical penetration  of  the  genitals.                        Instead,  we  endorsed  the  view  that  


cunnilingus encompasses "[all] sexual activity involving oral contact with the female  


genitals", regardless of whether that contact includes physical penetration.  Id.  at 1139.  


                    In other words, cunnilingus is classified as a form of "sexual penetration"  


under AS 11.81.900(b)(60), not because it necessarily involves physical penetration of  


the  genitals,  but  because  the  legislature  concluded  that  it  constituted  a  separately  


punishable form of sexual activity if performed without consent, or if performed on a  


person younger than the age of consent.  For this reason, we reject Thompson's argument  


that  his  convictions  for  cunnilingus  must  merge  with  his  convictions  for  penile  



                    Thompson's remaining double jeopardy argument - the one involving his  


two convictions for  inserting ben-wa balls into J.C.'s vagina - is more difficult to  




                    Thompson argues that, because the unit of prosecution is the penetration  


of a particular orifice,  he should not receive separate convictions for penetrating his  


victim's genitals with his penis and also penetrating  her genitals with an object (the  


ben-wa balls) duringthe same episode.  The difficulty is that the evidence at Thompson's  


trial leaves it unclear whether Thompson's use of the ben-wa balls (as charged in Counts  


13 and 17) did, in fact, occur during the same episodes as his penile penetration of J.C.  


                    According to J.C.'s testimony, Thompson used the ben-wa  balls in two  


distinct ways.  Sometimes, Thompson would have J.C. insert the ben-wa balls and then  


Thompson would engage in intercourse with her.  But at other times, Thompson would  


make J.C. wear the ben-wa balls internally when they went to the movies or went grocery  



                                                              -  19 -                                                         2505

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

                                                  This   latter   use   of   the   ben-wa   balls   would   clearly   support   separate  

convictions - because, in these instances, Thompson's use of the ben-wa balls was                                                                                                                                                                                                                                

distinct from any act of penile                                                                                       penetration.    But Counts 13 and 17 do not draw this                                                                                                                                        

distinction; they simply charge Thompson with the insertion of an object into J.C.'s                                                                                                                                                                                                                      

vagina.   And when the prosecutor argued these counts to the jury, she did not distinguish                                                                                                                                                                                                

between (1) Thompson's use of the ben-wa balls                                                                                                                                              in   conjunction with acts of genital                                                                        

intercourse versus (2) the times when Thompson would have J.C. wear the ben-wa balls                                                                                                                                                                                                                            

when she went out.                                                          

                                                  Because the record does not affirmatively establish that the jurors relied on                                                                                                                                                                                         

this latter theory when they found Thompson guilty of Counts 13 and 17, Thompson's                                                                                                                                                                                               

convictions on those counts must merge with                                                                                                                                  his   two   related convictions for acts of                                                                                                

penile penetration.                                                   See Wiglesworth                                                   , 249 P.3d at 330;                                                  Simmons, 899 P.2d at 937.                                                                               

                          Thompson's double jeopardy claims relating to his convictions for sexual                                                                                                                                                                               

                         exploitation of a minor and possession of child pornography                                                                                                                         

                                                  Thompson began taking sexually suggestive or explicit photographs of J.C.                                                                                                                                                                                       

when she was around 14 years old.                                                                                                He was ultimately charged with 15 counts of sexual                                                                                                                       

exploitation of a minor (Counts 29 through 43) for photographs that he took between                                                                                                                                                                                                              


June 2005 and January 2006.                                                                                         

                                                  Thompson   was   also   charged   with   20   counts   of   possessing  child  


pornography (Counts 44 through 63). 6                                                                                                                 Most (but not all) of those possession charges  


were paired with a related charge of sexual exploitation:  Thompson was charged with  


 sexual exploitation for taking the photograph, and he was charged with possession of  


             5           AS 11.41.455(a).                                               



                         AS 11.61.127(a).  

                                                                                                                                                       - 20 -                                                                                                                                                     2505

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


child pornography for keeping the photograph in his possession.  See Counts 29 through  


43 (exploitation) and the related Counts 44 through 58 (possession).  


                     Thompson  argues   that,   for  each  of  these  pairs  of  convictions,  the  


convictions must merge.  He contends that his taking of the photographs and his ensuing  


possession of the photographs violate the same societal interests, and that they should be  


viewed (for double jeopardy purposes) as one criminal act.  


                     The State responds that the sexual exploitation statute is aimed at a different  


societal interest from the child pornography statute.   The State argues that the sexual  


exploitation statute protects minors from being sexually used and humiliated, while the  


statute  prohibiting  the  possession  of  child  pornography  is  aimed  at  preventing  the  


distribution and possession of images that may incite future sexual abuse of children.  


                     The State's second argument - that the social interest underlying the  


possession of child pornography statute is to suppress images that might incite future  


sexual abuse of children - is inconsistent with the United States Supreme  Court's  


decisions dealing with the relationship of child pornography and the First Amendment.  


                     The First Amendment limits the power of the government to enact criminal  


laws that prohibit the production and distribution of books, films, photographs, and the  


like.  With regard to laws that prohibit the production of child pornography through the  


use  of  real children  (like  our  sexual exploitation  statute),  or  laws  that  prohibit  the  


distribution and possession of this kind of pornography, the United States Supreme Court  


has  upheld  these  laws  against  First  Amendment  challenges  -  concluding that  the  


government  has  a  compelling  interest  in  (1)  preventing  the  sexual  exploitation  of  


children that underlies the creation of this pornography, and in (2) destroying the market  


for this type of pornography by criminalizing the distribution and possession of it.  See  


New York v. Ferber, 458 U.S. 747, 756-760; 102 S.Ct. 3348, 3354-56; 73 L.Ed.2d 1113  

                                                              - 21 -                                                          2505

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


(1982), and Osborne v. Ohio, 495 U.S. 103, 109-110; 110 S.Ct. 1691, 1696; 109 L.Ed.2d  


98 (1990).  


                    However, in Ashcroft v. Free Speech Coalition, 535 U.S. 234; 122 S.Ct.  


1389; 152 L.Ed.2d 403 (2002), the Supreme Court suggested that protectingrealchildren  


from sexual exploitation is the only government interest that is sufficiently  compelling  


to outweigh First Amendment concerns.  


                    Free Speech Coalition involved a First Amendment challenge to a statute  


that criminalized simulated child pornography - e.g., pornography that depicted minors,  


but where the images were computer-generated, rather than made using real children.  


The government argued  that  this law should be upheld because even simulated child  


pornography might encourage the  future sexual abuse or exploitation of real children,  


and because it might be used by pedophiles to encourage children to participate in sexual  


activity.  Id. , 535 U.S. at 241, 122 S.Ct. at 1397.  In other words, the government took  


the position that the social harm of this type of pornography "flow[ed] from the content  


of the images, not from the means of their production."  Ibid.  


                    The Supreme Court held that the government's argument was insufficient  


to overcome First Amendment concerns.  The Court pointed out that, in instances where  


child  pornography did not involve the exploitation of real children, the government's  


rationale for suppressing it was purely content-based.  Id. , 535 U.S. at 253-54, 122 S.Ct.  


at  1403.         That  being  so,  the  First  Amendment  prohibited  the  government  from  


criminalizing this type of pornography unless its content was actually "obscene" (as that  


term is defined in First Amendment jurisprudence).  Id. , 535 U.S. at 251-52, 122 S.Ct.  


at 1402.        Because the  criminal statute at issue in Free Speech Coalition  applied to  


pornographic  material  that  was  not  obscene,  the  Court  held  that  the  statute  was  


unconstitutional.  Id. , 535 U.S. at 256, 122 S.Ct. at 1405.  

                                                             - 22 -                                                          2505

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


                     (See Ferrick v. State, 217 P.3d 418, 421 (Alaska App. 2009), where we  


construed Alaska's child pornography statute in conformity with the Supreme Court's  


decision in Free Speech Coalition, holding that the government was required to prove  


that the pornography in the defendant's possession was actually generated through the  


conduct  prohibited  by  the  sexual  exploitation  statute,  AS  11.41.455(a)  -  that  is,  


generated by using a real child under the age of 18.)  


                    We now return to  the  question in Thompson's case:   whether he can  


lawfully be subjected to separate child pornography convictions for keeping the sexual  


photographs that he took of J.C., when he had been convicted of sexual exploitation for  


taking  the  same  photographs.                     The  State's  rationale  for  imposing  separate  child  


pornography convictions is that Thompson's possession of these images, or his potential  


later  distribution  of  them,  might  encourage  future  sexual  abuse  or  exploitation  of  




                    But this is the same content-based rationale that the Supreme Court declared  


was inconsistent with the  First Amendment in Free Speech Coalition.   We therefore  


conclude that it would be improper for us to rely on this rationale as the justification for  


subjecting Thompson to separate exploitation and possession convictions for each of the  


photographs he took.  These pairs of convictions must merge.  


                    Thompson also argues that the double jeopardy clause requires a merger  


of any sexual exploitation convictions involving photographs that were taken during the  


same photo shoot.  We reject this argument.  In the statute forbidding the possession of  


child  pornography,  AS  11.61.127(c),   our  legislature  expressly  stated  that  every  


pornographic photograph in a person's possession constitutes a separate offense.  We  


infer that the legislature likewise intended, for purposes of the sexual exploitation statute,  


that the defendant's creation of separate photographs will support separate convictions,  


even if those photographs are created during the same photo shoot.  

                                                              - 23 -                                                          2505

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



                    For   the  reasons  explained  here,   we  uphold  the  jury's  verdicts  at  


Thompson's trial, but we conclude that many of his separate convictions must merge.  


And because these convictions are merging, we direct the superior court to re-sentence  




                    (Thompson has not challenged his sentence on appeal, so we do not retain  


jurisdiction of this case.)  

                                                            - 24 -                                                       2505

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