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

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


             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 @



                                                                                               Court of Appeals No. A-12068  

                                                  Appellant,                                  Trial Court No. 1KE-13-662 CR  


                                                                                                               O P I N I O N  


                                                  Appellee.                                     No. 2562 - August 18, 2017  

                         Appeal   f                          

                                           rom   the   Superior   Court,   First   Judicial   District,  

                         Ketchikan, William B. Carey, Judge.  

                         Appearances:   Callie Patton Kim, Assistant Public Defender,  


                         and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  


                         Appellant.  Stephen R. West, District Attorney, Ketchikan, and  


                         Craig W. Richards, Attorney General, Juneau, for the Appellee.  


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


                         Superior Court Judge. *  


                         Judge SUDDOCK, writing for the Court.

                         Judge MANNHEIMER, concurring.

                         Ryan Michael Thomas Brown pleaded guilty to one count of distribution                                                

of child pornography after authorities discovered files containing child pornography on                                                                         

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

Constitution and Administrative Rule 24(d).  

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


dangerous   assignments.                            Davidge   responded   that   "service   members   who   are   in   a  

combat theatre are eligible for consideration for combat-related PTSD, because anyone                                                               

in a combat situation deals with an enormous amount of stress."                                                        13  


                         The committee held a second meeting on March 20, 2014.   During the  


meeting, the representatives discussed expanding the mitigator so that it applied to all  



"service-related" PTSD.                           But a number of representatives expressed concern that the  



mitigator could then apply to situations unrelated to combat situations.                                                                For example,  


one representative suggested that the amended version could apply to a defendant who  


suffered PTSD as a result of an off-base car accident occurring while the defendant was  



working  a  desk  job  in  the  United  States.                                        The  committee  ultimately  rejected  the  




                         The committee then heard further public testimony.  Michael Kocher, a  



veteran from Eagle River, testified in support of the bill.                                                Kocher explained that, under  


the policies of the Department of Veterans' Affairs, a person is considered a "combat  


veteran" any time they are deployed to a combat zone - even if the person "never left  



the base," or did not directly encounter enemy forces.                                                   

      12     Id. at 1:33:09 - 1:36:49 p.m.  

      13     Id.      



            Minutes of House Special Comm. on Military and Veterans' Affairs, House Bill 313,  

1:06:36 - 1:11:04 p.m. (Mar. 20, 2014).  

      15     Id. at 1:27:14 - 1:52:19 p.m.  

      16     Id. at 1:20:06 - 1:22:31 p.m.  

      17     Id. at 1:20:06 - 1:53:31 p.m.   

      18     Id. at 1:53:45 - 1:56:02 p.m.  




                                                                            -  7 -                                                                       2562

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

                               Representative Dan Saddler responded to Kocher's comments:                                                               

                               You have answered a very important question for all of us in                                                                           

                               the committee and for the sponsors, to say pointedly that, if                                                                           

                               you were in Iraq in the sandbox, almost no matter where you                                                                        

                               were, you were considered combat-related and therefore any                                                                         

                               PTSD   generated there would be covered by the bill as it                                                                               

                               currently   sits   before   us.     I   very   much  appreciate   that  




Representative Les Gara - the bill's sponsor - added:  


                               Mr. Kocher's testimony, I think, complies with our intent.  


                               And if it complies with the committee's intent I think that  


                               would be helpful if any litigation were to ever come up, that  


                               the  committee  also  intends  it  to  cover  what  Mr.  Kocher  



                               defined as the military's definition of combat-related. 



The committee then voted to move the bill forward as originally drafted. 


                               Thus, when the legislature limited the mitigator to PTSD "resulting from  


combat,"  it  intended  to  include  soldiers  who  suffered  PTSD  as  a  result  of  events  


occurring while they were stationed in a combat zone, even though the triggering events  


were not direct combat.  


                               Based  on  our  review  of  this  legislative  history,  we  conclude  that  the  


superior court erred when it concluded that Brown's sexual assault in Kuwait could not  


be considered "combat-related." The court had found that Brown was sexually assaulted  


while stationed at a military base in Kuwait, and that Kuwait was part of a combat zone  

        20      Id. at 1:56:06 - 1:56:33 p.m.  

        21      Id. at 1:56:30 - 1:56:56 p.m.  

        22      Id. at 2:01:45 p.m.  

                                                                                               -  8 -                                                                                          2562

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


at that time.                                                 In addition, the superior court found that Brown's sexual assault led to his                                                                                                                                                                                                                                                      

downloading of child pornography.                                                                                                                                    Given these facts, we conclude that the court erred                                                                                                                                                              

in rejecting the proposed mitigator.                                                                                                                                

                                                             We   note   another   issue   in   the   case.     The   defense   expert   witness,   Dr.  

McClung, testified that Brown's PTSD symptoms were originally caused by Brown's                                                                                                                                                                                                                                                                                      

combat experiences in Iraq.                                                                                                          Dr. McClung further testified that the sexual assault on                                                                                                                                                                                                    

Brown in Kuwait, a different combat theater, both reactivated and exacerbated Brown's                                                                                                                                                                                                                                                                                

PTSD symptoms.   

                                                             Because we conclude that Brown's post-traumatic stress from the sexual                                                                                                                                                                                                                                             

assault in Kuwait was "combat-related" for purposes of this mitigator because Kuwait   

was a combat zone, we need not reach Brown's alternative claim that his sexual assault                                                                                                                                                                                                                                                                                        

was causally related to combat because it "reactivated" or exacerbated the post-traumatic                                                                                                                                                                                                                                                   

 stress that he suffered from his combat experience in Iraq.                                                                                                                                                                                         


                                                             We REMAND Brown's case for resentencing consistent with this opinion.  


               23              See Exec. Order No. 12,744, 56 Fed. Reg. 2,663 (Jan. 23, 1991) (designating Kuwait  

as a "combat zone").  

                                                                                                                                                                                            -  9 -                                                                                                                                                                                        2562

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

Judge Mannheimer, concurring.  


                    I agree with my colleagues that, given the evidence in this case, Brown's  


post-traumatic  stress  disorder  falls  within  the  category  of  "combat-related"  as  the  


legislature understood that phrase when they created mitigator AS 12.55.155(d)(20)(B).  


I  write  separately  because  I  question  whether  the  legislature  can  validly  limit  the  


mitigating effects of post-traumatic stress disorder to instances where the disorder is  




                    There is no doubt that our country owes a debt of gratitude to all the men  


and women who volunteer to serve in the armed forces, and especially to those who are  


deployed in combat zones.  And it is completely proper for the legislature to recognize  


that post-traumatic stress disorder can significantly alter a person's behavior, and that  


this disorder can mitigate the blameworthiness of criminal conduct.  


                    ButI question whether thelegislaturecanvalidlylimit themitigating effects  


of PTSD solely to defendants whose disorder arises from military service in combat  




                    Many people serve our society in occupations that are fraught with danger.  


For example, in Kelly v. Alaska Department of Corrections, 218 P.3d 291 (Alaska 2009),  


our supreme court dealt with a case where a corrections officer succumbed to post- 


traumatic stress disorder after an incident in which he was threatened with  serious  


physical injury, and possible death, by an inmate who had been convicted of murder and  


who was armed with a weapon.  


                    For  purposes  of  assessing  a  criminal  defendant's  degree  of  blame- 


worthiness, the pertinent questions are whether the defendant's criminal behavior was  


significantly influenced by PTSD, and whether the blameworthiness of the defendant's  


crime is therefore mitigated.  In answering these questions, the origin of the defendant's  


                                                             -  10 -                                                         2562

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

disorder - whether through service in the military, or through service in a police or fire                                                                                                                                                                                                      

department, or through service as a corrections officer, or otherwise - seems to have no                                                                                                                                                                                                           

particular relevance.                                                     

                                              The equal protection clause of the Alaska constitution (Article I, Section1)                                                                                                                                             

limits the power of the legislature to draw distinctions among groups of people, by                                                                                                                                                                                                               

requiring equal treatment of people who are similarly situated.                                                                                                                                                             

                                              In   AS   12.55.155(d)(20)(B),   the   legislature   has   taken   the   group   of  

defendants whose behavior was affected by PTSD and divided them into two groups -                                                                                                                                                                                                                  

those whose PTSD arises frommilitary service in a combat zone, and those whose PTSD                                                                                                                                                                                                    

arises from other causes.                                                                  When the legislature enacts this kind of law, courts must                                                                                                                                      

identify the legislature's reasons for treating the two groups differently, and evaluate                                                                                                                                                                                      

those reasons against the importance of treating the two groups equally.                                                                                                                                                                                   

                                              Our supreme court has enunciated a three-part test for performing this                                                                                                                                                                          



analysis.                            But with respect to mitigator (d)(20)(B), the real question is whether the goals  


of sentencing and the policies of the criminal law justify the legislature's distinction  


between PTSD arising from military service in a combat zone and PTSD arising from  


other causes.  


                                              It appears to me that, for purposes of assessing the blameworthiness of  


criminal conduct committed by a person who suffers from PTSD, there is no valid  


distinction between a defendant whose PTSD arises from military service in a combat  


zone and a defendant whose PTSD arises from other causes.  

            1          See Alaska Pacific Assurance Co. v. Brown                                                                                                        , 687 P.2d 264, 269-270 (Alaska 1984).  

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