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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT C. SHARP, )
) Court of Appeals No. A-3068
Appellant, ) Trial Court No. 3AN-87-6176
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. )
________________________________) [No. 1233 - July 17, 1992]
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Peter A. Michalski,
Judge.
Appearances: George E. Weiss, Anchorage, for
Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special Prosecu
tions and Appeals, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Following a jury trial in the Anchorage superior court,
Robert C. "Chris" Sharp was convicted of four counts of sexual
abuse of a minor in the first degree, AS 11.41.434(a), and one
count of felony failure to appear, AS 12.30.060(1). The sexual
abuse charges were premised on Sharp's molestation of four young
girls, J.B., S.E., M.P., and J.G., all of whom had been entrusted
to Sharp's mother, a day-care provider. Following his
indictment, Sharp fled Alaska after manufacturing an apparent
suicide in Turnagain Arm. (Sharp's parents were his accomplices
in this endeavor: see Jean and Homer Sharp v. State, Memorandum
Opinion No. 2370 (Alaska App., March 11, 1992)). This effort to
avoid prosecution resulted in Sharp's indictment for failure to
appear.
Sharp appeals both his convictions and his sentence.
We affirm.
Sharp lived with his parents, Homer and Jean Sharp.
The elder Sharps ran a day-care center out of their home.
Sharp's mother was the primary care taker; however, when she was
absent or was not feeling well, Sharp would take over.
J.G. started attending Jean Sharp's day-care center in
December 1982, when she was six months old. Around November
1984, J.G. complained that her "butt" hurt; J.G. used the word
"butt" to refer to both her vaginal and anal areas. J.G.'s
mother noticed that her daughter's vaginal area was red and
irritated. Her doctor told her that this was common with small
girls who were inexperienced in wiping themselves after using the
toilet. Mrs. G brought the vaginal irritation to the attention
of the Sharps, who speculated that it might be due to the soap
they were using to bathe J.G..
Six months later, J.G. complained to her mother that
"Chris" was putting soap on her butt and making it sore. Then,
in November 1985, after watching her father urinate, J.G.
declared that "Chris has a monster in his pants ... just like
Daddy". J.G. then reiterated that Chris put soap on her butt and
made it sore. J.G.'s mother immediately withdrew her from the
day-care center. Sharp's trial was held almost three
years later, in September 1988. At that time, J.G. was six years
old. When J.G. testified at trial, she remembered being at the
Sharps' home but could not remember anything about the sexual
abuse, nor could she remember telling her mother any of the
things Mrs. G. had testified to. J.G. also failed to identify
Sharp when he was pointed out to her.
To support its allegation that J.G. had been sexually
abused, the prosecution presented the testimony of Dr. Clinton
Lillibridge, a pediatrician who had examined J.G. on November 18,
1987. The doctor testified that young girls normally have a
round hymenal opening of three to four millimeters in diameter.
However, J.G.'s hymen had an irregular opening, about nine
millimeters wide and six millimeters in height, with a deep tear
on one side. Dr. Lillibridge stated that this deformity and
injury had probably been caused by a repeated, forceful
penetration by an object the size of a finger. He concluded that
the condition of J.G.'s hymen was consistent with its being
penetrated by a man's finger when she was two to three years old.
Another child, S.E., started attending the Sharps' day-
care center when she was six months old and continued attending
until she was about two and one-half years old. On Friday,
August 7, 1987, S.E. spent the day at the Sharps' and then was
going to spend the night at the house of one of her friends,
M.P.. When M.P.'s mother came to pick up the two children from
the day-care center, she heard them talking about how Sharp had
touched them.
B.P., M.P.'s mother, testified that when she picked
M.P. and S.E. up on August 7, 1987, M.P. told her, "Chris hurt
[S.E.] and she was crying." S.E. did not want to talk about the
incident, but she indicated that Chris had hurt her. B.P. asked
M.P. if Chris had hurt her too, and M.P. responded, "He hurt me a
long time ago." B.P. notified S.E.'s mother, and the two women
called the police.
At Sharp's trial, S.E. identified Sharp as a "big boy"
who had babysat her and other children at his house. S.E. said
that Sharp had touched her. According to S.E., Sharp told all
the other children to go upstairs and take a nap, but he kept
S.E. and another girl downstairs. Sharp then put a blanket over
S.E.'s head; when she cried, he told her to be quiet. Sharp
removed S.E.'s shorts and underwear and threw them in the
bathroom; then he put lotion on her private parts. S.E. stated
that when Sharp touched her private parts it felt cold and then
hot. S.E. said that the thing touching her did not feel like a
man's hand or finger. S.E. did not remember feeling any pain,
and said it was hard to tell if he put anything inside her.
Later that same day, S.E. told her friend, M.P., about
the touching, and M.P. told her that Chris had done it to her
lots of times.
M.P. attended the Sharps' day-care center from June
1984 until August 1987. M.P. testified that Sharp had hurt her
in the bathroom lots of times with a white "needle" that was
about six inches long. She stated that the white needle had a
"circle end" and that its front was sharp. M.P. said Sharp would
fetch this object from a shelf in his room; he then would get
lotion and get "ready to do it." Sharp would put the lotion on
her private parts and "rub it around." Chris would then poke the
needle in M.P.'s private parts; M.P. said that this hurt her
"really bad". M.P. said that Sharp would not stop when she asked
him to; when she cried, Sharp would tell her to be quiet.
M.P. failed to identify Sharp at trial, even after he
was pointed out to her. M.P. later identified the "white needle"
as an electric toothbrush holder. She also identified a bottle
of Keri lotion as being the one used during the sexual abuse.
M.P. and S.E. were taken to Humana Hospital where they
were examined by Dr. Mark Moeller. Dr. Moeller asked each of the
girls what had happened to them.
M.P. told Dr. Moeller, "Chris poked something into me
where I go pee," pointing toward her genitals. Dr. Moeller found
that M.P.'s vaginal opening was larger than normal and that it
was a bit of red. Dr. Moeller testified that M.P.'s injury was
consistent with her having been penetrated with an object the
diameter of a dime, and that it probably had occurred from
several days to a week earlier.
S.E. also told Dr. Moeller that Chris put something
into her where she pees. When she pointed to her genitals, S.E.
started crying and grabbed her mother. Dr. Moeller testified
that S.E.'s hymen was approximately five to six millimeters wide,
and that, in his training, four millimeters was the upper normal
limit. He also noted that S.E.'s labia majora and minora were
irritated from a fairly recent occurrence, within the previous
twenty-four hours. Dr. Moeller believed that this irritation was
consistent with S.E.'s being penetrated by a foreign object, and
not just the result of an abrasion or irritation.
The fourth victim, J.B., attended the Sharps' day-care
center from June 1987 until August 10, 1987. In late July,
J.B.'s mother asked her if anyone "had been messing with her."
J.B. responded, "Yes, Chris." However, J.B. dropped the subject
immediately, leaving her mother unsure whether J.B. had been
truthful. When J.B.'s mother went to pick her up on August 10,
Jean Sharp told her about allegations that her son had molested
some of the children in her home. Later that day, J.B. told her
mother that Chris Sharp had pulled her pants down once but had
never taken her underwear off. J.B. stated that Chris rubbed his
penis on her leg when she was wearing only underwear and that he
was trying to mess with her "gina".
At Sharp's trial, J.B. testified that Sharp had touched
her genitals with his hand, that it hurt her when he did this,
and that she hated it. She stated that Sharp had done this one
time when everyone else was out of the house. J.B. was uncertain
whether or not Sharp put his hand inside her, and she stated that
her panties never came off. When asked whether or not she had
told her mother that she had seen Sharp's penis, J.B. first
denied it and then admitted it. When asked if this incident had
truly happened, J.B. said yes, but then she added that Sharp had
never taken his private part out of his pants in front of her.
Dr. Lillibridge examined J.B. on August 13, 1987. When
he started to examine J.B.'s vaginal area, she became
apprehensive and needed reassurance from her mother. This
reaction is abnormal in a child J.B.'s age but is observed in
children who have been sexually abused.
J.B.'s hymenal opening was irregular and jagged, not a
normal round opening. To Dr. Lillibridge, this indicated that
something the size of an adult male finger had penetrated J.B.
more than two days before the exam. The doctor testified that
J.B.'s injury was not consistent with rough-housing, washing of
the genitals, or masturbation.
Sharp was initially charged with three counts of sexual
abuse of a minor for the incidents involving S.E., M.P., and
J.B.. Later, count IV was added for the sexual abuse of J.G..
Sharp's trial was scheduled for May 31, 1988. On May
20, 1988, Anchorage Police Officer Hans Roelle was given a jacket
that had been found at McHugh Creek. The jacket contained a
letter and Sharp's driver's license. Roelle went to Sharp's
house to return the jacket. There, he met Jean and Homer Sharp;
the elder Sharps acted peculiarly about the jacket but would not
respond to Roelle's questions except to tell him that Sharp was
on bail release for a felony charge.
The following day, Officer Barry Croy was dispatched to
meet Homer Sharp at the Potter Marsh Weigh Station. Homer Sharp
told Croy that he had found a car which he believed his son had
been driving; he said that the car was locked but there appeared
to be a note in the front seat. Croy helped Homer Sharp unlock
the car; inside, they found a suicide note, apparently written by
Sharp, and an empty bottle of whiskey. The police began
searching for Sharp. Jean Sharp soon arrived. Both she and
Homer told the police that they thought their son had walked into
the inlet or been kidnapped and killed by drug dealers.
On May 23, 1988, the prosecutor learned that Sharp was
missing and she obtained a bench warrant for his arrest. On May
31, Sharp did not appear for trial. The trial date was vacated
but the bench warrant continued in effect.
Three weeks later, on June 14, 1988, Sharp was located
and arrested in Charleston, South Carolina. He was returned to
Anchorage on June 27, 1988, and was indicted on a fifth count,
felony failure to appear. As noted above, Sharp was convicted on
all five counts.
Sharp's initial argument on appeal is that he received
ineffective assistance from his trial attorney. Sharp has never
litigated this claim in a petition for post-conviction relief
under Criminal Rule 35.1. Claims of ineffective assistance can
rarely be determined from the trial record alone. An attorney's
actions are presumed competent. Risher v. State, 523 P.2d 421,
424 (Alaska 1974); State v. Jones, 759 P.2d 558, 567-570 (Alaska
App. 1988). Moreover, an attorney's trial decisions - including
which potential defenses to pursue, whether to object to the
evidence offered by the government, how to cross-examine
government witnesses, and whether and how to present a defense
case - generally rest on considerations of strategy and trial
tactics that are not directly addressed in open court. For these
reasons, this court will seldom entertain an ineffective
assistance of counsel claim raised for the first time on appeal.
Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
Sharp acknowledges this general rule but nevertheless
asks us to address his various claims of attorney incompetence as
matters of plain error. With one exception, we find that Sharp
has failed to adequately brief his claims of ineffective
assistance; his brief to this court mentions various claims of
attorney incompetence in passing, but Sharp fails to provide
substantive legal discussion of how each instance might
demonstrate ineffective assistance of counsel. See Petersen v.
Mutual Life Ins. Co. of New York, 803 P.2d 406, 411 & n.8 (Alaska
1990).
The one exception is Sharp's claim that his trial
attorney incompetently failed to object to Dr. Lillibridge's
testimony that a hymenal opening of greater than four millimeters
strongly indicates that a child had been sexually abused. We
find that Sharp's discussion of this point is adequate to allow
meaningful appellate review. We therefore decide this claim of
ineffective assistance, but we decline to reach the merits of
Sharp's other allegations of ineffective assistance of counsel.
As described above, Dr. Lillibridge testified at
Sharp's trial, without objection, that if a child has a hymenal
opening greater than four millimeters' diameter, this is
substantial evidence of sexual abuse. Sharp argues that Dr.
Lillibridge's opinion is inadmissible under the test for
scientific evidence announced in Frye v. United States, 293 F.
1013 (D.C. Cir. 1923), and adopted in Pulakis v. State, 476 P.2d
474, 478 (Alaska 1970). See also Contreras v. State, 718 P.2d
129, 134-36 (Alaska 1986). That is, Sharp asserts that most
practitioners of pediatric medicine do not recognize the validity
of inferring sexual abuse from the size of a child's hymenal
opening.
Because no objection was made to Dr. Lillibridge's
testimony at Sharp's trial, we review the challenged testimony
under a plain error standard. To demonstrate plain error, Sharp
must show that no competent judge or attorney could have failed
to see that Dr. Lillibridge's opinion fell outside the realm of
generally accepted medical judgements. Potts v. State, 712 P.2d
385, 394 n.11 (Alaska App. 1985); Marrone v. State, 653 P.2d 672,
675-681 (Alaska App. 1982). Sharp has not demonstrated this.
Dr. Lillibridge testified that the "Cantwell study", a survey of
children's hymenal openings, found that among children with
hymenal openings greater than four millimeters' diameter,
80 percent had been sexually abused. Dr. Lillibridge also testi
fied that the American Medical Association's Council on Practice
had published findings that supported the Cantwell study's conclu
sion. Dr. Lillibridge further testified that his own
examinations of thousands of children during his quarter-century
career as a pediatrician corroborated the medical literature's
four-millimeter benchmark.
During cross-examination by Sharp's attorney, Dr. Lilli
bridge explained that an enlarged hymenal opening does not conclu
sively establish sexual abuse, but the medical profession views
an enlarged opening as evidence of abuse. Dr. Lillibridge's
testimony was supported by the later testimony of Dr. Mark
Moeller; Dr. Moeller stated (again, without objection) that,
according to his medical training, a hymenal opening greater than
four millimeters in diameter is abnormal.
Given this record, Sharp has failed to show plain error
in the admission of Dr. Lillibridge's testimony that a hymenal
opening of greater than four millimeters' diameter was abnormal
and that sexual abuse might be inferred from an abnormally
enlarged hymenal opening.
Sharp's second argument on appeal concerns his
challenge to a prospective member of the jury. During jury
selection, Sharp challenged seven members of the venire for
cause; the superior court granted six of these challenges and
denied one. On appeal, Sharp argues that this one denial
constituted an abuse of discretion.
To obtain reversal of a judgement because of an
assertedly erroneous ruling on a challenge to a prospective
juror, Sharp must show "that he has exhausted his peremptory
challenges and has suffered material injury from the action of
the court" - i.e., "that as a result [of the court's ruling] one
or more objectionable jurors sat on the case". Bohna v. Hughes,
Thorsness, Gantz, Powell, & Brundin, ___ P.2d ___, Opinion No.
3824 (Alaska March 27, 1992), slip opinion at 39-40. Sharp
cannot show that he was prejudiced by the trial court's ruling.
Sharp used only four of his peremptory challenges during jury
selection; he accepted the panel when he still had six peremptory
challenges remaining. See Alaska Criminal Rule 24(d). Because
Sharp could have used one of his remaining peremptory challenges
to remove the juror in question, Sharp was not prejudiced by the
superior court's denial of his challenge for cause.
Sharp next argues that the superior court erroneously
allowed various witnesses (parents and doctors) to testify
concerning out-of-court statements made by the four victims. We
find that Sharp has not sufficiently briefed this issue to
preserve it for appeal. Sharp's brief does not identify the
particular statements he believes should have been excluded. Our
review of the record shows that Sharp did not object to much of
this testimony. Further, it is clear that at least some of the
victims' statements were not hearsay at all. For example, J.G.'s
statement that "Chris has a monster [i.e., a penis] in his pants"
was not introduced to prove the matter asserted; rather, this
statement was circumstantial evidence that sexual abuse had
occurred (by tending to prove that J.G. had seen Sharp's penis).
Alaska Evidence Rule 801(c). Finally, Sharp's discussion of the
governing law is sketchy at best. He asserts in a conclusory
manner that the identity of a child's sexual abuser can never be
established through hearsay statements of the victim - an
overbroad assertion with several exceptions.
For these reasons, we decline to reach the merits of
Sharp's challenge to the testimony describing out-of-court state
ments of the four victims. Bohna v. Hughes, Thorsness, supra;
Kristich v. State, 550 P.2d 796, 804 (Alaska 1976); Gudmundson v.
State, 763 P.2d 1360, 1362 (Alaska App. 1988).
Sharp's final attack on his conviction concerns the
superior court's decision to join the five counts for trial. On
March 4, 1988, Sharp moved for severance of Count IV, the abuse
of J.G., on the ground that it was dissimilar and unconnected to
the other three sexual abuse charges, and because it was remote
in time from the other charges. Judge James A. Singleton,
sitting as a superior court judge, granted Sharp's motion,
relying on Johnson v. State, 730 P.2d 175 (Alaska App. 1986). In
Johnson, this court held that a defendant was entitled to
automatic severance upon request when the sole basis for joinder
was the similar nature of the charged offenses, even when the
evidence of the various charges would be cross-admissible at
separate trials.
However, on May 28, 1988 (three days before Sharp's
original trial date), the legislature amended Alaska Criminal
Rule 8(a). Ch. 66, 8-9, SLA 1988. Rule 8(a) now allows
joinder of similar offenses if the government can demonstrate
before trial that evidence of each offense will likely be cross-
admissible. The legislature's declared intent was to overrule
Johnson and "permit multiple offenses to be joined for trial when
evidence of one offense is admissible to prove another." 1988
House Journal at 2332.
As explained above, Sharp's original trial date was
vacated when he fled Alaska. When Sharp was recaptured, his
trial was set for the end of August. On August 22, 1988, a week
before trial, Sharp moved to sever the four remaining joined
counts (Counts I, II, III, and V). The state opposed this motion
and responded with a motion to rejoin Count IV in light of the
amendment to Criminal Rule 8(a). Superior Court Judge Peter A.
Michalski ordered all five counts joined for trial. Sharp moved
for reconsideration of joinder at the end of the State's case;
this motion was denied.
A trial court's decision on joinder or severance is not
to be disturbed absent an abuse of discretion and a showing of
prejudice. Abdulbaqui v. State, 728 P.2d 1211, 1218-19 (Alaska
App. 1986). The current version of Criminal Rule 8(a), when read
in conjunction with Criminal Rule 13, provides:
Joinder of Offenses. Two or more offens
es may be [joined for trial] if the offenses
charged, whether felonies, misdemeanors or
both,
(1) are of the same or similar character
and it can be determined before trial that it
is likely that evidence of one charged
offense would be admissible to prove another
charged offense,
(2) are based on the same act or transac
tion, or
(3) are based on two or more acts or
transactions connected together or constitu
ting parts of a common scheme or plan.
Sharp mistakenly argues that he was entitled to
automatic severance of Counts I through IV under Johnson. As
just explained, the Johnson decision was overturned by the
legislature. Moreover, even if Sharp's case had been governed by
the previous version of Rule 8(a) and the holding in Johnson,
joinder would still have been proper.
The automatic severance rule of Johnson applied only
when the sole basis for joinder was the first clause of Rule 8(a)
- similar offenses. There was no automatic severance when
joinder was premised on the second or third clauses of the rule -
offenses based on the same transaction, or based on related
transactions constituting parts of a common plan or scheme.
Yearty v. State, 805 P.2d 987, 991 (Alaska App. 1991); Newcomb v.
State, 800 P.2d 935, 943 (Alaska App. 1990). Sharp's sexual
abuse of the four children took place at his mother's day-care
center; Sharp apparently used his position as chief lieutenant at
the day-care center to obtain access to young children. Thus,
Sharp's acts of abusing several young children could reasonably
be viewed as separate instances of a common scheme or plan. See
Oswald v. State, 715 P.2d 276, 279-280 (Alaska App. 1986), where
this court held that evidence of the defendant's sexual
propositions to various teenage girls could be admitted under
Evidence Rule 404(b) as evidence of his plan or scheme to exploit
his position as a "counselor" to run-away teenagers.
Even though Criminal Rules 8(a) and 13 allow joinder of
two or more charges, a defendant can nevertheless obtain
severance under Criminal Rule 14 by showing that the jury's
ability to fairly decide the individual charges will be
substantially impaired if the jury hears evidence relating to
other charges at the same time. Sharp argues that this was true
in his case.
However, one of the issues litigated at Sharp's trial
was identity - that is, whether, assuming the children had been
abused, Sharp could be identified beyond a reasonable doubt as
the one who had abused them. Sharp's sexual abuse of various
children attending his mother's day-care center would have been
admissible, even at separate trials, on the issue of identity.
Yearty, 805 P.2d at 991. Judge Michalski so found when he denied
Sharp's motion for reconsideration of the joinder issue.
This leaves Count V, the charge of failure to appear.
As this court noted in Newcomb, 800 P.2d at 943, evidence of
Sharp's feigned suicide and flight from Alaska was relevant to
deciding whether he had been the one who sexually abused the
children. Conversely, evidence of Sharp's sexual abuse of the
children was relevant to deciding what his intent and motivation
were when he failed to appear for his trial.
Sharp has not shown that Judge Michalski abused his
discretion when he ordered the five counts joined for trial.
We turn now to Sharp's sentencing arguments. The
portion of Sharp's brief that deals with his sentence is devoted
mainly to arguing that he received ineffective assistance of
counsel at sentencing. For the reasons explained above, we
decline to reach this claim. The remaining claim is Sharp's
argument that his sentence is excessive.
For his four sexual abuse convictions, Sharp was
sentenced to a composite term of 32 years with 16 years
suspended. Judge Michalski imposed a consecutive 1 year's
imprisonment for Sharp's failure to appear, making a total
sentence of 17 years to serve and another 16 years suspended.
Sharp was a first felony offender who was convicted of
sexually abusing four children; the evidence indicated that he
had abused the children many times over a period of two years or
more. In State v. Andrews, 707 P.2d 900 (Alaska App. 1985),
aff'd 723 P.2d 85 (Alaska 1986), this court recognized a
benchmark sentencing range of 10 to 15 years to serve for first
offenders convicted of aggravated instances of child sexual
abuse. This court defined an "aggravated" case as one in which
the defendant had abused multiple victims, or had committed
multiple assaults on a single victim, or had inflicted serious
injury to one or more victims. Andrews, 707 P.2d at 913-14.
For example, in Koenig v. State, the companion case
decided in Andrews, the defendant was a public school teacher who
sexually abused several 8- and 9-year-old children. Because
Koenig had been in a position of authority over his victims,
because the children were particularly vulnerable due to their
youth, and because Koenig had abused several children, this court
concluded that his case was aggravated and approved a sentence of
15 years to serve with an additional 5 years suspended. Andrews,
707 P.2d at 911, 917.
Sharp relies on White v. State, 773 P.2d 211, 217-18
(Alaska App. 1989), for the proposition that first offenders
should rarely receive sentences of more than 10 years'
imprisonment. However, the 10-year ceiling mentioned in White,
and actually announced in DeGross v. State, 768 P.2d 134, 139-140
(Alaska App. 1989), and Pruett v. State, 742 P.2d 257, 265-66 &
n.10 (Alaska App. 1987), applied to first offenders convicted of
class A felony offenses. The 10-year rule did not apply to
defendants convicted of first-degree sexual abuse of minors,
which is an unclassified felony - otherwise, White, DeGross, and
Pruett would have been inconsistent with the benchmark sentencing
range announced in Andrews.1 Moreover, the 10-year rule applied
in White, DeGross, and Pruett was expressly disapproved by the
Alaska Supreme Court in State v. Wentz, 805 P.2d 962, 966 (Alaska
1991).
Sharp's sexual abuse sentences total 16 years to serve,
slightly more than the upper limit of the benchmark range
announced in Andrews. However, on several occasions this court
has affirmed sentences of more than 15 years to serve for first
offenders in exceptional cases. This court summarized these
exceptional cases in Howell v. State, 758 P.2d 103, 107 (Alaska
App. 1988):
In several exceptionally aggravated
cases we have approved sentences in excess of
the ten- to fifteen-year benchmark for first
offenders. These cases have involved
multiple offenses and multiple victims. Even
so, we have never approved a first offender
sentence of more than twenty years of
unsuspended incarceration except when the
defendant used a significant amount of
violence, had previously been incarcerated
for a substantial period, or both.
For example, in Lewis v. State, 706 P.2d 715 (Alaska
App. 1985), the defendant was a 45-year-old Boy Scout leader who
abused two dozen victims over a period of four years. The
defendant had no prior record, and he used no violence against
the children; moreover, Lewis's victims were older than the ones
involved in Koenig (Andrews). However, Lewis abused more victims
than Koenig, and the abuse occurred over a longer period of time.
For these reasons, the Court viewed Lewis's crimes as more aggra
vated than Koenig's; it held that Lewis's sentence should not
exceed 25 years with 5 suspended.
In Seymore v. State, 655 P.2d 786 (Alaska App. 1982),
this court upheld a sentence of 20 years to serve for a defendant
who sexually penetrated his stepdaughter on three occasions and
who had previously been charged with engaging in sexual contact
with her. And in Qualle v. State, 652 P.2d 481 (Alaska App.
1982), the court upheld a sentence of 21 years for a defendant
who had two children perform sex acts with each other and with
him, who photographed them so he could sell the pictures to child
pornography magazines, and who admitted that he had previously
abused his own three children.
Finally, in Dymenstein v. State, 720 P.2d 42 (Alaska
App. 1986), the defendant was an older adult who had engaged in
lengthy sexual abuse of a child. He subjected his victim to
group sex and had her pose for pornographic photography. The
victim suffered severe emotional damage. The sentencing
investigation revealed that the defendant had abused two other
children as well. Dymenstein refused to admit that any sexual
abuse had occurred or that he had any problem -- demonstrating a
poor prognosis for rehabilitation. Id. at 47. This court
approved a sentence of 18 years to serve.
It is, of course, arguable that Sharp's offenses are
not as egregious as the offenses presented in Lewis and Dymen
stein. However, the 10- to 15-year benchmark range established
in Andrews is not an inflexible rule of law, but rather an
historically based starting point for analyzing Sharp's sentence
under the particular facts of his case. If there are articulable
and valid reasons for imposing a sentence outside that benchmark
range, the resulting sentence will not be clearly mistaken.
Williams v. State, 809 P.2d 931, 933-35 (Alaska App. 1991).
Sharp's case shares many of the attributes that led
this court to uphold lengthy sentences in Lewis and Dymenstein.
Judge Michalski found that Sharp's offenses were "predatory" in
nature; Sharp chose pre-school-age children (3« to 5 years old)
who were particularly vulnerable. Sharp used his position of
authority at his mother's day-care center to obtain access to the
children. Judge Michalski concluded that the number of Sharp's
victims, coupled with the length of time over which he abused
them, demonstrated the ingrained nature of Sharp's problem and
his correspondingly high level of danger to society. Moreover,
throughout the pre-sentence investigation and the sentencing
proceedings, Sharp denied that he had engaged in any sexual
conduct with the children; Judge Michalski found that Sharp's
inability to admit his problem indicated that rehabilitation
would be a lengthy process. For these reasons, we conclude that
Judge Michalski was not clearly mistaken when he sentenced Sharp
to serve 16 years for sexual abuse of the children.
We also uphold Judge Michalski's decision to impose a
consecutive 1-year term for Sharp's attempt to avoid prosecution
by feigning suicide and fleeing Alaska. Sharp's elaborately
prepared flight, besides constituting a separate crime, also
indicated that he had poor prospects for rehabilitation. Sharp's
failure to appear was among the most serious offenses within its
class. Sharp's intent was to avoid prosecution on very serious
criminal charges. He not only failed to appear in court, but he
fled the jurisdiction of Alaska. Hoping to deceive the Alaska
authorities into concluding that it was fruitless to pursue him,
Sharp manufactured evidence to make it appear that he had
committed suicide. Moreover, Sharp enlisted the aid of his
parents in this scheme.
The maximum sentence for failure to appear on felony
charges is 5 years' imprisonment, AS 12.30.060(1), the same
maximum sentence established for class C felonies. The
circumstances discussed in the last paragraph suggest a sentence
greater than the 1 year's imprisonment Sharp received for this
crime. Judge Michalski was not clearly mistaken when he
sentenced Sharp to a consecutive 1-year term for failure to
appear.
This leaves the 16 additional years that Judge
Michalski imposed but suspended. This court must examine the
propriety of Sharp's entire sentence, including the suspended
time. However, in his brief, Sharp addresses himself exclusively
to the length of time he must serve; he does not argue that the
16 years of suspended time is excessive. We therefore review
this aspect of Sharp's sentence for plain error only. We do not
find plain error.
The judgement of the superior court is AFFIRMED.
_______________________________
1 White was, in fact, convicted of kidnapping, an unclassi
fied felony. However, both this court and the superior court
which sentenced White treated the kidnapping as a de minimis
offense and concentrated primarily on the burglary, robbery, and
assaults that White committed. 773 P.2d at 218 n.1.
