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THE COURT OF APPEALS OF THE STATE OF ALASKA
LARRY D. CURL, )
) Court of Appeals No. A-4262
Appellant, ) Trial Court No. 4FA-S90-3877CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1268 - December 24, 1992]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: Paul Canarsky, Assistant Public
Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Mark I. Wood, Assistant District Attorney,
Harry L. Davis, District Attorney, Fairbanks,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Larry Curl entered a plea of no contest to one count of
sexual abuse of a minor in the first degree, an unclassified
felony punishable by a maximum term of thirty years'
imprisonment. AS 11.41.434; AS 12.55.125(i). In return for
Curl's plea, the state dismissed eight additional charges, four
involving first-degree sexual abuse of a minor and four involving
second-degree abuse. As a second felony offender, Curl was
subject to a presumptive term of fifteen years. AS
12.55.125(i)(3). Superior Court Judge Richard D. Savell found
three aggravating factors applicable to Curl's case and sentenced
Curl to the maximum term of thirty years' imprisonment. Curl
appeals, challenging the sufficiency of the evidence as to two of
the three aggravating factors found by the superior court and
contending that his sentence is excessive. We affirm.
The offense for which Curl was convicted reflects a
series of sexual contacts between Curl and a ten-year-old child.
The sexual abuse occurred over a span of approximately four
months, involving approximately twenty to twenty-five episodes in
which Curl engaged in acts of mutual masturbation, fellatio, and
simulated sexual intercourse with his victim. Curl was forty-
nine years of age at the time and had recently been discharged
from parole after having served a maximum sentence of five years
for a previous conviction of sexual abuse of a minor (a class C
felony when Curl was convicted of the offense in 1982).
Though Curl is nominally a second felony offender, his
history of predatory sexual misconduct involving children is
exceptionally extensive, dating back thirty years to 1960. Curl
has been discharged from military service for acts of molestation
and has repeatedly been incarcerated for sexually abusing
children. On two occasions he has been committed to mental
institutions for treatment as a sexually dangerous person. While
incarcerated for his 1982 sexual abuse conviction, Curl
participated in a sexual offender treatment program. Despite his
apparently successful completion of the program, Curl was
described as falling within the "highest category of risk for re-
offending" when he was released on mandatory parole. Less than
two years later, Curl proved this prediction true by committing
the offense for which he now stands convicted.
Curl initially contends that Judge Savell erred in
finding, as an aggravating factor, that his ten-year-old victim
was particularly vulnerable. As Judge Savell recognized,
however, age is not the sole determinant of vulnerability under
AS 12.55.155(c)(5). In deciding whether this aggravating factor
applied, the judge was entitled to consider the totality of the
circumstances surrounding Curl's abusive conduct. Cf. Gant v.
State, 712 P.2d 906, 908-09 (Alaska App. 1986); Martin v. State,
704 P.2d 1341, 1342 (Alaska App. 1985). This is precisely what
Judge Savell did. His finding that Curl's victim was
particularly vulnerable is not clearly erroneous.
Curl next challenges Judge Savell's finding that Curl's
conduct was among the most serious included in the definition of
his offense, an aggravating factor specified in AS 12.55.155(c)-
(10). In finding this aggravating factor applicable, however,
Judge Savell properly considered that Curl was convicted for an
episode of abuse that was one of a series of twenty to twenty-
five similar episodes, committed over a period of approximately
four months, many of which apparently involved multiple acts of
sexual contact. Judge Savell was not clearly erroneous in
finding this aggravating factor applicable.
Curl lastly argues that his sentence -- a maximum
thirty-year term -- is excessive. In deciding to impose the
maximum term, Judge Savell considered not only the aggravated
nature of the current offense, but also Curl's virtually
uninterrupted, thirty-year history of sexually abusing children,
his repeated failures in treatment and apparent inability to be
deterred by significant periods of incarceration, and his
consistently negative psychiatric evaluations. Based on the
totality of the evidence before him, Judge Savell found Curl's
prospects for rehabilitation virtually nonexistent and also
concluded that he was undeterrable. For this reason, the judge
determined that Curl could be considered a worst offender, that
he was a continuing danger to the public, and that his isolation
was necessary to assure public safety.
On appeal, Curl argues that, in imposing the maximum
sentence, Judge Savell placed undue reliance on predicting Curl's
future misconduct and thus imposed a sentence that is not
tailored to the seriousness of Curl's crime. Curl cites Maal v.
State, 670 P.2d 708 (Alaska App. 1983), in which we emphasized
that Alaska's presumptive sentencing statutes follow the "just
deserts" theory of sentencing, under which "the sentence must
ultimately be tailored to fit the crime committed in the specific
case, and inordinate emphasis must not be placed on predictions
of possible future misconduct." Id. at 711, 712.
In Maal, however, we dealt with a defendant who
received a maximum sentence despite being a first felony offender
for presumptive sentencing purposes. Although a nominal first
offender, Maal had a substantial record of convictions for crimes
that were too old to be considered for purposes of triggering the
presumptive sentencing statutes. In imposing the maximum term,
the sentencing court relied on Maal's criminal history, and also
on psychiatric reports that diagnosed Maal as an antisocial
personality who had little chance of rehabilitation. Id. at 710.
On appeal, we reversed Maal's sentence. Noting that
Maal's prior criminal history had been followed by a thirteen-
year interval during which Maal had managed to lead a crime-free
life, we found the trial court's reliance on the psychiatric
predictions of Maal's future danger too speculative to support
the imposition of a maximum term. Id. at 712.
In contrast, we find nothing speculative in Judge
Savell's predictions concerning the possibility of Curl's
involvement in future crimes involving the sexual abuse of
children. The court's predictions in this case are based not on
psychiatric speculation, but rather on Curl's extensive history
of similar criminal misconduct -- misconduct that he is seemingly
incapable of controlling. In context, Curl's negative
psychiatric evaluations do little more than confirm what his past
conduct makes obvious: if left to his own devices, Curl will
continue to molest children.
The maximum term imposed in this case is undeniably an
extreme sentence for a second felony offender. But we have
previously recognized that an extreme sentence will be justified,
and that the principles we articulated in Maal v. State will not
be violated, when an offender's "extreme and long term history of
sexual abuse of minors is clearly established." Kirlin v. State,
779 P.2d 1251, 1253 (Alaska App. 1989). Curl's criminal history
reveals the type of "lengthy, compulsive, and apparently
untreatable pattern of sexually assaultive behavior" that
warrants characterizing him as a worst offender -- one for whom a
maximum sentence is appropriate. Schuenemann v. State, 781 P.2d
1005, 1009 (Alaska App. 1989).
Having independently reviewed the entire sentencing
record, we conclude that the sentence imposed below is not
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
The sentence is AFFIRMED.
