NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL A. THIESSEN, )
) Court of Appeals No. A-4343
Appellant, ) Trial Court No. 3PA-90-332 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1274 - January 8, 1993]
________________________________)
Appeal from the District Court, Third Judi
cial District, Palmer, Peter Ashman, Judge.
Appearances: Joe P. Josephson, Anchorage,
for Appellant. David G. Berry, Assistant
District Attorney, Kenneth J. Goldman, Dis
trict Attorney, Palmer, 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 Palmer district court,
Michael A. Thiessen was convicted of attempted third-degree
sexual abuse of a minor (attempted sexual contact with a minor
13, 14, or 15 years old), AS 11.41.438(a). Thiessen appeals his
conviction, arguing that the third-degree sexual abuse of a minor
statute does not cover his attempted assault because his victim
was only 11 years old. We affirm.
Under AS 11.41.438(a)(1), a person commits the crime of
third-degree sexual abuse of a minor if, being at least 16 years
of age,
the offender engages in sexual contact with a
person who is 13, 14, or 15 years of age and
at least three years younger than the offend
er.
In this case, it is undisputed that Thiessen's victim
was 11 years old at the time of the attempted assault. An act of
sexual contact with a child under the age of 13 is the next
higher degree of offense, second-degree sexual abuse of a minor.
AS 11.41.436(a)(2). Thiessen's conduct therefore constituted
attempted second-degree sexual abuse. The State nevertheless
chose not to prosecute Thiessen for attempted second-degree
sexual abuse of a minor. Instead, the State charged Thiessen
with the lesser crime of attempted third-degree sexual abuse of a
minor.
At the close of the State's case, Thiessen asked
District Court Judge Peter Ashman to grant him a judgement of
acquittal on the ground that the 11-year-old victim was not
within the range of ages ("13, 14, or 15 years of age") specified
in the third-degree sexual abuse statute. Judge Ashman denied
Thiessen's motion, relying on AS 11.81.615. The pertinent
portion of this statute provides:
Offenses defined by age[.] Whenever a provi
sion of law defining an offense requires a
determination of the age of the victim ... ,
it is not a defense to the lowest class of
offense established by the evidence that the
age of the victim is less than the age which
would make the offense a higher class of
offense ... , and a person may be charged and
convicted accordingly.
Judge Ashman interpreted AS 11.81.615 to mean that, if a
defendant commits sexual abuse upon a victim who is younger than
the age range specified in the statute, this is not a defense.
Thiessen argues that, because of the way the
legislature has defined the various degrees of sexual abuse of a
minor, AS 11.81.615 does not apply to these crimes. He notes
that AS 11.81.615 is worded so as to allow a defendant to be
convicted of "the lowest class of offense established by the
evidence" even though the evidence might prove a higher degree of
offense. Relying upon this wording, Thiessen contends that this
statute applies only when the evidence discloses two or more
possible offenses.
Thiessen notes that, between second-degree sexual abuse
and third-degree sexual abuse, there is no overlap. Second-
degree sexual abuse covers sexual contact with a child 12 years
old or younger, while third-degree sexual abuse covers a child
13, 14, or 15 years old. Thiessen argues that, because these
crimes are apparently mutually exclusive once the victim's age is
ascertained, only one degree of offense can conceivably be
"established by the evidence" when the victim's age is not
disputed. In Thiessen's case, no one disputed that the victim
was 11 years old. Thus, Thiessen concludes, AS 11.81.615 cannot
apply to his case.
We reject Thiessen's suggested interpretation of
AS 11.81.615 because it would render the statute all but meaning
less. In four instances, Title 11 specifies different degrees of
crime for the same conduct, depending upon the age of the victim:
(1) sexual abuse of a minor, AS 11.41.434 - 440; (2) indecent
exposure, AS 11.41.460; (3) promotion of prostitution, AS 11.66.
110(a)(2) and AS 11.66.130(a)(2); and (4) misconduct involving
controlled substances, AS 11.71.010 - 050. Under Thiessen's
interpretation of AS 11.81.615, the statute would apply only to
the controlled substance offenses.
The sexual abuse of a minor statutes create two degrees
of offense for sexual penetration and two degrees of offense for
sexual contact. For each type of abuse, the degree of offense
depends on whether the child is (a) under 13 or (b) at least 13
but younger than 16.1 Indecent exposure also has two degrees of
offense, depending on whether the victim is (a) under 16 or (b)
over 16.2 In the same manner, the promotion of prostitution
statutes provide two degrees of offense for the act of inducing
someone else to become a prostitute, depending on whether the
victim is under or over 16.3 If Thiessen's construction of
AS 11.81.615 were correct, the statute would not apply to any of
these offenses because the defined age ranges do not overlap.
The controlled substance offenses do in fact define
different degrees of crime in overlapping terms: sale or delivery
of a controlled substance to a buyer of unspecified age is one
degree of crime, while sale or delivery of the same substance to
a person under 19 is a higher degree of crime.4 However, these
drug offenses were not included in Title 11 when the legislature
enacted AS 11.81.615 and the rest of the present criminal code.
Drug offenses were formerly part of Title 17; the legislature
added them to Title 11 in 1982. See 2 ch. 45 SLA 1982.
Thus, in three of the four instances where Title 11
distinguishes the degree of offense based on the victim's age,
the defining age groups are discrete. The victim can be a member
of either the younger age group or the older age group, but not
both. If AS 11.81.615 were interpreted as Thiessen suggests
(that is, were the statute to apply only when the defining age
groups overlap), the statute would not cover these three groups
of offenses.
It is perhaps more telling that, when the legislature
passed AS 11.81.615 in 1978 as part of its revision of Alaska's
criminal code, the newly revised Title 11 contained only two
types of crime that distinguished the grade of offense on the
basis of the victim's age. These were the promotion of
prostitution statutes, AS 11.66.110(a)(2) and AS 11.66.130(a)(2),
and the predecessors to the current sexual abuse of a minor
statutes - sexual penetration: former AS 11.41.410(a)(3) and
former AS 11.41.440(a)(1); sexual contact: former
AS 11.41.440(a)(2), and former AS 11.51.130(b). These statutes
distinguished grades of offense in terms of non-overlapping age
ranges. If the legislature had intended AS 11.81.615 to be read
as Thiessen suggests, then that statute would not have applied to
any criminal offense at the time it was passed. Because of this,
Thiessen's interpretation does not seem plausible.
Any single statute must be interpreted in light of the
whole statutory framework. Lake v. Construction Machinery, Inc.,
787 P.2d 1027, 1030 (Alaska 1990); Hafling v. Inlandboatmen's
Union of the Pacific, 585 P.2d 870, 878 (Alaska 1978); Hotel,
Motel, Restaurant, Construction Camp Employees & Bartenders
Union, Local 879 v. Thomas, 551 P.2d 942, 944-45 (Alaska 1976).
Moreover, a court is obliged to avoid construing statutes in a
way that leads to patently absurd results or to defeat of the
obvious legislative purpose behind the statute. Sherman v.
Holiday Construction Co., 435 P.2d 16, 19 (Alaska 1967); Wylie v.
State, 797 P.2d 651, 657 (Alaska App. 1990); Belarde v.
Anchorage, 634 P.2d 567, 568 (Alaska App. 1981).
Given the current structure of Title 11, and given the
structure of Title 11 in 1978 when AS 11.81.615 was promulgated,
we are convinced that the legislature intended AS 11.81.615 to
authorize a court or jury to convict a sexual offender of a
lesser degree of offense despite the fact that the evidence
reasonably (or even convincingly) demonstrates that the defendant
committed a greater degree of offense because the victim was
younger than alleged. Therefore, the district court correctly
denied Thiessen's motion for judgement of acquittal.
The judgement of the district court is AFFIRMED.
_______________________________
1 Sexual penetration: AS 11.41.434(a)(1) and AS 11.41.436
(a)(1). Sexual contact: AS 11.41.436(a)(2) and AS 11.41.438(a).
We leave aside those cases in which the offender stands in a
position of authority over the victim.
2 AS 11.41.460(b).
3 AS 11.66.110(a)(2) and AS 11.66.130(a)(2).
4 Sale or delivery of a class IA substance: AS 11.71.010
(a)(1) and AS 11.71.020(a).
Sale or delivery of a class IIA or IIIA substance: AS 11.71.
010(a)(2) and AS 11.71.030(a)(1).
Sale or delivery of a class IVA or VA substance: AS 11.71.
030(a)(2) and AS 11.71.040(a)(1).
Sale or delivery of a class VIA substance: AS 11.71.
030(a)(2) and AS 11.71.050(a)(1).
