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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals Nos. A-4909/4939
Petitioner and ) Trial Court No. 3AN-S92-5734CR
Cross-Respondent, )
)
v. ) O P I N I O N
)
MICHAEL FREMGEN, )
)
Respondent and ) [No. 1391 - February 17, 1995]
Cross-Petitioner. )
____________________________)
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Rene J.
Gonzalez, Judge.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Petitioner and Cross-Respondent. Mauri
Long and Ray R. Brown, Dillon & Findley,
P.C., Anchorage, for Respondent and Cross-
Petitioner.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
The state indicted Michael Fremgen for six counts of
sexual abuse of a minor in the first degree for engaging in
sexual penetration with S.M., a female under thirteen years of
age.1 Fremgen filed a motion with the court in which he
contended that Alaska Statute 11.41.445(b) was unconstitutional
to the extent that it prohibited him from defending against the
charge of sexual abuse of a minor in the first degree on the
ground that he reasonably believed that S.M. was over the age of
sixteen.2 AS 11.41.445(b) establishes an affirmative defense to
charges of sexual abuse of a minor and provides:
In a prosecution under AS 11.41.410 --
11.41.440, whenever a provision of law
defining an offense depends upon a victim's
[sic] being under a certain age, it is an
affirmative defense that, at the time of the
alleged offense, the defendant reasonably
believed the victim to be that age or older,
unless the victim was under 13 years of age
at the time of the alleged offense.
(Emphasis added.)
Superior Court Judge Rene J. Gonzalez conducted an
evidentiary hearing on Fremgen's motion. Several witnesses
testified at this hearing. At the conclusion of the hearing,
Judge Gonzalez found that there was a substantial basis to
Fremgen's defense that S.M. exhibited a sexual and physical
maturity which could lead a reasonable person to believe that she
was older than her actual age of just under thirteen years.
Judge Gonzalez rejected Fremgen's claim that AS 11.41.445(b) was
unconstitutional on its face. He concluded, however, that the
statute was unconstitutional as applied to Fremgen. Judge
Gonzalez ruled that Fremgen would be allowed to present an
affirmative defense that he reasonably believed that S.M. was age
sixteen or older.3
The state filed a petition for review in this court.
Fremgen filed a cross-petition asking for review on the
constitutional challenges which Judge Gonzalez rejected. This
court granted both petitions. The parties have briefed and
argued the case to this court. We now affirm Judge Gonzalez's
ultimate decision allowing Fremgen to present a defense of
reasonable mistake of age. However, unlike Judge Gonzalez, we
base our conclusion upon the Alaska Supreme Court's decision in
State v. Guest, 583 P.2d 836 (Alaska 1978). Following Guest, we
find that convicting Fremgen of sexual abuse of a minor without
allowing him to present the affirmative defense of a reasonable
mistake of age would violate his right to due process of law
under the Alaska Constitution. We accordingly do not consider
Judge Gonzalez's ruling that AS 11.41.445(b) was unconstitutional
as applied to Fremgen.
In Guest, the defendants were charged with the
statutory rape of a fifteen-year-old female in violation of
former AS 11.15.120.4 Prior to trial, the defendants asked the
trial judge to give an instruction that if the defendants held a
reasonable belief that the fifteen-year-old victim was sixteen
years of age or older, then the jury must find the defendants not
guilty of the charges of statutory rape. 583 P.2d at 837. The
trial judge agreed to give the instruction if the evidence at
trial supported it.5 The state petitioned for review from the
trial judge's decision to give the instruction. The supreme
court affirmed, overruling a prior decision.6 Earlier decisions
by the court in Speidel v. State, 460 P.2d 77 (Alaska 1969), and
Alex v. State, 484 P.2d 677 (Alaska 1971), played an important
part in the court's reasoning. The supreme court noted that it
had held in both cases that "it would be a deprivation of liberty
without due process of law to convict a person of a serious crime
without the requirement of criminal intent." Guest, at 838.7
The court stated:
We believe that the charge of statutory
rape is legally unsupportable under the
principles of Speidel, Alex and Kimoktoak
unless a defense of reasonable mistake of age
is allowed. To refuse such a defense would
be to impose criminal liability without any
criminal mental element. The defense of
reasonable mistake of fact is generally
allowed in criminal cases to permit the
defendant to show that he lacked criminal
intent. When that opportunity is foreclosed
the result is strict criminal liability.
. . . .
[I]n such cases, where the particular statute
is not a public welfare type of offense,
either a requirement of criminal intent must
be read into the statute or it must be found
unconstitutional.
583 P.2d at 838-39 (footnote and citations omitted).8
The state points out that in Guest the supreme court
quoted from what was then the tentative draft of the Alaska
Criminal Code which ultimately became law as AS 11.41.445(b).
Id. at 838 n.2. The state contends that by setting out in its
entirety proposed AS 11.41.445(b), the supreme court "tacitly
approved the draft." This is certainly a possibility. However,
as a lower court within the state court system, we are bound by
the decisions of the Supreme Court of Alaska. The clear language
of Guest is sweeping, and unmistakably requires the state to
prove criminal intent for the conviction of a serious crime. Id.
at 838. Guest specifically applied this principle to require a
defense of reasonable mistake of age. Furthermore, the Guest
opinion does not stand alone. The Supreme Court of Alaska has
consistently refused to allow a defendant to be convicted of a
serious criminal offense based upon strict liability. See
Hentzner v. State, 613 P.2d 821 (Alaska 1980); Kimoktoak v.
State, 584 P.2d 25 (Alaska 1978); Alex v. State, 484 P.2d 677
(Alaska 1971); Speidel v. State, 460 P.2d 77 (Alaska 1969).
We conclude that under Guest v. State, Judge Gonzalez
was required to allow Fremgen to present an affirmative defense
that he reasonably believed that at the time that he engaged in
sexual penetration with S.M., she was sixteen years of age or
older. We accordingly AFFIRM Judge Gonzalez's decision.9
_______________________________
1 AS 11.41.434(a) states in relevant part:
An offender commits the crime of sexual
abuse of a minor in the first degree if . . .
being 16 years of age or older, the offender
engages in sexual penetration with a person
who is under 13 years of age [.]
2 Under the statutes prohibiting sexual abuse of minors, the
age of consent in Alaska is 16 years. See AS 11.41.436(a)(1).
3 Fremgen concedes that unless he can show that he
reasonably believed that S.M. was 16 years of age or older, he
cannot establish the defense of reasonable mistake of age.
Fremgen acknowledges that even if he reasonably believed that
S.M. was 13 years of age or older but under 16, this would be
sufficient showing of criminal intent to allow his conviction for
sexual abuse of a minor in the first degree. See Bell v. State,
668 P.2d 829, 832-33 (Alaska App. 1983) (no violation of due
process to refuse to allow a reasonable mistake of age defense
for a charge of inducing a person under the age of sixteen to
engage in prostitution where defendant's knowledge that he was
promoting prostitution was sufficient to provide criminal
intent). See also Ortberg v. State, 751 P.2d 1368, 1374 (Alaska
App. 1988)(no mens rea requirement that defendant know that
damage he caused exceeded $500 for criminal mischief charge);
Noblit v. State, 808 P.2d 280, 284-86 (Alaska App. 1991)(no mens
rea requirement in hindering prosecution case that defendant know
that person he aided committed a felony).
4 Former AS 11.15.120 provided in relevant part:
Rape. (a) a person who . . . (2) being
16 years of age or older, carnally knows and
abuses a person under 16 years of age, is
guilty of rape.
5 The parties in Guest stipulated that they expected the
evidence at trial to support a reasonable belief on the part of
the defendants that the alleged victim was 16 years of age or
older at the time of the alleged act of sexual intercourse. Id.
at 837.
6 Anderson v. State, 384 P.2d 669 (Alaska 1963).
7 The court also referred to its decision in Kimoktoak v.
State, 584 P.2d 25 (Alaska 1978), as supporting the same
principle.
8 The court defined "public welfare" offenses as a rather
narrow class of regulatory offenses which imposed stringent
duties on those who were connected with activities affecting the
public health, safety and welfare. The court stated that:
The penalties for the infraction of strict
liability offenses are usually relatively
small and conviction of them carries no great
opprobrium. Statutory rape may not be
categorized as a public welfare offense. It
is a serious felony.
Id. at 838 (citation omitted).
9 Fremgen concedes that at trial he will have the burden of
establishing by a preponderance of the evidence that he
reasonably believed that during the incidents charged S.M. was
sixteen years of age or older. Reasonable mistake of age is an
affirmative defense under which the defendant has the burden of
proof under AS 11.41.445(b). We recently upheld the allocation
of the burden of proof in Steve v. State, 875 P.2d 110, 115-23
(Alaska App. 1994).
