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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HAROLD "FRENCHY" BRAUN, )
) Court of Appeals No. A-5027
Appellant, ) Trial Court No. 3AN-92-5795 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1463 - March 1, 1996]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, James A.
Hanson, Judge.
Appearances: David E. George,
Anchorage, for Appellant. Kenneth M.
Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Following a jury trial in the superior court, Harold
"Frenchy" Braun was convicted of three counts of second-degree
sexual abuse of a minor, AS 11.41.436(a)(2), one count of
attempted second-degree sexual abuse of a minor, and six counts
of soliciting the offense of unlawful exploitation of a minor, AS
11.41.455(a). Braun now appeals these convictions. With regard
to the sexual abuse charges, Braun argues that there was
insufficient evidence to support his convictions. We affirm
these convictions. With regard to the solicitation charges,
Braun contends that his actions did not violate the solicitation
statute. We agree with Braun, and we therefore reverse his
solicitation convictions.
All of the charges in this case stem from Braun's
conduct toward several neighborhood girls who played at his house
in 1990 and 1991. Braun, who was 63 years old, frequently gave
the girls snack food and candy; he would play games with them and
take photographs of them with his camera.
One of these girls, T.C., testified that, on one
occasion when she was playing at Braun's house, Braun asked her
to lower her pants so that he could "peek at her privates". He
offered her peanuts if she would do this. Braun also asked T.C.
if she would allow him to take her photograph while she was
naked. Another girl, P.B., was also present during this
incident. Both girls ran out of Braun's house.1
In addition to corroborating T.C.'s account of the
incident described in the previous paragraph, P.B. testified that
Braun had offered to give her two dollars if she would pull down
her pants. P.B. also testified that Braun would put his hand
underneath her shirt and rub her chest when she sat on his lap.
She further testified that Braun once suggested that they (she
and Braun) both take off all their clothes so that Braun could
photograph them naked.
M.V., a sixth grader, testified that Braun asked her to
go to the basement along with another girl, C.W., and to take off
her clothes, so that Braun could then come down to look. M.V.
became frightened and left.2 M.V. described another incident in
Braun's kitchen, in which Braun reached around M.V. from behind
and touched her breasts through her clothes while he hugged her.
M.V. also testified that Braun told her that if she took a shower
at his house, he "wouldn't peek".
C.S., another sixth grader, testified that Braun had
asked her to take her clothes off.
J.N., who was nine years old at the time of Braun's
trial, testified that Braun would give her hugs and then "touch
[her] bottom". She also testified that Braun "would go
underneath [her] clothes".
Before trial, J.N. gave a videotaped statement to
Detectives Branchflower and Guillory as part of the police
investigation of the case. The jury was permitted to view this
videotape. In the interview, J.N. told the detectives that, on
one occasion, she and Braun were in his basement, seated on a
bed, and that Braun "started to get on top of her". J.N. said
that Braun hugged her and then "he pushed [her] twice on his
private".
V.W., who was ten years old at the time of Braun's
trial, testified that Braun once touched her on her bottom
(outside of her clothes) when they were in his bedroom. V.W.
stated that Braun had been squeezing and pushing with his hand
while he touched her bottom. When V.W. told him to stop, he did.
V.W. testified that she had seen Braun touch J.N.'s bottom
beneath her clothes.
Braun took the stand in his own defense. He testified
that he had lived in his neighborhood for 20 years and that he
had always had neighborhood children play at his house. Braun
stated that he played hide and seek with the children, that he
tickled several of the children, and that he took pictures of
them with his Instamatic camera as they played outside. However,
Braun denied acting in a sexual manner toward any of the
children. In particular, Braun denied ever asking any of the
children to take a shower in his house or to allow him to look at
their genitals.
Braun testified that he accidentally touched J.N.'s
bottom when he had to "scoop" her up one day when she refused to
go home. He stated that his hand accidentally got between the
elastic of her clothing and her bare skin, but that he
immediately withdrew it. Braun also testified that he probably
touched C.S., but not for sexual gratification. On cross-examina
tion, Braun also admitted that V.W. "very well could have" seen
him put his hand down J.N.'s pants accidentally.
The jury convicted Braun of all ten counts charged in
the indictment: three counts of second-degree sexual abuse of a
minor (sexual contact with a child younger than thirteen), one
count of attempted second-degree sexual abuse of a minor, and six
counts of soliciting unlawful exploitation of a minor.
Sufficiency of the Evidence to Support
Braun's Convictions for Sexual Abuse of a Minor
On appeal, Braun argues that there was insufficient
evidence to support his convictions for engaging in sexual
contact with M.V. and P.B. (Counts I and II of the indictment).
Braun asserts that, if he did touch these children's breasts, the
touching was inadvertent, not "knowing". He also asserts that,
even if he knowingly touched their breasts, this act of touching
could reasonably be construed as normal, affectionate interaction
with the children. See AS 11.81.900(b)(53)(B)(i). However,
viewing the evidence in the light most favorable to sustaining
the jury's verdicts, Dorman v. State, 622 P.2d 448, 453 (Alaska
1981), we conclude that the evidence was sufficient to support
Braun's convictions of these offenses.
Relying on Potts v. State, 712 P.2d 385, 388 (Alaska
App. 1985), Braun also argues that there was no evidence to
suggest that he engaged in these acts of touching with the
specific intent to obtain sexual gratification. However, Potts
was decided under the former definition of "sexual contact". As
formerly defined, "sexual contact" required proof that the
defendant's act of touching was accompanied by an intent to
achieve sexual gratification. Flink v. State, 683 P.2d 725, 733
(Alaska App. 1984). But following this court's decision in
Flink, the legislature amended the definition of "sexual contact"
for the express purpose of removing "intent to obtain sexual
gratification" as an element of the offense. Van Meter v. State,
743 P.2d 385, 389-391 (Alaska App. 1987). Thus, there was no
need for the jury to find that Braun acted with the specific
intent of achieving sexual gratification.
Braun next argues that there was insufficient evidence
to support his conviction for engaging in sexual contact with
J.N. (Count III of the indictment). Braun concedes that his
trial attorney did not seek a judgement of acquittal on Count
III, but he argues that the trial judge's failure to grant Braun
an acquittal on this count was plain error.
In support of his plain error argument, Braun points
out that J.N. testified only that Braun touched her "bottom".
Braun also relies on the portion of the trial when J.N. got up
from the witness stand and demonstrated where Braun had touched
her; from the contemporaneous comments of the attorneys, it
appears that J.N. indicated that Braun touched her buttocks, not
her anus as required by the statutory definition of "sexual
contact". See AS 11.81.900(b)(53)(A). Based on this record,
Braun argues that there was plainly no evidence to support a
finding that Braun knowingly touched J.N.'s anus.
However, it appears that Braun's conviction for
sexually abusing J.N. was based on the evidence that Braun took
hold of J.N. by the buttocks and pressed her against his penis.
(This evidence was introduced in the form of the videotaped
statement that J.N. gave to the police investigators.) When the
prosecutor argued Count III to the jury, she stated:
Now, sexual contact isn't just a grown-
up touching a child's genital[s], anus, or
female breast. It's also a grown-up having a
child touch them ... , doing something so
that the child touches the grown-up's
genitals[.] And that's what the count with
[J.N.] is. When the defendant had her touch
his [penis] ...
Her testimony was that she felt the
defendant's private parts through his
clothing when she was pressed towards him.
... Now, we've all hugged people and
accidentally touched breasts and private
parts. ... That's not sexual contact; that's
accidental. [But] what [J.N.] is describing
is not accidental. [J.N.] is talking about a
contrivance so that she felt the defendant's
private parts.
Our review of the record demonstrates that there was sufficient
evidence to support Braun's conviction for engaging in sexual
contact with J.N. under this theory of the crime.
In his reply brief, Braun concedes that there was
sufficient evidence to establish that he knowingly pressed J.N.
against his penis. He argues, however, that because the evidence
suggested two potential theories of sexual abuse, the jurors
might not have been unanimous as to which theory the State had
proved at trial. We disagree. As Braun points out in his
opening brief, there was essentially no evidence that Braun
touched J.N.'s anus. It would be unreasonable to assume that the
jury relied on this theory when they convicted Braun of sexually
abusing J.N.. There was, however, specific evidence that Braun
pulled J.N. toward him, pressing her against his own genitals.
As demonstrated by the quoted portion of the prosecutor's
summation to the jury, the State expressly relied on this
evidence, and this theory of the case, to establish Braun's
sexual abuse of J.N.. Based on this record, we conclude that
there is no reasonable possibility that the jurors disagreed on
the theory behind Braun's conviction on Count III.
Braun next contends that there was insufficient
evidence to support his conviction for attempting to engage in
sexual contact with T.C. (Count IV of the indictment). He points
out that, at trial, T.C. stated that Braun had merely asked her
to remove her pants. However, in T.C.'s videotaped statement to
the police investigators, she stated that Braun had actually
tried to remove her pants. This videotaped statement was
introduced into evidence and played for the jury at Braun's
trial.
Braun points out that, even in the videotaped
interview, T.C.'s description of Braun's conduct is ambiguous.
At one point, T.C. stated that Braun tried to remove her pants,
while at another she spoke of Braun's asking her to remove her
pants. However, it is the jury's role to resolve conflicts and
ambiguities in the evidence. Viewing the evidence in the light
most favorable to upholding the jury's verdict, there was
sufficient evidentiary support for the conclusion that Braun
tried to remove T.C.'s pants. And from this finding, the jury
could justifiably conclude that Braun's action had been taken for
the purpose of touching T.C.'s genitals. Thus, the evidence was
sufficient to support Braun's conviction for attempting to engage
in sexual contact with T.C..
For these reasons, we uphold Braun's convictions for
second-degree sexual abuse of a minor and attempted second-degree
sexual abuse of a minor.
Sufficiency of the Evidence to Support
Braun's Convictions for Solicitation of Unlawful
Exploitation of a Minor
We turn now to Braun's convictions for soliciting the
crime of unlawful exploitation of a minor, AS 11.41.455(a). This
statute reads:
A person commits the crime of unlawful
exploitation of a minor if, ... with the
intent of producing a live performance, film,
audio recording, photograph, negative, slide,
book, newspaper, magazine or other printed
material that visually depicts the conduct
listed in (1)-(7) of this subsection, the
person knowingly induces or employs a child
under 18 years of age to engage in, or photo
graphs, films, records, or televises a child
under 18 years of age engaged in, the
following actual or simulated conduct:
(1) sexual penetration;
(2) the lewd touching of
another person's genitals,
anus, or breast;
(3) the lewd touching by
another person of the child's
genitals, anus, or breast;
(4) masturbation;
(5) bestiality;
(6) the lewd exhibition
of the child's genitals; or
(7) sexual masochism or sadism.
Braun was indicted on six counts of soliciting the violation of
this statute. According to the indictment, the State's theory of
prosecution was that Braun,
with the intent of producing a live perfor
mance [or a] photograph ... visually de
pict[ing] ... the lewd exhibition of the
child[ren]'s genitals, did ... solicit ...
child[ren] under 18 years of age to engage in
such actual or simulated conduct.
That is, the State argued that Braun had solicited the violation
of AS 11.41.455(a) in two different ways. First, Braun asked
four of the girls to lewdly exhibit their genitals so that he
could view them. The State asserted that, had the girls done
what Braun asked, this would have constituted a "live
performance". Second, Braun asked two of the girls to lewdly
exhibit their genitals so that he could take photographs of them.
With respect to each of the six counts of solicitation,
the jury received the same instruction on the substantive crime
of unlawful exploitation of a minor:
In order to establish the crime of
unlawful exploitation of a minor, it is
necessary for the State to prove beyond a
reasonable doubt the following:
. . . .
that Harold "Frenchy" Braun knowingly
induced or employed [the named victim], a
child under 18 years of age, to engage in the
lewd exhibition of the child's genitals; and
...
that the defendant intended to produce a
live performance, film, photograph, negative,
slide, book, newspaper, magazine, or other
printed material which depicted that conduct.
The jury was then instructed regarding the conduct that
constituted solicitation:
In order to establish the crime of
solicitation ..., it is neccesary for the
State to prove:
. . . .
that Harold "Frenchy" Braun intended to
cause another to engage in conduct
constituting the unlawful exploitation of [a]
minor; [and]
that the defendant asked, induced, or
commanded the other person to commit unlawful
exploitation of a minor.
A. The Four Counts Alleging Intent to
Produce a "Live Performance"
In Counts VII through X of Braun's indictment, the
State alleged that when Braun asked the children to let him look
at their genitals, Braun acted "with the intent of producing a
live performance" of the lewd exhibition of a child's genitals.
During final argument, the prosecutor reiterated this theory.
The prosecutor told the jury (without objection) that when Braun
asked the children to let him see their genitals, he was
"soliciting the children for what the law calls a 'live
performance' C which is to look at their genitals, to view
[them]". This was the sole allegation against Braun with respect
to four of the six solicitation counts (Counts VII through X).
The two remaining solicitation counts (Counts V and VI) were
supported by testimony that Braun had asked the two children to
disrobe so that he could photograph them.
Braun attacks his convictions on Counts VII through X
by arguing that the jury was misinformed on what constitutes a
"live performance". Braun argues that a "live performance"
requires an audience other than the person who requests the child
to exhibit his or her genitals. Braun therefore contends that,
because he was to be the sole onlooker when the children
disrobed, he can not have intended to produce a "live
performance".
This argument was not preserved in the trial court.
Nevertheless, because Braun's contention goes to the definition
of the crime, we will address it.
In Harris v. State, 790 P.2d 1379, 1384 (Alaska App.
1990), this court indicated that AS 11.41.455(a) forbids a person
from taking lewd photographs of a child even when the photographs
are for the private use of the photographer. See ch. 57, ' 1,
SLA 1983, which amended the statute by deleting the phrase "for
any commercial purpose". The New York statutes which formed the
basis of AS 11.41.455 have been interpreted in the same way.3
Because our statute no longer requires that the defendant act for
a commercial purpose, the State argues that a "live performance"
can include a private, one-person exhibition.
There is no definition of "live performance" in AS
11.41. However, the corresponding New York statute contains a
definition of "performance" that supports Braun's interpretation;
it indicates that a live performance requires an audience.4
Moreover, the State's interpretation of the statute would lead to
anomalous results. The unlawful exploitation of a minor statute
applies to all children under the age of 18. Under the State's
interpretation of "live performance", an adult who asked a 14-
year-old child to disrobe so that the adult could view the
child's genitals would be guilty of a class B felony, even though
the adult's act of actually touching the child's genitals would
be only a class C felony (third-degree sexual abuse of a minor
under AS 11.41.438). Even more paradoxically, an adult who asked
a 17-year-old child to disrobe preparatory to an act of
consensual sexual intercourse would commit a class B felony, even
though the adult's ensuing act of sexual intercourse with this
child would be no crime at all.56
We therefore reject the State's broad reading of the
term "live performance". We agree with the State that
AS 11.41.455 covers private, non-commercial live performances.
Nevertheless, we agree with Braun that "live performance" does
not include the situation in which a single adult requests a
child to display his or her genitals to that adult in private.
Because the State's theory of prosecution on Counts VII
through X was based wholly on the assertion that Braun had asked
the four victims to display their genitals to him, and because
the jury was erroneously told that Braun's contemplated act of
viewing these children's genitals would constitute a "live
performance", we must reverse Braun's convictions on these four
counts.
Braun argues that, for this same reason, we must
reverse his convictions on Counts V and VI C the counts that
charged Braun with asking children to allow him to photograph
their genitals. Braun argues that the distinction between
"viewing" and "photographing" the children's genitals was
"blurred in the instructions and during closing arguments", and
that the jury might have relied on a "live performance" theory
when they convicted Braun of Counts V and VI. We have reviewed
the record, and we disagree with this assertion. The prosecutor
repeatedly emphasized the difference between Counts V and VI
(which charged that Braun had tried to induce the children to let
him photograph their genitals) and Counts VII through X (which
charged that Braun had tried to induce the children to let him
view their genitals). Even though the jury instructions on these
six counts were virtually identical, the prosecution's differing
theories were plainly explained to the jury. See Norris v.
State, 857 P.2d 349, 355 (Alaska App. 1993); O'Brannon v. State,
812 P.2d 222, 229 (Alaska App. 1991) (the parties' arguments can
cure defects or omissions in jury instructions).
B. The Two Counts Alleging Intent to
Photograph
Braun asserts that there is a separate legal flaw in
the two remaining counts of solicitation (the counts alleging
Braun's intention to photograph two of the girls). Braun's
challenge to these two counts centers upon the legal definition
of "solicitation".
For purposes of this argument, Braun concedes that the
State proved that Braun asked the two girls named in Counts V and
VI to take off their clothes and let him photograph them. He
contends, nevertheless, that this conduct did not constitute a
"solicitation" of the crime of unlawful exploitation of a minor.
The criminal conduct Braun was alleged to have
solicited was "induc[ing] ... a child under 18 years of age to
engage in ... the lewd exhibition of the child's genitals" for
the purpose of "producing a ... photograph". See AS
11.41.455(a). Under this definition, Braun would have committed
the completed crime of unlawful exploitation of a minor had he
successfully induced the two girls to pose unclothed for his
contemplated photographs (even if the photographs were never
actually taken). Because the girls did not agree to Braun's
request, Braun was charged with soliciting the crime of unlawful
exploitation of a minor. Under AS 11.31.110(a), Braun would be
guilty of solicitation "if, [acting] with intent to cause [the
girls] to engage in conduct constituting a crime, [Braun]
solicit[ed] the [girls] to engage in that conduct."
Braun does not contest that what he asked the girls to
do would have been a "lewd exhibition of the child[ren]'s
genitals" within the meaning of AS 11.41.455(a)(6).7 However,
Braun argues that he did not "solicit" the crime of unlawful
exploitation of a minor when he asked the girls to exhibit
themselves. Braun argues that, when the solicitation statute
speaks of "solicit[ing] [an]other to engage in" "conduct
constituting a crime", the statute means that the crime of
solicitation is committed only when the defendant asks,
encourages, or commands another person to engage in conduct that
would subject that other person to criminal liability.
Braun points out that, under AS 11.41.455(a), the
offense of unlawful exploitation of a minor is committed by the
people who exploit minors, not by the minors who are exploited.
Even when a minor willingly agrees to be photographed in a lewd
pose, the exploitation of a minor statute does not punish the
minor, but rather the person who induced the minor to pose for
the photograph. See also AS 11.16.120(b), which declares that,
unless a criminal statute provides otherwise, the victim of an
offense is not to be held legally accountable (under a complicity
theory) for the conduct of the person committing the offense.
Thus, Braun did not ask the children to commit a crime
(in the sense of subjecting themselves to criminal liability)
when he asked the children to let him photograph them. Even if
the offense had proceeded to completion, the children would have
done nothing that subjected them to criminal liability. This
being so, Braun concludes that he can not be guilty of
solicitation.
Braun's argument falters on the language of the
solicitation statute itself. AS 11.31.110(a) does not require
proof that the defendant solicited another person "to commit a
crime". Rather, the statute declares that a person commits
solicitation when he or she solicits another person "to engage in
conduct constituting a crime". (Emphasis added.) From examining
AS 11.16 and AS 11.31, it appears that the legislature
deliberately employed this language to emphasize that the person
whom the defendant solicits need not be criminally liable for the
conduct he or she is asked to perform. A defendant can, under
certain circumstances, be held criminally liable for the acts of
another person even when that other person faces no criminal
liability for the same conduct.
The basic rule of vicarious liability is codified in
AS 11.16.110. Subsection (3) of that statute declares that a
defendant is legally accountable "for the conduct of another
constituting an offense" if the defendant, "acting with the
[required] culpable mental state[,] ... causes an innocent person
or a person who lacks criminal responsibility to engage in the
proscribed conduct". (Emphasis added.) This rule is accentuated
in AS 11.16.120(a)(2)(C), which states that a defendant remains
criminally liable for another person's conduct despite the fact
that "the other person is not guilty of the offense".
The solicitation statute itself contains a parallel
provision. Under AS 11.31.110(b)(1)(B), it is no defense to
solicitation "that [the] person whom the defendant solicits could
not be guilty of the crime that is the object of the
solicitation". This statutory provision appears to foreclose
Braun's argument that he should escape liability because the
children he solicited could not themselves be guilty of the
intended crime.
There is, however, another problem with the
solicitation charges in Braun's case. This problem stems, not
from the definition of solicitation, but from the definition of
unlawful exploitation of a minor.
As pointed out above, the crime of solicitation occurs
when the defendant solicits another person to engage in conduct
constituting a crime. For purposes of Braun's case, the conduct
prohibited by the unlawful exploitation of a minor statute (the
actus reus of the crime) is the act of "induc[ing]" a child under
the age of 18 to engage in one of the listed sexual activities.
Braun would have committed the crime of solicitation if he had
asked someone else to engage in this prohibited conduct C if
Braun had asked someone else to induce an underage child to
engage in one of the listed sexual activities. But the State's
theory of prosecution was that Braun approached the girls
himself, without any intermediary. Because Braun did not ask
anyone else to engage in the conduct prohibited by the unlawful
exploitation of a minor statute C the conduct of "induc[ing] ...
a child under 18 years of age" to engage in one of the sexual
activities listed in the statute C Braun did not commit the crime
of solicitation.
We are mindful that in Sullivan v. State, 766 P.2d 51,
56 n.5 (Alaska App. 1988), where the State's evidence showed that
the defendant had sent notes to an underage girl suggesting that
they engage in sexual activity, this court offered the opinion
that the defendant might be convicted of solicitation. But the
target offense in Sullivan was second-degree sexual abuse of a
minor as defined in AS 11.41.436(a)(2). The actus reus of this
crime is engaging in sexual contact with a child under the age of
13. "Sexual contact" is defined in AS 11.81.900(b)(53) as either
the adult's act of sexually touching the minor or the minor's act
of sexually touching the adult at the adult's behest. It could
therefore be argued that Sullivan's letters to the girl were
evidence that he solicited the girl to engage in the conduct
(sexual contact) prohibited by the second-degree sexual abuse
statute. In Braun's case, however, the conduct prohibited by the
unlawful exploitation of a minor statute is not the minor's act
of engaging in one of the listed sexual activities, but rather
the act of inducing a minor to engage in one of these activities.
Braun did not ask any other person to induce a minor to
engage in sexual activity. The State's evidence showed that
Braun communicated directly with the girls; the State alleged
that Braun himself tried to induce underage children to engage in
one of the prohibited sexual activities. If Braun had succeeded
in inducing the children to engage in a lewd exhibition of their
genitals so that he could photograph them, he would have
committed the completed crime of sexual exploitation of a minor.
Because Braun was unsuccessful in his attempt to induce the
children to disrobe, his conduct fell short of the completed
crime. If Braun's conduct amounted to any crime, that crime was
attempted unlawful exploitation of a minor.
Even though the State's evidence conceivably
establishes the crime of attempted unlawful exploitation of a
minor, the jury at Braun's trial was not asked to consider the
elements of attempt. Because Braun's solicitation convictions are
premised on a mistaken legal theory, these convictions must be
reversed. See Dawson v. State, 894 P.2d 672, 679 (Alaska App.
1995).
Conclusion
For the reasons explained above, we affirm Braun's
convictions for sexual abuse of a minor and attempted sexual
abuse of a minor, but we reverse his convictions for soliciting
the unlawful exploitation of a minor.
Because we are reversing several of Braun's
convictions, Braun will have to be re-sentenced. We therefore do
not reach Braun's contention that his composite sentence is
excessive.
The judgement of the superior court is AFFIRMED IN PART
and REVERSED IN PART. We return this case to the superior court
for amendment of the judgement and re-sentencing.
_______________________________
1 T.C. was in the second or third grade at the time of this incident; her
friend P.B. was in the first or second grade.
2 C.W. testified at Braun's trial and corroborated M.V.'s account of this
incident.
3 Alaska Statute 11.41.455 is based on Tentative Draft 11.51.135. This
provision was not taken from pre-existing law but was authored by the
Criminal Code Revision Subcommission. In its commentary to this draft
provision, the Subcommission indicated that its draft statute was based on
'' 263.00 - 263.15 of the New York Penal Law. This New York law has
repeatedly been interpreted to prohibit all pornographic photography of
children, even when the photographs are for the private use of the
photographer. See People v. Gaito, 604 N.Y.S.2d 992 (N.Y. App. 1993);
Matter of Glenn G., 587 N.Y.S.2d 464, 465 (N.Y. Fam.Ct. 1992); People v.
Duboy, 540 N.Y.S.2d 905, 906 (N.Y. App. 1989).
4 New York Penal Law ' 263.00[4] states:
"Performance" means any play, motion picture, photograph or dance.
Performance also means any other visual representation exhibited
before an audience.
5 With the exception of sexual activity between a 16- or 17-year-old child and
an adult who has authority over that child, Alaska's age of consent is 16.
See AS 11.41.434 et seq.
6 We reject the notion that this act of consensual intercourse could be deemed
a "live performance" under AS 11.41.455.
7 We therefore need not consider whether, or under what circumstances, the
girls' act of disrobing and displaying their bodies to Braun would have
constituted a "lewd exhibition of the child[ren]'s genitals" for purposes
of AS 11.41.455(a)(6).
