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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BRIAN E. ERICKSON, )
) Court of Appeals No. A-6309
Appellant, ) Trial Court No. 4FA-93-3446 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1559 - December 12, 1997]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Jay Hodges, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. James L. Hanley, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In Yearty v. State, 805 P.2d 987, 995 (Alaska App. 1991),
this court held that when a defendant commits distinct types of
sexual penetration upon a victim during a single episode of sexual
assault, the defendant can be convicted of separate counts of sexual
assault for each type of penetration. The appellant in this case,
Brian E. Erickson, was convicted of four counts of second-degree
sexual abuse of a minor, AS 11.41.436(a)(1). The four counts
involved the same victim and arose from a single episode of sexual
abuse, but each count alleged a different form of sexual
penetration. Pursuant to Yearty, the superior court entered four
convictions against Erickson. On appeal, Erickson argues that
Yearty was wrongly decided for two reasons: as a matter of
statutory interpretation, and as a matter of constitutional law.
First, Erickson argues that Yearty was wrongly decided as
a matter of substantive criminal law. He asks us to re-examine and
reverse the holding that a defendant who perpetrates distinct types
of sexual penetration during a single assaultive episode can be
convicted separately for each type of sexual penetration.
Next, Erickson argues that Yearty's holding violates the
double jeopardy clause of the Alaska Constitution as construed by
the Alaska Supreme Court in Whitton v. State, 479 P.2d 302 (Alaska
1970). Erickson asserts that, under Whitton, an appellate court is
not permitted to create double jeopardy rules for whole classes of
cases rules of general application that will govern all future
cases that present the same double jeopardy issue. According to
Erickson, the Yearty holding violates Whitton because Yearty
establishes this sort of general rule the rule that separate types
of sexual penetration will support separate convictions.
For the reasons explained below, we reject Erickson's
arguments and affirm his convictions.
Introduction: Whitton and the constitutional issue
Erickson raises in this appeal
In Whitton, the supreme court established the test for
determining whether, under the double jeopardy clause of the Alaska
Constitution, a defendant's violation of two different criminal
statutes during a single criminal event should be treated as a
single punishable offense or as two distinct offenses. The court
declared that the sentencing judge should:
compare the ... statutes in question, as they
apply to the facts of the case, to determine whether [the case]
involved differences in intent or conduct. [The judge] [sh]ould
then [assess] any such differences ... in light of the basic
interests of society to be vindicated or protected, and decide
whether those differences [are] substantial or significant enough
to warrant multiple punishments.
Whitton, 479 P.2d at 312.
Erickson's case does not raise the same question presented
in Whitton (a defendant's violation of two statutes during a single
criminal episode), but it involves a related question: whether a
defendant's multiple violations of the same criminal statute during
a single criminal episode should merge into a single offense. Both
of the parties to this appeal agree that a Whitton analysis should
govern Erickson's case. However, the parties disagree on what
Whitton requires.
The basic dispute is whether double jeopardy rulings under
Whitton are ultimately case-specific. Whitton issues generally
arise in recurring situations: can a defendant be convicted of both
armed robbery and felony-murder when the robbery victim dies? See
Todd v. State, 917 P.2d 674 (Alaska 1996). Or can a defendant who
commits sexual assault be convicted of both an attempt and the
completed crime? See Tuckfield v. State, 621 P.2d 1350 (Alaska
1981). Erickson argues that, even though Whitton issues arise in
recurring situations, the supreme court wanted trial judges to
decide each case individually, again and again making case-specific
determinations of the double jeopardy question, with appellate
review available to correct abuses of discretion. The State, on the
other hand, argues that, under Whitton, the question of whether a
defendant has committed one offense or two is ultimately a question
of law. The State contends that, even though double jeopardy
questions are normally decided by trial judges in the first
instance, the supreme court envisioned that these questions would
ultimately be decided by appellate courts who would craft rules of
general application to govern recurring situations.
Yearty is a case that established a rule of general
application: Yearty held that distinct types of sexual penetration
will support separate convictions for sexual assault. Because of
this because Yearty established a general rule to govern future
cases Erickson contends that Yearty runs afoul of Whitton.
Whitton does not apply to Erickson's case
The first issue we must confront is whether Whitton
governs this question. As noted above, both Erickson and the State
assume that Whitton provides the rule of decision in this case.
However, as also pointed out above, Whitton dealt with a different
problem from the one presented in Erickson's case. In Whitton, the
question was whether a defendant could be convicted of two separate
crimes when the defendant's single criminal act violated two
different criminal statutes ("robbery" and "use of a firearm during
robbery"). Erickson's case, like Yearty, raises a different
question: whether a defendant can be convicted of separate crimes
when the defendant violates the same criminal statute more than once
in a single criminal event.
The supreme court confronted this latter question in State
v. Dunlop, 721 P.2d 604 (Alaska 1986). The defendant in Dunlop had
recklessly killed two people in a motor vehicle accident; the trial
court convicted him of two counts of manslaughter. On appeal,
Dunlop contended that his separate convictions violated the Whitton
rule.
Dunlop's appeal hinged on the continued vitality of
Thessen v. State, 508 P.2d 1192 (Alaska 1973), a case involving a
defendant who set fire to a hotel and killed several people. In
Thessen, the supreme court applied the Whitton rule and concluded
that, even though a defendant's reckless conduct might kill several
people, the number of victims was essentially fortuitous and the
defendant could be convicted of only one count of manslaughter.
Thessen, 508 P.2d at 1195. If Thessen was still good law, then
Dunlop should not receive two manslaughter convictions for killing
two people. However, the supreme court held that Thessen had been
wrongly decided, and it therefore affirmed Dunlop's convictions.
Dunlop, 721 P.2d at 608-610.
For purposes of deciding whether Whitton governs
Erickson's appeal, it is crucial to note the reasons the supreme
court gave for overruling Thessen. The Dunlop court drew a
distinction between two problems: (1) deciding whether a defen-
dant's violation of two or more statutes by a single act should be
considered one "offense" or many, as opposed to (2) deciding whether
a defendant's multiple violations of the same statute in a single
criminal event should be considered one offense or many. The court
then held that Whitton does not apply to this second problem.
Explaining why Thessen should be overruled, the supreme
court explained:
The [Thessen] majority looked ... to Whitton
for guidance in defining "single offense". [Thessen, 508 P.2d] at
1194. Since Thessen violated only one statute, albeit fourteen
times, the majority compared one count with another (rather than one
statute with another) and applied the Whitton test.
. . .
After much thought, we conclude that in
Thessen we erred in applying Whitton to
multiple violations of a single statute. ... When several deaths
or injuries occur in the course of a single incident, the offense
prohibited by the statute has been violated several times over.
Dunlop, 721 P.2d at 608-09 (first emphasis added; second emphasis
in the original) (footnotes omitted). The court further clarified
its thinking in footnote 17 of the Dunlop opinion, 721 P.2d at 608,
where the court declared, "We do not disturb our holding in Whitton
here. Whitton does not apply to these factual situations." [Fn.
1]
Under the holding in Dunlop, the Whitton rule does not
apply to Erickson's case. Erickson's case is like Dunlop and
Thessen: Erickson was convicted of violating the same criminal
statute four times during a single episode. Under Dunlop, Whitton
provides the rule for determining when two statutes define the same
"offense", but Whitton does not apply "to multiple violations of a
single statute". Dunlop, 721 P.2d at 609. Instead, under Dunlop,
the proper number of Erickson's convictions must be determined by
identifying "the gravamen of [Erickson's] offense" and then deciding
whether Erickson's conduct violated that statute four times or one.
Id.
The gravamen of second-degree sexual abuse of a minor,
defined in AS 11.41.436(a)(1), is sexual penetration of a minor
under the age of 16. Under the definition of "sexual penetration"
codified in AS 11.81.900(b)(55), as interpreted in Yearty, a
separate offense of second-degree sexual abuse of a minor is
committed whenever the defendant engages in a distinct form of
sexual penetration with the victim.
In the present case, the jury found that Erickson had
engaged in four distinct types of sexual penetration with the
victim. To paraphrase Dunlop, "[w]hen several [distinct types of
sexual penetration] occur in the course of a single incident, the
offense prohibited by the statute has been violated several times
over." 721 P.2d at 609 (emphasis in the original) (footnote
omitted). Erickson was therefore properly convicted of four counts
of second-degree sexual abuse of a minor.
Alternatively, if Whitton does apply to Erickson's case,
Whitton contemplates that appellate courts will formulate
rules of general application, like the one announced in Yearty, to
resolve recurring double jeopardy issues.
Assuming that the supreme court spoke too freely in Dunlop
and that the Whitton rule applies to Erickson's case, we must
confront Erickson's contention that Whitton calls for case-specific
double jeopardy rulings and forbids appellate courts from
formulating rules of general application to resolve recurring double
jeopardy problems.
Some of the language used in Whitton supports Erickson's
interpretation of the decision. For example, in the passage quoted
above, the supreme court called on trial judges to assess whether
significant differences in intent or conduct are revealed by "the
facts of the case". 479 P.2d at 312. Later in the opinion, the
Whitton court required trial judges to make an affirmative record
of the reasons underlying their double jeopardy rulings; in
particular, the supreme court called upon sentencing judges to
explain "the relevant factual and other considerations which led
[them] to such a decision, in order that the constitutional
legitimacy of the [ruling] may be fully reviewed on appeal." Id.
And, in answer to the anticipated criticism that the Whitton test
was too vague to provide clear guidance in future cases, the Whitton
court declared:
We have stated the factors to be
considered by the sentencing judge. We can go no further. At this
point, reason and judgment must be exercised. There is no
practicable way of formulating in advance any precise standards for
the proper or "reasonable" exercise of such reason and judgment.
Whitton, 479 P.2d at 313.
Finally, the supreme court indicated that if the
sentencing judge made a mistake in applying the Whitton criteria and
erroneously refused to sentence a defendant for all of the separate
offenses he or she had committed, the State could file a sentence
appeal. The court conceded that it would have no power to increase
the defendant's sentence in such an appeal, see AS 12.55.120(b), but
the court would be "authorized to express [its] views as to the
state's claim of excessive leniency", thus having "the salutary
effect of further clarifying this area of criminal law and of
obviating ... the same or similar mistakes in future sentencings".
Whitton, 479 P.2d at 313-14.
These passages make it appear as if a judge's double
jeopardy analysis under Whitton were merely one aspect of the
judge's sentencing decision. However, if this were true, one would
expect the Whitton court to have remanded Whitton's case to the
superior court so that, employing the just-announced Whitton
criteria, the judge who sentenced Whitton could re-examine the facts
of Whitton's case and re-evaluate the propriety of imposing separate
convictions on Whitton for robbery and use of a firearm during
robbery. This is not what the supreme court did.
Instead of dealing with the double jeopardy issue as a
question entrusted to the sentencing judge's discretion, the court
treated the issue as a question of law. The court engaged in a
generic analysis of the two criminal statutes, scarcely mentioning
the specific facts of Whitton's case, and then announced a rule that
was apparently intended to govern all future cases:
We apply the test we have adopted to this
case. Money was taken from persons in a restaurant by appellant and
his two accomplices[,] who were armed with a rifle and a pistol.
Since the presence of the firearms means that the money was taken
by force or violence, or by putting the victims in fear, the crime
committed was robbery. And since the force or violence or fear was
created specifically by the use of firearms, the more serious crime
of robbery with a firearm was also committed.
The more serious crime differs from the
less serious crime in that there can be ... robbery with or without
a firearm. But the intent and conduct involved in the former
encompasses the intent and conduct involved in the latter. Since
the more serious offense already proscribes and punishes the
activity of the less serious offense, the differences between the
two must be deemed insubstantial or insignificant in relation to the
social interests involved.
The result is that the two separate
statutory crimes constitute the "same offense" for purposes of
double jeopardy. A single sentence was all that could properly be
imposed under the double jeopardy provision of our constitution.
Whitton, 479 P.2d at 314.
The supreme court has followed this same approach to
double jeopardy issues in all of its decisions since Whitton. That
is, the court has consistently treated double jeopardy issues as
questions of law; the court has decided these issues de novo, using
statutory analysis, rather than reviewing trial court decisions for
abuse of sentencing discretion under the particular facts of the
defendant's case.
The most recent example is Todd v. State, 917 P.2d 674
(Alaska 1996), where the court held that a defendant may be
convicted of both felony-murder and the predicate felony (in Todd's
case, first-degree robbery). In its holding, the court entirely
omitted any discussion of the specific facts of Todd's case and
instead focused completely on the statutory elements and underlying
social policies of the two offenses:
Applying the Whitton test, we conclude
that felony murder and robbery are not the same offense for double
jeopardy purposes; therefore, [Todd's separate convictions] are
allowable. The statutes differ significantly in the intent and
conduct required; the most obvious difference is the requirement
under the felony-murder statute that someone have been killed.
Moreover, as we discussed above, the statutes also protect different
societal interests. The felony-murder statute protects against the
loss of human life. "In contrast, the basic rationale of the
robbery statute is protection against the terror of forcible
taking."
Todd, 917 P.2d at 681 (citation omitted).
Similarly, in State v. Dunlop, 721 P.2d at 608-610 (when
the supreme court decided that a drunk driver could be convicted of
several counts of manslaughter for killing several victims in one
collision), in Jacinth v. State, 593 P.2d 263, 266-67 (Alaska 1979)
(when the court decided that a defendant who set fire to a theater
and killed the watchman could be convicted of both arson and
manslaughter), in State v. Occhipinti, 562 P.2d 348, 351 (Alaska
1977) (when the court decided that a defendant could be separately
convicted for rape, kidnapping, and assault with a deadly weapon),
and in Mead v. State, 489 P.2d 738, 740-41 (Alaska 1971) (when the
court decided that a defendant could be separately convicted of
burglary and larceny), the supreme court did not base its decisions
on the specific facts of the defendants' cases. Instead, the court
focused solely on the statutory elements of the offenses involved
and the social policies underlying those offenses. The court did
not speak of either the "abuse of discretion" or the "clearly
mistaken" standard of review, nor did the court show any other
deference to the sentencing courts' decisions. Instead, the supreme
court decided these double jeopardy issues de novo, and the court
gave every indication that it intended its decisions to govern all
future cases raising these issues.
Moreover, in State v. Occhipinti the supreme court
silently disavowed its statement in Whitton that a sentence appeal
was the State's only remedy for an erroneous Whitton ruling. In
Occhipinti, the sentencing judge misapplied Whitton and refused to
convict and sentence the defendant separately for the offenses of
rape, kidnapping, and assault with a deadly weapon. The supreme
court held that these crimes were separate offenses under Whitton.
The court further ruled that the sentencing judge was legally
required to convict and sentence the defendant for each offense
proved by the government. Occhipinti, 562 P.2d at 349. The court
therefore granted the State's petition for writ of mandamus and
ordered the sentencing judge to enter the disputed convictions and
impose sentence. Id. at 349, 351. This ruling was, in effect,
another declaration that Whitton decisions involve questions of law,
not questions of sentencing discretion.
Finally, we note that there is a basic problem with
viewing Whitton rulings as just another aspect of a sentencing
decision. That problem is the "clearly mistaken" standard of
review.
"Clearly mistaken" is the standard of review that the
Alaska Supreme Court employs when reviewing sentencing decisions.
McClain v. State, 519 P.2d 811, 813 (Alaska 1974). It is a
deferential standard of review; that is, it gives considerable
leeway to individual sentencing judges. The "clearly mistaken" test
is founded on two concepts: first, that reasonable judges,
confronted with identical facts, can and will differ on what
constitutes an appropriate sentence; second, that society is willing
to accept these sentencing discrepancies, so long as a judge's
sentencing decision falls within "a permissible range of reasonable
sentences". State v. Wentz, 805 P.2d 962, 965 (Alaska 1991),
quoting McClain, 519 P.2d at 813.
If double jeopardy rulings under Whitton were deemed just
another aspect of a judge's sentencing decision, to be reviewed
under the "clearly mistaken" test, this necessarily means that the
supreme court would be willing to accept inconsistent double
jeopardy rulings in factually identical cases, so long as the
discrepancy could be attributed to reasonable differences of opinion
or sentencing emphasis among trial court judges. Under Erickson's
view of Whitton, two identically situated defendants who engaged in
exactly the same conduct (with exactly the same results) could
receive differing numbers of convictions and sentences and both
of these inconsistent criminal judgements would be upheld on appeal
so long as the sentencing judges were not "clearly mistaken".
McClain and Wentz allow such sentencing discrepancies when
the issue is how much time a defendant should spend in prison, or
how much of their sentence should be suspended, or how long their
probation should be. Such decisions are traditionally entrusted to
a sentencing judge's discretion, primarily because reasonable judges
can and do differ on these matters. It is, however, fundamentally
different and fundamentally unfair to empower sentencing judges
to determine, at their discretion, the number of a defendant's
convictions and sentences. The constitutional guarantee against
double punishment should apply uniformly to all defendants. We do
not believe that the supreme court intended the Whitton rule to be
interpreted and applied in the manner Erickson suggests.
For these reasons, we reject Erickson's contention that
Whitton forbids appellate courts from formulating rules of general
application to govern double jeopardy issues. The supreme court has
repeatedly demonstrated that Whitton in fact calls upon appellate
courts to formulate rules of general application to resolve
recurring double jeopardy issues.
As a matter of substantive criminal law, we reaffirm the
Yearty holding
Having determined (on alternative bases) that the Yearty
holding does not violate the supreme court's decision in Whitton,
we lastly confront Erickson's argument that Yearty was wrongly
decided as a matter of substantive law.
Erickson was found guilty of second-degree sexual abuse
of a minor sexually penetrating a child under the age of 16.
During a single criminal episode, Erickson perpetrated four distinct
forms of sexual penetration upon his victim. To determine how many
counts of sexual abuse are encompassed by this criminal episode,
Dunlop instructs us to identify the "gravamen" of the offense. 721
P.2d at 609.
Erickson argues that, for all intents and purposes, any
one form of sexual penetration is identical to any other. He
contends that the violation of the victim's bodily integrity and
privacy is essentially the same, regardless of how the penetration
is perpetrated. Yearty came to a different conclusion. In Yearty,
this court ruled that different forms of sexual penetration
constitute different forms of indignity and violation, and they thus
merit separate punishment.
We concede that reasonable people might differ on this
question. We note, however, that in the years since Yearty was
decided, the Alaska Legislature has taken no action to indicate its
disagreement with this court's conclusion.
Moreover, it is not enough for Erickson to show that the
Yearty decision was honestly debatable at the time, and that it
might have gone the other way. Under the doctrine of stare decisis,
a litigant who asks an appellate court to overrule a prior decision
must demonstrate convincing reasons why the existing rule "was
originally erroneous or is no longer sound because of changed
conditions". The litigant must also demonstrate "that more good
than harm would result from a departure from precedent". State v.
Dunlop, 721 P.2d 604, 610 (Alaska 1986), quoting State v. Souter,
606 P.2d 399, 400 (Alaska 1980). Erickson has failed to meet this
burden. We therefore adhere to our prior decision.
Conclusion
Under Yearty, Erickson was properly convicted of four
separate counts of second-degree sexual abuse of a minor. The
judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
The supreme court had previously referred to the limited
scope of the Whitton rule in Tuckfield v. State, 621 P.2d 1350, 1352
(Alaska 1981): "It is well settled that double jeopardy is violated
by conviction of both an offense and a lesser included offense,
unless the convictions arise from separate conduct. ... [This] rule
is related to, but distinguishable from, the question considered in
Whitton ... and subsequent cases, concerning when separate
punishment may be imposed for separate statutory offenses arising
out of the same conduct." (emphasis added)
