Notice: This opinion is subject to formal correction
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DONALD LEE SCROGGINS, )
) Court of Appeals No. A-6512
Appellant, ) Trial Court No. 3AN-S96-2075CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1567 - January 2, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Jill Jensen, Leutwyler, Brion &
Associates, Anchorage, for Appellant. Adrienne P. Bachman,
Assistant District Attorney, Susan A. Parkes, District Attorney,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
Donald Lee Scroggins was convicted, based upon his plea
of no contest, of attempted sexual abuse of a minor in the first
degree, a class A felony. AS 11.41.434(a)(1); AS 11.31.100.
Superior Court Judge Milton M. Souter determined that Scroggins was
a second felony offender for purposes of presumptive sentencing
based upon Scroggins' 1982 California conviction for lewd or
lascivious acts upon a child. California Penal Code  288(a).
Judge Souter found that two aggravating factors applied to
Scroggins' sentence and imposed an aggravated presumptive sentence
of fifteen years' imprisonment with three years suspended. Judge
Souter placed Scroggins on probation for a period of ten years
following his release from confinement. Scroggins appeals, arguing
that his California conviction is not a prior felony conviction for
purposes of presumptive sentencing. We agree and we therefore
vacate Scroggins' sentence.
The resolution of this issue is governed by AS
12.55.145(a)(1)(B) which provides:
For purposes of considering prior con-
victions in imposing sentence under [the
presumptive sentencing statutes], a conviction in this or another
jurisdiction of an offense having elements similar to those of a
felony defined as such under Alaska law at the time the offense was
committed is considered a prior felony conviction[.]
Here, Scroggins concedes his California conviction, but he argues
that the California offense is not similar enough to any felony
under Alaska law. Whether an out-of-state conviction constitutes
a prior felony for purposes of presumptive sentencing is a question
of law, which this court reviews de novo. See Borja v. State, 886
P.2d 1311, 1313-14 (Alaska App. 1994).
Scroggins was convicted in California of the crime of
lewd or lascivious acts upon a child under the age of fourteen, for
conduct committed on May 11, 1982. We therefore compare Alaska law
as of May 11, 1982, with the California statute under which
Scroggins was convicted, to determine whether the elements of the
California offense are "similar" to any Alaska felony. See AS
12.55.145. California Penal Code  288(a), under which Scroggins
was convicted in 1982, provided:
Any person who shall willfully and lewdly
commit any lewd or lascivious act . . . upon
or with the body, or any part or member thereof, of a child under
the age of 14 years, with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of such person or
of such child, shall be guilty of a felony and shall be imprisoned
in the state prison for a term of three, six, or eight years.
Potentially similar felonies defined under Alaska law at the time
the offense was committed include sexual abuse of a minor in the
second degree, AS 11.41.436(a)(2) and (3), and unlawful exploita-
tion of a minor, AS 11.41.455(a)(2)-(6). These offenses require
proof of sexual contact.
In 1982, under former AS 11.81.900(b)(51), "sexual
contact" meant
(A) the intentional touching, directly or
through clothing, by the defendant of the victim's genitals, anus,
or female breast; or
(B) the defendant's intentionally causing
the victim to touch, directly or through clothing, the defendant's
or victim's genitals, anus, or female breast.
In addition, this conduct must have been intended to result in
either the sexual arousal or sexual gratification of the actor or
of the victim. See Flink v. State, 683 P.2d 725, 733 (Alaska App.
1984) (since superseded by statute).
As Scroggins points out, the California statute prohibits
the touching of any body part of the child. See People v.
Martinez, 45 Cal.Rptr.2d 905 (Cal. 1995) (prohibited touching need
not be of intimate body part); People v. Diaz, 49 Cal.Rptr.2d 252,
253-54 (Cal. App. 1996) (touching of sexual organs not required;
any part of the body may be the object of sexual fetish, and any
touch, in fulfillment of such a fetish, is harmful to the child and
prohibited by statute); People v. Sharp, 36 Cal.Rptr.2d 117, 128-32
(Cal. App. 1994) (defendant's acts of luring girl to fence,
twirling the hair at the back of her neck around his index finger,
rubbing girl's back, and telling her not to tell her mother about
the incident sufficient to support conviction); People v. O'Connor,
10 Cal.Rptr.2d 530, 533 (Cal. App. 1992) (section 288 not
restricted to genital touching). In contrast, the relevant Alaska
statutes prohibit the touching or obscene exhibition of sexual
organs: the child's, defendant's, or another person's genitals,
anus, or female breast. Thus, the Alaska statutes' focus on the
genitals, anus or female breast is considerably narrower than the
California statute's prohibition against touching any body part.
In Borja, 886 P.2d at 1314, we stated:
AS 12.55.145(a)(2)[ [Fn. 1]] does not require
that the out-of-state offense be identical to an Alaska felony
only that its elements be "similar" to those of an Alaska felony.
Implicit in this statutory wording is the possibility that there
will be some acts covered by one statute that will not be covered
by the other.
In Borja, we found a sufficient degree of similarity between the
California offense of being an accessory to a felony and the Alaska
offense of first-degree hindering of prosecution to allow the
California conviction to qualify as a prior felony conviction under
AS 12.55.145(a)(2). Id. However, in the instant case, the fact
that the California statute prohibits the touching of any body part
of the child makes that element of the California statute apply to
more conduct than is prohibited by the Alaska statute. We conclude
that the elements of Scroggins' prior felony conviction for lewd or
lascivious conduct toward a child are not sufficiently similar to
the analogous Alaska felonies. Thus, Scroggins' California
conviction does not qualify as a prior felony for presumptive
sentencing purposes. We accordingly vacate Scroggins' sentence and
remand the case to the superior court with directions to the court
to sentence Scroggins as a first felony offender. [Fn. 2]
The case is REMANDED for resentencing.
FOOTNOTES
Footnote 1:
Alaska Statute 12.55.145(a)(2) has been amended and
renumbered. The current version of the statute is AS
12.55.145(a)(1)(B).
Footnote 2:
Even though Scroggins' prior California felony conviction
does not qualify as a prior felony conviction for purposes of
presumptive sentencing under AS 12.55.145, the sentencing court can
properly consider this prior conviction in resentencing him. See,
e.g., Burnette v. Anchorage, 823 P.2d 10, 14 n.4 (Alaska App.
1991); Harlow v. State, 820 P.2d 307, 309 n.2 (Alaska App. 1991);
Garroutte v. State, 683 P.2d 262, 269 (Alaska App. 1984).
