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Beltz, Jr. v. State of Alaska (5/28/99) ap-1635
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
THOMAS L. BELTZ, JR., )
) Court of Appeals No. A-6651
Appellant, ) Trial Court No. 3PA-92-294 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1635 May 28, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Palmer, Beverly W. Cutler, Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. William H. Hawley, 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.
Thomas L. Beltz, Jr., was convicted of two counts of
first-degree sexual abuse of a minor [Fn. 1] for engaging in sexual
penetration with his eleven-year-old daughter. The facts of the
case are summarized in Beltz v. State, 895 P.2d 513, 515 (Alaska
App. 1995). In Beltz, we reversed Beltz's original convictions
because he was denied the opportunity to fully cross-examine one of
the witnesses against him. [Fn. 2] Beltz has now been re-convicted
of the same charges, and he again appeals. For the reasons
explained here, we reject all of Beltz's arguments on appeal and we
affirm his convictions.
Beltz first argues that the jury was misinstructed
concerning the definitions of "fellatio" and "cunnilingus", two of
the forms of sexual penetration defined in AS 11.81.900(b)(56).
Beltz asked the trial judge to instruct the jury that both of these
forms of sexual penetration require proof that one or both
participants obtained "stimulation" or "sexual satisfaction".
Beltz argues that, because Title 11 of the Alaska Statutes
contains no definition of either "fellatio" or "cunnilingus", courts
should look to the dictionary definition of these terms. Beltz
points out that some dictionaries define "fellatio" and
"cunnilingus" as forms of "stimulation" that are intended to result
in "sexual satisfaction". [Fn. 3] From this, Beltz concludes that
"fellatio" and "cunnilingus" require proof that one or both of the
participants obtained sexual stimulation from the act.
Sexual stimulation may normally be the intended result of
these two forms of sexual activity, but the dictionaries Beltz
relies on are guilty of confusing the activity with the intended
result. Not all dictionaries fall into this error. For example,
Webster's New World Dictionary of American English (3rd College
Edition, 1988) defines "cunnilingus" as "a sexual activity involving
oral contact with the female genitals"; the same dictionary defines
"fellatio" as "a sexual activity involving oral contact with the
penis". [Fn. 4]
Moreover, even if every dictionary in common use defined
"cunnilingus" and "fellatio" as Beltz suggests, we would still
reject Beltz's contention that these forms of sexual activity
require proof of sexual stimulation. When a court seeks the legal
definition of terms used in a statute, the ultimate task is to
ascertain what the legislature meant when it used these terms. "The
guiding principle of statutory construction is to ascertain and
implement the intent of the legislature or agency that promulgated
the statute or regulation." [Fn. 5] Because the legislature may
use a term in a different way from its common usage, "[i]dentifying
the 'plain meaning' of a word or phrase used in a regulation does
not end the process of statutory construction". [Fn. 6]
[Even though] the "plain meaning" of a
term is determined, ... the court should not apply it mechanically.
Alaska Public Employees Assoc. v. Fairbanks, 753 P.2d 725, 727
(Alaska 1988). Instead, the court uses a sliding scale approach to
statutory interpretation in which it also considers the legislative
history of the statute and whether the history reveals a legislative
intent and meaning which is contrary to the plain meaning. Id.
Stephan v. State, 810 P.2d 564, 566 (Alaska App. 1991). The
legislative history of AS 11.81.900(b)(55) and (b)(56) the
statutory definitions of "sexual contact" and "sexual penetration"
shows that the legislature did not intend these terms to require
proof of sexual satisfaction or stimulation.
Alaska's definition of sexual penetration was drawn from
the law of Michigan. [Fn. 7] The Michigan courts construed this
definition as requiring only proof of the prohibited contact,
regardless of the actor's intent. For example, in People v. Garrow
[Fn. 8], the defendant was convicted of engaging in non-consensual
sexual penetration with his former girlfriend. After finding the
ex-girlfriend with another man, the defendant attacked her and
gouged her vagina with his fingers. [Fn. 9] The defendant argued
that he had not committed "sexual penetration" because his assault
was not sexually motivated. [Fn. 10] The Michigan Court of Appeals
rejected this contention. The court held that "sexual penetration"
did not require proof of any specific intent, and thus the
defendant's conduct constituted sexual penetration even though the
penetration may have been motivated by anger or a desire to injure
and humiliate, rather than sexual desire. [Fn. 11]
The legislative history of the sibling definition, "sexual
contact", is even clearer: the Alaska legislature expressly amended
this definition after this court construed the former definition to
require proof of the defendant's intent to achieve sexual arousal
or gratification. This history is recapitulated in Peratrovich v.
State. [Fn. 12]
We particularly note that, when the legislature amended
the definition of "sexual contact" to undo the interpretation
adopted by this court, the legislature described the goal of its
amendment in the Senate Journal:
In adopting [the current definition of "sexual
contact"], the legislature intends to reaffirm that crimes involving
sexual contact and sexual penetration are general intent crimes.
1984 Senate Journal, p. 3387.
As illustrated by the facts of Garrow (the Michigan
decision described above), and as this court noted in Peratrovich
[Fn. 13], sexual activity is often motivated, not by an intent to
obtain or bestow sexual stimulation, but rather by the defendant's
desire to dominate, exploit, humiliate, or degrade the victim.
Recognizing this fact, the legislature has declared that "sexual
penetration" and "sexual contact" require proof of nothing more than
the prohibited physical contact. Beltz's proposal to graft a
requirement of sexual stimulation onto the definition of "sexual
penetration" runs counter to this purpose.
We therefore conclude that "sexual penetration" does not
require proof that either party sought or obtained sexual
stimulation. [Fn. 14] Accordingly, we hold that oral-genital
contact, no matter what the intent or the result, is sufficient to
prove cunnilingus or fellatio. Beltz's jury was correctly
instructed.
Beltz next contends that his confession to the Alaska
State Troopers was involuntary and should have been suppressed. The
facts of Beltz's case are somewhat atypical. As we described in our
prior opinion in this case [Fn. 15], Beltz appeared unannounced at
the Palmer office of the Alaska State Troopers; he reported that his
daughter had accused him of sexual abuse. When a clerk informed
Investigator Jamie Hall that there was a gentleman at the front
counter who wished to "talk to somebody about sex abuse", Hall met
Beltz and interviewed him for forty minutes. [Fn. 16] During this
interview, Bell at first asserted that his daughter's account was
false, but he later admitted that "[e]verything my daughter says is
true". [Fn. 17]
Beltz contends that Hall took advantage of Beltz's
agitated mental state by seeming to befriend him and by implicitly
promising that Beltz would receive lenient treatment if he
confessed. Beltz relies primarily on the following exchange:
HALL: If there was a time that you might
have made a mistake, if there was, you're human, I'm human, we've
made mistakes. Okay? If it was just a time or two, and it hasn't
happened since, and it's not going to happen again, that's one
thing. If it's something that's happened hundreds of times ... ,
that's something else. But if it was one mistake, one moment of
passion, one moment of of dirty thoughts or whatever, if there
was something that kind of took control of you at that time, it's
not like you've done it a hundred times. Am I making sense?
BELTZ: Sure. I understand.
HALL: Okay.
BELTZ: I understand what you're ...
HALL: Okay.
BELTZ: There's never, ever been any other
actions towards my daughter on my part, other other than this one
incident. Okay.
. . .
HALL: Well, it's not the end of the
world.
BELTZ: I understand that.
HALL: It's a log in the trail; let's step
over it, and we'll go on ... with our life.
Beltz argues that, because Hall downplayed the seriousness of
Beltz's crime, Beltz was led to believe that he would suffer no
consequences if he confessed.
In general, "the fact that an interrogator is sympathetic
or friendly toward a defendant, or professes a general desire to
help, does not in itself render a subsequent confession
involuntary." [Fn. 18] For instance, in Thompson v. State [Fn.
19], this court rejected a claim of involuntariness based on facts
similar to Beltz's case.
Thompson claimed that his confession was involuntary
because, during the police interview with Thompson, the officers
"played on his sympathies, minimized his guilt, and placed much of
the blame for the homicide on the victim". [Fn. 20] We held that
such interview strategies do not, per se, result in an involuntary
confession. We noted that the ultimate test of voluntariness is
whether, under the totality of the circumstances, "the conduct of
law enforcement [officers] was such as to overbear [the defendant's]
will to resist and bring about confessions not freely self[-]
determined." [Fn. 21] We also noted that we had previously upheld
confessions made after the police told defendants that they would
be better off telling the truth, or that their cooperation might
influence the ultimate result of the investigation or prosecution.
[Fn. 22]
At the hearing on Beltz's suppression motion, Beltz
testified that he was mentally agitated during his interview with
Hall and that, when Hall minimized the seriousness of Beltz's
criminal conduct, Beltz interpreted this as an implicit promise that
he would suffer no consequences if he confessed to a single episode
of sexually abusing his daughter. Superior Court Judge Beverly W.
Cutler, who presided at this hearing, declared that Beltz's
testimony was "highly suspect" that it appeared to her that Beltz
had contrived his testimony to satisfy the test for involuntariness.
We note that Beltz voluntarily contacted the troopers when
they had no reason to suspect him of criminal conduct. He was not
in custody when he was interviewed, and our review of the tape shows
that both Hall and Beltz remained calm and casual throughout the
interview.
Moreover, Beltz was a mature adult and no stranger to the
criminal justice system: he had spent much of his career in law
enforcement. Beltz was employed as a correctional officer in 1977,
an airport security officer from 1977 to 1979, a public safety
officer from 1979 to 1983, a private security officer from 1983 to
1985, a correctional officer again from 1985 to 1989, and a private
security officer again from 1989 to 1992. He attended the Airport
Police academy in 1978, the Municipal Police academy in 1980, the
Alaska Correctional Officers academy in 1986.
Given Beltz's age, his background, and the circumstances
and atmosphere of the interview, Judge Cutler could reasonably
conclude that Beltz did not interpret Hall's remarks as a promise
of immunity from prosecution for sexual abuse of a minor. We agree
with Judge Cutler that, under the totality of these circumstances,
Hall did nothing to overbear Beltz's will. Beltz's confession was
"freely self-determined" and therefore voluntary.
Beltz's remaining contentions on appeal attack various
aspects of his sentencing.
Beltz argues that his conduct was among the least serious
within the definition of first-degree sexual abuse of a minor, and
therefore his offenses were mitigated under AS 12.55.155(d)(9).
Beltz bases his argument on the fact that his assault on his
daughter was a one-time incident of brief duration, involving no
physical injury and only slight penetration.
The fact that Beltz's conduct was an isolated incident of
sexual abuse may mean that his conduct was not aggravated, but this
fact does not establish that his conduct was mitigated. [Fn. 23]
Nor does the absence of violence place Beltz's conduct among the
least serious in its class, for "the typical child sexual abuse case
involves little or no violence". [Fn. 24]
We note also that the evidence suggests that Beltz's
sexual abuse of his daughter was premeditated: he awakened his
daughter, instructed her to take both Tylenol and a cold medication
even though she was not sick, and then Beltz directed her to sleep
in his bed.
It was Beltz's burden to prove the proposed mitigator by
clear and convincing evidence that is, to clearly and convincingly
prove that his conduct was among the least serious encompassed
within the definition of first-degree sexual abuse of a minor. [Fn.
25] Judge Cutler concluded that Beltz had not met that burden. To
prevail on appeal, Beltz must show that Judge Cutler's decision to
reject the mitigator was clearly erroneous. [Fn. 26] Having
reviewed the record, we conclude that Beltz has failed to show this.
Beltz next argues that, even if his offense was not among
the least serious, Judge Cutler still should have referred his case
to the statewide three-judge sentencing panel on the basis that the
8-year presumptive term for sexual abuse of a minor is manifestly
unjust. [Fn. 27] Beltz relies primarily on Judge Cutler's remark
at sentencing that, if the legislature had not enacted an 8-year
presumptive term for first felony offenders convicted of first-
degree sexual abuse of a minor, "half the superior court judges in
the state" would have concluded that 5 years was an adequate prison
term for an offense like Beltz's.
Even if we assume the truth of Judge Cutler's remark
that is, even if we assume that many judges would sentence Beltz to
less than the 8-year presumptive term if his case were not governed
by presumptive sentencing this does not establish that the 8-year
presumptive term is manifestly unjust in Beltz's case. It is the
legislature, not the judiciary, which establishes the punishment or
range of punishments for a particular offense. As the Alaska
Supreme Court has said,
[J]udgments as to the extent to which the
community condemns a particular offense are more properly made in
the legislative [arena] than by the judiciary.
Leuch v. State, 633 P.2d 1006, 1012-13 (Alaska 1981).
The presumptive term for an offense represents the
legislature's assessment of the appropriate sentence for a typical
offender within that category. [Fn. 28] Even if half the judges
of this state disagreed with the legislature's assessment, that
would be irrelevant. As the Alaska Supreme Court has explained,
Save only as limited by constitutional
safeguards, the legislature may choose any reasonable means to
protect the people from the violation of criminal laws. In general,
the comparative gravity of offenses and their classification and
resultant punishment is for legislative determination.
Alex v. State, 484 P.2d 677, 685 (Alaska 1971).
When the legislature promulgated AS 12.55.165 and 175
the so-called "safety valve" statutes the legislature recognized
that there might be unusual circumstances in which the prescribed
presumptive term of imprisonment would be manifestly unjust (even
after all possible adjustment for aggravating and mitigating
factors). In such circumstances, a defendant's case can be referred
to the three-judge sentencing panel a panel that has the power
to impose sentence outside the normal constraints of presumptive
sentencing. But these "safety valve" statutes do not authorize
sentencing judges to disregard the legislature's assessment
concerning the relative seriousness of the crime or the general
appropriateness of the prescribed penalty.
In other words, for purposes of AS 12.55.165 and 175, a
presumptive term can not be "manifestly unjust" in general. It can
only be "manifestly unjust" as applied to a particular defendant.
Before a sentencing judge can properly characterize a presumptive
term as "manifestly unjust", the judge must articulate specific
circumstances that make the defendant significantly different from
a typical offender within that category or that make the defendant's
conduct significantly different from a typical offense.
Judge Cutler's sentencing remarks demonstrate that she
understood and applied these legal principles. She stated:
[T]he question is not [whether judges
might impose a lesser sentence in the absence of presumptive
sentencing], but how does the legislat[ure's] presumptive sentencing
scheme apply to Mr. Beltz's conduct? Because our job as judges is
to apply the law ... , not to ignore the law, [even if] maybe, on
our own, we would have done something slightly different[.]
It was Beltz's burden to show, by clear and convincing
evidence, that the circumstances of his case made the 8-year
presumptive term manifestly unjust. [Fn. 29] As explained above,
Judge Cutler expressly rejected Beltz's assertion that his conduct
was among the least serious within the definition of first-degree
sexual abuse of a minor. We have upheld that ruling. Beltz failed
to offer any other significant reason why his background or his
conduct should be deemed extraordinarily different from the
background or conduct of a typical first felony offender convicted
of first-degree sexual abuse of a minor. We therefore uphold Judge
Cutler's refusal to refer Beltz's case to the three-judge panel on
this basis.
Beltz offers one other argument why Judge Cutler should
have referred his case to the three-judge panel. He asserts that
he demonstrated an extraordinary potential for rehabilitation, thus
qualifying for the non-statutory mitigating factor recognized in
Smith v. State. [Fn. 30]
Again, it was Beltz's burden to prove by clear and
convincing evidence that he had extraordinary potential for
rehabilitation. [Fn. 31] Judge Cutler found that Beltz had failed
to prove this non-statutory mitigator. She declared that, although
Beltz appeared to be a "very functional individual", the record did
not support his claim of extraordinary potential for rehabilitation.
Judge Cutler noted, in particular, that Beltz continued to deny that
he had committed the offenses.
According to the pre-sentence report, Beltz continued to
profess his innocence of any wrongdoing, and he told the pre-
sentence investigator that he had "no desire to attend" the sex
offender treatment program offered by the Department of Corrections
at Hiland Mountain. The pre-sentence investigator noted that Beltz
had not attended any treatment programs while he was in custody.
The author of the report concluded, "[b]ased upon [Beltz's]
unwillingness to accept any responsibility for his actions [and his
lack of] remorse, ... [Beltz's] rehabilitation will be difficult to
achieve."
Both at the sentencing hearing and in his brief to this
court, Beltz has advanced various reasons why he could not openly
admit his guilt or participate in sex offender treatment. This
misses the point. The question is whether Beltz demonstrated, by
clear and convincing evidence, that he had extraordinary potential
for rehabilitation. Even after the jury found him guilty, Beltz was
of course entitled to protest his innocence and to decline to
participate in therapy. But Beltz bore the burden of proving the
proposed mitigator, and Judge Cutler had to make her decision on the
record before her.
When a defendant proposes the non-statutory mitigator of
extraordinary potential for rehabilitation, it is the defendant's
burden to prove by clear and convincing evidence
"that [the defendant] can adequately be treated
in the community and need not be incarcerated for the full
presumptive term in order to prevent future criminal activity."
Such a prediction of successful treatment and non-recidivism should
only be made when the sentencing court is reasonably satisfied both
that it knows why a particular crime was committed and that the
conditions leading to the criminal act will not recur either
because the factors that led the defendant to commit the crime are
readily correctable or because the defendant's criminal conduct
resulted from unusual environmental stresses unlikely ever to recur.
Lepley v. State, 807 P.2d 1095, 1100 (Alaska App. 1991) (quoting
Kirby v. State [Fn. 32]).
The record in this case shows that Beltz has refused to
acknowledge responsibility for his crimes and has declined to engage
in any therapy or treatment. He thus failed to advance any
explanation for his crimes, nor did he provide Judge Cutler with
convincing evidence "that the conditions leading to [his] criminal
act[s] will not recur". The record thus supports Judge Cutler's
ruling that Beltz failed to prove an extraordinary potential for
rehabilitation.
We have considered and rejected all of Beltz's claims on
appeal. Accordingly, the judgement of the superior court is
AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.434(a)(2)(B).
Footnote 2:
See id. at 519.
Footnote 3:
See The Random House Dictionary of the English Language, The
Unabridged Edition (1973), pp. 354 and 522, respectively; Webster's
Third New International Dictionary, Unabridged (1963), pp. 554 and
836, respectively.
Footnote 4:
Id., pp. 338 and 498, respectively.
Footnote 5:
Millman v. State, 841 P.2d 190, 194 (Alaska App. 1992).
Footnote 6:
Id.
Footnote 7:
See Alaska Revised Criminal Code, Tentative Draft (1977), Part
I, Article 4. The draft definition of "sexual penetration",
TD 11.41.460(4), is found at page 72. The derivation of this
definition, Michigan Compiled Laws sec. 750.520(a), is found in
Appendix Two ("Derivations") at page 100.
Footnote 8:
298 N.W.2d 627 (Mich. App. 1980).
Footnote 9:
See id. at 628.
Footnote 10:
See id. at 629.
Footnote 11:
See id. at 629-630.
Footnote 12:
903 P.2d 1071, 1076-78 (Alaska App. 1995).
Footnote 13:
See Peratrovich, 903 P.2d at 1076.
Footnote 14:
We note that, even in jurisdictions that define "cunnilingus"
and "fellatio" as being forms of sexual "stimulation", the courts
tend to construe "stimulation" broadly, so that any oral-genital
contact qualifies as "cunnilingus" or "fellatio". See Brady v.
State, 722 So.2d 151, 155 (Miss. App. 1998); State in the Interest
of S.M., 666 A.2d 177, 180-81 (N.J. App. 1995); State v. Beaulieu,
674 A.2d 377, 378 (R.I. 1996). See also State v. Clark, 666 N.E.2d
308, 309-310 (Ohio App. 1995); Horton v. Commonwealth, 499 S.E.2d
258, 261-62 (Va. 1998).
Footnote 15:
See Beltz, 895 P.2d at 515.
Footnote 16:
Id.
Footnote 17:
Id.
Footnote 18:
Cole v. State, 923 P.2d 820, 831 (Alaska App. 1996).
Footnote 19:
768 P.2d 127, 131-32 (Alaska App. 1989).
Footnote 20:
Id. at 131.
Footnote 21:
Id. (quoting Stobaugh v. State, 614 P.2d 767, 772 (Alaska
1980)).
Footnote 22:
See id. at 131-32.
Footnote 23:
See State v. Woods, 680 P.2d 1195, 1198 (Alaska App. 1984).
Footnote 24:
Simpson v. State, 796 P.2d 840, 843 (Alaska App. 1990).
Footnote 25:
See AS 12.55.155(f).
Footnote 26:
See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App.
1991).
Footnote 27:
See AS 12.55.165.
Footnote 28:
See Mullin v. State, 886 P.2d 1323, 1328 (Alaska App. 1994);
Juneby v. State, 641 P.2d 823, 833, 838 (Alaska App. 1982), modified
on rehearing, 665 P.2d 30 (Alaska App. 1983).
Footnote 29:
See AS 12.55.165(a); Kirby v. State, 748 P.2d 757, 763-64
(Alaska App. 1987).
Footnote 30:
711 P.2d 561, 570-72 (Alaska App. 1985).
Footnote 31:
See footnote 29.
Footnote 32:
748 P.2d 757, 766 (Alaska App. 1987).
