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Wurthmann v. State (6/1/01) ap-1745
Wurthmann v. State (6/1/01) ap-1745
NOTICE
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opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM L. WURTHMANN, )
) Court of Appeals No. A-7320
Appellant, ) Trial Court No. 3AN-S98-3071 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1745 June 1, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Eric T. Sanders, Judge.
Appearances: Douglas O. Moody, Assistant
Public Defender, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. John A. Scukanec, 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.
STEWART, Judge.
MANNHEIMER, Judge, dissenting.
A jury convicted William L. Wurthmann on nine counts of
sexual abuse of a minor five counts of first-degree, [Fn. 1] two
counts of second-degree, [Fn. 2] and two counts of third-degree
[Fn. 3] for sexually abusing his live-in girlfriend's daughter.
Wurthmann appeals his conviction, arguing that the superior court
erred in denying his motion for judgment of acquittal on the two
counts of third-degree sexual abuse of a minor. Wurthmann also
argues that the superior court committed reversible error by not
instructing the jury that it must reach unanimity on specific
incidents of sexual abuse. Finally, Wurthmann argues that the
court abused its discretion by failing to redact a police
detective's opinions on Wurthmann's credibility contained in a
videotaped interview that was played to the jury. We conclude that
Wurthmann's claims are without merit and affirm the decision of the
superior court.
Facts and proceedings
Wurthmann moved in with M.L., A.L.'s mother, in 1987,
when A.L. was ten years old. Although Wurthmann never formally
married M.L., he assumed the role of A.L.'s stepfather. Wurthmann
was generally unemployed and was A.L.'s primary caretaker. In
addition to spending time with A.L., and taking her shopping and to
the movies, Wurthmann was the disciplinarian.
A.L. testified that Wurthmann began giving her backrubs
when she was ten or eleven years old. He then began touching her
breasts. When she was twelve years old, Wurthmann penetrated
A.L.'s vagina with his finger. This sexual touching progressed to
an "everyday routine" of fellatio, cunnilingus and sexual
intercourse that began when A.L. was twelve years old and continued
until she left for college. A.L. was able to describe numerous
specific incidents of sexual abuse by Wurthmann, including
instances in which he rubbed and digitally penetrated her vagina
while she lay in bed; performed cunnilingus in the living room; and
engaged in sexual intercourse in front of the fireplace, outdoors
in the shed, in Wurthmann's and M.L.'s bed, in A.L.'s bed, and in
a car in a parking lot.
Wurthmann admitted in an interview with police that he
had a consensual sexual relationship with A.L. after she turned
seventeen, but denied the allegations of earlier abuse. At trial,
Wurthmann did not testify or present evidence. His strategy was to
attack A.L.'s credibility regarding the earlier incidents of sexual
abuse by impeaching her with her prior inconsistent statements to
the police. He argued that A.L. made up the childhood sexual abuse
so she would not have to admit to her mother that she had stolen
her mother's boyfriend.
Wurthmann also moved for judgment of acquittal on two
counts of third-degree sexual abuse of a minor, arguing that he
could not be convicted for having sex with A.L. when she was
sixteen and seventeen years old because he did not occupy a
"position of authority" over her. [Fn. 4] Superior Court Judge
Eric T. Sanders concluded that whether Wurthmann was in a position
of authority over A.L. for purposes of third-degree sexual abuse
was a question of fact, and permitted Wurthmann to argue to the
jury that he did not occupy that position with respect to A.L.
The jury convicted Wurthmann on all nine counts. Judge
Sanders sentenced Wurthmann to a composite sentence of 15 years
with 3 years suspended.
Did the superior court err in denying Wurthmann's motion
for judgment
of acquittal on the two counts of third-degree sexual
abuse?
Wurthmann argues that the superior court erred by not
granting his motion for judgment of acquittal on counts eight and
nine, which charged him with third-degree sexual abuse for having
sexual intercourse with A.L. in the car on the way back from a
rafting trip when she was sixteen years old, and at home when she
was seventeen.
Under AS 11.41.438(a)(2), a person is guilty of third-
degree sexual abuse of a minor if "being 18 years of age or older,
the offender engages in sexual penetration with a person who is 16
or 17 years of age and at least three years younger than the
offender, and the offender occupies a position of authority in
relation to the victim." Wurthmann argues that this court should
reverse his conviction on these counts because he did not occupy a
"position of authority" over A.L. Wurthmann concedes that he lived
with A.L. and exercised authority over her as a father figure. But
he argues that the legislature intended "position of authority" for
purposes of the third-degree sexual abuse statute to "mean
something more than merely acting like a father." [Fn. 5]
The prohibition against sexual contact with sixteen- and
seventeen-year-olds by persons in "positions of authority" was
added to the sexual abuse statutes in 1990. These changes were
precipitated by the Satch Carlson case. [Fn. 6] Carlson, an
Anchorage high school teacher, had been charged with two counts of
sexual abuse of a minor in the first degree [Fn. 7] and one count
of sexual abuse of a minor in the second degree [Fn. 8] after he
had sex with a seventeen-year-old student. [Fn. 9] The statutes in
effect at that time prohibited adults from having sex with sixteen-
and seventeen-year-old minors entrusted to their care "by authority
of law." [Fn. 10] Superior Court Judge Karl S. Johnstone
determined that this language prohibited sex with children in this
age bracket by legal guardians, but not by teachers. [Fn. 11]
In response to the Carlson decision, the legislature
amended the sexual abuse statutes to prohibit sexual contact with
sixteen- and seventeen-year-olds by adults in "positions of
authority." [Fn. 12] The legislature intended this prohibition to
encompass not just teachers, but "substantially similar" adults "in
positions that enable them to exercise undue influence over
children." [Fn. 13] Alaska Statute 11.41.470 was amended in 1990
to provide a non-exclusive list of the individuals who occupy
positions of authority under this definition:
(5) "position of authority" means an
employer, youth leader, scout leader, coach, teacher, counselor,
school administrator, religious leader, doctor, nurse,
psychologist, guardian ad litem, babysitter, or a substantially
similar position, and a police officer or
probation officer other than when the officer
is exercising custodial control over a minor[.][ [Fn. 14]]
Contemporaneously with these amendments to the third-
degree sexual abuse statute, the phrase "position of authority" was
deleted from AS 11.41.434(a)(3)(A), the subsection of the first-
degree sexual abuse statute that prohibited an adult who had no
legal or biological relationship with a child under sixteen years
of age from having sex with that child when the victim is "residing
as a member of the social unit in the same household as the
offender and the offender is in a position of authority over the
victim." [Fn. 15] The subsection was amended to read: "the victim
at the time of the offense is residing in the same household as the
offender and the offender has authority over the victim." [Fn. 16]
Subsection (a)(3)(B) was amended at the same time to prohibit sex
with a child under sixteen by an adult who "occupies a position of
authority in relation to the victim," regardless of whether that
adult is living in the same household as the child. [Fn. 17]
Because of this distinction, Wurthmann contends that
"position of authority" for purposes of the sexual abuse statutes
must mean something more than "merely acting like a father" or the
"has authority" language in AS 11.41.434(a)(3)(A) would be
completely subsumed within subsection (a)(3)(B) and would be
surplusage.
We agree with Wurthmann that this change in the wording
in the first-degree sexual abuse statute has only one reasonable
explanation: the legislature intended to distinguish between an
individual who lives in the same household and "has authority" over
a child and one who occupies a "position of authority" over a child
as defined in AS 11.41.470(5). But we disagree that a person who
"has authority" over a child under AS 11.41.434(a)(3)(A) can in no
circumstances also occupy a "position of authority" over that
child. Wurthmann offers no evidence from the legislative history
of the 1990 amendments to the sexual abuse statutes to indicate
that the legislature intended this result.
A more persuasive explanation is that the legislature
reworded AS 11.41.434(a)(3)(A) to delete "position of authority"
because it did not want to require proof of this additional
element, as newly defined in AS 11.41.470(5), to find that a
household member had committed first-degree sexual assault. A
roommate, adult step-sibling, or live-in boyfriend might, depending
on the dynamics of the household, the personalities of the
individuals involved, and the amount of authority the legal or
biological parent delegates, have only limited and intermittent
authority over a child in the household. But a live-in boyfriend
who assumes the position of a stepfather has additional influence
by virtue of his status as a person of special trust in the child's
life. [Fn. 18] Although the first-degree sexual abuse statute
prohibits sexual abuse of children under sixteen by both categories
of offenders, the third-degree statute, which punishes sexual
conduct with older children, reaches only offenders who by virtue
of their position in relation to the child irrespective of the
level of authority they actually exercise have undue influence
over a child. [Fn. 19] Judge Sanders correctly concluded that this
is a fact-bound inquiry appropriately left to the jury. [Fn. 20]
Generally, criminal statutes are strictly construed in
favor of the defendant. [Fn. 21] But "[s]trict construction does
not require that statutes be given the narrowest meaning allowed by
the language; rather, the language should be given 'a reasonable or
common sense construction, consonant with the objectives of the
legislature.'" [Fn. 22] The 1990 revisions were expressly intended
to extend the reach of the sex abuse statutes to persons "in
positions that enable them to exercise undue influence over
children." [Fn. 23] As the State points out, it would be
unreasonable to attribute to the legislature an intent to impose
criminal liability on a babysitter or teacher but not a live-in
boyfriend who assumes the role of a stepfather and is even better
positioned to manipulate a child in his care. [Fn. 24]
Wurthmann's argument that live-in boyfriends necessarily
fall outside the reach of AS 11.41.438(2) is not supported by the
language and history of the sexual abuse statutes and is contrary
to the legislature's intent to criminalize sexual conduct with
sixteen- and seventeen-year-old minors by adults in positions of
authority. Because Wurthmann assumed authority over A.L. not just
as her mother's live-in boyfriend, but as A.L.'s stepfather and
primary caretaker, a reasonable jury could conclude that he
exercised undue influence over A.L. and was in a "position of
authority" over her for purposes of AS 11.41.438(a)(2). [Fn. 25]
We thus reject Wurthmann's claim that the superior court erred in
denying his motion for judgment of acquittal.
Does the superior court's erroneous Covington instruction
require reversal?
During the discussion of jury instructions, the parties
and the court discussed the need for an instruction under Covington
v. State [Fn. 26] that the jury must agree unanimously that the
defendant committed the specific incident of sexual abuse charged
in each count of the indictment. The parties and the court agreed
on an instruction to meet this requirement. However, the
instruction that the court actually gave was not the agreed
instruction. Instead, Judge Sanders instructed the jury that it
only needed to unanimously agree that the particular type of sexual
conduct alleged in each count for example, digital penetration
had occurred in the relevant period. That instruction permitted
the jury to convict the defendant without agreement on a specific
incident of abuse for each count.
The parties agree that this instruction did not meet the
Covington requirements that the jury must unanimously agree that a
specific incident of sexual abuse alleged in a count of the
indictment occurred within the time period covered by the count.
However, Wurthmann failed to object when this instruction was read
to the jury. [Fn. 27] But because an erroneous Covington
instruction implicates a defendant's constitutional right to a
unanimous verdict, we review his claim for plain error. [Fn. 28]
An error affecting constitutional rights is harmless under a plain
error analysis if it did not appreciably affect the verdict. [Fn.
29]
In Covington I, and on rehearing in Covington II, we
concluded that Covington was denied his right to a unanimous
verdict because the State did not elect a specific incident of
sexual abuse within each count to support Covington's conviction
and because no clarifying instruction was given requiring the jury
to unanimously agree on specific incidents of sexual abuse. [Fn.
30] We described the circumstances under which such an error would
be prejudicial and require reversal:
In a case where discrete incidents of sexual
abuse are charged together in a single count, and impeaching and
contrary evidence of differing weight is offered to rebut the
several incidents, a real possibility exists that individual jurors
will reject some incidents, based upon an evaluation of the
impeaching and contrary evidence, but accept other incidents as
proven. In such a case, the twelve jurors may agree that the
defendant committed at least one of the incidents, but be in
general disagreement as to which incident that was. [ [Fn. 31]]
We concluded that these circumstances were not present in
Covington. The complaining witness had shared a bed with her
father for years and had engaged in sexual intercourse almost every
night. [Fn. 32] She thus was not able to differentiate between
various incidents of sexual abuse. [Fn. 33] Covington denied that
he had ever had sex with his daughter. Under these circumstances,
"no impeaching or contrary evidence was more applicable to one
incident than another" and the jury was faced with a straight
question of credibility. [Fn. 34] The jury's verdict convicting
Covington on all counts established that it had accepted the
daughter's testimony and rejected Covington's contrary claims. [Fn.
35]
Wurthmann argues that the superior court's erroneous
Covington instruction was not harmless in his case because he
impeached A.L. about specific incidents of sexual abuse. Because
the only specific incidents Wurthmann impeached were A.L.'s
allegations that he had digitally penetrated her at age twelve and
engaged in sexual intercourse with her at age thirteen, he is in
effect arguing that the jury may have convicted him on counts I and
III, two counts of first-degree sexual assault, without reaching
unanimity on an underlying incident of abuse.
This argument fails as to count I because A.L. described
only one specific incident of digital penetration that occurred
when she was twelve, the age covered by this count. Wurthmann
attempted to impeach A.L. with her prior statement to police that
the first incident of digital penetration occurred when she was
thirteen. The jury, by convicting Wurthmann on this count, must
have rejected his impeaching evidence and unanimously agreed that
the incident A.L. related at trial had been proved beyond a
reasonable doubt.
Wurthmann's argument also fails as to count III because
Wurthmann challenged only one of two separate incidents of sexual
intercourse alleged during the time period covered by this count.
Even assuming that the jury rejected A.L.'s trial testimony
regarding the first incident of sexual intercourse in front of the
fireplace because it was inconsistent with her initial statement to
police, it is unlikely that the jury would have rejected A.L.'s
uncontradicted testimony regarding a second incident that occurred
in the shed. The fact that the jury convicted Wurthmann on all
counts indicates that it accepted A.L.'s testimony that Wurthmann
began abusing her when she was twelve years old and rejected
Wurthmann's claim that A.L. had fabricated the abuse. Given the
jury's credibility determination, there is little doubt that the
jury would have reached unanimity on the second incident of sexual
abuse that Wurthmann failed to impeach or contradict.
We conclude that the trial court's error in failing to
instruct the jury on the need for unanimity as to specific
incidents of sexual abuse was harmless. Given the evidence and the
jury's credibility determination, it cannot be fairly said that the
jury would have failed to reach unanimity on the conduct alleged if
it had been properly instructed. [Fn. 36]
Did the superior court abuse its discretion by
not redacting the detective's opinions from an interview played to
the jury?
Wurthmann next argues that Judge Sanders erred in
declining to redact statements Detective Randy Carroll made in a
pre-arrest interview of Wurthmann that indicated that he believed
A.L.'s allegations of sexual abuse and disbelieved Wurthmann's
denials. The videotape of this interview was played to the jury.
In his interview of Wurthmann, Detective Carroll said he
believed that A.L.'s allegation that the sexual abuse had spanned
years was closer to the truth than Wurthmann's claim that a sexual
relationship did not begin until A.L. was seventeen years old.
Wurthmann argued at trial that admitting Carroll's assertions
regarding Wurthmann's credibility would be reversible error. Judge
Sanders disagreed and declined to redact these statements of
opinion. However, Judge Sanders noted that he would provide the
jury a limiting instruction that Carroll's comments were not
admitted for the truth but to give context to Wurthmann's answers.
Detective Carroll stated in this interview that he
believed Wurthmann had sexual contact with A.L. when she was under
seventeen because of admissions Wurthmann had made in his letters
to A.L. Because these letters were admitted into evidence, the
jury had the opportunity to independently evaluate the basis for
Carroll's suspicions. Moreover, Carroll's comments were so
integral to the interview that their removal would have deprived
the jury of the context for Wurthmann's statements. [Fn. 37]
Furthermore, Carroll testified that his statements were part of an
interview strategy designed to encourage Wurthmann to admit his
criminal conduct. Thus, there was little risk of prejudice from
Carroll's comments. [Fn. 38] We conclude that Judge Sanders did
not abuse his discretion by declining to redact Carroll's
statements. [Fn. 39]
Conclusion
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, dissenting.
I agree with my colleagues that most of Wurthmann's
convictions should be affirmed. However, I conclude that
Wurthmann's two convictions for third-degree sexual abuse of a
minor must be reversed. Although Wurthmann engaged in sexual
penetration with A.L., he did not occupy a "position of authority"
in relation to her, and thus his conduct does not fall within the
legislature's definition of the crime.
The legal problem presented here
Wurthmann engaged in sexual penetration with A.L. when
she was between the ages of 16 and 18. Under Alaska law, the
normal age of consent for sexual activity is 16. That is, A.L.
could validly consent to sexual activity with most adults. But the
legislature has raised the age of consent in various situations in
which the adult has a special relationship with the teenager.
One of these exceptions is for adults who occupy a
"position of authority" with respect to the teenager. The term
"position of authority" is defined in AS 11.41.470(5). This statute
declares that "position of authority" refers to adults who are the
teenager's
employer, youth leader, scout leader, coach,
teacher, counselor, school administrator, religious leader, doctor,
nurse, psychologist, guardian ad litem, babysitter, or [who occupy
a] substantially similar position[.]
All of these adults, because of their professional or quasi-
professional roles, are deemed to have greater influence over
teenagers, thus justifying the legislature in enacting special
provisions to govern their sexual relations with teenagers.
But Wurthmann did not occupy any of these professional or
quasi-professional roles with respect to A.L.. Rather, he was the
live-in boyfriend of A.L.'s mother. True, Wurthmann's relationship
with A.L.'s mother lasted for many years, and he came to occupy the
role of A.L.'s de facto stepfather. But Wurthmann does not easily
fit into any of the categories of adults mentioned in the statutory
definition of "position of authority". Instead, Wurthmann seems to
be squarely covered by another special category of adults defined
in the sexual abuse statutes: adults who "resid[e] in the same
household as the [teenager] and ... ha[ve] authority over the
[teenager]". [Fn. 1]
If Wurthmann had been charged with first- or second-
degree sexual abuse of a minor, it would make no difference whether
he was a "same household" adult or a "position of authority" adult.
The statutes defining first-degree and second-degree sexual abuse
of a minor treat these two groups of adults exactly the same. Both
groups are treated more harshly than other adults if they engage in
sexual penetration with a teenager who is 13, 14, or 15 years old.
(They are guilty of first-degree sexual abuse rather than second-
degree sexual abuse.) [Fn. 2] Likewise, both groups are treated
more harshly than other adults if they engage in sexual contact
with a teenager who is 13, 14, or 15 years old. (They are guilty
of second-degree sexual abuse rather than third-degree sexual
abuse.) [Fn. 3]
But Wurthmann was charged with third-degree sexual abuse,
and here the legislature did not treat the two groups the same.
Under AS 11.41.438(a)(2), "position of authority" adults are guilty
of third-degree sexual abuse if they engage in sexual penetration
with a 16- or 17-year-old. However, this statute does not contain
a parallel provision governing "same household" adults. Therefore,
if the State was to convict Wurthmann of third-degree sexual abuse,
it was not enough for the State to prove that he lived in the same
household as A.L. and exercised authority over her. Rather, the
State had to prove that Wurthmann held a "position of authority"
over A.L. as that term is defined in AS 11.41.470(5).
Why I conclude that Wurthmann did not occupy a "position
of authority" with respect to A.L.
The statutory provisions dealing with "same household"
adults were enacted in 1988, while the "position of authority"
provisions were not enacted until two years later, in 1990.
Obviously, the legislature thought that they needed to create a new
category, "position of authority", to deal with situations that were
not already covered by the "same household" provisions. But more
important, for purposes of deciding Wurthmann's case, is the fact
that the legislature did not delete the "same household" provisions
when they enacted the "position of authority" provisions. This
means that the legislature did not think that the new category
(adults in positions of authority) encompassed the old category
(adults residing in the same household who exercise authority over
the child).
This conclusion that the legislature did not think
these two groups were the same is emphasized most vividly by the
wording of AS 11.41.438, the third-degree sexual abuse of a minor
statute. This statute raises the age of consent to 18 in
particular circumstances. When the legislature amended AS
11.41.438 in 1990 to make it a crime for certain adults to engage
in sexual penetration with 16- and 17-year-olds, the legislature
omitted "same household" adults and included only "position of
authority" adults. Thus, the legislature obviously thought that
there was a substantive difference between these two groups, and
the legislature intended for these two groups to be treated
differently with regard to their sexual relations with 16- and 17-
year-olds. "Position of authority" adults commit a crime when they
engage in such conduct; "same household" adults do not.
(a) To uphold Wurthmann's conviction for third-
degree sexual abuse, the majority has been forced to
re-write the definition of "position of authority"
Wurthmann is clearly a "same household" adult. For years,
he lived in the same household as A.L., and he had substantial
authority over her; in essence, he was A.L.'s stepfather. But to
be convicted of third-degree sexual abuse, Wurthmann had to be a
"position of authority" adult.
So how does Wurthmann, a "same household" adult, become
transformed into a "position of authority" adult? The majority's
answer is that "same household" adults can gradually become
"position of authority" adults, depending on how long they live in
the household with the teenager and how much authority over the
teenager they are given by the teenager's legal parent (or,
alternatively, how much authority they arrogate for themselves,
even without the parent's consent).
According to the majority, a live-in boyfriend's
ascension to the status of "position of authority" hinges on "the
dynamics of the household, the personalities of the individuals
involved, and the amount of authority the legal or biological
parent delegates". (Slip Opinion, page 7) The majority declares
that
[a] roommate, adult step-sibling, or live-in
boyfriend might ... have only limited and intermittent authority
over a child in the household. But a live-in boyfriend who assumes
the position of a stepfather has additional influence by virtue of
his status as a person of special trust in the child's life. [A
live-in boyfriend can be deemed to occupy a "position of authority"
if,] by virtue of [his] position in relation to the child ... [, he
has] undue influence over a child. ... [T]his is a fact-bound
inquiry appropriately left to the jury.
Slip Opinion, pages 7-8.
Some might agree that it is good policy to forbid sexual
relations between teenagers and any adult who, because of "the
dynamics of the [relationship and] the personalities of the
individuals involved", comes to exercise "undue influence" over the
teenager. But that is not the law the legislature wrote. AS
11.41.470(5) does not define "position of authority" in terms of the
psychological strengths and weaknesses of the parties, or the
dynamics of their relationship. Rather, the statute contains a
list of professional and quasi-professional roles that might give
an adult undue influence over a teenager. "De facto stepparent" is
not among this list.
Conversely, if an adult does perform one of the roles
listed in AS 11.41.470(5), the statute does not require proof that
this adult actually exercised undue influence over the teenager
"undue influence" as determined by "the dynamics of [their
relationship]" and "the personalities of the individuals involved".
Rather, the adult's professional or quasi-professional role, by
itself, conclusively establishes that the adult occupies a
"position of authority".
(b) Not only has the majority re-written the
definition of "position of authority", but they have done it badly
Not only has the majority effectively re-written the
definition of "position of authority", but they have drafted a legal
standard so vague that it practically invites unequal application.
According to the majority, the question of whether an adult
occupies a "position of authority" must be answered by determining
whether that adult is in a position to exercise "undue influence"
over the teenager by virtue of the adult's status "as a person of
special trust in the child's life." This status, the majority
declares, is to be determined by assessing the "dynamics" of the
relationship between the adult and the teenager, as well as "the
personalities of the individuals involved".
There is nothing in the majority's definition that
requires the adult to be living in the same household as the
teenager, nor is there anything in this definition that requires
proof that the adult fills one of the professional or quasi-
professional roles listed in AS 11.41.470(5), or any other role
substantially similar to those listed. The test has become "undue
influence", pure and simple. Or rather, not so simple.
The majority asserts that "undue influence" is a "fact-
bound issue" that juries should decide. But what standard is a
jury to use? The majority says that the idea is to identify adults
who occupy a position of "special trust", given the "personalities"
of the adult and the teenager and the "dynamics" of their
relationship. But these generalities do not provide much guidance
to a jury seeking to decide whether a particular defendant occupied
a position of authority with respect to a particular teenager. Nor
do these generalities provide much guidance for trial judges who
will inevitably have to draft jury instructions and answer jury
questions about what this test means.
I fear that such a hazy and subjective legal test will
only encourage juries to convict a defendant when they perceive him
as predatory and, conversely, acquit a defendant when they perceive
the teenager as sexually aggressive. This is not good law and,
more important, it is not what the legislature had in mind.
(c) In addition, the majority's interpretation of
"position of authority" makes the legislature's "same household"
provisions redundant
The majority concludes that the term "position of
authority" applies to any adult who exercises authority comparable
to the authority enjoyed by the groups of adults listed in AS
11.41.470(5). But this is a misreading of AS 11.41.470(5). This
statute does not say that an adult will be deemed to occupy a
"position of authority" if the adult exercises authority that is
substantially similar to the types of authority exercised by the
listed groups. Rather, the statute says that an adult will be
deemed to occupy a "position of authority" if the adult occupies a
position that is substantially similar to the professional and
quasi-professional positions listed in the statute. When the
statute refers to adults who occupy a "substantially similar
position", the statute is speaking of adults who occupy similar
professional or quasi-professional roles and not, as the majority
apparently concludes, all adults who might exercise equal or
greater authority over a child.
The problem with the majority's interpretation of the
statute becomes clearer if one examines the groups of adults who
are listed in AS 11.41.470(5) as occupying "positions of authority".
The statute lists employers, youth leaders, scout leaders, coaches,
teachers, counselors, school administrators, religious leaders,
doctors, nurses, psychologists, guardians ad litem, and
babysitters. Generally speaking, these adults have only limited
contact with, and only intermittent authority over, the children
that they deal with in their professional or quasi-professional
roles.
Except in the case of "babysitters" (a term that could
conceivably encompass people who provide all-day child care, five
days a week), it appears that any adult in the legislature's "same
household" category that is, any adult who resides in the same
household as the child and who has been granted authority over the
child will generally have an equal or better opportunity to
pressure or manipulate a child into sexual activity than the groups
of adults listed in the "position of authority" statute. For
instance, it is difficult to imagine what kind of authority a
household member might exercise over a child that would be less
than the degree of authority exercised by a doctor or nurse who
might see the child twice a year for half an hour, or by a
babysitter who is hired to spend an evening with the child once
every month or two.
If, as the majority appears to hold, an adult must be
deemed to occupy a "position of authority" as long as the adult
exercises the same minimal amount of control over a child that
characterizes such professionals and quasi-professionals, then
essentially every adult who lives in the same household as a child
and who exercises authority over the child will occupy a "position
of authority" in relation to that child for any such adult will
certainly have at least the same limited degree of contact with the
child, and the same circumscribed supervisory authority over the
child, that characterizes the people listed in AS 11.41.470(5).
For this reason, the majority's interpretation of the
"position of authority" statute violates one of the primary rules
of statutory construction: that a court should assume that the
legislature did not enact redundant or useless statutes. If two or
more related statutory provisions arguably apply to a particular
set of circumstances, a court should assume that the legislature
intended these statutory provisions to mean different things. "One
of the prime directives of statutory construction is to avoid
interpretations that render parts of a statute 'inoperative or
superfluous, void or insignificant'." [Fn. 4] Courts must presume
that, if the legislature saw fit to enact two or more separate
statutory provisions dealing with the same problem or issue, the
legislature must have believed that each provision was necessary
and, thus, that each provision applied to a different aspect of the
problem or issue.
Under the majority's expansive interpretation of
"position of authority", there would be no need for the legislature
to enact separate provisions to prohibit sexual activity between
children and the adults who reside with them and exercise authority
over them. Any such adults would occupy "positions of authority".
This indicates that the majority's interpretation of the statute is
incorrect.
(d) The majority's interpretation of "position of
authority" appears to be at odds with the legislative history of
the sexual abuse statutes
I acknowledge that there is a certain moral force behind
the majority's decision to hold Wurthmann guilty of third-degree
sexual abuse. Because of his long-term relationship with A.L.'s
mother, Wurthmann assumed the role of A.L.'s de facto stepfather.
Thus, Wurthmann's real authority over A.L. was more expansive and
continuous than the types of authority exercised by the groups of
adults listed in AS 11.41.470(5), the statute defining "position of
authority". From this, the majority concludes that Wurthmann's
role in A.L.'s life must have amounted to a "position of authority".
"[I]t would be unreasonable," the majority asserts, to think that
the legislature "inten[ded] to impose criminal liability on a
babysitter or teacher but not a live-in boyfriend who assumes the
role of a stepfather and is even better positioned to manipulate a
child in his care." (Slip Opinion at 9)
But the legislative history of the sexual abuse statutes
does indeed offer good reason to think that the legislature knew
what they were doing, and made a purposeful choice, when they
raised the age of consent to 18 for adults in positions of
authority but kept the age of consent at 16 for adults who live in
the same household and exercise authority over a teenager.
The "same household" provisions i.e., the amendments to
the first- and second-degree sexual abuse statutes that increased
the penalties for adults who engage in sexual activity with
teenagers if they live in the same household as the teenager and
exercise authority over the child were enacted in 1988. The
declared purpose of these 1988 amendments was to treat live-in
boyfriends more like stepfathers when they engaged in sexual
activity with teenagers under their authority.
Prior to 1988, a stepfather who engaged in sexual
relations with a 13-, 14-, or 15-year-old stepchild was guilty of
an unclassified felony (first-degree sexual abuse), but a live-in
boyfriend who engaged in similar sexual activity with his
girlfriend's child was treated like any other adult; that is, he
was guilty of only a class B felony (second-degree sexual abuse).
The 1988 amendments increased the punishment for sexual activity
between an adult and a child under the age of 16 years if the adult
was "residing as a member of the social unit in the same household
as the [victim]" and if the adult exercised authority over the
child. In other words, the amended law applied to adults who
functioned as de facto members of the teenager's family.
However, the legislature did not completely eliminate the
disparity between stepfathers and live-in boyfriends. For
stepparents, the legislature raised the age of consent to 18. That
is, stepparents were guilty of sexual abuse (in either the first or
second degree) if they engaged in sexual activity with stepchildren
under the age of 18. But for live-in boyfriends even live-in
boyfriends who function exactly like stepfathers the legislature
expressly decided to leave the age of consent at 16.
In the letter of intent that accompanied the 1988
amendments, the House Judiciary Committee declared that 16 years of
age, rather than 18, should be the cut-off point for a live-in
boyfriend's criminal liability:
The addition of AS 11.41.434(a)(3) ...
recognizes that the most serious forms of
child sexual abuse are often committed by
those who live in the same household as the
victim or who are temporarily entrusted with
the victim's care.
Despite having no legal authority over the
victim, such persons are nonetheless in a
position of power such that even older
children often find it impossible to thwart
their advances. ... [T]he new changes apply
only to victims from 13 to 15 years old. The
cutoff at 16 years of age was specifically
chosen instead of the 18-year-old cutoff in
other subsections dealing with persons with
legal or biological ties to the victim.
1988 House Journal 2331.
Thus, the legislature understood that the new law would
create a discrepancy between the criminal liability of stepparents
and the criminal liability of live-in boyfriends. The age of
consent for stepparents would be 18, while the age of consent for
live-in boyfriends would be 16. Assistant Attorney General Dean J.
Guaneli told the House Judiciary Committee that this disparate
treatment "was a judgment call" by the law's drafters. He
explained, "[W]ith certain types of offenders, such as a parent or
legal guardian, it may not be possible for someone sixteen or
seventeen years of age to avoid the advances of [such an] adult, so
it is appropriate to prohibit sexual [activity between them] up to
age 18. [But with] a live-in boyfriend[,] ... it may not be the
same." [Fn. 5]
There is no similar letter of intent to explain the
legislature's purpose when they amended the definition of third-
degree sexual abuse in 1990. But the legislature's action can
reasonably be construed as a purposeful continuation of the policy
they adopted in 1988 the policy that the age of consent should
remain at 16, even when an adult lives in the same household as the
teenager and exercises authority over the child.
In the first- and second-degree sexual abuse statutes,
"same household" adults and "position of authority" adults are
treated exactly the same. (In fact, the "same household" and the
"position of authority" provisions appear as linked pairs in both
statutes.) With respect to both groups, the first- and second-
degree sexual abuse statutes do not alter the normal age of
consent; i.e., the age of consent remains at 16. But the statutes
impose a more severe penalty on "same household" and "position of
authority" adults for sexual activity that is already criminal for
other adults sexual activity with teenagers between the ages of
13 and 16.
The third-degree sexual abuse statute is different. It
raises the age of consent to 18, thus punishing sexual activity
that would not be criminal for other adults sexual penetration
with a 16- or 17-year-old. The legislature wrote this statute so
that "position of authority" adults commit third-degree sexual abuse
when they engage in such conduct, but "same household" adults do
not.
My colleagues can not find any conceivable rationale for
the legislature's action, at least when the "same household" adult
exercises the same kind of authority (or greater authority) than
the adults who pursue the professions and quasi-professions listed
in AS 11.41.470(5). But one could reasonably argue that the
wording of the third-degree sexual abuse statute simply re-confirms
the legislature's 1988 policy decision not to raise the age of
consent for "same household" adults.
The majority suggests that there is little to recommend
this policy. Be that as it may, it is the legislature's role to
set policy, and it is this court's role to interpret statutes as
the legislature intended. The legislature consciously chose not to
raise the age of consent for "same household" adults when they
created that category of offender in 1988. Although the matter
obviously can be debated, there is good reason to believe that the
legislature was simply following that same policy when, in 1990,
they wrote the third-degree sexual abuse statute to exclude "same
household" adults.
Ambiguous criminal statutes must be interpreted against
the government. [Fn. 6] Thus, Wurthmann does not have to
convincingly prove that this is exactly what the legislature was
thinking when they wrote the third-degree sexual abuse statute to
include "position of authority" adults while at the same time
excluding "same household" adults. Rather, it is the State's (and
the majority's) burden to show that Wurthmann's interpretation of
the legislature's actions is untenable. I do not believe that this
interpretation of the legislative history is untenable, and I
therefore conclude that this court has a duty to interpret the
statute in Wurthmann's favor.
Conclusion
For the reasons explained here, I conclude that the
majority has wrongly construed the definition of "position of
authority" codified in AS 11.41.470(5). Although Wurthmann lived
in the same household as A.L. and exercised substantial authority
over her, Wurthmann did not occupy a "position of authority" in
relation to A.L.. I therefore conclude that Wurthmann could not
legally be convicted of third-degree sexual abuse of a minor.
FOOTNOTES
Footnote 1:
AS 11.41.434(a)(1), (a)(3)(A).
Footnote 2:
AS 11.41.436(a)(2).
Footnote 3:
AS 11.41.438(a)(2).
Footnote 4:
See AS 11.41.438(a)(2).
Footnote 5:
We apply our independent judgment in interpreting statutes.
See Conner v. State, 696 P.2d 680, 682 (Alaska App. 1985).
Footnote 6:
See Committee Minutes, House Health, Education and Social
Services Standing Committee hearing on S.B. 355 (March 9, 1990).
Footnote 7:
Former AS 11.41.434(a)(2)(A).
Footnote 8:
Former AS 11.41.436(a)(3)(A).
Footnote 9:
See State v. Carlson, No. 3AN-S89-7443 CR (Alaska Super.,
January 18, 1990).
Footnote 10:
Former AS 11.41.434(a)(2)(A); former AS 11.41.436(a)(3)(A).
Footnote 11:
See Carlson, No. 3AN-S89-7443 CR at 4.
Footnote 12:
See AS 11.41.438(a)(2); ch. 151, sec. 3, SLA 1990.
Footnote 13:
Letter of Intent for S.B. 355, 1990 House Journal 4199; 1990
Senate Journal 4220.
Footnote 14:
Ch. 151, sec. 5, SLA 1990.
Footnote 15:
Emphasis added. The following changes were made to AS
11.41.434(a)(3)(A)-(B):
(a) An offender commits the crime of
sexual abuse of a minor in the first degree if
....
(3) being 18 years or older, the
offender engages in sexual penetration with a person who is under
16 years of age, and
(A) the victim at the time of the
offense is [(A)] residing [AS A MEMBER OF THE SOCIAL UNIT] in the
same household as the offender and the offender has [IS IN A
POSITION OF] authority over the victim; or
(B) the offender occupies a position
of authority in relation to the victim [TEMPORARILY ENTRUSTED TO
THE OFFENDER'S CARE].
See ch. 151, sec. 1, SLA 1990.
Footnote 16:
AS 11.41.434(a)(3)(A); see supra (emphasis added) note 14.
Footnote 17:
Emphasis added. See supra note 14.
Footnote 18:
Cf. Carter v. Brodrick, 644 P.2d 850, 855 (Alaska 1982)
(holding that a stepchild is a "child of the marriage" for purposes
of granting visitation to a stepparent if the stepparent has
assumed the status of in loco parentis).
Footnote 19:
See AS 11.41.470(5); Letter of Intent for S.B. 355, 1990 House
Journal 4199; 1990 Senate Journal 4220.
Footnote 20:
See State v. Beason, 2 P.3d 459, 463 (Utah App. 2000) (quoting
Utah Code Ann. sec. 76-5-404.1(3)(h) (1995) ("Whether a person not
specifically listed in the statute was in a position of special
trust, defined as a 'position of authority, who, by reason of that
position is able to exercise undue influence over the victim,' ...
presents a question of fact to be determined by the trier of fact
in each case.")).
Footnote 21:
See Conner, 696 P.2d at 682.
Footnote 22:
Id. at 682 (quoting Belarde v. Anchorage, 634 P.2d 567, 568
(Alaska App. 1981)); see also Hillman v. Anchorage, 941 P.2d 211,
215 (Alaska App. 1997) (courts should avoid construing statutes to
defeat the obvious legislative purpose).
Footnote 23:
Letter of Intent for S.B. 355, 1990 House Journal 4199; 1990
Senate Journal 4220; Committee Minutes, Senate Judiciary Committee
Hearing on S.B. 355 (January 23, 1990).
Footnote 24:
See Peters v. State, 943 P.2d 418, 420 (Alaska App. 1997)
(statutes dealing with the same or related subject matter should be
construed as harmoniously as possible).
Footnote 25:
See Willett v. State, 836 P.2d 955, 957 (Alaska App. 1992).
Footnote 26:
703 P.2d 436 (Alaska App. 1985) (Covington I), modified on
reh'g, 711 P.2d 1183 (Alaska App. 1985) (Covington II).
Footnote 27:
See Alaska R. Crim. P. 30.
Footnote 28:
See Covington II, 711 P.2d at 1184 (citing Alaska R. Crim. P.
47(b)). Alaska R. Crim. P. 47(b) provides: "Plain errors or defects
affecting substantial rights may be noticed although they were not
brought to the attention of the court."
Footnote 29:
See Covington II, 711 P.2d at 1185 (citing Van Hatten v.
State, 666 P.2d 1047, 1056-57 (Alaska App. 1983)).
Footnote 30:
See id. at 1184 (citing Covington I, 703 P.2d at 441).
Footnote 31:
Id. at 1185.
Footnote 32:
See id.
Footnote 33:
See id.
Footnote 34:
Id.
Footnote 35:
See id.
Footnote 36:
See Covington II, 711 P.2d at 1185; Love v. State, 457 P.2d
622, 630-32 (Alaska 1969).
Footnote 37:
See Linne v. State, 674 P.2d 1345, 1356 n.8 (Alaska App.
1983) (court did not err in failing to exclude hearsay portions of
videotaped interview with defendant because the jury could not have
understood defendant's responses without hearing the questions that
elicited them).
Footnote 38:
See Sakeagak v. State, 952 P.2d 278, 282-83 (Alaska App.
1998).
Footnote 39:
See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980) (trial
court's evidentiary rulings reviewed for abuse of discretion).
FOOTNOTES (Dissent)
Footnote 1:
See AS 11.41.434(a)(3)(A) (first-degree sexual abuse of a
minor) and AS 11.41.436(a)(5)(A) (second-degree sexual abuse of a
minor).
Footnote 2:
Compare AS 11.41.434(a)(3) with AS 11.41.436(a)(1).
Footnote 3:
Compare AS 11.41.436(a)(5) with AS 11.41.438(a)(1).
Footnote 4:
Champion v. State, 908 P.2d 454, 464 (Alaska App. 1995)
(quoting 22,757 Square Feet, more or less v. State, 799 P.2d 777,
779 (Alaska 1990)).
Footnote 5:
Minutes of the House Judiciary Committee, January 26, 1988:
hearing on House Bill 237.
Footnote 6:
See Wells v. State, 706 P.2d 711, 713 (Alaska App. 1985) ("It
is well established that ... ambiguities in penal statutes must be
resolved in favor of the accused.").
