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Miller v. State (03/29/2002) ap-1796
Miller v. State (03/29/2002) ap-1796
NOTICE
The text of this opinion can be corrected before the
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
HARVEY E. MILLER, )
) Court of Appeals No.
A-7804
Appellant, )
Trial Court No. 2NO-00-025 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1796 March 29, 2002]
)
Appeal from the Superior Court, Second Judi
cial District, Nome, Ben J. Esch, Judge.
Appearances: Kirsten J. Bey, Assistant
Public Defender, Nome, and Barbara K. Brink,
Public Defender, Anchorage, for Appellant.
John R. Vacek, District Attorney, Nome, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Sometime in late 1998, Harvey E. Miller entered his
eight-year-old nieces bedroom, slipped his hand under the covers,
and placed his hand over her genital area (outside her clothing).
Originally indicted for second-degree sexual abuse of a minor
(sexual contact with a child under the age of 13)1
, Miller pleaded no contest to the reduced charge of
attempted second-degree sexual abuse of a minor. Because Miller
had a previous conviction for second-degree sexual abuse of a
minor, he faced a 2-year presumptive term of imprisonment.2
At sentencing, Millers attorney proposed mitigating
factor AS 12.55.155(d)(9) that Millers conduct was among the
least serious within the definition of attempted second-degree
sexual abuse. Superior Court Judge Ben J. Esch ruled that Miller
had failed to prove this mitigator by clear and convincing
evidence. Miller now appeals this ruling. He advances two
arguments in support of mitigator (d)(9).
First, Miller argues that he engaged in only minimal
misconduct. As stated in the pre-sentence report, Miller placed
his hand on the girls genital area and held his hand motionless
there for some length of time before withdrawing it. Miller
contends that his misconduct was unplanned and impulsive, that
his act of abuse was brief, and that he voluntarily ceased his
abusive touching before the victim protested.
There is nothing in the record to support Millers
assertion that he did not plan the act of abuse. He went into
his nieces bedroom at night and began touching her when he
thought she was asleep. Judge Esch could reasonably conclude
that Millers act of abuse was premeditated.
With regard to Millers assertion that his act of abuse
was minimal, Judge Esch pointed out that Miller had pleaded no
contest to attempted sexual contact, not the completed crime.
Thus, even minimal abusive touching or, conceivably, no touching
at all could fall within the core definition of the offense.
Judge Esch conceded that Millers argument might have some force
if Miller had touched some extremity of his victims body for
instance, her ankle with the intention of gradually moving to
sexual contact. But Miller admittedly commenced by touching his
victims genital area. Because of this, Judge Esch declared,
Miller had failed to prove by clear and convincing evidence that
his conduct fell among the least serious encompassed by the
definition of attempted second-degree sexual abuse.
On appeal, the question is whether Judge Eschs ruling
is clearly erroneous.3 We conclude that it is not, and we
therefore uphold the judges ruling.
Millers second argument is that he believed that his
victim was asleep, and therefore his conduct was factually closer
to the offense of attempted third-degree sexual assault under AS
11.41.425(a)(1)(C) engaging in sexual contact with a person who
the offender knows is unaware that a sexual act is being
committed. (In support of this argument, Miller took the stand
at the sentencing hearing and testified that he mistakenly
believed that his niece was asleep when he touched her.)
Miller points out that attempted third-degree sexual
assault (a class A misdemeanor) is a lesser class of offense than
attempted second-degree sexual abuse of a minor (a class C
felony). From this, he argues that his conduct must be among the
least serious within the definition of attempted second-degree
sexual abuse. But Millers argument is premised on a
misunderstanding of the relationship between the actus reus of
sexual assault and the actus reus of sexual abuse of a minor.
At common law, the crime of rape included sexual
penetration with a woman who was insensible i.e., a woman who
had fainted, or was asleep, or was so intoxicated as to be
utterly senseless.4 But when the Alaska legislature revised our
criminal code in 1978, they enacted a definition of sexual
assault that apparently did not cover this situation.
In AS 11.41.410(a)(1), the legislature defined the
crime of first-degree sexual assault as engag[ing] in sexual
penetration with another person without consent of that person.5
In everyday usage, the phrase without consent might be
interpreted to include situations in which the victim failed to
give their consent because they were insensible and thus unaware
of the sexual penetration. But in AS 11.41.470(3) (the 1978
version), the legislature defined without consent in a
specialized way that generally required proof that the victim was
aware of the penetration. According to this statute,
without consent means that a person
(A) with or without resisting, is
coerced by the use of force against a person
or property, or by the express or implied
threat of imminent death, imminent physical
injury, or imminent kidnapping to be
inflicted on anyone; or
(B) is incapacitated as a result of an
act of the defendant.
SLA 1978, ch. 166, 3.6 Thus, the definition
of first-degree sexual assault does not
encompass sexual penetration with an
insensible victim. Instead, the legislature
has made this conduct a lesser crime: second-
degree sexual assault under AS
11.41.420(a)(3)(B)-(C).
Similarly, sexual contact
perpetrated without consent i.e., through
coercion constitutes second-degree sexual
assault7, while sexual contact with an
insensible victim is third-degree sexual
assault under AS 11.41.425(a)(1)(B)-(C).
In contrast, the offense of sexual
abuse of a minor (in its various degrees)
does not involve questions of consent,
coercion, incapacitation, or unconsciousness.
Sexual penetration or sexual contact with a
minor under the age of 16 is unlawful even if
the minor initiates the sexual act and fully
consents to it. The statutes defining sexual
abuse of a minor contain no separate
provision or degree of crime for sexual
activity with minors perpetrated by coercion,
nor do these statutes contain a separate
provision or degree of crime for sexual
activity with minors who are incapacitated or
unaware that sexual activity is occurring.
If the sexual act is coerced, the
defendants conduct will also constitute
sexual assault in some degree. Similarly, if
the minor is incapacitated or unaware of the
sexual act, then (again) the defendants
conduct will also constitute sexual assault
in some degree. But even without coercion,
incapacitation, or unconsciousness, the
sexual conduct will still constitute sexual
abuse of a minor.
Thus, even if Miller honestly
believed that his victim was asleep, this
only means that he arguably committed two
crimes: attempted second-degree sexual abuse
of a minor (for attempting to engage in
sexual contact with an eight-year-old), and
perhaps attempted third-degree sexual assault
(for attempting to engage in sexual contact
with a person whom he believed to be unaware
that a sexual act was occurring).
(We do not decide whether these
facts actually constitute the crime of
attempted third-degree sexual assault. That
question presents legal issues that the
parties have not addressed. For present
purposes, it is sufficient to decide that
Millers conduct was in no sense mitigated by
the fact that he may also have committed a
separate crime.)
For these reasons, we uphold Judge
Eschs ruling that Miller failed to prove
mitigating factor (d)(9) by clear and
convincing evidence. The sentencing decision
of the superior court is AFFIRMED.
_______________________________
1 See AS 11.41.436(a)(2).
2 See AS 12.55.125(e)(1).
3 See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App.
1991).
4 See Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd
edition 1982), pp. 212-13.
5 See SLA 1978, ch. 166, 3.
6 This statute is now renumbered as AS 11.41.470(8). In
1983, the statute was amended to delete the adjective imminent
before the words death and kidnapping. See SLA 1983, ch. 78, 5.
7 AS 11.41.420(a)(1).
