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Knutsen v. State (11/26/2004) ap-1958
Knutsen v. State (11/26/2004) ap-1958
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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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN C. KNUTSEN, )
) Court of Appeals
No. A-8471
Appellant, )
Trial Court No. 3NA-02-00004 CR
)
v. ) O P I N
I O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1958 - November 26, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Naknek, Fred Torrisi, Judge.
Appearances: Paul Malin, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
The State charged John C. Knutsen with six counts of
producing indecent photographs of minors under the age of 13
without their parents consent (a felony), and two counts of
producing indecent photographs of adults without their consent (a
misdemeanor).1 Knutsen worked as a lifeguard at the Bristol Bay
Borough swimming pool in Naknek. In January 2002, before a
community swim night, Knutsen secretly installed a video camera
in the womens locker room at the pool, and he pre-set the camera
to record. The video camera captured images of two women and six
young girls in various states of undress. Another pool employee
apparently discovered the camera before the community swim ended.
Shortly afterwards, Knutsen told the police that he was the one
who had set up the video camera in the locker room. Knutsen
never viewed the videotape.
Knutsen essentially conceded that he was guilty of the
two misdemeanor charges (taking indecent photographs of the adult
women), but he asserted that he was innocent of the felony
charges (taking indecent photographs of the young girls).
Knutsen contended that his sole intent was to videotape adult
women, and he asserted that he had not realized that minors would
be present in the locker room. The jury found that Knutsen
acted knowingly with respect to the fact that he would capture
images of minors on his video camera, and thus the jury convicted
Knutsen on all counts. Knutsen now appeals, raising two issues.
Knutsen first contends that Superior Court Judge Fred
J. Torrisi gave the jurors a misleading and incorrect instruction
concerning Knutsens defense that he was unaware that he might
photograph minors in the swimming pool locker room. We conclude
that this issue is moot because, under the facts of this case,
Knutsens asserted defense was no defense at all.
As we explain in more detail below, if there had been
evidence that Knutsen attempted to notify and obtain the consent
of the persons he videotaped or, in the case of the young
children, evidence that Knutsen attempted to notify and obtain
the consent of their parents or guardians then the State would
have been obliged to prove that Knutsen acted with a culpable
mental state regarding the age of his victims. However, when (as
in Knutsens case) there is no evidence that a defendant charged
with indecent viewing or photography attempted to notify and
obtain the consent of the proper persons, the State need not
prove that the defendant acted with any culpable mental state
regarding the age of the victim(s). Thus, Knutsen was not
entitled to any jury instruction on the issue of his awareness
(or lack of awareness) concerning the possibility that the video
camera he installed might photograph minors.
Knutsen next contends that, because he performed only a
single act of photography (i.e., one act of placing a camera in
the womens locker room and recording a videotape), he could only
be convicted of one count of indecent photography, not eight. He
argues that the superior court violated the double jeopardy
clause of the Alaska Constitution by entering eight convictions
against him (six felony counts and two misdemeanor counts). But
we conclude that the rationale of Knutsens offense is the
violation of the victims privacy. Because Knutsen violated the
privacy of eight victims, he was properly convicted of a separate
offense for each victim.
The elements of the indecent photography statute, and
the issue of whether the State must prove that the
defendant acted with a culpable mental state with
regard to the age of the victim
Alaska Statute 11.61.123(a) defines the
offense of indecent viewing or photography. The actus
reus of this offense consists of knowingly view[ing] or
produc[ing] a picture of the private exposure of the
genitals, anus, or female breast of another person. As
used in this statute, the phrase private exposure means
that the victim has exposed their body in a place, and
under circumstances, that caused the victim to
reasonably believe that their body would not be viewed
by the defendant or that pictures of their body would
not be produced.2
The statute specifies that the act of viewing
or photography is a crime if the viewing or the
production of the picture is done without the knowledge
or consent of the person viewed or depicted (if the
victim is at least 13 years old), and/or without the
knowledge or consent of that persons parent or guardian
(if the victim is younger than 16 years). That is, the
statute divides people into three categories. If the
person viewed or photographed is older than 16, the
viewer or photographer must notify that person or
obtain that persons permission. If the person is
between the ages of 13 and 16, the viewer or
photographer must notify that person or obtain that
persons permission and, in addition, must notify the
persons parent or guardian and obtain their permission.
Finally, for children younger than 13, the childs own
knowledge or permission is unnecessary, but the viewer
or photographer must notify the persons parent or
guardian and obtain their permission.
The statute provides differing penalties for
this offense, depending on the age of the victim.
Violation of the statute is a class A misdemeanor if
the victim is an adult, a class C felony if the victim
is a minor.3
Alaska Statute 11.61.123(a) specifies that
the culpable mental state of knowingly applies to the
act of viewing or producing a picture of another
persons private exposure of their genitals, anus, or
female breast. The statute does not specify a culpable
mental state concerning the victims (and/or their
parent or guardians) lack of knowledge or consent. But
another statute, AS 11.81.610(b)(2), states that when a
criminal statute does not set forth a specific culpable
mental state regarding a circumstance or result, the
offense should normally be interpreted to require proof
that the defendant acted recklessly with regard to this
circumstance or result. Because the victims (and/or
their parent or guardians) lack of knowledge or consent
is a circumstance that makes the defendants conduct
criminal under AS 11.61.123(a), we interpret AS
11.61.123(a) to mean that the State is obliged to prove
that the defendant acted recklessly with regard to the
lack of required knowledge or consent.4
Thus, in the present case, it was the States
burden to prove that Knutsen knowingly photographed the
victims private exposure of their genitals, anus, or
breasts, and that he acted recklessly with regard to
the fact that this photography was occurring without
the requisite knowledge or consent the knowledge or
consent of the young childrens parents or guardians,
and the knowledge or consent of the two adults.
Knutsen argues that, with regard to the six
felony charges (i.e., the charges involving the
minors), the State was not only required to prove these
two culpable mental states but, in addition, the State
was required to prove that Knutsen knew that he would
be photographing minors in the locker room. We
conclude that there will be times when the State is
required to prove a defendants awareness of the
possibility that the victims are minors, but this proof
was not required in Knutsens case.
Alaska Statute 11.61.123(a) distinguishes
between adult and minor victims for two different
purposes: (1) specifying the people who must consent
to the defendants act of viewing or photography if this
act is to be legal, and (2) establishing differing
penalties for the offense of non-consensual viewing or
photography, depending on the age of the victim.
With regard to this first purpose
identifying the people whose consent is required the
victims age determines the defendants legal duty. A
defendant will be obliged to seek the consent of
different people, depending on whether the victim is
older than 16, or is between the ages of 13 and 16, or
is younger than 13. Thus, for example, if the person
being photographed is younger than 13, the statute
declares that it is unnecessary for the defendant to
obtain that childs consent, but the defendant must
obtain the consent of the childs parent or guardian.
But what if the defendant, acting under the
reasonable but mistaken belief that the child is
younger than 13, obtains the permission of the childs
parent or guardian but neglects to obtain the
permission of the child? The statute declares that,
for children between the ages of 13 and 16, the
defendant must obtain the childs permission as well as
the permission of the childs parent or guardian.
Seemingly, the defendant might face conviction for a
felony because of the defendants failure to obtain the
childs permission, even though the defendant reasonably
believed that only the parent or guardians permission
was needed.
In these instances, the victims age defines
the scope of the defendants duty to obtain permission
for the viewing or photography and, thus, the victims
age determines whether the defendants act of
photography was criminal or non-criminal. We therefore
conclude that when a defendant has obtained permission
from one of the people named in the statute (the person
being photographed, or their parent or guardian), but
the State asserts that, because of the victims age,
someone elses permission was required, the State is
obliged to prove that the defendant acted with a
culpable mental state regarding the victims age. In
these cases, the victims age is a circumstance that
determines whether the defendant has violated the
statute; thus, the required culpable mental state is
recklessly. See AS 11.81.610(b)(2).
We emphasize that this culpable mental state
regarding the victims age need be proved only in cases
where the defendant asserts that they attempted to
obtain the necessary permission or consent but, because
of a mistake regarding the victims age, they mistakenly
obtained this permission or consent from the wrong
person. Compare our discussion of a similar issue in
Kingsley v. State,5 where we held that, in prosecutions
for driving while intoxicated, the government is not
obliged to prove the operability of the vehicle unless
there is evidence affirmatively suggesting that the
vehicle was not operable.6
Knutsens case does not fall within this
category. His case presented no issue of consent.
Knutsen never attempted to obtain permission from
either the victims of his videotaping or their parents
or guardians. Rather, his act of photography was
surreptitious. Because of this, Knutsens conduct was
criminal regardless of the age of his victims, and the
victims age was relevant only for the second purpose
mentioned above to determine the penalty for Knutsens
offense of non-consensual photography.
Several times in the past, we have held that
no culpable mental state need be proved regarding a
circumstance or result if that circumstance or result
does not alter the criminality of the defendants
conduct but instead serves only to trigger a greater
punishment for the offense. The most pertinent example
is Bell v. State, 668 P.2d 829 (Alaska App. 1983).
The defendant in Bell was convicted of first-
degree promotion of prostitution, AS 11.66.110(a)(2),
for inducing or causing a child under the age of 16 to
engage in prostitution. Bell asserted that he
mistakenly believed that the girl was older than 16,
and he asked to have the jury instructed on the defense
of reasonable mistake of fact.7 The trial judge
refused to instruct the jury on this purported defense,
and we upheld the trial judges decision. We explained:
It is apparent that the legislature
considered procurement of a person under
sixteen to be an aggravated form of promoting
prostitution. The commentary to [the draft
version of this statute] states that ...
creation of strict liability was intended as
to the element of the offense involving [the]
age of the victim.
. . .
We ... note that [imposition of strict
liability on this element of the offense] is
in accord with the common law view that there
should be no exculpation for mistake where,
if the facts had been as the actor believed
them to be, [the actors] conduct would still
be illegal or immoral. As Bell recognizes on
appeal, his conduct would still have been
illegal even if [the girl] had been sixteen
or over.
. . .
Under [the statute], it is Bells
intentional procurement of a person ... for
prostitution that renders him liable for
first-degree promoting, regardless of his
actual awareness of that persons age. The
act of procuring another for prostitution is
malum in se, without regard to the age of the
person procured, and thus ... in a
prosecution for procuring a person under the
age of sixteen years, the [defendants] intent
to procure satisfies the ... constitutional
requirement of criminal intent.[8]
As was true in Bell, Knutsens
underlying act his act of surreptitiously
photographing people who were changing their
clothes in the womens locker room was a
crime regardless of the age of the people
whose privacy was violated. Our holding in
Bell suggests that, even though Knutsens
degree of punishment hinged on the age of his
victims, the State was not obliged to prove
that Knutsen acted with any culpable mental
state regarding his victims ages.
In another case, Ortberg v. State,9
we interpreted the criminal mischief statutes
not to require proof of a culpable mental
state regarding the monetary value of the
damage caused by the defendants conduct. The
defendant in Ortberg was convicted of
intentionally damaging property of another in
an amount of $500 or more. This amount of
damage made Ortbergs offense a class C
felony.10 Ortberg argued that the State was
required to prove that he knew or at least
acted recklessly concerning the fact that he
had caused at least $500 worth of damage.
But we rejected Ortbergs argument. We
concluded that, although the State was
obliged to prove that Ortberg intentionally
damaged the property of another with no
reason to believe that his act [was]
authorized,
the legislature did not,
and was not required to,
additionally require that
the person know or have
reason to believe the
damage he caused would
ultimately exceed $500
... .[11]
Similarly, in Alto v. State,12 the
defendant was convicted of second-degree
escape for removing himself from official
detention for a felony. Alto argued that the
State had to prove that he was aware of, and
recklessly disregarded, the possibility that
his detention was based on a felony because
this circumstance increased the level of
punishment for his escape. We rejected this
argument; we held that the State did not have
to prove that Alto was aware of, or
recklessly disregarded, the possibility that
he was being held on a felony charge only
that Alto knowingly removed himself from
official detention.13
And in Hoople v. State,14 we held
that, in prosecutions for felony driving
while intoxicated, the State does not have to
prove that the defendant acted with a
culpable mental state regarding their prior
DWI convictions or their prior breath-test
refusal convictions, even when those
convictions enhance the offense from a
misdemeanor to a felony.
Based on Bell, Ortberg, Alto, and
Hoople, we conclude that the State was not
required to prove that Knutsen acted with a
culpable mental state regarding the
possibility that the victims of his
photography might be minors. Knutsen did not
claim that he obtained permission for the
photography from the wrong person because of
a reasonable mistake concerning his victims
ages. No issue of consent was presented in
Knutsens case. Therefore, even assuming that
Knutsen was unaware that minors (as opposed
to adults) would be changing their clothes in
the locker room while his video camera was
running, this would be no defense to the
felony charges against him.
Accordingly, Knutsens attack on the
jury instructions his contention that Judge
Torrisi misinstructed the jurors regarding
Knutsens alleged lack of awareness that some
of his victims were minors is moot. Knutsen
was not entitled to such an instruction in
the first place.
Knutsens double jeopardy claim
Knutsen contends that, under state and
federal double jeopardy law, he could only be convicted
of a single count of indecent photography because he
engaged in only one act of setting up a video camera
and because he produced only one videotape.
The double jeopardy clauses of the United
States Constitution and the Alaska Constitution protect
against multiple punishments for the same offense.15
But the legislature defines criminal offenses. For
purposes of applying the federal constitutional
protection against multiple punishment, the role of the
Double Jeopardy Clause is limited to protecting a
defendant against receiving more punishment than the
legislature intended.16 And for purposes of applying
the state constitutional protection against double
punishment, we must assess the conduct proscribed by a
particular criminal statute, and the societal interests
protected by that statute.17 Thus, under either test,
to determine whether particular conduct constitutes the
same offense or separate offenses for double jeopardy
purposes, we must examine the legislatures definition
of the offense.
Alaska Statute 11.61.123(a) forbids a person
from knowingly view[ing] or produc[ing] a picture of
the private exposure of the genitals, anus, or female
breast of another person if this viewing or production
is done without the knowledge or consent of the person
viewed or depicted (if the victim is at least 13 years
old), and/or without the knowledge or consent of that
persons parent or guardian (if the victim is younger
than 16 years). The phrase private exposure means that
the victim has exposed their body in a place, and under
circumstances, that caused the victim to reasonably
believe that their body would not be viewed by the
defendant or that pictures of their body would not be
produced.
The gist of this offense is viewing or making
a picture of the private parts of another persons body
when (1) the other person has not given their consent
to the viewing or the picture-making, and when (2)
given the circumstances, the other person reasonably
expects bodily privacy. Because the statute is aimed
at protecting personal bodily privacy, we conclude that
even in circumstances like the present case (where the
charges are based on a single running of a video
camera), a defendants act of photographing several
different victims can lawfully be punished as a
separate offense for each victim.
The Alaska Supreme Court has reached
analogous conclusions with regard to single dangerous
or assaultive acts that produce harm to two or more
victims. See State v. Dunlop, 721 P.2d 604, 609-610
(Alaska 1986) (upholding separate manslaughter
convictions for each victim of a drunk driver), and
Cooper v. State, 595 P.2d 648, 650 (Alaska 1979)
(upholding separate assault convictions when a
defendants threatening conduct with a weapon placed
three people in fear of imminent serious injury). As
the supreme court explained in Dunlop,
Instead of focusing on the accuseds
intent[,] we must look at the consequences
[of the accuseds conduct]. Where an act of
violence injures multiple victims, there are
as many punishable offenses as there are
victims. We look first at the offense
prohibited by the statute. In cases of
manslaughter or assault, the conduct
prohibited is the killing or injuring of a
person. Where more than one person is
victimized, more than one offense occurs.
Where multiple offenses occur, the double
jeopardy provision does not apply.[18]
Here, Knutsen violated the privacy
of eight people, even though he made only one
videotape of the activity in the womens
locker room. Because the gist of the offense
is the invasion of bodily privacy, and
because eight people suffered the invasion of
privacy prohibited by the statute, Knutsen
committed eight separate offenses, and he was
properly convicted and punished for each of
these offenses.
Conclusion
Knutsens attack on the jury instructions is
moot; the State was not obliged to prove that
Knutsen acted with a culpable mental state
concerning the possibility that he might violate
the privacy of minors as opposed to adults. And
Knutsen was properly convicted of eight counts of
indecent photography because he violated the
privacy of eight separate victims. Accordingly,
the judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.61.123.
2 AS 11.61.123(e)(2).
3 AS 11.61.123(f).
4 Cf. Reynolds v. State, 664 P.2d 621, 625 (Alaska App.
1983) (holding that, in a prosecution for first-degree
sexual assault, the State must prove that the defendant
knowingly engaged in sexual penetration with the victim and
that the defendant recklessly disregarded the victims lack
of consent.)
5 11 P.3d 1001 (Alaska App. 2000).
6 Id. at 1004-05.
7 Bell, 668 P.2d at 832.
8 Id. at 833-34, 835 (citations omitted).
9 751 P.2d 1368, 1374 (Alaska App. 1988).
10Id. at 1369.
11Id. at 1374.
1264 P.3d 141 (Alaska App. 2003).
13Id. at 147.
14985 P.2d 1004, 1006 (Alaska App. 1999).
15 U.S. Const. amend. V; Alaska Const. art. I 9. See
Todd v. State, 917 P.2d 674, 677 (Alaska 1996).
16 Todd, 917 P.2d at 677.
17 Id. at 681 (quoting the test announced in Whitton v.
State, 479 P.2d 302, 312 (Alaska 1970)).
18 Dunlop, 721 P.2d at 609 (italics omitted).
