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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.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         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).