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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DUSTY J. COWAN,
Court of Appeals No. A-14106
Appellant, Trial Court No. 1WR- 19-00030 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2792 - October 25, 2024
Appeal from the Superior Court, First Judicial District,
Wrangell, Jude Pate and Kevin G. Miller, Judges.
Appearances: Elizabeth D. Friedman, Law Office of Elizabeth
D. Friedman, Prineville, Oregon, for the Appellant. Seneca
Theno Freitag, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD.
Dusty J. Cowan was convicted, following a jury trial, of one count of
online enticement of a minor and one count of distribution of indecent materials to a
----------------------- Page 2-----------------------
1
minor for sending sexually explicit messages, including photographs of his penis, over
Facebook Messenger to fourteen-year-old T.T. Cowan conceded the statutory
2 He was sentenced
aggravating factor that he was more than ten years older than T.T.
to a composite sentence of 10 years with 3 years suspended (7 years to serve). Cowan
now appeals, challenging his convictions and his sentence.
First, Cowan argues that it was structural error for the superior court to
deny his motion to dismiss the indictment on the online enticement count. We conclude
that this argument is without merit and that the superior court did not err in denying
Cowan's motion.
Second, Cowan argues that the prosecutor failed to prove a material
element of the online enticement count. He asserts that this constituted structural error
or, at the very least, was not harmless beyond a reasonable doubt. We conclude that the
prosecutor did not fail to prove a material element and therefore reject this claim of
error.
Third, Cowan argues that the superior court erred when it failed to merge
the online enticement conviction with the distribution of indecent materials conviction.
For the reasons explained here, we agree with the superior court that the two convictions
do not merge.
Fourth, Cowan argues that his sentence is excessive. Because Cowan's
sentence fits within the range of permissive sentences that a reasonable judge could
impose, we reject this claim of error.
1
Former AS 11.41.452(a)(1) (2018) and AS 11.61.128(a), respectively.
2
Former AS 12.55.155(c)(18)(E) (2018). Cowan was approximately thirty-seven
years old at the time he exchanged sexually explicit pictures and messages with fourteen-
year-old T.T.
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----------------------- Page 3-----------------------
Lastly, Cowan challenges four of his probation conditions. The State
concedes that one of the conditions should be remanded, and this concession is well-
founded. We otherwise uphold the challenged probation conditions.
Factual background and prior proceedings
Fourteen-year-old T.T. spent the summer of 2018 in Wrangell with the
Cowans, who were family friends. T.T.'s family and the Cowans had been friends for
years and T.T. frequently spent summers with the Cowans. T.T. referred to Cowan and
his wife as her second "dad" and "mom," and to their fourteen-year-old daughter as her
"sister."
T.T. usually returned from summers with the Cowans having enjoyed her
time with them. But when T.T. returned in August 2018, her mother noticed that she
"wasn't herself." T.T. would avoid talking to her mother and would isolate herself in
her room. After becoming increasingly concerned, T.T.'s mother went through T.T.'s
phone and found sexually explicit messages between T.T. and Dusty Cowan on T.T.'s
Facebook Messenger app. She also found a photograph of T.T.'s vagina on the phone.
T.T. later told her mother that she had exchanged photos with Cowan, and that Cowan
had sent her a picture of his penis.
At trial, T.T. testified that Cowan asked her for "very inappropriate"
pictures, including pictures of her breasts and vagina. T.T. also testified that Cowan
sent her a picture of his "hard" penis and that he masturbated during a live video chat
between them. T.T. showed Cowan her vagina during that video chat as well.
T.T.'s mother reported the messages to the police. The police reviewed
T.T.'s phone, but by that time, T.T. had deleted most of the Facebook messages and all
photographs from her phone. (T.T. later testified that she had deleted these materials at
Cowan's request.) The police interviewed T.T. and were able to review screenshots of
the messages T.T.'s mother had taken when she first looked at T.T.'s phone.
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----------------------- Page 4-----------------------
Cowan was indicted for one count of online enticement of a minor for
using a computer to entice, solicit, or enco urage T.T., a child under sixteen years of age,
3 Cowan was also indicted for one
to engage in the lewd exhibition of T.T.'s genitals.
count of distribution of indecent material to minors for distributing to T.T., a child under
sixteen years of age, material that depicted the lewd exhibition or touching of Cowan's
4
genitals.
Cowan moved to dismiss the indictment, arguing, inter alia, that online
enticement of a minor was directed only at the victimization of children occurring
online via chat rooms or other websites. Therefore, according to Cowan, the statute did
not criminalize his conduct because he allegedly communicated with T.T. through
"private text messaging." Cowan also argued that the State failed to establish that a
smartphone is a "computer" as defined in AS 11.46.990(3), and that Cowan actually
used a smartphone to communicate with T.T.
The superior court denied the motion to dismiss the indictment. The court
rejected Cowan's interpretation of the statute, ruling that the statute was directed at any
computer-based communication with children, including communication through
private text messaging. The court also ruled that the grand jury could reasonably
conclude that Cowan's smartphone was a computer based on evidence that Cowan used
his cellphone to communicate, text, and video chat with T.T.
Cowan's case proceeded to a jury trial. At the close of evidence, the State
requested the jury be instructed that a smartphone is a computer. The superior court
denied this request and instead instructed the jury on the statutory definition of
"computer."
3
See former AS 11.41.452(a)(1) (2018).
4
See AS 11.61.128(a).
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----------------------- Page 5-----------------------
During closing argument, Cowan's attorney attempted to argue that
AS 11.41.452 was not enacted to proscribe online enticement of minors by any means,
but rather, was enacted to protect against the enticement of minors using chat rooms or
similar web sites. The attorney also attempted to argue that the statute was enacted to
better equip law enforcement to perform sting operations. The prosecutor objected to
this description of the statute's purpose. The superior court sustained the objection,
agreeing that the argument was contrary to law.
Following deliberations, the jury convicted Cowan of both online
enticement of a minor and distribution of indecent material to a minor.
Cowan conceded the statutory aggravating factor that he was more than
5
ten years older than T.T. The superior court determined that Cowan's convictions did
not merge. The court sentenced Cowan to 10 years with 3 years suspended for the online
enticement conviction and 2 years fully suspended for the distribution of indecent
materials conviction, with the sentences to run concurrently - for a composite sentence
of 10 years with 3 years suspended (7 years to serve).
This appeal followed.
Cowan's argument that the superior court erred when it denied his motion
to dismiss the indictment
Cowan argues that the superior court erred in denying his motion to
dismiss the indictment. He also argues that this constitutes "structural error" because it
allegedly resulted in the jury being misinstructed on the statutory definition of online
enticement of a minor.
At the time of Cowan's conduct, AS 11.41.452(a)(1) provided as follows:
A person commits the crime of online enticement of a minor
if the person, being 18 years of age or older, knowingly uses
a computer to communicate with another person to entice,
5
See former AS 12.55.155(c)(18)(E) (2018).
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----------------------- Page 6-----------------------
solicit, or encourage the person to engage in an act described
in AS 11.41.455(a)(1) - (7) and . . . the other person is a child
[6]
under 16 years of age[.]
According to Cowan, this statute only criminalized sexually explicit communications
that took place "online" or through the internet, and did not apply to the communication
that took place here, which Cowan characterizes as "private text messaging."
We find this contention without merit for two reasons. First, as the State
points out, the communication in this case took place through Facebook Messenger, not
through "private text messages" on the cell phone's default text messaging app. To
communicate using Facebook Messenger, whether by cell phone or by computer, a
person must access the internet. In other words, even assuming the online enticement
statute required some form of connection with the internet, that requirement was met in
this case.
Second, we agree with the State that Cowan is misinterpreting the scope
of the statute. Cowan focuses on the fact that the 2005 legislature, which enacted the
statute under which he was prosecuted, primarily described the dangers of chat rooms
and other similar websites. Cowan also points out that the statute was amended in 2019
and the word "online" was eliminated. According to Cowan, this legislative change
demonstrates that prior to 2019, the statute only covered communication that took place
"online."
The proper interpretation of a criminal statute is a question of law that we
7 Statutes are construed "according to
decide de novo using our independent judgment.
reason, practicality, and common sense, considering the meaning of the statute's
6
Former AS 11.41.452(a)(1) (2018) (emphasis added).
7
Seaman v. State, 499 P.3d 1028, 1034 (Alaska App. 2021) (citing Callan v. State,
904 P.2d 856, 857 (Alaska App. 1995) and Hillman v. State, 382 P.3d 1198, 1200 (Alaska
App. 2016)).
- 6 - 2792
----------------------- Page 7-----------------------
8
language, its legislative history, and its purpose." Alaska courts apply a sliding scale
approach to statutory interpretation, "under which 'the plainer the language of the
9
statute, the more convincing contrary legislative history must be.'"
Here, although the crime was called "online enticement," it is clear from
the plain language of the statute that the statute only required that the prohibited
communication take place through a "computer." In other words, the statute required
the defendant to knowingly use a computer when engaging in the prohibited
communication; it did not require that the computer be online or connected to the
internet.
This reading of the statute is consistent with the underlying legislative
purpose, which was to protect children from technology-based sexual predation.
Although the 2005 legislative history focused on chat rooms as a particular source of
10 there is nothing in our review of that history to suggest
danger for children at the time,
that the legislature intended to restrict the statute to only computer-based
communications that took place online or over the internet. 11 Indeed, such a restriction
would directly contradict the underlying protective purpose the statute was designed to
serve.
8
Alaska Airlines, Inc. v. Darrow , 403 P.3d 1116, 1121 (Alaska 2017) (citing Louie
v. BP Expl. (Alaska), Inc., 327 P.3d 204, 206 (Alaska 2014)).
9
Id. at 1121-22 (quoting Bartley v. State, Dep't of Admin., Teachers' Ret. Bd., 110
P.3d 1254, 1258 (Alaska 2005)).
10 Audio of Senate Judiciary Committee, S.B. 118, statement of Senator Hollis French,
8:41:27 a.m. - 8:41:48 a.m. (Mar. 10, 2005) (noting that sexual abuse of children often
begins after initial contact is made with the child in internet chat rooms, and describing
online victimization as "one of the worst byproducts of the age of the internet").
11
See Minutes of House Judiciary Committee, House Finance Committee, Senate
Finance Committee, Senate Conference Committee, House Conference Committee, and
House State Affairs Committee, H.B. 49 (2019).
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----------------------- Page 8-----------------------
Nor is it true that the 2019 amendments support Cowan's restrictive
reading of the statute. In 2019, the legislature eliminated the word "online" and the
12 The statute now reads in its current form:
words "uses a computer."
A person commits the crime of enticement of a minor if the
person, being 18 years of age or older, knowingly
communicates with another person to entice, solicit, or
encourage the person to engage in an act described in
AS 11.41.455(a)(1) - (7) and . . . the other person is a child
under 16 years of age[.][13]
Cowan asserts that these amendments were made to ensure that
communications through smartphones were included in the scope of the statute. But
14 To the contrary,
there is nothing in the 2019 legislative history that supports this claim.
the legislative history shows that the statute was amended because the legislature
wanted to expand its scope to cover non-computer-based communications, which is
why the legislature eliminated both the word "online" and the words "uses a
15
computer."
12
FSSLA 2019, ch. 4, §§ 11-13.
13
AS 11.41.452(a)(1).
14
See Minutes of House Judiciary Committee, House Finance Committee, Senate
Finance Committee, Senate Conference Committee, House Conference Committee, and
House State Affairs Committee, H.B. 49 (2019).
15
Audio of House Judiciary Committee, H.B. 49, statement of Assistant Attorney
General Kaci Schroeder, 1:41:15 p.m. - 1:41:55 p.m. (Apr. 29, 2019) (stating that deletion
of "online" from the crime of online enticement of a minor would enable the statute to
encompass a broader range of conduct, such as enticement "in person or through a note");
Audio of House Finance Committee, H.B. 49, statement of Criminal Division Director
John Skidmore, 12:29:01 p.m. - 12:29:38 p.m. (May 4, 2019) (stating that removal of
"online" from the statute would allow the statute to encompass "face-to-face" enticement
of a minor rather than only enticement through use of a computer).
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----------------------- Page 9-----------------------
We accordingly reject Cowan's claim that the version of the statute in
effect when Cowan communicated with T.T. over Facebook Messenger only applied to
computer-based communications that were "online."
We also reject Cowan's argument that the State failed to prove that
Cowan's smartphone qualified as a computer. "Computer" is defined statutorily as:
an electronic device that performs logical, arithmetic, and
memory functions by the manipulation of electronic, optical,
or magnetic impulses, and includes all input, output,
processing, storage, computer software, and communication
[16]
facilities that are connected or related to a computer.
A smartphone fits well within that definition. 17
Because the statute under which Cowan was convicted, former
AS 11.41.452(a)(1) (2018), applied to the communications that took place in this case,
we conclude the superior court did not err in denying Cowan's motion to dismiss the
indictment.
Cowan's argument that the State failed to prove a material element of the
offense of online enticement of a minor
Cowan argues that the State failed to prove that he used a computer for
the prohibited communication because the State never physically introduced any
smartphone into evidence and did not provide evidence of what a smartphone is.
Although Cowan frames this argument as a "structural error" argument, we agree with
the State that it is really a sufficiency argument. In essence, Cowan is arguing that there
16
AS 11.46.990(3).
17
Cf. United States v. Mathis, 767 F.3d 1264, 1283 (11th Cir. 2014) (holding that "use
of a cell phone to call and send text messages constitutes the use of a computer" to solicit
a minor to engage in sexually explicit conduct under a definition of computer similar to
AS 11.46.990(3)); United States v. Kramer, 631 F.3d 900, 902-03 (8th Cir. 2011) (holding
that cell phones fall within the statute defining computers as "an electronic . . . or other
high speed data processing device performing logical, arithmetic, or storage functions").
- 9 - 2792
----------------------- Page 10-----------------------
was insufficient evidence presented at trial by which a fair-minded factfinder could
18
reasonably find proof beyond a reasonable doubt that Cowan "use[d] a computer" to
solicit or entice T.T. to engage in the offending conduct.
When a defendant challenges the sufficiency of the evidence to support a
conviction, we are required to view the evidence, and all reasonable inferences arising
19
from that evidence, in the light most favorable to upholding the verdict. We then ask
"whether a fair-minded juror exercising reasonable judgment could conclude that the
20
State had met its burden of proving guilt beyond a reasonable doubt."
Here, T.T. testified that she messaged Cowan through Facebook, and that
the screenshots of messages her mother took were from her chats with Cowan on
Facebook. She also testified that she sent sexually explicit pictures to Cowan through
Facebook, and that she engaged in a video chat with him through Facebook, during
which she showed her vagina to Cowan and watched him appear to masturbate. T.T.
thought Cowan's cell phone was an iPhone.
T.T.'s mother testified that she took screenshots of the chain of Facebook
messages on T.T.'s phone which showed a nine-minute video chat had taken place
between the participants. Cowan's wife testified that Cowan received Facebook
messages and video chats from T.T. on his phone, which he used both for his business
and his personal use.
Viewed in the light most favorable to upholding the verdict, this testimony
was sufficient to show that Cowan had a cell phone that qualified as a computer under
the broad definition of the term, and that he used this "computer" to solicit T.T. to
engage in the offending acts.
18
Former AS 11.41.452(a)(1) (2018).
19
Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003) (citing Simpson v. State, 877
P.2d 1319, 1320 (Alaska App. 1994)).
20
Id. (citing Dorman v. State, 622 P.2d 448, 453 (Alaska 1981)).
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----------------------- Page 11-----------------------
Cowan's argument that the two convictions should have merged
Cowan argues that his conviction for online enticement of a minor should
have merged with his conviction for distribution of indecent materials to a minor
because (according to Cowan) the two convictions were based on the same acts and
intended to vindicate the same societal interest.
We agree with the State that Cowan's two offenses involve two different
acts. Cowan was convicted of online enticement of a minor for, inter alia, soliciting or
inducing T.T. to show her vagina to him. In other words, he was convicted under a
statute that is focused on protecting children from engaging in certain types of sexual
conduct at the behest of an adult and he was convicted of causing T.T. to engage in
sexually inappropriate conduct. In contrast, he was convicted of distribution of indecent
materials to a minor for, inter alia, sending T.T. a picture of his penis. This conduct
was prohibited by a statute that is focused on preventing adults from sending harmful
sexual material to children and his conviction rests on his own act of sending T.T. sexual
material. Because these two convictions were based on two entirely different acts,
21
separate convictions were appropriate.
Cowan's argument that his sentence is excessive
As a first felony offender, Cowan faced a sentencing range of 5 to 15 years
for his online enticement of a minor conviction, and a sentencing range of 0 to 2 years
22
for his distribution of indecent material to a minor conviction. Because the superior
21
See Calder v. State , 619 P.2d 1026, 1030 (Alaska 1980). We note that, although the
superior court did not merge the convictions, the superior court did accept Cowan's
argument that the sentence on both counts should be concurrent.
22 See former AS 12.55.125(e)(1), (i)(3)(A) (2018).
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----------------------- Page 12-----------------------
23
court found that both convictions were aggrava ted, the sentencing range increased to
5 to 99 years for the online enticement conviction and 0 to 5 years for the distribution
24 At sentencing, the court imposed 10 years with
of indecent material conviction.
3 years suspended for the online enticement conviction and 2 years fully suspended for
the distribution of indecent material conviction, to run concurrently - for a composite
sentence of 10 years with 3 years suspended (7 years to serve).
Cowan argues that this sentence was excessive in light of his lack of
criminal history, his good standing in the community, and his status as a good family
man and businessman. Cowan also points out that he had no violations during his
lengthy pretrial release.
When we review an excessive sentence claim, we independently examine
25 The "clearly
the record to determine whether the sentence is clearly mistaken.
mistaken" standard contemplates that different reasonable judges, confronted with
identical facts, will differ on what constitutes an appropriate sentence, and that a
reviewing court will not modify a sentence that falls within a "permissible range of
26
reasonable sentences."
Here, the superior court acknowledged Cowan's potential for
rehabilitation, but it expressed some skepticism about his statements of remorse and
noted that it did not know whether Cowan "is a predator or if he's a person who engaged
in predatory behavior and this is a one-off." The court denied Cowan's request for
referral to the three-judge sentencing panel because it concluded Cowan's potential for
23
See former AS 12.55.155(c)(18)(E) (2018) (defendant is at least ten years older than
the victim).
24 See former AS 12.55.155(a)(1), (2) (2018).
25
McClain v. State , 519 P.2d 811, 813-14 (Alaska 1974).
26
Id. at 813; see also Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997) (quoting
State v. Wentz, 805 P.2d 962, 965 (Alaska 1991)).
- 12 - 2792
----------------------- Page 13-----------------------
rehabilitation was not "extraordinary." The court also denied Cowan's request for the
"least serious" mitigator, in part because it concluded Cowan had abused his position
of trust as a father figure to T.T. The court found that the crime was "more serious"
because of Cowan's close relationship to T.T. and his knowledge of her vulnerabilities,
and the court found that Cowan's conduct had a "grave, serious impact" on T.T. The
court also found that Cowan caused additional harm by coercing T.T. into deleting
evidence of his crimes.
Having independently reviewed the sentencing record, we conclude that
the sentence imposed - which is on the lower end of the applicable ranges - was
within the range of reasonable sentences and not clearly mistaken.
Cowan's challenges to his probation conditions
Cowan challenges four of his probation conditions. Because Cowan did
not object to any of these conditions in the trial court proceedings, he must show plain
27
error to prevail on appeal. Plain error is an error that: "(1) was not the result of
intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected
substantial rights; and (4) was prejudicial."28
The State concedes that Special Probation Condition No. 11 implicates
Cowan's constitutional right to familial association and requires remand for
reconsideration of the condition. Special Condition No. 11 prohibits Cowan from
knowingly having "any direct or indirect contact with a minor under 16 years of age,
unless in the immediate presence of another adult who knows the circumstances of the
crime." The condition excludes Cowan's biological children but only "at the discretion
of the probation officer and treatment provider."
27
State v. Ranstead, 421 P.3d 15, 23 (Alaska 2018) (citing Alaska R. Crim. P. 47(b)).
28
Id. (quoting Adams v. State , 261 P.3d 758, 764 (Alaska 2011)).
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----------------------- Page 14-----------------------
We agree with the State that the condition implicates Cowan's
constitutional right to familial association and is not supported by the necessary
29 We accordingly vacate the relevant portion of Special Probation Condition
findings.
No. 11 and remand the condition to the superior court to apply special scrutiny.
The State argues that none of the other challenged probation conditions
rise to the level of plain error. We agree. Cowan challenges Special Probation Condition
No. 14, which allows Cowan "to open and maintain one account through an internet
service provider on one device" and requires Cowan to obtain prior permission from
his probation officer if he intends to access the internet from any other device or
account. Cowan argues that this is too severe a restriction on his internet usage and will
have a detrimental effect on his automotive repair business. But the condition allows
Cowan to use other devices and other accounts with the probation officer's permission,
and we presume that permission will not be unreasonably withheld if Cowan has a
legitimate business need. Accordingly, we find no plain error.
We also find no plain error with regard to General Probation Condition
No. 6. This condition prohibits Cowan from possessing firearms. Cowan challenges the
condition as lacking a nexus to his offenses. The State argues the condition is not plainly
erroneous because, as a convicted felon, Cowan is prohibited from possessing firearms
29
Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App. 2014) (vacating a similar
special probation condition which prohibited the appellant "from residing in a home where
a minor is present without the permission of her probation officer, her sex offender
treatment provider, and the minor's parent or guardian" because the superior court did not
apply the requisite special scrutiny to the probation condition); see also Dalton v. State ,
477 P.3d 650, 651 (Alaska App. 2020) (noting probation conditions "that infringe
constitutional rights," such as familial association, "are subject to special scrutiny" and
require the trial court to affirmatively consider any less restrictive alternatives and have
good reason for rejecting them); Johnson v. State , 421 P.3d 134, 138-39 (Alaska App.
2018) (vacating special probation conditions which restricted the appellant's familial
associations with his wife and son because the superior court did not apply the requisite
special scrutiny).
- 14 - 2792
----------------------- Page 15-----------------------
under state and federal law. The State is partially correct. Alaska law proscribes felons
30 Nevertheless, current
from possessing only concealable firearms, not all firearms.
federal law proscribes convicted felons from possessing any firearm that has been
"shipped or transported in interstate or foreign commerce."31 Thus, although Cowan
could possess a firearm for safety or subsistence hunting under Alaska law, Cowan may
not possess a firearm under federal law, and so his argument is moot because his other
conditions require him to comply with federal law.
Cowan points out that we recently remanded a firearms probation
32 But, in that case, the defendant requested the condition be
restriction in Pete v. State .
modified so that, if the federal law changed, he would be able to subsistence hunt
without needing to return to court to amend his probation conditions.33 Here, Cowan
did not object to the firearm probation condition in the trial court proceedings, and we
do not find plain error.
Lastly, Cowan argues that Special Probation Conditions No. 4 and 6 are
contradictory because, while both require him to obtain a sex offender treatment
evaluation and follow any recommendations, they are inconsistent about the timing of
this evaluation. Specifically, Special Condition No. 4 requires Cowan to be evaluated
once he is on probation, and Special Condition No. 6 requires Cowan to be evaluated
while in custody. But the potential overlap between these two conditions was discussed
at sentencing, and the court declined to combine the conditions with the apparent
understanding that Cowan would not be required to obtain a sex offender treatment
30
AS 11.61.200(a)(1).
31
18 U.S.C. § 922(g)(1) (2024).
32
Pete v. State, 2024 WL 260977, at *10- 11 (Alaska App. Jan. 24, 2024)
(unpublished).
33
Id. at *10.
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----------------------- Page 16-----------------------
evaluation both in and out of custody. Because the record demonstrates that the superior
court kept both conditions intact with this understanding in mind, we see no reason to
remand.
Conclusion
This case is remanded to the superior court for the application of special
scrutiny to Special Probation Condition No. 11. In all other respects, the judgment of
the superior court is AFFIRMED.
- 16 - 2792
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