Opinion
A-12604
07-21-2021
CLAUDE EDWARD FOWLKES III, Appellant, v. STATE OF ALASKA, Appellee.
Jason A. Weiner, Gazewood & Weiner, P.C, Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d) .
Appeal from the Superior Court, Fourth Judicial District No. 4FA-14-01758 CR, Fairbanks, Michael A. MacDonald, Judge.
Jason A. Weiner, Gazewood & Weiner, P.C, Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Wollenberg, Judge, and Mannheimer, Senior Judge.[*]
MEMORANDUM OPINION
MANNHEIMER, Judge writing for the Court and concurring separately.
In early October 2010, Claude Edward Fowlkes III forcibly raped a fourteen-year-old boy. Based on this incident, a jury found Fowlkes guilty of three crimes: first-degree sexual assault (sexual penetration without consent - i.e., coerced by force), second-degree sexual abuse of a minor (sexual penetration with a child between the ages of 13 and 16), and first-degree sexual abuse of a minor (sexual penetration with a child younger than 16 when the offender occupies a position of authority over the victim).
At Fowlkes's sentencing, the superior court merged the jury's guilty verdicts for first-degree sexual assault and second-degree sexual abuse of a minor (that is, the court entered a single conviction based on these two verdicts), but the superior court entered a separate conviction for first-degree sexual abuse of a minor (the charge based on the "position of authority" theory). The court then sentenced Fowlkes to a composite term of 35 years' imprisonment.
Fowlkes raises two challenges to his conviction for first-degree sexual abuse of a minor. First, he argues that he should not have been found guilty of first-degree sexual abuse of a minor, but rather only second-degree sexual abuse of a minor. Fowlkes contends that the evidence presented at his trial was not legally sufficient to establish the element that distinguished the charge of first-degree sexual abuse from the charge of second-degree sexual abuse-specifically, the element that Fowlkes occupied a "position of authority" over the victim, as that term is defined in AS 11.41.470(5). Second, Fowlkes argues that even if he was guilty of first-degree sexual abuse, he should not have received a separate conviction for this crime - that, instead, the sentencing judge should have merged this offense with Fowlkes's other two offenses, and should have entered a single merged conviction for all three offenses.
With respect to the merger argument, we agree with Fowlkes that even if he was properly convicted of first-degree sexual abuse under a "position of authority" theory, he should not have received a separate conviction for this crime. This Court has consistently held that when a defendant is found guilty of both sexual assault and sexual abuse of a minor based on the same act, the guilty verdicts must merge into a single combined conviction, and the Alaska Supreme Court recently approved this rule.
See State v. Thompson, 435 P.3d 947, 957 (Alaska 2019).
Because Fowlkes's convictions for sexual assault and sexual abuse of a minor must merge, we asked the State to inform us whether, at re-sentencing, it would ask the superior court to enter a single merged conviction for sexual assault or, instead, a single merged conviction for sexual abuse of a minor. The State has informed us that it prefers to have the conviction entered for sexual assault.
Given the State's election on this issue, we need not resolve the question of whether the evidence at Fowlkes's trial was sufficient to establish that he occupied a "position of authority" over the victim.
Fowlkes also raises other claims in this appeal. He argues that the trial judge committed error when the judge allowed the prosecutor to present evidence that Fowlkes had sexually abused another teenager, as well as evidence that the victim in the present case came forward after seeing television coverage of Fowlkes's arrest for sexually abusing this other boy. In addition, Fowlkes argues that the trial judge committed error by allowing the prosecutor to present expert testimony regarding the reasons why a child who had been sexually assaulted might delay reporting the crime. For the reasons explained in this opinion, we find no error in the trial judge's rulings on these matters.
Finally, Fowlkes argues that his composite sentence is excessive. We need not resolve this claim, because Fowlkes must be re-sentenced.
Underlying facts
For several years, Claude Edward Fowlkes worked as a resource aide at Tanana Middle School in Fairbanks. Fowlkes provided tutoring and homework assistance to students who were having academic difficulties or who had special needs. He was also one of the adult leaders of a student group called the Black Role Model Initiative; this group met twice a month and invited black community members to speak to the middle school students.
C.N. attended Tanana Middle School during his seventh- and eighth-grade years. Fowlkes assisted C.N. with his homework and, for this purpose, C.N. met with Fowlkes on a weekly basis. In addition, C.N. attended meetings of the Black Role Model Initiative. C.N. later testified that he respected Fowlkes and he believed that Fowlkes was his friend.
In the spring of 2010, when C.N. was about to graduate from the eighth grade and finish his time at Tanana Middle School, Fowlkes asked C.N. for his telephone number; Fowlkes told the boy that "if [he] ever needed anything, ... [he] could come to [Fowlkes]".
Several months later, Fowlkes sent a text message to C.N. In this text, Fowlkes said that he was moving out of his apartment, and he offered to pay C.N. $100 if he would help Fowlkes with this move. By this time, C.N. was attending high school - a parochial high school that was administered independently of the Fairbanks North Star School District.
When C.N. received the text from Fowlkes, he asked his mother if it would be all right for him to help Fowlkes move out of his apartment. C.N.'s mother gave her permission, and C.N. then told Fowlkes that he would help him move.
At the beginning of October, Fowlkes drove a U-Haul to C.N.'s residence and picked him up, and then the two of them drove to Fowlkes's apartment, where they loaded furniture and boxes of Fowlkes's belongings into the U-Haul. They cleared out the kitchen, living room, and bathroom, and then they began working on Fowlkes's bedroom. According to C.N.'s later testimony, just as he and Fowlkes were about to move Fowlkes's bed, Fowlkes told C.N. to "hold on a second", and then he told C.N. to take off his pants. When C.N. didn't respond, Fowlkes walked over to C.N. and removed the boy's pants. Fowlkes then pushed C.N. onto the bed and anally penetrated him with his penis.
During this act of penetration, C.N. told Fowlkes that he was hurting him, and he told Fowlkes to stop, but Fowlkes persisted for about ten minutes before finally withdrawing his penis.
Following this sexual assault, Fowlkes drove C.N. to a bank, where Fowlkes withdrew $100 and gave this money to C.N. Fowlkes told C.N., "What happened at the apartment, ... don't tell anybody." Then Fowlkes drove C.N. back home.
C.N. did not report this sexual assault until about four years later, after he saw television news coverage that Fowlkes had been arrested for sexually abusing another minor, A.F. (See our description of this other offense in Fowlkes v. State, unpublished, 2020 WL 232793 (Alaska App. 2020).) Following a police investigation into the incident involving C.N., Fowlkes was charged with three crimes:
• first-degree sexual assault (sexual penetration without consent-i. e., achieved through forcible coercion),
• second-degree sexual abuse of a minor (sexual penetration with a child between the ages of 13 and 16), and
• first-degree sexual abuse of a minor (sexual penetration with a child younger than 16 when the offender occupies a position of authority over the victim).
AS 11.41.410(a)(1), as construed inInga v. State, 440 P.3d 345, 348-49 (Alaska App. 2019).
AS 11.41.436(a)(1).
AS 11.41.434(a)(3)(B).
At Fowlkes's trial, both C.N. and A.F. gave testimony describing how Fowlkes had sexually abused them. Nevertheless, Fowlkes's attorney argued that no sexual activity had occurred between Fowlkes and C.N. - that C.N. was lying about the episode at Fowlkes's apartment. The jury found Fowlkes guilty of all three charges.
At sentencing, the superior court merged the jury's verdicts on first-degree sexual assault and second-degree sexual abuse (i.e., the court entered a single conviction based on the two jury verdicts), but the superior court entered a separate conviction for first-degree sexual abuse-the charge based on the "position of authority" theory. The court then sentenced Fowlkes to a composite term of 35 years' imprisonment.
(The superior court's written judgment states that Fowlkes received a composite sentence of 40 years to serve, and the parties to this appeal do not contest this characterization of Fowlkes's sentence. Nevertheless, the written judgement is in error.
The superior court imposed 3 0 years' imprisonment with 5 years suspended on Count I, and the court imposed this same sentence (30 years with 5 suspended) on the conviction that was based on merged Counts II and III. Thus, for each of his two convictions, Fowlkes received an active term of imprisonment of 25 years. The superior court then stated that 10 years of Fowlkes's second sentence would run consecutive to the 25 years imposed on Count I. Initially, the court mistakenly declared that this amounted to a composite sentence of 40 years' imprisonment, but when Fowlkes's attorney asked the judge to clarify this matter, the judge corrected himself and (rightly) stated that Fowlkes's composite sentence was 35 years to serve.)
Even assuming that Fowlkes was properly convicted offirst-degree sexual abuse of a minor, the sentencing judge should have merged this offense with Fowlkes's conviction for first-degree sexual assault
Fowlkes subjected C.N. to a single act of sexual penetration. For this act, Fowlkes was charged with three different offenses: first-degree sexual assault (sexual penetration coerced by force), second-degree sexual abuse of a minor (sexual penetration with a child between the ages of 13 and 16), and first-degree sexual abuse of a minor (sexual penetration with a child who is younger than 16 when the offender occupies a position of authority over the victim).
AS 11.41.410(a)(1).
AS 11.41.436(a)(1).
AS 11.41.434(a)(3)(B).
The sentencing judge merged the first two of these offenses - sexual assault and second-degree sexual abuse - and entered a single conviction based on the two guilty verdicts. However, the judge separately convicted and sentenced Fowlkes for first-degree sexual abuse. The judge reasoned that Fowlkes's conviction for this offense vindicated a separate societal interest: the policy that adults in positions of authority should not abuse their trust by taking advantage of their authority in order to pressure or induce minors to engage in sexual activity. The judge therefore concluded that Fowlkes should receive a separate conviction and sentence for first-degree sexual abuse of a minor.
The judge's ruling was error. This Court has previously held that when a defendant is convicted of both first-degree sexual assault and first-degree sexual abuse of a minor based on the same act, these convictions must merge.
It is true that these two offenses require proof of different elements. Generally speaking, first-degree sexual assault is defined as any sexual penetration that is forcibly coerced; the ages of the perpetrator and the victim are irrelevant. First-degree sexual abuse, on the other hand, is defined as an older person engaging in sexual penetration with a minor-i. e., someone who is not legally capable of consenting to the sexual activity because of their youth and, in some instances, because of their relationship to the perpetrator.
See AS 11.41.410(a)(1), as construed inlnga v. State, 440 P.3d 345, 348-49 (Alaska App. 2019).
.See AS 11.41.434(a).
But the fact that these offenses require proof of different elements does not end the inquiry. As our supreme court reaffirmed in Johnson v. State, 328 P.3d 77, 87-88 (Alaska 2014), the test announced in Whitton v. State provides the standard for determining whether two convictions constitute double punishment for purposes of the double jeopardy clause of the Alaska Constitution, and must therefore merge.
479 P.2d 302, 312-13 (Alaska 1970).
Under the Whitton test (as explained in Johnson), this Court must "look to the intent, conduct, and societal interests at stake" in the different offenses (or in the different counts of the same offense), and then we must assess whether these differences in purpose "are great enough that multiple punishments for the criminal conduct should lie."
Johnson, 328 P.3d at 87.
In Yearty v. State, 805 P.2d 987, 994-95 (Alaska App. 1991), this Court applied the Whitton test to Alaska's sexual assault and sexual abuse of a minor statutes. We concluded that these two sets of statutes have the same overriding purpose - to protect victims from unacceptable sexual activity - and, thus, only one conviction is supportable under the Whitton test for any single act of sexual penetration, even if that act constitutes both sexual assault and sexual abuse of a minor.
In State v. Thompson, 435 P.3d 947 (Alaska 2019), the Alaska Supreme Court recently indicated its approval of our decision in Yearty (albeit in a slightly different context). The supreme court declared, "We agree with the Yearty court's explication of the intent and societal interests prongs of Whitton in sex crimes and we see no reason to disturb it. The basic purpose of both sexual assault and sexual abuse of a minor statutes is to protect victims from offensive sexual conduct." Id. at 957.
See also Davison v. State, 282 P.3d 1262, 1265 (Alaska 2012), where the supreme court noted, without comment, that even though the jury convicted the defendant of sexual assault, sexual abuse of a minor, and incest, "the trial court merged [these three] convictions because they were all based on the same underlying act of penetration."
It was therefore error for the superior court to separately convict and sentence Fowlkes for first-degree sexual abuse of a minor, even if the evidence was legally sufficient to establish this offense.
As we have already explained, the State has informed us that it will ask the superior court to enter a single merged conviction for first-degree sexual assault (rather than a single conviction for first-degree sexual abuse of a minor). We therefore need not resolve Fowlkes's claim that the evidence presented at his trial was insufficient to establish that he occupied a "position of authority" over C.N.
The admission of evidence that Fowlkes sexually abused another teenager
As we have explained, Fowlkes was tried separately for his sexual assault upon C.N. and his sexual abuse of A.F., but both boys testified at each of Fowlkes's trials. At Fowlkes's trial for the sexual assault upon C.N., the trial judge concluded that the evidence of Fowlkes's abuse of A.F. was admissible under Alaska Evidence Rule 404(b)(2). This rule, which applies when a defendant is prosecuted for a crime involving the sexual assault or abuse of a minor, authorizes a court to admit evidence of the defendant's acts of sexual assault or abuse upon a different child if (1) those other acts are similar to the offense(s) for which the defendant is being tried, and (2) the other child is similar to the victim(s) in the case being tried.
On appeal, Fowlkes argues that the evidence pertaining to A.F. should not have been admitted because this evidence failed to satisfy the two foundational requirements of Evidence Rule 404(b)(2). Specifically, Fowlkes argues that the sexual abuse of A.F. was not sufficiently similar to the sexual assault upon C.N., and that A.F. was not sufficiently similar to C.N.
We have examined the record of the trial court proceedings, and we conclude that the trial judge could reasonably find that the foundational requirements of Rule 404(b)(2) were met.
Fowlkes argues in the alternative that even if the evidence pertaining to A.F. was potentially admissible under Rule 404(b)(2), the unfair prejudice of this evidence outweighed any relevance it had, and therefore the trial judge should have excluded this evidence under Alaska Evidence Rule 403. But based on our review of the record, we conclude that the trial judge did not abuse his discretion when he declined to exclude this evidence under Rule 403.
C.N. 's testimony regarding why he finally came forward to report the sexual assault
Even though the sexual assault in this case took place in early October 2010, C.N. did not tell anyone about the assault until about four years later. At Fowlkes's trial, C.N. testified that he remained silent about the assault because he felt ashamed by what had happened to him, but he finally decided to come forward after he saw media coverage of Fowlkes's 2014 arrest for sexually abusing another teenager (A.F.).
Before C.N. took the stand, Fowlkes's attorney had asked the trial judge to limit C.N.'s testimony on this topic. The defense attorney proposed that C.N. could testify that he reported the sexual assault after he saw something about Fowlkes in the news-but that C.N. should be prohibited from explaining why Fowlkes had been in the news (i.e., Fowlkes's arrest for sexually abusing another boy).
The trial judge concluded that Fowlkes's arrest for sexual abuse of another minor was a significant facet of C.N.'s explanation for coming forward in 2014. The judge further ruled that Fowlkes would not be prejudiced if C.N. referred to Fowlkes's arrest, since the other boy involved (A.F.) would himself be testifying at Fowlkes's trial.
We conclude that this ruling was not an abuse of discretion.
The expert testimony regarding a child's delay in reporting sexual assault or sexual abuse
At Fowlkes's trial, the prosecutor presented the testimony of Lori Markkanen, who was the program director of Stevie's Place, an advocacy center for abused children.
Markkanen testified that she had interviewed hundreds of children who reported being the victims of sexual abuse. Based on her experience, Markkanen testified that such children often do not report the abuse until "weeks, months, [or] even years later". She explained that this delay can be the result of the social stigma involved, or because of the child's relationship with their abuser.
However, Markkanen clarified that she had not personally interviewed C.N. She also told the jurors that a child's delay in reporting did not indicate whether that child was truly a victim of sexual assault. And Markkanen testified that she could not say whether C.N. had actually been sexually assaulted.
On appeal, Fowlkes contends that Markkanen's testimony on these matters was "not particularly relevant" - and that, to the extent Markkanen's testimony was relevant, it only dealt with "matters that the jurors [could] figure out for themselves". Fowlkes also argues that, even though Markkanen expressly disclaimed any knowledge as to whether C.N. had actually been sexually assaulted, the jurors would inevitably view Markkanen's testimony as proof that C.N.' s allegation of sexual assault was true. Thus, Fowlkes concludes, the trial judge should have excluded Markkanen's testimony under Evidence Rule 403.
Both this Court and the Alaska Supreme Court have held that the government is not allowed to present expert testimony regarding a "profile" or set of behaviors that are characteristic of crime victims if the purpose of this evidence is to suggest that a particular person must truly have been a crime victim because their behavior fits the profile.
On the other hand, profile evidence is admissible if it is offered for the purpose of rebutting the suggestion that the complaining witness's testimony should be distrusted because their behavior during or after the crime was seemingly inconsistent with the behavior that one would expect from a person who was the victim of the charged crime. See L.C.H. v. T.S., 28 P.3d 915, 924-25 (Alaska 2001), and Russell v. State, 934 P.2d 1335, 1343 (Alaska App. 1997).
The record shows that Markkanen's testimony was offered for this latter purpose. Thus, the trial judge did not abuse his discretion when he allowed the prosecutor to present this testimony.
Conclusion
We AFFIRM Fowlkes's conviction for first-degree sexual assault, but we reverse the superior court's decision to enter a separate conviction for first-degree sexual abuse of a minor. Regardless of whether the evidence presented at Fowlkes's trial was legally sufficient to establish that he occupied a "position of authority" over C.N., Fowlkes should not have received a separate conviction and sentence for this offense. The superior court must amend the judgement accordingly and re-sentence Fowlkes.
Because Fowlkes must be re-sentenced, we do not resolve his claim that his composite sentence of 35 years' imprisonment is excessive.
The superior court shall re-sentence Fowlkes within 90 days. If, after Fowlkes is re-sentenced, he wishes to argue that his new composite sentence is excessive, Fowlkes shall have 30 days to notify this Court and to designate an appropriate record for his renewed sentence appeal. This Court will then establish a briefing schedule for the renewed sentence appeal. If Fowlkes does not renew his sentence appeal, the Appellate Clerk's Office shall close this file.
MANNHEIMER, Judge concurring separately.
Generally speaking, if a person engages in sexual penetration with a child who is between the ages of 13 and 16, and if the perpetrator is at least 4 years older than the child, then the perpetrator has committed the crime of second-degree sexual abuse of a minor. See AS 11.41.436(a)(1). The evidence presented at Fowlkes's trial was clearly sufficient to prove this offense, and Fowlkes does not challenge the sufficiency of the evidence to support the jury's verdict on this count.
However, Fowlkes was also charged with a higher degree of crime-first-degree sexual abuse of a minor as defined in AS 11.41.434(a)(3)(B). Under this statute, a person who engages in sexual penetration with a child younger than 16 is guilty of first-degree sexual abuse if the perpetrator occupies "a position of authority in relation to the victim". Fowlkes argues that the evidence presented at his trial was not legally sufficient to establish that he occupied a "position of authority" over C.N., as that term is defined in AS 11.41.470(5).
Fowlkes's argument is not really about the nature or the probative force of the evidence presented at his trial. Rather, it is about the legal definition of "position of authority".
As explained in this Court's lead opinion, Fowlkes's convictions for sexual abuse of a minor must merge with his conviction for first-degree sexual assault, and the State has elected to seek a single merged conviction for sexual assault. This means that this Court can decide Fowlkes's appeal without resolving the question of whether the evidence was sufficient to establish the element of "position of authority".
Nevertheless, I am writing separately to explain a significant problem with the State's prosecution of Fowlkes for first-degree sexual abuse: I conclude that there are major legal flaws in the State's various theories as to why Fowlkes might have occupied a "position of authority" with respect to C.N.
Introduction to the statutory interpretation issue
The phrase "position of authority" is defined in AS 11.41.470(5). In relevant part, this statute defines "position of authority" as:
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 ... [.]
Because an appellate court must view the evidence in the light most favorable to the jury's verdict, I begin with the assumption that the following facts were proved:
Fowlkes had been C.N.' s counselor and advisor when C.N. attended Tanana Middle School, but C.N. had graduated from middle school several months before the incident in this case. At the time of the incident in this case (October 2010), C.N. was attending a parochial high school that was not administered by the Fairbanks North Star School District, and Fowlkes had no connection to C.N.'s school.
On the day of the incident in this case, Fowlkes was moving his belongings from one apartment to another. Fowlkes had asked C.N. to help him with this move, and he offered to pay C.N. $100 for his help. C.N. conveyed Fowlkes's offer to his mother, and C.N.'s mother allowed C.N. to spend the afternoon helping Fowlkes move. While Fowlkes and C.N. were alone at Fowlkes's apartment, Fowlkes directed C.N. to remove his pants. When C.N. did not obey, Fowlkes assaulted him.
Even though Fowlkes frames this issue as a question of the "sufficiency of the evidence ", the issue is actually a question of statutory interpretation
In his briefs to this Court, Fowlkes argues that the evidence presented at his trial was insufficient to establish that he held a "position of authority" over C.N. But Fowlkes's argument is not a typical "sufficiency of the evidence" claim.
Most often, when a defendant challenges the sufficiency of the evidence to support a criminal conviction, the elements of the crime are well-defined and not in dispute, and the question is whether, given the nature and quality of the trial evidence, the jury could reasonably find that the evidence established the necessary elements.
But in Fowlkes's case, the parties are not debating the nature or quality of the evidence. Rather, they are debating the definition of the crime - in particular, the definition of "position of authority". Resolution of this debate hinges on the proper interpretation of AS 11.41.470(5), the statute that defines "position of authority". Thus, Fowlkes's case does not present a typical "sufficiency of the evidence" question, but rather a question of statutory interpretation.
The Alaska Supreme Court addressed an analogous issue in Michael v. State, 115 P.3d 517 (Alaska 2005), and again in State v. Parker, 147 P.3d 690 (Alaska 2006). The question presented in those two cases was whether a sentencing judge's ruling on the mitigating factor of "among the least serious", AS 12.55.155(d)(9), was to be reviewed as a finding of fact under the "clearly erroneous" standard. In Michael and Parker, the supreme court held that, even though a judge's underlying findings of fact are reviewed under the clearly erroneous standard, it is an issue of law whether, under the set of facts found by the sentencing judge, a defendant's conduct qualifies as "among the least serious" for purposes of mitigating factor (d)(9). Michael, 115 P.3d at 519; Parker, 147 P.3dat 694.
This Court applied this legal principle in Thompson v. State, 378 P.3d 707, 714 (Alaska App. 2016). The defendant in Thompson was charged under AS 11.41.-434(a)(3)(A), a provision of the first-degree sexual abuse statute that applies when a defendant is residing in the same household as the victim. At Thompson's trial, the parties disagreed as to the proper meaning of the word "residing". But instead of resolving this legal controversy and instructing the jurors on the meaning of "residing", the trial judge told the jurors that the meaning of "residing" was a question of fact for the jurors to decide using their "experience in the affairs of life". We held that this was error. As we explained in Thompson, "the proper interpretation of the word 'residing' (as that term is used in [the sexual abuse statute]) is clearly not a 'question of fact' for the jury to resolve. It is a question of statutory interpretation - i. e., a question of law." Ibid.
Reversed in part on other grounds, State v. Thompson, 435 P.3d 947 (Alaska 2019).
I acknowledge that, in Wurthmann v. State, 27 P.3d 762, 765-66 (Alaska App. 2001), this Court stated that the question of whether a particular defendant occupied a "position of authority" with respect to a particular child was a "fact-bound" inquiry - an inquiry "appropriately left to the jury". This statement is true as a general matter, because whenever a case is tried to a jury, the jury is the ultimate determiner of the facts. But juries are not empowered to interpret the meaning of statutes. That task is reserved for the judiciary.
Even though it was the jury's role to determine the facts of Fowlkes's case, it is our role to interpret the meaning of "position of authority" as that term is defined in AS 11.41.470(5), and then to evaluate whether the evidence in Fowlkes's case (viewed in the light most favorable to the jury's verdict) was legally sufficient to establish this element.
The legislative history of the "position of authority" statute
In Alaska's criminal statutes that deal with the sexual abuse of minors, the concept of "position of authority" is used in two distinct contexts.
The first category of sexual abuse offenses where "position of authority" is an element of the crime are cases involving sexual activity with teenagers who are 13, 14, or 15 years old. In these cases, an adult's sexual activity with the minor is a crime even if the adult does not occupy a position of authority over the minor. The fact that the adult occupies a position of authority over the minor serves as an aggravating factor that increases the level of the offense.
Thus, any adult who engages in sexual contact with a child who is 13, 14, or 15 years old commits the crime of third-degree sexual abuse, see AS 11.41.43 8(a), but the crime is raised to second-degree sexual abuse if the adult occupies a position of authority over the minor, see AS 11.41.436(a)(5)(B).
Similarly, any adult who engages in sexual penetration with a child who is 13, 14, or 15 years old commits the crime of second-degree sexual abuse, see AS 11.-41.436(a)(1), but the crime is raised to first-degree sexual abuse if the adult occupies a position of authority over the minor, see AS 11.41.434(a)(3)(B).
(The two statutes in question - AS 11.41.436(a)(5)(B) (dealing with sexual contact), and AS 11.41.434(a)(3)(B) (dealing with sexual penetration)-actually declare that the higher degree of crime is committed whenever a person in a position of authority engages in prohibited sexual activity with "a person who is under 16 years of age". But sexual contact with a child under the age of 13 is already second-degree sexual abuse under AS 11.41.438(a), regardless of whether the offender occupies a position of authority over the victim. Likewise, sexual penetration with a child under the age of 13 is already first-degree sexual abuse under a separate provision of AS 11.41.434 - subsection (a)(1) - regardless of whether the offender occupies a position of authority over the victim.
Thus, even though both of these "position of authority" statutes purport to cover all situations where the victim is younger than 16, the real effect of these two statutes is to raise the degree of the offense for acts of sexual contact and acts of sexual penetration when the offender occupies a position of authority over the victim and the victim is 13, 14, or 15 years old.)
This was the theory of prosecution that the State pursued in Fowlkes's case. Fowlkes engaged in sexual penetration with a 14-year-old boy. This sexual act would ordinarily be classified as second-degree sexual abuse of a minor under AS 11.41.-436(a)(1). But in Fowlkes's case, the State alleged that Fowlkes occupied a position of authority over C.N., thus raising Fowlkes's offense to first-degree sexual abuse under AS 11.41.434(a)(3)(B).
The second category of sexual abuse offenses where "position of authority" is an element of the crime are cases involving sexual activity with teenagers who are 16 or 17 years old.
In this second category of cases, the sexual activity between the adult and the teenager would ordinarily «ctf be a crime-because the normal age of sexual consent in Alaska is 16. However, if the adult occupies a position of authority over the minor, then sexual penetration between an adult and a 16- or 17-year-old teenager is second-degree sexual abuse under AS 11.41.434(a)(6), while sexual contact between an adult and a 16- or 17-year-old teenager is fourth-degree sexual abuse under AS 11.41.-440(a)(2).
In fact, it was litigation in this second category of cases that prompted the legislature to enact the "position of authority" statute.
The bill containing this new definition, Senate Bill 355 (16th Legislature), was introduced in the wake of an unsuccessful criminal prosecution against a high school teacher who engaged in sexual relations with one of his teenage students. The teenager was older than 16, so the criminal charge against the teacher was pursued under the theory that the student was "entrusted to the offender's care under authority of law" - the phrase which, at the time, defined the factor that raised the age of consent from 16 to 18. But the charge against the teacher was dismissed after the superior court ruled that high school students are not "entrusted to [their teachers'] care under authority of law".
See Senate Letter of Intent for CSSB 355 (Judiciary), printed at 1990 Senate Journal 2197-98. See also Senate Judiciary Committee proceedings of January 16, 1990, Tape One, Side 1 @ Log No. 001; and House Health & Social Services Committee proceedings of March 9, 1990, Tape 105, Side A @ Log Nos. 360, 430, and 493-543.
In Senate Bill 355, the legislature replaced the older concept of "entrusted to the offender's care under authority of law" with a new concept, "position of authority". The legislature's immediate goal was to craft a new definition of the circumstances that would trigger a higher age of consent - thus making it a crime for a teacher or other similar adult authority figure to engage in sexual activity with a 16- or 17-year-old if the minor was under their authority.
See, e.g., Senate Judiciary Committee proceedings of January 16, 1990, Tape One, Side 1 @ Log No. 055, and House Health & Social Services Committee proceedings of March 9, 1990, Tape 105, Side A @ Log No. 360.
In an attempt to clarify the meaning of "position of authority", the legislature crafted a statute that defines "position of authority" by example. AS 11.41.-470(5) contains a list of adult roles that are deemed to be positions of authority, and then the statute declares that adults who occupy "substantially similar positions" will also be deemed to occupy positions of authority:
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 ... [.]
Both the House and the Senate adopted letters of intent with respect to Senate Bill 355, and in those letters of intent, the House and the Senate declared that the statutory list of "positions of authority" was intended to identify the adult roles that enable an offender "to exercise undue influence over the victim".
See the House of Representatives' Letter of Intent for HCS CSSB 355 (Judiciary), printed at 1990 House Journal 4199-4200, and adopted by the House at 1990 House Journal 4212, and the Senate's Letter of Intent for CSSB 355 (Judiciary), printed at 1990 Senate Journal 2197-98, and adopted by the Senate at 1990 Senate Journal 2243. (The Senate's Letter of Intent refers to "position of special trust" rather than "position of authority", because, at that time, the legislature was using "position of special trust" to describe this concept.)
(In Wurthmann, we echoed this legislative purpose when we indicated that the purpose of the definition of "position of authority" found in AS 11.41.470(5) was to identify a particular category of roles that an adult can play in a minor's life - the kinds of roles that enable an adult to exert "undue influence" over a minor's decision whether to engage in sexual activity with that adult.)
Wurthmann, 27 P.3d at 765.
The difficulties presented by the statutory definition of "position of authority "
The question raised in the present case is whether Fowlkes's relationship with C.N. qualified as a "position of authority" as defined in AS 11.41.470(5). One major obstacle to resolving this question is the fact that AS 11.41.470(5) does not contain a general, overarching definition of "position of authority"; rather, the statute defines "position of authority" only by example.
This kind of "definition by example" can be problematic for two reasons.
First, because AS 11.41.470(5) defines "position of authority" only by listing the adult roles that the statute is intended to cover, the statute does not provide a ready rule for resolving cases where there is ambiguity or uncertainty regarding the meaning or scope of the adult roles listed in the statute.
The second problem arises from the fact that, after AS 11.41.470(5) lists the specific adult roles that are deemed to be "positions of authority", the statute then declares that adults are also deemed to occupy a "position of authority" if they occupy a "substantially similar position". Here, the difficulty lies in the fact that, before one can evaluate whether a particular defendant's position is "substantially similar" to one or more of the adult roles listed in the statute, one must identify the legally significant characteristics of those listed adult roles.
Conceivably, one might look to the House and Senate letters of intent for a potential answer to these questions. As I have already noted, these two letters of intent - and, in particular, the House letter of intent, which was ultimately adopted as the Legislature's official letter of intent - declare that the adult roles listed in AS 11.41.470(5) were picked for inclusion because these were the roles that "enable[] an offender to exercise undue influence over the victim."
See 1990 Senate Journal 4220.
But the problem with defining "position of authority" in terms of the offender's ability to exercise "undue influence" is that practically all adults are in a position to influence children to some extent. The real question here is to identify the kind or degree of influence that the legislature had in mind when it spoke of an adult's "undue" influence over a teenager, and when it drafted the list of adult roles contained in AS 11.41.470(5).
One indication of what the legislature was getting at can be found in the testimony of Assistant Attorney General Laurie Otto of the Department of Law's Criminal Division, when she appeared at a meeting of the House Judiciary Committee on May 5, 1990. Ms. Otto was the attorney who drafted the original list of adult roles in the statute. When she was asked about the content of this statutory list - in particular, why adults with so many potentially different kinds of authority were grouped together in the list - Ms. Otto told the House Judiciary Committee that her main purpose was to craft a list of adult roles that would "address [sexual activity with] 16- and 17-year-old persons".
Senate Judiciary Committee proceedings of January 16, 1990, Tape One, Side 1 @ Log No. 147 and Tape One, Side 2 @ Log 270.
House Judiciary Committee proceedings of May 5, 1990, Tape Jud 90-92, Side 1 @ Log No. 000 et seq.
It is true that, in our sexual abuse of a minor statutes, the term "position of authority" has a broader function than Ms. Otto's answer would suggest. The term "position of authority" is employed not only to define offenses that cover 16- and 17-year-old victims, but also offenses that cover 13-, 14-, and 15-year-old victims. Nevertheless, when the legislative history of AS 11.41.470(5) speaks of adults who are able to exert "undue influence" over a minor, these are not references to the influence that any adult might be able to exert over any child. Rather, as Ms. Otto's response indicates, the underlying theme of the statutory list was to identify the types of adults who, because of their roles in a teenager" s life, would presumably be able to exert undue influence over the teenager - even 16- and 17-year-olds who, under Alaska law, are ordinarily free to make their own sexual choices.
The State's theories as to why Fowlkes occupied a "position of authority" over C.N., and why these theories are ill-founded
In this appeal, the State offers three theories as to how the jury might reasonably have concluded that Fowlkes occupied a position of authority with respect to C.N.
First, the State points out that Fowlkes had recently been C.N.'s tutor at Tanana Middle School. On this basis, the State contends that Fowlkes occupied a position of authority over C.N. because the statutory definition of "position of authority" includes "coach", "teacher", "counselor", and other adults in a "substantially similar position".
The State has a potentially strong argument that Fowlkes occupied a position of authority over C.N. during the years when C.N. attended middle school. But the question here is Fowlkes's status at the time of the crime.
At the time of the offense in this case, Fowlkes continued to work at Tanana Middle School, and thus he may have occupied a position of authority as a tutor or counselor to various children at the middle school. But to prove that Fowlkes was guilty of first-degree sexual abuse of C.N. under AS 11.41.434(a)(3)(B), the State was required to establish that, at the time of the offense, Fowlkes occupied a position of authority in relation to C.N.
In this case, the record shows that C.N. graduated from Tanana Middle School several months before the offense. He had begun attending a parochial high school (i.e., a school that was not administered by the Fairbanks North Star School District). Fowlkes was not on the staff of this high school, and Fowlkes was no longer functioning as C.N.'s tutor or counselor.
The jury might readily have inferred that, because of Fowlkes's former relationship with C.N., the boy trusted Fowlkes and had no qualms about being alone with him. But the charging statute at issue here, AS 11.41.434(a)(3)(B), does not cover all adults who have gained a child's trust through their former dealings with the child. Rather, the statute defining "position of authority" speaks in the present tense. It lists the roles of "coach", "teacher", and "counselor", but it does not speak of former coaches, teachers, and counselors.
.See AS 11.41.470(5).
The House of Representatives' letter of intent regarding AS 11.41.470(5) mentions the example of a teacher sexually abusing a student, and declares that "the relationship of authority between a child and the child's teacher may continue even during the intervals between classes." Similarly, when Laurie Otto explained the proposed statutory definition to the Senate Judiciary Committee, she stated that "a teacher who has a continuing, ongoing relationship with a child should be covered by the law even if the sexual activity takes place on a weekend." But nothing in the legislative history supports the State's current position that a child's former teachers or school counselors continue to occupy a position of authority over the child even after the child has left that school.
1990 House Journal 4199-4200.
Senate Judiciary Committee proceedings of January 23, 1990, Tape One, Side 1 @ Log No. 212 etseq.
For these reasons, I conclude that the evidence was not legally sufficient to establish that Fowlkes occupied a position substantially similar to C.N.'s teacher or counselor at the time of the offense in this case.
The State's next theory is based on the fact that AS 11.41.470(5) lists "employer" as one of the adult roles that qualify as a "position of authority". The State contends that Fowlkes was C.N.'s employer, or at least that Fowlkes occupied a role "substantially similar" to that of an employer, because Fowlkes enlisted C.N. to help him for a couple of hours while he moved his belongings from one apartment to another, and because Fowlkes paid C.N. money for doing this.
There was considerable debate in the legislature regarding whether to include employers within the list of positions of authority.
When Laurie Otto presented her initial version of the statutory list to the Senate Judiciary Committee in mid-January 1990, the list included "employer".However, later at that same committee hearing, the Senate Judiciary Committee voted unanimously to remove "employer" from the list. Thus, when the full Senate approved its version of the bill, the list of adult roles did not include "employer" - and, indeed, the Senate's accompanying letter of intent stated, "Employers and job supervisors were specifically not included within the definition of 'position of special trust' ".
Senate Judiciary Committee proceedings of January 16, 1990, Tape One, Side 1 @ Log No. 147.
Senate Judiciary Committee proceedings of January 16, 1990, Tape One, Side 2 @ Log No. 314-358.
1990 Senate Journal 2198.
When the bill was sent to the House of Representatives, the House put "employer" back in the statutory list. However, the House of Representatives' letter of intent shows that the House did not intend for the word "employer" to be interpreted as broadly as the State now proposes.
1990 House Journal 4212.
The House's letter of intent stated, "In the context of AS 11.41.434 -11.41.440, an employer is a natural person who owns a business or operates an agency." And with regard to the issue of what positions might be considered "substantially similar" to an employer, the House declared that "[a] direct job supervisor with hiring and firing authority is in a position substantially similar to that of an employer."
1990 House Journal 4199.
It was with this understanding - i.e., the House's narrow definition of "employer" - that the Senate concurred in the House's amended version of the bill.
1990 Senate Journal 4212.
Given this legislative history, and given the fact that Fowlkes was acting as a private person (i.e., not as a business owner) when he offered C.N. money in exchange for one afternoon's work, I conclude that the State is wrong when it argues that Fowlkes was C.N.'s "employer", or that Fowlkes occupied a substantially similar position. The evidence was not legally sufficient to establish that Fowlkes was C.N.'s "employer" within the definition adopted by the legislature.
The State's third argument is that Fowlkes might be viewed as occupying a position of authority over C.N. because, according to the State, C.N.'s mother "temporarily entrusted C.N. to Fowlkes's care while C.N. was assisting Fowlkes with the move." In making this argument, the State apparently contends that Fowlkes occupied a position that was substantially similar to that of a "babysitter".
I question whether the State should be heard on this theory, because it is presented for the first time on appeal. At Fowlkes's trial, the prosecutor never argued this "entrustment / babysitter" theory to the jury, and there is no suggestion in the record that the jury ever considered this theory.
In any event, I reject the State's contention that the evidence was sufficient to support a finding of "position of authority" under this theory.
As I have already explained, when the Department of Law and the Alaska Legislature formulated the list of adult roles in the "position of authority" statute, AS 11.41.470(5), they had two primary goals: first, to define the situations where sexual activity between an adult and a 13-, 14-, or 15-year-old teenager would be a higher degree of crime; and second, to define the situations where sexual activity between an adult and a 16- or 17-year-old teenager would be criminal, even though the normal age of sexual consent is 16.
The fact that the legislature included "babysitter" in this list, even when the teenagers to be protected are old enough to be babysitters themselves, suggests that the legislature intended the term "babysitter" to be interpreted in a specialized sense that reflects the maturity of the teenagers who are covered by the "position of authority" provisions of the sexual abuse statutes. This approach is borne out by the legislative history of the "position of authority" statute.
In the Senate's letter of intent, the Senate discussed the question of what roles might be deemed "substantially similar" to the role of a "babysitter" for teenagers. In their discussion, the Senate indicated that this category covered adults who take custody of a minor for a number of days, or at least overnight. Specifically, the Senate declared that "[p]ositions substantially similar to 'babysitter' include a person who is temporarily caring for a minor while the minor's parents are out of town, or an adult who takes a minor along on a camping trip, or an adult who allows a minor to sleep in the adult's home overnight as the guest of the adult's own child."
1990 Senate Journal 2197.
In other words, the Senate did not envision that the term "babysitter" would apply to every adult who might meet or visit with a teenager outside their home, or who might accompany the teenager to some location. Rather, the Senate's letter of intent indicates that the term "babysitter" was meant to cover situations where a teenager would be away from their parents' care for such an extended time that, given the child's age and maturity, one would reasonably expect the teenager's parents to feel the need to have another adult actively assume responsibility for care of their child.
For very young children, parents might reasonably need a substitute caretaker even for a brief absence. But the situation is different when the child is a teenager. Even younger teenagers are normally capable of looking after themselves for a few hours at a time. For teenagers whose parents must leave for work early, this means taking care of themselves (and perhaps their younger siblings) in the morning until it is time for school. For other teenagers, this means taking care of themselves after school, until their parents get home from work. And most parents would not think twice about leaving a teenager home alone, and in charge of their younger siblings, for two or three hours in the evening if the parents had evening plans. Indeed, teenagers as young as 13, 14, or 15 are often hired as babysitters by other parents.
The House of Representatives omitted the Senate's discussion of this point when, later, the House issued its own letter of intent (see 1990 House Journal 4199-4200), and it was this second letter of intent that was eventually adopted by the Legislature as a whole. It is unclear, from the legislative history, why the House removed the Senate's gloss on the term "babysitter". I note, however, that some members of the House expressed general concerns about the breadth of the proposed definition of "position of authority" - or "position of special trust", as it was called in the Senate's version of the bill. One potential reading of this legislative history is that the House deleted the Senate's discussion of this point because members of the House thought that the Senate's gloss on the term "babysitter" was too expansive.
See the House Judiciary Committee's hearings on SB 355 held on May 5, 6, and 7, 1990, and in particular the statements of Rep. Gruenberg on May 6th (Tape One, Side 1 @ Log No. 000 et seq.).
In any event, I conclude that the facts of Fowlkes's case were insufficient to establish that he filled the role of C.N.'s "babysitter".
C.N. asked his mother for permission to leave the house for a couple of hours in the afternoon, so that he could help Fowlkes move into a new apartment. True, C.N. would be in Fowlkes's company during this interval. But even if C.N. had asked his mother to leave the house by himself, unsupervised, for a couple of hours in the afternoon (for example, to see a movie or to socialize with other teenage friends), this was not the kind of break in parental supervision that would require a "babysitter" for a teenager of C.N.'s age.
I believe this is why the prosecutor at Fowlkes's trial never argued that Fowlkes assumed the role of C.N.'s "babysitter" when Fowlkes asked C.N. to help him move into his new apartment, or when C.N.'s mother consented to have her son help Fowlkes. This was simply not a situation that required a babysitter for a 14-year-old.
On appeal, the State does not argue that Fowlkes actually was C.N.'s babysitter. Instead, the State appears to argue that Fowlkes might be likened to a babysitter, because C.N.' s mother allowed C.N. to leave the house in Fowlkes's company for a couple of hours that day.
But as our supreme court recently explained inState v. Thompson, 435 P.3d 947 (Alaska 2019), even though a jury "may consider a broader list of authority figures/roles" than the ones expressly mentioned in AS 11.41.470(5), these other adult roles will not qualify as "positions of authority" unless they are "substantially similar, not slightly similar, to the [statutory] list." Id. at 955. This question of "substantial similarity" turns on identifying the legally significant aspects of the adult's relationship to the child.
Here, C.N. was 14 years old - sufficiently mature that he would not need a babysitter for an afternoon's absence from home. The fact that C.N. was in the company of another person - either an adult or another child - during his absence from home does not mean that this other person became C.N.' s "babysitter", or that this person filled a role "substantially similar" to that of a babysitter.
For these reasons, even assuming that the State can now rely on a "babysitter" theory that was never argued at Fowlkes's trial, I conclude that the evidence was not legally sufficient to establish that Fowlkes occupied a role substantially similar to that of a "babysitter" within the meaning of the "position of authority" statute.
In sum: I conclude that the evidence presented at Fowlkes's trial was not legally sufficient to establish that Fowlkes occupied a "position of authority" in relation to C.N., under any of the legal theories proposed by the State.
[*]Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).