Opinion
A-13595
08-30-2023
SPENCER PAUL LACHAPPELLE, Appellant, v. STATE OF ALASKA, Appellee.
Claire F. DeWitte, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Trial Court No. 4NE-18-00001 CR Nenana, Douglas L. Blankenship, Judge.
Claire F. DeWitte, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
TERRELL Judge
Spencer Paul LaChappelle was convicted, following a jury trial, of four counts of second-degree sexual abuse of a minor and one count of fourth-degree assault. He was given a composite sentence of 15 years and 1 day with 9 years suspended (6 years and 1 day to serve). On appeal, he argues that the superior court erred when it concluded that the least serious mitigator did not apply. He also challenges multiple probation conditions and aspects of his presentence report. We affirm the denial of the least serious mitigator. But we strike some of the probation conditions and remand for reconsideration of others, and we remand for correction of the presentence report.
AS 11.41.436(a)(1) and AS 11.41.230(a)(1), respectively.
AS 12.55.155(d)(9).
Underlying facts and proceedings
In the fall and winter of 2017, twenty-year-old LaChappelle engaged in a sexual relationship with fourteen-year-old S.B. At trial, S.B. testified to two instances where LaChappelle gave her alcohol and had vaginal intercourse with her, once at his cabin and once at his parents' house. She testified that on the first of these occasions, she initially did not want to have sex with him and kept telling him no but ultimately agreed. S.B. also testified that there were multiple times where they had vaginal intercourse in LaChappelle's car, with LaChappelle providing her with alcohol and marijuana on some of these occasions.
S.B. then testified that on one final occasion, LaChappelle sexually assaulted her in his car. According to S.B., she repeatedly told him that she did not want to have sex and tried to stop him, but he held her down, pulled down her pants, and engaged in vaginal penetration. They then drove away but the car got stuck in a snowbank. According to S.B., they smoked marijuana together while they were stuck in the snowbank, and then LaChappelle forced her to perform fellatio on him and forcibly performed cunnilingus on her. S.B. testified that during the course of this conduct, he hit her multiple times and pushed her into the side of the door, causing bruising to her head; bit her labia, causing it to bleed; and strangled her. S.B. also testified that LaChappelle anally penetrated her that night (although she could not remember when, exactly, it occurred during the night). S.B. further testified she still felt pain from this assault at the time of trial.
LaChappelle also testified at trial. LaChappelle admitted that he had sex with S.B. in his cabin and his parents' house. He also said that he did not remember having sex with her in his car prior to the final night but that it might have happened. With respect to the final night, LaChappelle testified that he and S.B. engaged in consensual fellatio and vaginal intercourse prior to getting stuck in the snowbank, and consensual vaginal intercourse after getting stuck. He denied engaging in cunnilingus or anal penetration, strangling her, hitting her, or biting her, and he suggested that any bruising likely came from having sex in the cramped car.
The State charged LaChappelle with three counts of first-degree sexual assault for engaging in sexual penetration with S.B. (vaginal intercourse, anal intercourse, and cunnilingus) without her consent based on S.B.'s allegations of what occurred on the final night. The State also charged LaChappelle with six counts of second-degree sexual abuse of a minor for engaging in sexual penetration with S.B. when she was fourteen years old and at least four years younger than LaChappelle.Three of these counts corresponded to the three sexual assault counts (i.e., the counts stemming from what occurred on the final night), and three more counts were based on the sex at LaChappelle's cabin, at his parents' house, and in his car that occurred before the final night. The State also charged LaChappelle with one count of third-degree assault for recklessly causing S.B. physical injury by means of a dangerous instrument (his hands, when he strangled her).
Former AS 11.41.410(a)(1) (2017).
AS 11.41.436(a)(1).
AS 11.41.220(a)(1)(B).
The jury found LaChappelle not guilty of the three counts of first-degree sexual assault, of the two counts of second-degree sexual abuse of a minor alleging anal penetration and cunnilingus in the car, and of the third-degree assault. But it found LaChappelle guilty of the remaining four counts of second-degree sexual abuse of a minor based on genital intercourse (i.e., based on genital intercourse in LaChappelle's car on the final night, as well as in the cabin, in his parents' house, and in his car prior to the final night). The jury also found LaChappelle guilty of the lesser included offense of fourth-degree assault (for recklessly causing S.B. physical injury).
AS 11.41.230(a)(1).
The superior court sentenced LaChappelle to a composite sentence of 15 years and 1 day with 9 years suspended (6 years and 1 day to serve).
LaChappelle appeals aspects of his sentence, his probation conditions, and the presentence report.
LaChappelle's challenge to the denial of the least serious mitigator
At sentencing, LaChappelle argued that the mitigating factor in AS 12.55.155(d)(9) - that "the conduct constituting the offense was among the least serious conduct included in the definition of the offense" - applied to each of his sexual abuse of a minor convictions. In support of this mitigator, he primarily argued that the age difference in this case was significantly less than that of the typical case.
The State opposed this request. It noted that the crime for which LaChappelle was convicted prohibited sexual penetration, by a person at least four years older than the other person, of a person who was thirteen, fourteen, or fifteen years old, with the offense being subject to an aggravating factor if the defendant was at least ten years older than the other person. It argued that, understood within this statutory framework, LaChappelle's conduct was typical of the offense (and not the least serious) because S.B. was fourteen years old and LaChappelle was six years older than she was.
See AS 11.41.436(a)(1) (establishing the crime of second-degree sexual abuse of a minor); AS 12.55.155(c)(18)(E) (permitting a sentence above the presumptive range if aggravator is found).
The State also argued that no other aspects of LaChappelle's conduct made it among the least serious conduct, noting that the sexual penetration underlying each conviction was not brief in duration, that LaChappelle engaged in repeated instances of the conduct spanning months, and that LaChappelle provided drugs and alcohol to S.B. prior to having sex with her.
The superior court declined to find the least serious mitigator.
On appeal, LaChappelle argues that the superior court denied the least serious mitigator on an improper basis. According to LaChappelle, the court's reason for denying the mitigator was that LaChappelle engaged in penile penetration and that penile penetration is inherently more serious than other types of penetration. Specifically, LaChappelle takes issue with the following comments that the court made:
[P]enetration can be digitally by fingers, it could be penil[e], and here, [the] evidence indicates that, in all four instances, there was sexual intercourse. So it's difficult to find that the - this conduct was at least serious within the boundaries of the offense of sexual abuse of a minor in the second degree. It also appears to the Court that this is typical conduct for this offense, principally because of the sexual penetration aspect.
LaChappelle is correct that we have rejected the view that penile penetration is inherently more serious than other types of penetration. As we explained in Benboe v. State, "the legislature has not distinguished between the seriousness of various types of sexual penetration. There is therefore no basis upon which to conclude that one type of penetration should be deemed automatically more serious or less serious than another."
Benboe v. State, 698 P.2d 1230, 1232 n.4 (Alaska App. 1985); see also Lepley v. State, 807 P.2d 1095, 1097 (Alaska App. 1991) ("In Benboe v. State, we specifically held that all forms of sexual penetration defined in AS 11.81.900(b)(53) are presumed equally culpable.") (citation omitted).
However, we do not read the judge's remarks as does LaChappelle, i.e., as relying on differentiating types of penetration. We instead construe these remarks to acknowledge that LaChappelle engaged in sexual intercourse with S.B., as opposed to sexual penetration that was "slight and of brief duration," and that it was not error to consider this "typical." As the State noted, the undisputed facts of the case were that LaChappelle's and S.B.'s ages were not on the margins of what the statute prohibits, that LaChappelle engaged in repeated instances of the conduct across months, and that he provided S.B. with drugs and alcohol prior to having sex with her. We therefore agree with the superior court that LaChappelle's conduct was not among the least serious conduct included in the definition of the offense.
Voyles v. State, 2017 WL 2709730, at *6 (Alaska App. June 21, 2017) (unpublished) (holding that the trial court erred in declining to find the least serious mitigator applied where the defendant engaged in a "single act of penetration and . . . the intrusion was slight and of brief duration").
See State v. Parker, 147 P.3d 690, 695 (Alaska 2006) ("The presumptive term for any given class of case represents the appropriate sentence for typical cases in that class, a relatively broad category into which most cases will fall; statutory aggravating and mitigating factors define the peripheries of this category, identifying relatively narrow circumstances that tend to make a given case atypical and place it outside the relatively broad presumptive middle ground." (quoting Knight v. State, 855 P.2d 1347, 1349 (Alaska App. 1993))).
See Parker, 147 P.3d at 696 (noting that, to facilitate his offenses, Parker supplied the victim with alcohol and drugs, which weighed against a finding of the least serious mitigator); see also id. at 700 (Bryner, C.J., concurring) (same).
See Michael v. State, 115 P.3d 517, 519 (Alaska 2005) (holding that "[a]ny factual findings made by the court regarding the nature of the defendant's conduct are reviewed for clear error, but whether those facts establish that the conduct 'is among the least serious' under AS 12.55.155(d)(9) is a legal question" subject to de novo review) (citations omitted).
The State's concession that the portion of Special Condition of Probation No. 5 authorizing residential treatment must be stricken
On appeal, LaChappelle also challenges a number of his probation conditions. Specifically, he challenges Special Condition of Probation No. 5, which requires him, inter alia, to enroll in a residential mental health or substance abuse program if "determined necessary by an appropriate mental health or substance abuse professional," and to stay in the residential program "for a length of time determined necessary by the appropriate professionals." LaChappelle did not object to this condition in the superior court, but he argues on appeal that this portion of the condition is plainly erroneous because it fails to set a maximum term for residential treatment.He further argues that this portion of the condition must be stricken, and may not be reconsidered on remand, because doing so would constitute an illegal increase in his sentence in violation of the prohibition against double jeopardy. The State concedes that the challenged language must be stricken and that double jeopardy prohibits reconsideration of this portion of the condition on remand. We conclude that this concession of error is well-founded and therefore strike this portion of the condition.
See Galindo v. State, 481 P.3d 686, 690 (Alaska App. 2021) ("[T]he failure to set an upper limit for the residential treatment provision is contrary to both statute and case law, and thus [is] plainly erroneous." (citing AS 12.55.100(c); Christensen v. State, 844 P.2d 557, 558-59 (Alaska App. 1993))).
Galindo, 481 P.3d at 690 (declining to remand to put time limit on residential treatment ordered as a probation condition, stating that "once a sentence has been meaningfully imposed, the imposition of a maximum term for residential treatment constitutes an illegal increase in the defendant's sentence in violation of the prohibition against double jeopardy"); Christensen, 844 P.2d at 559 (stating "that an illegal sentence should not be increased unless absolutely necessary to correct the illegality," and striking the defendant's probation condition authorizing residential alcohol treatment because it failed to set a maximum period for such treatment).
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (noting that appellate courts must independently review a concession of error by the State).
The State's concessions that Special Condition of Probation Nos. 7, 9, 12, 13, and 17 should be remanded for reconsideration
On appeal, LaChappelle also challenges aspects of Special Condition of Probation Nos. 7, 9, 12, 13, and 17. For each of these conditions, the State concedes error. We conclude that each concession is well-founded. Unlike the prior condition, however, there is no rule barring reconsideration of these conditions on remand. The State requests that we remand each condition for further proceedings, and we agree with the State that remand is appropriate in each instance.
Specifically, Special Condition No. 7 prohibits LaChappelle from having "any contact with a person under sixteen (16) years of age unless he is in the immediate presence of an adult who knows the circumstances of his crime (including his assault cycle, if appropriate)." LaChappelle did not object to the portion of this condition concerning his "assault cycle" in the superior court. But on appeal he argues and the State concedes that this portion of the condition is plainly erroneous because it is impermissibly vague. We agree.
See Horton v. State, 2022 WL 855656, at *6 (Alaska App. Mar. 23, 2022) (unpublished) (holding that the phrase "assault cycle of the crime" was impermissibly vague and remanding for clarification); Gardner v. State, 2018 WL 6418086, at *4 (Alaska App. Dec. 5, 2018) (unpublished) (same).
LaChappelle challenges three special conditions of probation, Nos. 9, 13, and 17, and we discuss these conditions together because they all concern the topic of "sexually explicit materials." Special Condition No. 9 prohibits LaChappelle from possessing any sexually explicit materials without the prior written permission of his probation officer and sex offender treatment provider. Special Condition No. 13 prohibits LaChappelle from entering any establishment whose primary business is the sale of sexually explicit materials. And Special Condition No. 17 requires LaChappelle to submit to searches by his probation officer for sexually explicit materials. Each of these conditions defines "sexually explicit materials" as materials depicting conduct set forth in AS 11.41.455(a) - which defines the crime of unlawful exploitation of a minor and contains a comprehensive list of various forms of sexual conduct that are encompassed by the offense - but the probation conditions qualify this by specifying that the enumeration of conduct applies "regardless of whether the conduct depicted involves adults or minors."
The insertion of this list of conduct set out in AS 11.41.455(a) stems from our decision in Diorec v. State, 295 P.3d 409, 417 & n.21 (Alaska App. 2013), where we held that use of such a list could help in reducing the vagueness of the otherwise undefined term "sexually explicit materials."
LaChappelle did not object to these conditions in the superior court, but on appeal he argues and the State concedes that this definition of "sexually explicit materials" is plainly erroneous because it does not withstand special scrutiny in that his conduct did not involve adults and there is no basis to infringe upon his First Amendment rights. LaChappelle argues that these conditions should be stricken and the State concedes but argues that the propriety of these conditions should be remanded to the superior court for reconsideration. We interpret this concession as agreement that the conditions, insofar as they involve materials depicting only adults, should be stricken on remand, which is appropriate given the record. The superior court can also on remand further assess the conditions insofar as they involve conduct depicting minors; we note that the current record does not suggest that LaChappelle's offense was fueled by or otherwise related to viewing child pornography, and the viewing of such pornography can be addressed in the context of the general probation condition requiring LaChappelle to comply with local, state, and federal law.
See Galindo, 481 P.3d at 693-94 (remanding for trial court to reconsider whether the prohibition on defendant's ability to possess "sexually explicit material," including depictions of adults, was "narrowly tailored to avoid unnecessary interference" with First Amendment right to possess such material).
Special Condition No. 12 prohibits LaChappelle from "open[ing] or maintain[ing] an account with any internet provider" or "accessing the internet from anyone else's account" without prior written permission of his probation officer. LaChappelle objected to this condition in the superior court, and suggested as an alternative that he could be required to notify his probation officer about his account, but the superior court overruled the objection and imposed the condition. On appeal, LaChappelle argues and the State concedes that the superior court failed to apply special scrutiny and consider less restrictive alternatives. We agree.
See Dalton v. State, 477 P.3d 650, 652-56 (Alaska App. 2020) (recognizing that, while there may be a factual nexus between a defendant's internet use and their crime, that nexus does not necessarily support "a complete internet ban, subject only to the unconstrained discretion of a probation officer").
Finally, Special Condition No. 17 also requires LaChappelle to submit to searches for deadly weapons. LaChappelle did not object to this condition in the superior court, but now argues that it is not sufficiently related to his crime. He notes that we have reversed similar probation conditions in cases where there was no evidence that the defendants had used deadly weapons during the commission of their crimes.
See Dayton v. State, 120 P.3d 1073, 1085 (Alaska App. 2005); Boles v. State, 210 P.3d 454, 455 (Alaska App. 2009); Johnson v. State, 2018 WL 798422, at *1 (Alaska App. Feb. 7, 2018) (unpublished).
It is not clear that this case is analogous to these prior cases LaChappelle cites. First, although LaChappelle did not physically possess a weapon during the commission of his crimes, S.B. alleged (and the State charged) that LaChappelle used his hands as a dangerous instrument when he strangled her. And second, while the jury found that the State failed to prove this offense beyond a reasonable doubt, the standard of proof at sentencing is lower, requiring only a preponderance of the evidence. Had LaChappelle objected to this portion of this condition in the superior court, the court would have had to explain why it imposed the condition, and we could have reviewed that reasoning. But without an objection, we are left without any record to review and may only reverse for plain error.
See Brakes v. State, 796 P.2d 1368, 1372 n.5 (Alaska App. 1990).
State v. Ranstead, 421 P.3d 15, 23 (Alaska 2018).
That said, the State concedes that, because we must remand for further consideration of other probation conditions, it is appropriate to remand to reconsider this aspect of this probation condition. We accept the State's concession.
On remand, the superior court should reconsider each of the above conditions.
LaChappelle's challenge to Special Condition of Probation No. 10's restriction on his driving privileges
Special Condition No. 10 requires LaChappelle to "observe limitations on driving privileges as established by his probation officer." The condition lists example limitations, including "not picking up hitchhikers, not driving at night, and not driving alone." It also provides that LaChappelle's probation officer may require him "to maintain a driving log specifying mileage, time of departure and arrival, destination, and/or the persons who rode with [him]." LaChappelle objected to this condition in the superior court. The court overruled the objection and imposed the condition.
LaChappelle renews his objection on appeal, arguing the condition is unduly restrictive and not reasonably related to his rehabilitation because there is no nexus between his convictions and limiting his driving privileges. The State disagrees, arguing there is a clear factual nexus between LaChappelle's crimes and his driving privileges because LaChappelle's car enabled him to be alone with S.B. We agree with LaChappelle. Although he acknowledges that he committed two of his crimes in a car, we agree with LaChappelle that the car operated primarily as a physical space equivalent to a room (rather than as a moving vehicle). As LaChappelle notes on appeal, a defendant who sexually abused a minor in a room "would not be prohibited from accessing rooms because that was the location of the offense." We conclude that there is not a sufficient nexus between LaChappelle's conduct and limiting his driving privileges and therefore, Special Condition No. 10 is not "reasonably related to the rehabilitation of the offender and the protection of the public" and is "unduly restrictive of liberty." Accordingly, we strike this condition.
Id. at 19 (quoting Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977)).
LaChappelle's challenge to Special Condition of Probation No. 23's requirement that he disclose his sex offending history
Special Condition No. 23 requires LaChappelle to "inform all persons with whom he has a significant romantic relationship of his sex offending history." LaChappelle did not object to this condition in the superior court, but on appeal, he argues that this condition is plainly erroneous because it is impermissibly vague. LaChappelle notes that we have previously concluded that the phrase "significant relationship" is impermissibly vague, and argues adding the word "romantic" does not alter this result. (We note that we have also concluded that the phrase "engage in an intimate relationship" is impermissibly vague.) The State disagrees with LaChappelle, arguing that the phrase "significant romantic relationship" provides more guidance than the phrases we have rejected.
See Smith v. State, 349 P.3d 1087, 1095 (Alaska App. 2015); Whiting v. State, 2014 WL 706268, at *2-3 (Alaska App. Feb. 19, 2014) (unpublished).
See Bodfish v. State, 2009 WL 3233716, at *5 (Alaska App. Oct. 7, 2009) (unpublished).
We agree with LaChappelle. As the Second Circuit Court of Appeals explained, in finding unconstitutionally vague a probation condition requiring the probationer, upon entry into a "significant romantic relationship," to inform the other party to the relationship of his conviction:
What makes a relationship "romantic," let alone "significant" in its romantic depth, can be the subject of endless debate that varies across generations, regions, and genders. For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be "significant." The history of romance is replete with precisely these blurred lines and misunderstandings.
United States v. Reeves, 591 F.3d 77, 81 (2d Cir. 2010); see also United States v. Rock, 863 F.3d 827, 832-33 (D.C. Cir. 2017) (discussing its agreement with Reeves and also vacating a probation condition with the "significant romantic relationship" phrase). But see United States v. Pennington, 606 F. App'x. 216, 221, 223 (5th Cir. 2015) (upholding the phrase "date, engage in a relationship or co-habitat[e] with" against a vagueness challenge).
We therefore remand for clarification of this condition.
The State's concession that the presentence report should be remanded for correction
In preparation for sentencing, a probation officer prepared a presentence report. In the "present offense" section of the report, the report heavily relied only on S.B.'s allegations. The report only briefly mentioned that LaChappelle denied S.B.'s allegations and that he testified to this effect at trial. The report also only briefly mentioned, without providing any further context, that LaChappelle was acquitted of all first-degree sexual assault charges, multiple second-degree sexual abuse of a minor charges, and the third-degree assault charge. And in the "evaluation" section of the report, the report represented as fact S.B.'s version of events - repeatedly stating that LaChappelle forcibly sexually assaulted S.B., that he anally raped S.B. from which she still felt pain, and that he bit S.B.'s labia as he performed cunnilingus.
LaChappelle objected to this presentation of the facts in the presentence report. The superior court agreed with LaChappelle and ordered the probation officer to produce an amended presentence report. The court ruled that S.B.'s allegations could remain in the report but that "there need[ed] to be equal force in [LaChappelle's] denials." And it ruled that the report inappropriately made blanket statements regarding LaChappelle's conduct that were inconsistent with his denials and the jury's verdict, such as in the "evaluation" section, which stated that the "defendant forcibly sexually assaulted and injured" S.B. The court stated such statements needed to be changed in the report.
The probation officer completed a corrected presentence report. In the "present offense" section of the report, the officer added language to make clear that the report was merely reporting S.B.'s allegations, and the officer added an additional sentence stating that LaChappelle denied that any actions were nonconsensual at trial. The officer also removed the specific statement that the court identified in the "evaluation" section of the report. But the officer did not remove other instances in the "evaluation" section that stated that LaChappelle forcibly sexually assaulted S.B., and the report still stated that LaChappelle anally raped S.B., that she still felt pain from the rape, and that he bit her labia.
LaChappelle did not object to this corrected presentence report after it was issued, but he argues on appeal that the report is plainly erroneous because it does not comply with the court's prior ruling. The State concedes error. We conclude that this concession of error is well-founded and therefore remand for further correction of the presentence report.
See Smith v. State, 369 P.3d 555, 557-58 (Alaska App. 2016) (remanding for redaction of allegations in the presentence report that the court had "acknowledged . . . were unproven and speculative, or not germane to sentencing"); see also Alaska R. Crim. P. 32.1(f)(5) (requiring sentencing courts either to "enter findings regarding any disputed assertion in the presentence report" and delete "[a]ny assertion that has not been proved" or, "[a]lternatively, if the court determines that the disputed assertion is not relevant to its sentencing decision so that resolution of the dispute is not warranted, . . . delete the assertion . . . without making any finding").
Conclusion
We AFFIRM the denial of the least serious mitigator. We STRIKE the portion of Special Condition of Probation No. 5 that requires LaChappelle to enroll in a residential mental health or substance abuse program and Special Condition of Probation No. 10. We REMAND for further proceedings consistent with this opinion Special Condition of Probation Nos. 7, 9, 12, 13, 17, and 23 and the presentence report.