Theodore v. State

¶1concurring.

¶2I concur in this court’s judgment affirming Theodore’s sentence of five years with two years suspended for incest, a class C felony, AS 11.41.450. The facts establish that Theodore had sexual contact with his daughter, from the time she was eight or nine years of age, and engaged in sexual intercourse with her from the time she was in seventh grade until just prior to his being charged with the instant offense. At the time of his sentencing, the victim was seventeen and one-half years of age. We have held a number of times that where a person is convicted of an offense and the trial court finds, based upon verified information,1 that the person’s conduct in fact amounted to commission of a greater offense, the court may find that the conduct was among the most serious conduct included in the definition of the lesser offense. See, e.g., Fee v. State, 656 P.2d 1202, 1204-05 (Alaska App.1982); Huckaby v. State, 632 P.2d 975, 976-77 n. 2 (Alaska App. 1981).2See generally AS 12.55.155(c)(10) (permitting aggravation of a presumptive term where the conduct constituting the offense was among the most serious conduct included in the definition of the offense). Theodore’s factual admissions, coupled with other verified information before the trial court, established that if Theodore was guilty of anything it was a violation of former AS 11.41.410(a)(4), a class A felony, since it is undisputed that Theodore was over the age of eighteen at all relevant times and that his victim was under the age of eighteen at all relevant times and was his natural daughter. Judge Cutler recognized this and therefore considered a number of our decisions dealing *989with sentencing offenders convicted of various degrees of sexual abuse of a minor in imposing sentence. See, e.g., State v. Brinkley, 681 P.2d 351, 357-58 (Alaska App.1984). Under Fee and Huckabyit was proper for her to do so.

¶3I am, nevertheless, very troubled by the state’s ability to charge this defendant on these facts with a violation of AS 11.41.450, a class C felony. The Alaska Supreme Court in several cases has discussed the principles declared in State v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955) (en banc) and Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956) (en banc). Under the Pirkey/Olsen rule, “equal protection is violated when a statute prescribes different punishments for the same act committed under the same circumstances by persons in like situations.” Bell v. State, 598 P.2d 908, 912 (Alaska 1979); Hemphill v. State, 673 P.2d 888 (Alaska App.1983). Accord People v. Marcy, 628 P.2d 69 (Colo.1981); State v. Modica, 58 Hawaii 249, 567 P.2d 420 (1977). Such a problem would surely exist if a prosecutor could always charge the class C felony if the facts established the class A felony. It seems to me that the only way to avoid serious equal protection problems is to construe AS 11.41.450(a)(1) to apply only to consensual sexual relations between adults who happen to be within the prohibited degrees of relationship. This seems to have been what the legislature intended when it enacted AS 11.41.-450(a)(1). Prior to code revision, former AS 11.40.110 prohibited incest without regard to the age of the participants. The Criminal Code Revision Subcommission, entrusted with proposing Alaska Criminal Code revision, did not recommend carrying AS 11.40.110 over into the new code. The subcommittee report does not specifically address this statute. The subcommittee does say, however, that it had eliminated from its proposals all statutes purporting to prohibit consensual sexual activity between adults in private. Alaska Criminal Code Revision Part I, at 75 (Tent.Draft 1977).3 The state legislature disagreed with the law revision commission and enacted AS 11.41.450(a)(1), apparently intending to reach consensual conduct between adults as well as AS 11.41.410(a)(4), which was identical except it provided that the victim must be under the age of eighteen.4 The implication is that AS 11.41.450(a)(1) is limited to “victims” over the age of eighteen. What is implicit in the statute is explicit in the legislative commentary to AS 11.41.410(a)(4) which provides:

Subsection (a)(4) provides that the final form of sexual assault in the first degree occurs when a person 18 or older engages in sexual penetration with a person under 18 who is entrusted to his care by authority of law (i.e., ward) or who is his son or daughter. Insofar as the statute applies to a victim under eighteen who is the defendant’s son or daughter, it raises what would be a C felony under *990the incest statute, AS 11.41.450, to an A felony.

¶4Senate Judiciary Committee, Commentary on the Alaska Revised Criminal Code, Supp. No. 47, at 22-23, in 2 Senate Journal following p. 1413 (1978).

¶5In order to avoid serious equal protection problems, we should interpret AS 11.41.-450(a)(1) only to apply to consensual sexual activity among adults. So interpreted, Theodore could not be guilty of this offense since his victim had not reached the age of eighteen at any relevant time. I nevertheless concur in the judgment affirming Theodore's sentence. The issue is not before us. Theodore is probably es-topped to challenge the application of the statute to him and the sentence imposed appears reasonable for a sexual assault under the totality of the circumstances. See, e.g., State v. Brinkley, 681 P.2d 351, 357-58 (Alaska App.1984).