Cunningham v. State
| Docket Number | A-13108,2757 |
| Decision Date | 25 August 2023 |
| Parties | MICHAEL STEVEN CUNNINGHAM, Appellant, v. STATE OF ALASKA, Appellee. |
| Court | Alaska Court of Appeals |
Appeal from the Superior Court, Trial Court No. 3AN-16-05903 CR Third Judicial District, Anchorage, Michael L. Wolverton Judge.
Emily Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde “Ed” Sniffen Jr Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison Judges.
Following a bench trial, the superior court found Michael Steven Cunningham guilty of two counts of first-degree indecent exposure based on a single incident. As to the first count, the State alleged that Cunningham was guilty of first-degree indecent exposure because he committed second-degree indecent exposure within the observation of a person under sixteen years of age and "knowingly masturbate[d]" while committing "the act constituting the offense."[1] As to the second count, the State alleged that Cunningham was guilty of first-degree indecent exposure because he committed second-degree indecent exposure within the observation of a person under sixteen years of age, and he had been previously convicted of a similar crime in Oregon.[2]The superior court merged the two counts into a single conviction, and Cunningham now appeals.
On appeal, Cunningham does not contest the fact that he committed second-degree indecent exposure - i.e., that he knowingly exposed his genitals in the presence of another person, with reckless disregard for the offensive, insulting, or frightening effect the act might have.[3] Rather, he raises various challenges to the factors that elevated his offense to first-degree indecent exposure.
As to the count of recidivist indecent exposure, Cunningham argues that the statute under which he was convicted in Oregon does not contain "elements similar" to Alaska's indecent exposure statute, and that he therefore does not have a qualifying prior conviction for the purpose of elevating his offense to first-degree indecent exposure. On this point, we agree with Cunningham.
We must therefore address Cunningham's challenges to the alternative count that requires proof of masturbation. As to this count, Cunningham raises two challenges.
First, Cunningham argues that the superior court erred when it considered an alternative dictionary definition of "masturbation" - a different definition than the one used by the parties in their closing arguments. We agree that the superior court should not have considered an alternative dictionary definition of masturbation after closing arguments without providing notice to the parties and an opportunity to be heard. But we disagree with Cunningham that this caused the superior court to apply a meaningfully different legal test when rendering its verdict, and we therefore find the error harmless.
Second, Cunningham argues that to find him guilty of first-degree indecent exposure under the masturbation theory, the State was required to prove (and the superior court was required to find) that the masturbation was "within the observation of a person under 16 years of age." He further argues that "within the observation of" means that the State was required to prove that the victim actually saw his act of masturbation. For the reasons explained in this opinion, we conclude that the State was required to prove that the indecent exposure was "within the observation of a person under 16 years of age," but that the State was not required to prove that the victim actually saw Cunningham's act of masturbation. Because there was no dispute that a child directly observed Cunningham's act of exposure, we affirm the superior court's guilty verdict on Count I (the masturbation theory), and we affirm Cunningham's conviction.
Cunningham also raises two challenges to his sentence.
First, Cunningham argues that the superior court erred in imposing a lifetime sex offender registration requirement instead of a 15-year registration requirement. The State concedes error on this point. We conclude that the State's concession is well-founded, and we remand for revision of the registration requirement in the judgment.
Lastly, Cunningham argues that the superior court erred in finding an aggravating factor -that, under AS 12.55.155(c)(5), Cunningham "knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistence" due to her young age. We conclude that this claim is moot because the court, relying solely on the child's age, ultimately imposed a sentence within the presumptive range.
Underlying facts and proceedings
On July 5, 2016, seven-year-old A.C. was at a bookstore in Anchorage when she asked an employee, Michael Steven Cunningham, to show her where the Harry Potter books were located. Cunningham walked A.C. to the Harry Potter section, and A.C. pulled out several books while Cunningham stood behind her, speaking to her and pointing out books on the shelf. While A.C. was facing the shelf, Cunningham removed his penis from his pants. This incident was captured on one of the bookstore's surveillance cameras.
Over the course of the next two minutes, A.C. can be seen on the surveillance video continuing to look at and read books. During this time, Cunningham remained in close proximity to A.C. and can be seen taking his penis in and out of his pants and manipulating it with his hand. Cunningham was carrying books in his left hand for much of the incident, and at times he used the books to partially shield his penis from view.
At one point, Cunningham can be seen walking toward the camera and past A.C., who at that point was sitting on a stool reading a book. As Cunningham walked past A.C., his penis was fully exposed, and he appeared to be touching his penis with his hand, close to A.C.'s eye level. Cunningham eventually walked out of view of the camera. A.C. then stood up and went to find her mother's friend, the adult who had taken her to the bookstore.
A.C. testified at trial that she saw Cunningham's "privates" and became "worried." She explained that she ultimately told her mother what had happened. A.C.'s mother called the bookstore manager and reported what her daughter had told her. The manager reviewed the store's surveillance video and, after seeing Cunningham expose himself to A.C., the manager contacted the police.
A grand jury indicted Cunningham on two counts of first-degree indecent exposure - first, for committing second-degree indecent exposure within the observation of a person under sixteen years of age and while doing so, knowingly masturbating; and second, for committing second-degree indecent exposure within the observation of a person under sixteen years of age, while having previously been convicted in another jurisdiction of a crime with elements similar to Alaska's second-degree indecent exposure statute.[4] (Cunningham was previously convicted, in a single judgment, of three counts of public indecency under Oregon law.)
Cunningham waived his right to a jury trial and proceeded to a bench trial. The superior court, sitting as fact-finder, found Cunningham guilty of both counts, and the court merged the two counts into a single conviction. The court sentenced Cunningham to 12 years with 8 years suspended (4 years to serve), with a 10-year term of probation. The superior court also imposed a lifetime sex offender registration requirement.
This appeal followed.
The offense for which Cunningham was convicted in Oregon does not have "elements similar" to Alaska's indecent exposure statute for the purpose of elevating his act of exposure to a felony
Prior to trial, Cunningham filed a motion to dismiss the count of the indictment charging him with first-degree indecent exposure under a recidivist theory. Cunningham argued that his prior public indecency convictions from Oregon did not have "elements similar" to Alaska's indecent exposure statute because the Oregon statute prohibited a broader scope of conduct compared to the Alaska statute. Cunningham therefore argued that he had not been "previously convicted" for purposes of elevating his act of exposure at the Anchorage bookstore to a felony.[5]
The superior court denied Cunningham's motion. First, the court relied on the facts of Cunningham's prior convictions to conclude that his conduct would support a conviction in Alaska. To reach this conclusion, the court relied on handwritten notations of unknown origin on the Oregon charging document that was introduced at the grand jury proceeding. (These notations were redacted in the exhibits later introduced at trial.[6]) Second, the court concluded that, while the Oregon statute did have broader elements than the Alaska statute, the two statutes were sufficiently similar because, according to the court, the broader language in the Oregon statute only encompassed "a narrow spectrum of unusual cases."[7]
Cunningham now challenges the court's ruling.
As an initial matter, we agree with Cunningham that the superior court erred in relying on the facts underlying Cunningham's prior convictions to determine whether the Oregon statute had "elements similar" to Alaska's for the purpose of elevating his offense to first-degree indecent exposure. For one thing, these facts were based solely on handwritten notations of unknown origin on the Oregon charging document - notations that were later redacted from the trial exhibits.[8] Moreover, the recidivist theory of first-degree indecent exposure requires a comparison of statutory elements: a person must have...
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