Erickson v. State

• Decision Date: 12 December 1997
• Docket Number: No. A-6309,A-6309
• Parties: Brian E. ERICKSON, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 580

950 P.2d 580

Brian E. ERICKSON, Appellant, v. STATE of Alaska, Appellee.

No. A-6309.

Court of Appeals of Alaska.

Dec. 12, 1997.

Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.

James L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

OPINION

MANNHEIMER, Judge.

In Yearty v. State, 805 P.2d 987, 995 (Alaska App.1991), this court held that when a defendant commits distinct types of sexual penetration upon a victim during a single episode of sexual assault, the defendant can be convicted of separate counts of sexual assault for each type of penetration. The appellant in this case, Brian E. Erickson, was convicted of four counts of second-degree sexual abuse of a minor, AS 11.41.436(a)(1). The four counts involved the same victim and arose from a single episode of sexual abuse, but each count alleged a different form of sexual penetration. Pursuant to Yearty, the superior court entered four convictions against Erickson. On appeal, Erickson argues that Yearty was wrongly decided for two reasons: as a matter of statutory interpretation, and as a matter of constitutional law.

First, Erickson argues that Yearty was wrongly decided as a matter of substantive criminal law. He asks us to re-examine and reverse the holding that a defendant who perpetrates distinct types of sexual penetration during a single assaultive episode can be convicted separately for each type of sexual penetration.

Next, Erickson argues that Yearty's holding violates the double jeopardy clause of the Alaska Constitution as construed by the Alaska Supreme Court in Whitton v. State, 479 P.2d 302 (Alaska 1970). Erickson asserts that, under Whitton, an appellate court is not permitted to create double jeopardy rules for whole classes of cases--rules of general application that will govern all future cases that present the same double jeopardy issue. According to Erickson, the Yearty holding violates Whitton because Yearty establishes this sort of general rule--the rule that separate types of sexual penetration will support separate convictions.

For the reasons explained below, we reject Erickson's arguments and affirm his convictions.

Introduction: Whitton and the constitutional issue Erickson raises in this appeal

In Whitton, the supreme court established the test for determining whether, under the double jeopardy clause of the Alaska Constitution, a defendant's violation of two different criminal statutes during a single criminal event should be treated as a single punishable offense or as two distinct offenses. The court declared that the sentencing judge should:

compare the ... statutes in question, as they apply to the facts of the case, to determine whether [the case] involved differences in intent or conduct. [The judge] [sh]ould then [assess] any such differences ... in light of the basic interests of society to be vindicated or protected, and decide whether those differences [are] substantial or significant enough to warrant multiple punishments.

Whitton, 479 P.2d at 312.

Erickson's case does not raise the same question presented in Whitton (a defendant's violation of two statutes during a single criminal episode), but it involves a related question: whether a defendant's multiple violations of the same criminal statute during a single criminal episode should merge into a single offense. Both of the parties to this appeal agree that a Whitton analysis should govern Erickson's case. However, the parties disagree on what Whitton requires.

The basic dispute is whether double jeopardy rulings under Whitton are ultimately case-specific. Whitton issues generally arise in recurring situations: can a defendant be convicted of both armed robbery and felony-murder when the robbery victim dies? See Todd v. State, 917 P.2d 674 (Alaska 1996). Or can a defendant who commits sexual assault be convicted of both an attempt and the completed crime? See Tuckfield v. State, 621 P.2d 1350 (Alaska 1981). Erickson argues that, even though Whitton issues arise in recurring situations, the supreme court wanted trial judges to decide each case individually, again and again making case-specific determinations of the double jeopardy question, with appellate review available to correct abuses of discretion. The State, on the other hand, argues that, under Whitton, the question of whether a defendant has committed one offense or two is ultimately a question of law. The State contends that, even though double jeopardy questions are normally decided by trial judges in the first instance, the supreme court envisioned that these questions would ultimately be decided by appellate courts who would craft rules of general application to govern recurring situations.

Yearty is a case that established a rule of general application: Yearty held that distinct types of sexual penetration will support separate convictions for sexual assault. Because of this--because Yearty established a general rule to govern future cases--Erickson contends that Yearty runs afoul of Whitton.

Whitton does not apply to Erickson's case

The first issue we must confront is whether Whitton governs this question. As noted above, both Erickson and the State assume that Whitton provides the rule of decision in this case. However, as also pointed out above, Whitton dealt with a different problem from the one presented in Erickson's case. In Whitton, the question was whether a defendant could be convicted of two separate crimes when the defendant's single criminal act violated two different criminal statutes ("robbery" and "use of a firearm during robbery"). Erickson's case, like Yearty, raises a different question: whether a defendant can be convicted of separate crimes when the defendant violates the same criminal statute more than once in a single criminal event.

The supreme court confronted this latter question in State v. Dunlop, 721 P.2d 604 (Alaska 1986). The defendant in Dunlop had recklessly killed two people in a motor vehicle accident; the trial court convicted him of two counts of manslaughter. On appeal, Dunlop contended that his separate convictions violated the Whitton rule.

Dunlop's appeal hinged on the continued vitality of Thessen v. State, 508 P.2d 1192 (Alaska 1973), a case involving a defendant who set fire to a hotel and killed several people. In Thessen, the supreme court applied the Whitton rule and concluded that, even though a defendant's reckless conduct might kill several people, the number of victims was essentially fortuitous and the defendant could be convicted of only one count of manslaughter. Thessen, 508 P.2d at 1195. If Thessen was still good law, then Dunlop should not receive two manslaughter convictions for killing two people. However, the supreme court held that Thessen had been wrongly decided, and it therefore affirmed Dunlop's convictions. Dunlop, 721 P.2d at 608-610.

For purposes of deciding whether Whitton governs Erickson's appeal, it is crucial to note the reasons the supreme court gave for overruling Thessen. The Dunlop court drew a distinction between two problems: (1) deciding whether a defendant's violation of two or more statutes by a single act should be considered one "offense" or many, as opposed to (2) deciding whether a defendant's multiple violations of the same statute in a single criminal event should be considered one offense or many. The court then held that Whitton does not apply to this second problem.

Explaining why Thessen should be overruled, the supreme court explained:

The [Thessen ] majority looked ... to Whitton for guidance in defining "single offense". [Thessen, 508 P.2d] at 1194. Since Thessen violated only one statute, albeit fourteen times, the majority compared one count with another (rather than one statute with another) and applied the Whitton test.

...

After much thought, we conclude that in Thessen we erred in applying Whitton to multiple violations of a single statute. ... When several deaths or injuries occur in the course of a single incident, the offense prohibited by the statute has been violated several times over.

Dunlop, 721 P.2d at 608-09 (first emphasis added; second emphasis in the original) (footnotes omitted). The court further clarified its thinking in footnote 17 of the Dunlop opinion, 721 P.2d at 608, where the court declared, "We do not disturb our holding in Whitton here. Whitton does not apply to these factual situations." ¹

Under the holding in Dunlop, the Whitton rule does not apply to Erickson's case. Erickson's case is like Dunlop and Thessen: Erickson was convicted of violating the same criminal statute four times during a single episode. Under Dunlop, Whitton provides the rule for determining when two statutes define the same "offense", but Whitton does not apply "to multiple violations of a single statute". Dunlop, 721 P.2d at 609. Instead, under Dunlop, the proper number of Erickson's convictions must be determined by identifying "the gravamen of [Erickson's] offense" and then deciding whether Erickson's conduct violated that statute four times or one. Id.

The gravamen of second-degree sexual abuse of a minor, defined in AS 11.41.436(a)(1), is sexual penetration of a minor under the age of 16. Under the definition of "sexual penetration" codified in AS 11.81.900(b)(55), as interpreted in Yearty, a separate offense of second-degree sexual abuse of a minor is committed whenever the defendant engages in a distinct form of sexual penetration with the victim.

In the present case, the jury found that Erickson had engaged in four distinct types of sexual penetration with the victim. To paraphrase Dunlop, "[w]hen several [distinct types of sexual penetration] occur in the course of a single incident, the offense prohibited by the statute has been...