Flink v. State
| Decision Date | 11 May 1984 |
| Docket Number | 7060,Nos. 6962,s. 6962 |
| Citation | 683 P.2d 725 |
| Parties | Nicholas FLINK, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
Nicholas Flink was convicted of various sexual offenses involving children, including one count of first-degree sexual assault. He appeals challenging the constitutionality of former AS 11.41.440(a)(2) 1 (sexual abuse of a minor) and former AS 11.51.130(a)(4) 2 (contributing to the delinquency of a minor). Both of these statutes prohibit sexual contact with children. Flink contends that the statutory definition of "sexual contact" 3 includes innocent conduct and therefore renders the statutes unconstitutionally vague and overbroad. Flink received sentences totaling sixteen years' imprisonment, including ten years for first-degree sexual assault. He challenges these sentences as excessive. We reverse the convictions for sexual abuse and contributing to the delinquency of a minor. 4 The ten-year sentence for first-degree sexual assault is affirmed. The judgment of the superior court is REVERSED in part, AFFIRMED in part, and this case is REMANDED for further proceedings.
During the spring of 1981, Flink befriended a group of boys living near him. The boys included thirteen-year-old A.T., nine-year-old M.H., eleven-year-old W.G., and nine-year-old C.A. The boys would visit Flink frequently to play with his farm animals and to play pinball and foosball. Alcohol and drugs were apparently readily available to the boys at Flink's house. Flink, a homosexual, admitted talking to the boys about many subjects, including sex.
The charges in the indictment arose from a series of events occurring in May and June of 1981. The state alleged that on three occasions Flink touched one or more of the boys' genitals. Flink conceded one instance of "sexual contact", but denied the boys' other charges. In addition, Flink was accused of, and admitted, performing fellatio on C.A.
The indictment charged six separate counts of sexual involvement with minors. A discussion of the individual charges and the evidence presented at trial follows.
Count I charged Flink with sexual abuse of A.T. in May of 1981. A.T. was twelve years old at the time. He turned thirteen on June 2, 1981. The state's theory of the case was that while A.T. was visiting Flink's house, Flink provided rum and A.T. became intoxicated. As A.T. lay on a couch, Flink started to rub his back. Flink eventually reached for A.T.'s penis. When A.T. told Flink to stop, Flink complied.
Flink's account of the incident differed from A.T.'s Flink testified that A.T. was drinking but not drunk, and that he gave A.T. a back massage in response to the boy's complaint about a backache. He specifically denied touching A.T.'s penis or testicles.
The jury acquitted Flink of sexual abuse but convicted him of the lesser-included offense of attempt, apparently concluding that Flink reached for A.T.'s genitals but failed to touch them.
In Count II Flink was accused of sexually abusing M.H. on June 3, 1981. In count III he was charged with contributing to the delinquency of A.T. during the same incident. The reason for the different charges was that M.H. was nine years old at the time while A.T. had turned thirteen.
The state's theory of the case was that A.T. and M.H. went to visit Flink who offered to give A.T. a birthday present in the form of a "blow job". A.T. refused but Flink persisted. When verbal encouragement failed, Flink pinned A.T. to the floor and started to remove A.T.'s pants, putting his face against A.T.'s crotch. A.T. called for M.H.'s help and a struggle ensued. The state originally alleged that Flink grabbed M.H.'s crotch during the struggle, but M.H. testified that Flink grabbed only his leg. Both boys finally worked loose of Flink's grasp and ran for the door.
Flink's testimony presented a different sequence of events. He testified that M.H. and A.T. came to visit him on June 3 and that A.T. initiated a discussion about sex. During this conversation, A.T. became playful and began to sexually tease Flink. Flink testified that this resulted in a friendly episode of wrestling between himself and the two boys. He specifically denied touching the genitals of either A.T. or M.H.
The jury acquitted Flink of count II involving M.H. and convicted him of count III involving A.T.
Counts IV, V and VI involved incidents which occurred on June 17, 1981. In counts IV and V the state alleged that Flink sexually abused W.G. and C.A. Count VI charged Flink with engaging in sexual penetration with C.A.
W.G. and C.A. testified that they were visiting Flink's house when Flink offered to give them "head". He sent them into a utility closet with a coin, while he blindfolded himself. The boys were to flip the coin to determine who would come out first to receive fellatio, while Flink would remain ignorant of which boy was involved.
When the boys got into the closet, however, they decided they wanted to leave the house rather than go through with this sexual experience. They emerged, and W.G. told Flink that they did not want to continue. Flink grabbed W.G. by his crotch; C.A. then pulled on Flink's back to get him off of W.G. Flink then grabbed C.A. and started to remove C.A.'s pants. W.G. came to the aid of his friend, yanking on Flink's hair. C.A. got away, pulled up his pants, and the two boys fled.
Again, Flink's version of the events which occurred on June 17 was substantially different. Flink testified that W.G. and C.A. had asked him several times that day to perform fellatio on them. He further testified that when he refused the boys became insistent, indicating to him that they had erections; he stated that both boys pulled their pants back to demonstrate that they had erections. Flink admitted: "I did reach up and I touched them both and I perceived that they had [erections]." Flink testified that the boys then left.
Count VI involved an incident later that day when C.A. went back to Flink's house and asked him if he really would give him a "blow job". In a pretrial statement to the police, Flink admitted that he had in fact committed fellatio on C.A. A recording of Flink's statement was played for the jury.
Based upon all of this evidence, the jury found Flink guilty on counts IV, V and VI.
Flink argues that former AS 11.41.440(a)(2), prohibiting sexual abuse of a minor, and former AS 11.51.130(a)(4), prohibiting contributing to the delinquency of a minor, are unconstitutionally vague in violation of the due process clauses of the state and federal constitutions. See U.S. Const. amend. XIV, § 1; Alaska Const. art. 1, § 7. This argument is based upon the statutory definition of "sexual contact", which is a required element for both offenses. 1 He argues that the statutes fail to provide adequate notice of what conduct is prohibited, and more specifically, that they seem to punish innocent as well as culpable conduct. 2 See Holton v. State, 602 P.2d 1228, 1235-36 (Alaska 1979). He concedes that the statutes would be neither vague nor overbroad if construed to require as a mens rea specific intent to sexually arouse the assailant or the victim. See State v. Rice, 626 P.2d 104, 108 (Alaska 1981) (); Hentzner v. State, 613 P.2d 821, 826 (Alaska 1980) (); Speidel v. State, 460 P.2d 77, 78 (Alaska 1969) (). See also Morissette v. United States 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288, 293 (1952). Thus Flink argues that the phrase "sexual contact" should be interpreted to require a sexual motive or purpose.
In order to address Flink's arguments we must ascertain what conduct the legislature sought to sanction by determining the legislature's intent in enacting the statute. We have previously recognized that the Alaska Revised Criminal Code is based upon a tentative draft derived from a number of state enactments which in turn were derived from the New York Revised Penal Code of 1965 and the American Law Institute's Model Penal Code. See Neitzel v. State, 655 P.2d 325, 327 (Alaska App.1982). Flink notes that Model Penal Code section 213.4 defines sexual contact as "any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire." (Emphasis added.) The commentary to that section provides in relevant part:
Section 213.4 applies to one who engages in sexual contact with a person not his spouse under a variety of enumerated circumstances. "Sexual contact" is defined to include "any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire." The phrase describing the requisite specific intent is based on similar language in a number of laws proscribing indecent liberties with children, and the idea is probably implicit in those statutes that are silent on the subject. The requirement of a particular purpose to arouse or gratify sexual desire distinguishes sexual imposition from ordinary assault and from noncriminal touching.
1 A.L.I., Model Penal Code and Commentaries Part II § 213.4, at 400 (1980) (footnote omitted). Flink notes that most state provisions that are based upon the Model Penal Code define sexual contact to include this specific intent. See, e.g., N.Y. [Penal] Law Ann. § 130.00(3) (McKinney 1975) (" 'sexual...
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