State v. Thompson, 012519 AKSC, S-16624

Docket Nº:S-16624, S-16643
Opinion Judge:CARNEY, JUSTICE
Party Name:STATE OF ALASKA, Petitioner and Cross-Respondent, v. DANA R. THOMPSON, Respondent and Cross-Petitioner.
Attorney:Tamara E. DeLucia, Chief Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Petitioner and Cross-Respondent. Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Respondent and Cross-Petitioner.
Judge Panel:Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
Case Date:January 25, 2019
Court:Supreme Court of Alaska
 
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STATE OF ALASKA, Petitioner and Cross-Respondent,

v.

DANA R. THOMPSON, Respondent and Cross-Petitioner.

Nos. S-16624, S-16643

Supreme Court of Alaska

January 25, 2019

Cross-Petitions for Hearing from the Court of Appeals of the State of Alaska, on appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Michael R. Spaan, Judge. Court of Appeals No. A-11054 Superior Court No. 3AN-08-13856 CR

Tamara E. DeLucia, Chief Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Petitioner and Cross-Respondent.

Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Respondent and Cross-Petitioner.

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

OPINION

CARNEY, JUSTICE

I. INTRODUCTION

Dana Thompson was convicted of 13 counts of first degree sexual abuse of a minor and 4 counts of second degree sexual abuse of a minor stemming from a 4-year sexual relationship with the daughter of a family friend. The first degree sexual abuse of a minor convictions were based on the alternative theories that Thompson either (1) occupied a "position of authority"1 over the victim2 or (2) resided in the same household as the victim and had authority over her.3

Thompson argued to the court of appeals that Wurthmann v. State, 4 the leading case interpreting the phrase "position of authority," was wrongly decided. He alternatively argued that the jury was improperly instructed about the meaning of the phrase "position of authority" under Wurthmann. The court of appeals rejected both arguments.5

Thompson also argued to the court of appeals that the superior court erred by failing to merge many of his convictions. The court of appeals rejected his argument that the rules for merger in sexual abuse of a minor cases should be different than the rules for merger in sexual assault cases. The court reaffirmed that for both types of cases the unit of prosecution is the distinct act of sexual penetration of different bodily orifices. But the court of appeals found that the superior court had misapplied the rules for merger and held that Thompson's convictions for digital penetration, penis-to-genital penetration, and penetration with an object during the same time period merged because the same orifice was involved and the evidence was ambiguous as to whether each act "accompanied" the other acts.6

The State petitioned for review of the court of appeals' merger ruling, advocating a rule allowing separate convictions for penetration with different objects or body parts, regardless of the time period. Thompson cross-petitioned. He argues that the court of appeals' rulings on "position of authority" - affirming Wurthmann and concluding that the jury was properly instructed - were erroneous; he also argues that the unit of prosecution for merger purposes should be the "sexual episode" and that many of his convictions should therefore merge.

We affirm the court of appeals' decision on both "position of authority" issues. We reject Thompson's argument that the unit of prosecution for sexual abuse of a minor cases and sexual assault cases should be different, and that more of his convictions should therefore merge. We extend our recent decision in Johnson v. State7 and hold that separate convictions and sentences may be imposed for each distinct act of penetration when either the penetrating object or body part or the penetrated orifice has changed. We reverse the court of appeals' holding that Thompson's convictions for digital penetration, penis-to-genital penetration, and penetration with an object during the same time period merged.

II. FACTS AND PROCEEDINGS

We adopt the facts outlined in the court of appeals' opinion.8 We reproduce here the facts most relevant to the petitions before us: When Dana Thompson was in his mid-forties, he maintained a sexual relationship with a teenage girl, J.C, from the time she was 14 years old (June 2005) until close to the time she was 18 (in the fall of 2008). Thompson was able to do this because he was living with, and taking care of, his mother Rita, and because J.C.'s mother Laura[9] . . . often entrusted J.C. to Rita's care and, later, to Thompson's care for various purposes.

Despite their lack of familial relation, J.C. would call Rita "Grandma Rie," and she would call Thompson "Uncle Dana."

In 2004, Laura and J.C. moved to a remote cabin in Trapper Creek. . . . J.C. was home-schooled, and after this move she rarely interacted with children her own age.

Also in 2004, Thompson moved in with his mother Rita. They lived in Rita's trailer, where Thompson had his own room.

In 2004 and 2005 (when J.C. was 13 and 14 years old), she would stay in Rita's trailer from one to five times per month .... Sometimes, Laura would drop J.C. off at Rita's trailer and return to Trapper Creek. During this time, Laura came to view Thompson as J.C.'s "personal bodyguard[, "] and she entrusted him with making sure that no harm came to J.C. while the girl was staying in Anchorage.

When J.C. turned 14, Thompson began talking to J.C. about pornography and master-slave relationships. Thompson also showed J.C. adult pornography.

Beginning in 2005, Thompson's mother Rita began to experience a series of health problems that made it difficult for her to walk, so Thompson became Rita's caregiver. Thompson also became the person who was primarily in charge of maintaining the residence and looking after J.C....

In June 2005, while J.C. was staying at the trailer, she and Thompson had their first sexual encounter. Thompson pulled J.C. onto his lap, shoved his hand down J.C.'s pants, and touched her genitals. J.C. started crying, and she curled up in a ball. When J.C. returned home to Trapper Creek the next morning, she did not tell anyone what happened because she was scared.

A week later, J.C. returned to Anchorage to stay at Rita's trailer for about two months (without her mother). J.C.'s home schooling program required her to obtain a job to earn "life skills" credit. To enable J.C. to fulfill this requirement, Thompson arranged a job for her at an Anchorage store .... J.C. also enrolled in a computer camp during this two-month stay in Anchorage.

On June 27, 2005, during the time that J.C. was staying at the trailer, Thompson's mother Rita was hospitalized. When Thompson returned to the trailer from the hospital, Thompson woke J.C. and demanded that she perform oral sex on him. Thompson also digitally penetrated J.C. and rubbed his penis against her body.

After the events of June 27, 2005, Thompson began engaging in more sexual activity with J.C. . . .

On J.C.'s [15th] birthday, she and Thompson went to Planned Parenthood so that J.C. could obtain birth control. After leaving Planned Parenthood, J.C. and Thompson had multiple types of sexual intercourse.

After J.C. turned 15, she started staying more often at Rita's trailer without her mother, because her school work often required her to be in Anchorage. J.C.'s mother Laura would often communicate with Thompson to make sure that J.C. was completing her course work. During this time, J.C. and Thompson talked about getting married and having a family.

In the summer of 2006, J.C. spent approximately one continuous month living at the Anchorage trailer in order to prepare for a backpacking trip .... Thompson helped J.C. with her school work and he also helped her physically train for her backpacking trip. During this time, J.C. and Thompson repeatedly had sex.

After J.C. returned from the backpacking trip, Thompson began renovating his room in the trailer to isolate it from the main part of the trailer, thus making it easier to hide his sexual relationship with J.C.

By the time J.C. was 16 years old, she was alternating every two weeks between living with her mother in Trapper Creek and living at the Anchorage trailer with Thompson and Rita.

Thompson's relationship with J.C. came to light in the summer of 2008 .... J.C. eventually told her mother all that had happened between her and Thompson in Anchorage. Laura called the police, and this initiated the criminal investigation.

... [T]he State charged Thompson with [18] counts of sexual abuse of a minor in the first degree (covering the time when J.C. was under the age of 16), based on the alternative theories that Thompson was either in a position of authority over J.C. or residing in the same household with her (or both).

The State also charged Thompson with 10 counts of second-degree sexual abuse of a minor (covering the time when J.C. was between 16 and 18 years old), based on the theory that Thompson was in a position of authority over...

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