Brown v. State

404 P.3d 191
Court of Appeals of Alaska·Decided August 18, 2017·No. 2562 A-12068·Published·Cited by 8 cases

Opinions

[192] OPINION

Judge SUDDOCK,

writing for the Court.

Ryan Michael Thomas Brown pleaded guilty to one count of distribution of child pornography after authorities discovered files containing child pornography on his computer. On appeal, he challenges the superior court’s rejection of his proposed statutory mitigator — that combat-related post-traumatic stress disorder (PTSD) significantly affected his conduct. For the reasons explained below, we agree that the mitigator applies, to his case and we therefore vacate Brown’s sentence and remand this case to the superior court for resentencing.

Relevant factual background

The State charged Brown with eight counts of distribution of child pornography and one count of possession of child pornography1 after authorities discovered twenty-four idles containing child pornography on his computer. Pursuant to a plea agreement, Brown pleaded guilty to one count of distribution of child pornography. The plea agreement left Brown’s sentence open to the discretion of the sentencing judge.

Prior to sentencing, Brown gave notice that he intended to rely on the combat-related PTSD mitigator codified in AS 12.55.155(d)(20)(B). This mitigator provides a sentencing judge authority to impose a sentence below the presumptive range if:

[T]he defendant committed the offense while suffering from a condition diagnosed ... as combat-related post-traumatic stress disorder ..., the combat-related post-traumatic stress disorder ... substantially impaired the defendant’s judgment, behavior, capacity to recognize reality, or ability to cope with ordinary demands of life, and the combat-related post-traumatic stress disorder ..., though insufficient to constitute a complete defense, significantly affected the defen- -' dant’s conduct^]

For purposes of this mitigator, combat-related PTSD is defined as PTSD that results from “combat with an enemy of the United States in the line of duty while on active duty as a member of the armed forces of the United States[.]” 2

Superior Court Judge William B. Carey held a sentencing hearing on July 25, 2014. At the hearing, Brown testified that he had been diagnosed with PTSD after a tour of duty in Iraq. During the tour, Brown was struck by numerous explosive devices, and he witnessed civilians and soldiers die — including his best friend. Brown testified that he continued to have nightmares associated with these experiences as well as extreme anxiety.

After serving- his tour in Iraq, Brown elect ed to engage in a second tour, during which he was stationed at a base in Kuwait. According to Brown, one night while at this base he went outside at ¿round 2 a.m. to smoke a cigarette. A Kuwaiti man approached him to ask for a cigarette, and Brown obliged. Another man grabbed Brown from behind'and pushed him to the ground. Three Kuwaiti men then sexually assaulted him.

Brown testified that he only began to view child pornography after this sexual assault. He initially felt “disgusted” viewing the images. But he continued because he “felt a need to regain control” and a need to feel less powerless.

Brown underwent a psychiatric evaluation by Dr. Mark MeClung. At the sentencing hearing, Dr. MeClung testified that Brown suffered from PTSD as a result of his combat experiences in Iraq, as well as from the sexual assault. Dr. MeClung believed that Brown’s viewing of child pornography was related to his PTSD, that this PTSD was treatable, and that once the PTSD was resolved, Brown’s risk of recidivism was far less than average. Dr. MeClung also explained that “[ejxtra pornography use or even compulsive pornography use is pretty common with men with PTSD” because pornography serves as an escape mechanism.

On cross-examination, Dr. MeClung testified that Brown’s viewing of child pornography was directly related to the sexual assault in Kuwait. But Dr. MeClung added that [193] “people who have had PTSD before tend to be at greater risk for what we call reactivation of symptoms with a new trauma,” and he explained that Brown’s PTSD symptoms originated from his combat experience in Iraq and were reactivated and exacerbated by the later sexual assault in Kuwait.

At the close of the sentencing hearing, Judge Carey found that Brown suffered combat-related PTSD as a result of his experiences in Iraq. The judge also found that the sexual assault in Kuwait occurred as Brown had described. But the judge concluded that the viewing of child pornography did not relate to any combat-related PTSD suffered by Brown:

[T]he only combat-related post-traumatic stress had to do with his earlier service. That may have been exacerbated by the incident here in Kuwait, probably. But the — but that was not the cause of the incident. Nothing about the post-traumatic stress that he suffered as a direct result of combat had anything to do with his downloading child pornography. I accept that the incident in Kuwait did [cause or relate to Brown’s downloading child pornography], But that’s not combat-related post-traumatic stress.

Judge Carey imposed a sentence of 7 years with 5 years suspended (2 year’s to serve), and 7 years’ probation.

This appeal followed.

Why we conclude that the superior court erred in rejecting the proposed mitigator

On appeal, Brown argues that the superior court erred in rejecting his proposed mitigator. The determination of whether a statutory mitigator applies to a given set of facts requires a two-step process. First, the sentencing judge must assess the nature of the defendant’s conduct; this Court reviews that assessment for clear error.3 See-ond, the sentencing judge must “make the legal determination of whether that conduct falls within the statutory standard” — a legal question that we review de novo.4

Brown argues that the court erred in failing to categorize the incident in Kuwait as “combat-related” within the meaning of AS 12.55.155(d)(20)(B). Brown urges us to adopt a broad interpretation of the term “combat-related” to include all activities of “those serving support roles in combat zones.”

Brown’s claim presents a question of statutory interpretation. “When interpreting a statute, the court’s role is to ascertain the legislature’s intent and then to construe the statute so as to implement that intent.”5 Courts are to interpret statutes “according to reason, practicality, and common sense, considering the meaning of the statute’s language, its legislative history, and its purpose.” 6 Further, where there is an ambiguity in the definition of a word or phrase, “Alaska courts apply a sliding scale approach to statutory interpretation, which considers the legislative history of a statute and whether that history reveals a legislative intent and meaning contrary to the plain meaning of the statute.”7

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Brown v. State, 404 P.3d 191 (Ala. Ct. App. 2017).

404 P.3d 191 (Brown v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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