Flink v. State

683 P.2d 725, 1984 Alas. App. LEXIS 258

Opinions

OPINION

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

PER CURIAM.

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 delinquincy of a minor.⁴ The ten-year sentence for first-de gree 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.

Footnotes

1

. At the time of Flink’s offenses, AS 11.41.440 provided in relevant part:

Sexual abuse of a minor, (a) A person commits the crime of sexual abuse of a minor if, being 16 years of age or older, he

(1) engages in sexual penetration with a person who is under 16 years of age but 13 years of age or older ...;

(2) engages in sexual contact with a person who is under 13 years of age ...;

(b) Sexual abuse of a minor is a class C felony.

2

. AS 11.51.130 provided in relevant part:

Contributing to the delinquency of a minor. (a) A person commits the crime of contributing to the delinquency of a minor if, being 19 years of age or older, he

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(4) engages in sexual contact with a child under 16 years of age but 13 years of age or older;

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(b) Contributing to the delinquency of a minor is a class A misdemeanor.

3

. AS 11.81.900(b)(51)(A) defines “sexual contact" as "the intentional touching, directly or through clothing, by the defendant of the victim’s genitals, anus, or female breast.” The definition of sexual contact has not been changed, but this section has been renumbered AS 11.81.-900(b)(52). In this opinion the definition of sexual contact will be referred to as AS 11.81.-900(b)(51).

4

. All members of the court agree that the trial court erred in its instructions regarding the mens rea required for sexual abuse of a minor under former AS 11.41.440(a)(2) and contributing to the delinquency of a minor under former AS 11.51.130(a)(4). Judges Singleton and Coats hold that these are specific intent crimes. Judge Coats joins in part I of Judge Singleton’s concurring and.dissenting opinion. Judge Sin gleton, however, finds the error harmless, while Judge Coats does not. Chief Judge Bryner agrees that the trial court’s instructions on mens rea were improper, but would construe the statutes to require recklessness as the appropriate mens rea. Judge Coats joins in part II of Judge Bryner’s concurring and dissenting opinion, which holds that the failure to give an appropriate mens rea instruction was not harmless error under the particular facts of this case. The full court joins in part III of Judge Singleton's opinion, affirming Flink’s sentence for sexual assault in the first degree.