SB v. State

706 P.2d 695
CourtCourt of Appeals of Alaska
DecidedSeptember 20, 1985
DocketA-811
StatusPublished

This text of 706 P.2d 695 (SB v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SB v. State, 706 P.2d 695 (Ala. Ct. App. 1985).

Opinion

706 P.2d 695 (1985)

S.B., Appellant,
v.
STATE of Alaska, Appellee.

No. A-811.

Court of Appeals of Alaska.

September 20, 1985.

*696 William B. Oberly, Gorton & Oberly, Anchorage, for appellant.

Elizabeth H. Sheley, Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

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

OPINION

SINGLETON, Judge.

S.B. was convicted by a jury of three related offenses: sexual abuse of a minor in the first degree, an unclassified offense, AS 11.41.-434(a)(2)(B),[1] and two counts of sexual abuse of a minor in the second degree, class B felonies, AS 11.41.436(a)(3)(B).[2] Superior Court Judge Seaborn J. Buckalew, Jr., sentenced S.B. to an eight-year presumptive term for count I, and concurrent sentences of three years to serve on counts II and III, to run concurrent with the eight-year term. S.B. appeals, contending that the trial court erred in failing to find statutory mitigating factor AS 12.55.155(d)(9), which provides:

(d) The following factors shall be considered by the sentencing court and may mitigate the presumptive terms set out in AS 12.55.125:
.....
(9) the conduct constituting the offense was among the least serious conduct included in the definition of the offense.

We affirm.

THE OFFENSE

On December 26, 1983, S.B. was at home with his seven-year-old daughter, J.B.S.B. removed J.B.'s pants and performed cunnilingus on her. This conduct resulted in the charge of first-degree sexual abuse of a child. S.B. obtained a vibrator and used it to stimulate J.B.'s genitals. This conduct resulted in the first count of sexual abuse of a minor in the second degree. S.B. then caused J.B. to touch his genitals while he ejaculated. This conduct resulted in the second count charging sexual abuse of a *697 minor in the second degree. J.B. reported S.B.'s conduct to her mother approximately a month later, and the mother reported it to J.B.'s school teacher who informed the authorities, resulting in S.B.'s prosecution.

THE OFFENDER

S.B., who was thirty years old at the time of sentencing, has no prior criminal record, including traffic offenses. S.B. had a slight learning disability as a child but nevertheless graduated from high school in 1973. He married P.B. on June 20, 1975. There are two children from this union, J.B., age seven, and D.B., age three; both children currently reside with their mother. S.B. has been steadily employed since graduating from high school and is described as an excellent employee. It appears that S.B. does not use alcohol to excess, and is not a regular drug user. He apparently has no physical disabilities or limitations, and prior to this incident was never involved in mental health counseling. S.B. was evaluated by Dr. Bruce N. Smith, a clinical psychologist. Dr. Smith reached the following conclusions:

S.B. is a 30-year-old Caucasian male who functions in the Average to Superior range of intellectual performance on the Subtests of the WAIS-R, measuring his conceptual reasoning and decision-making ability. Mr. B. shows a constriction of perception, a tendency to compartmentalize his perceptions, and prominent traits of conformity and denial. Thus, he has a strong need to appear composed, in good control, and conventional by others. Thus, he most likely narrowly restricts his behaviors and feelings to those which he feels to be safe and commendable. It is quite possible in a personality, such as compulsive personality just described, that his propriety at points may break down and internal conflicts not allowed into his consciousness and therefore, out of his normal realm of coping may impinge upon his behavior. However, due to the extent of the denial present, it is not possible to make any statement as to the nature of the impulses Mr. B.'s denial serves to protect him from. He does show a tendency to withdraw from emotional laden situations and an excessive evaluation of himself. Thus, it is possible that Mr. B. acted out of a set of sexual feelings with respect to his daughter that he was not consciously aware of and is presently denying. It is, however, also possible that Mr. B. was operating out of an assumption that he could provide information to his daughter and actually did not believe himself to be sexually molesting her as he demonstrated sexual functioning to her. However, in either case, it appears that Mr. B. is in need of education himself as to appropriate sexual behavior. The first step in the treatment of Mr. B. must break through his denial and for him to fully accept responsibility for the actions he did take with his daughter. Until this occurs, it is difficult to determine the appropriate treatment setting for Mr. B. Hiland Mountain Correctional Center provides a viable option regarding complete treatment and rehabilitation program for Mr. B. From a personality perspective, Mr. B. is not likely to need intensive rehabilitation for personality deficits or deep emotional difficulties. In fact, he is likely to view psychological intervention as an effort to undermine his defensive armor. However, with respect to his sexual behavior, Mr. B. may well be in need of a very comprehensive program. It is therefore recommended that Mr. B. be given a sentence which allows him to be expeditiously placed at Hiland Mountain where he can begin his treatment program as soon as possible.

THE SENTENCE

Judge Buckalew and the parties recognized that S.B. should receive a presumptive eight-year sentence on count I in the absence of mitigating factors. Alaska Statute 12.55.125(i) provides:

A defendant convicted of sexual assault in the first degree or sexual abuse of a minor in the first degree may be *698 sentenced to a definite term of imprisonment of not more than 30 years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS 12.55.155-.175:
(1) if the offense is a first felony conviction and does not involve circumstances described in (2) of this subsection, eight years;
(2) if the offense is a first felony conviction, and the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury during the commission of the offense, 10 years... .

The parties' attention therefore focused on mitigating factors and particularly on AS 12.55.155(d)(9). S.B. argued that he did not in fact commit cunnilingus and that his testimony and that of J.B. were consistent in that defendant did not penetrate J.B.'s genital opening with his tongue. S.B. also contended that his actions, while wrongful and unlawful in retrospect, were conducted in an attempt to provide his daughter sexual education and were not intended to sexually gratify either participant. He pointed out that all three sex acts took place at approximately the same time during a single occasion, that he had accepted responsibility in an adult manner for his crimes and was dealing with them through counseling and participation in Parents United, a selfhelp group at the Cook Inlet Pretrial Detention Facility. Finally, he contended, based in part on his testimony and that of his wife, that his incarceration would work a substantial hardship on the family since he is its sole support, and that it would cause psychological damage to his daughter and the other members of his family.

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706 P.2d 695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sb-v-state-alaskactapp-1985.