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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


CARRIE D. SIMANTS,                          )
                                            )        Court of Appeals No. A-11404
                         Appellant,         )        Trial Court No. 1SI-11-381 CR
                                            )
           v.                               )                 OPINION
                                            )
STATE OF ALASKA,                            )
                                            )
                         Appellee.          )           No. 2419 — July 3, 2014
                                            )

                Appeal from the Superior Court, First Judicial District, Sitka,
                David V. George, Judge.

                Appearances: Brooke Berens, Assistant Public Advocate, and
                Richard Allen, Public Advocate, Anchorage, for the Appellant.
                Jean E. Seaton, Assistant District Attorney, Sitka, and Michael
                C. Geraghty, Attorney General, Juneau, for the Appellee.

                Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
                District Court Judge.*

                Judge ALLARD.




   *
       Sitting by assignment made pursuant to article IV, section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              Carrie D. Simants was thirty-three years old when she had sexual
intercourse with R.H., a seventeen-year-old boy who was living in her home. At the
time, R.H. had been adjudicated a delinquent, and Simants had agreed to oversee his
compliance with his delinquency case plan. A jury therefore found that Simants was in
a “position of authority” over R.H. and convicted her of one count of second-degree
sexual abuse of a minor.1 Simants was sentenced to 8 years with 3 years suspended (5
years to serve) and 10 years’ probation for this offense.
              On appeal, Simants challenges her sentence on three grounds. She asserts
that the superior court erred by rejecting the two statutory mitigating factors she
proposed at sentencing. She argues, in the alternative, that the court should have referred
her case to the statewide three-judge sentencing panel for consideration of a sentence
below the applicable presumptive range. Lastly, she challenges a condition of probation
that could potentially preclude her from living with her own children after her release.
              For the reasons explained below, we conclude that the superior court
applied the wrong legal analyses when it rejected the two statutory mitigating factors and
imposed the challenged probation condition. Accordingly, we vacate the probation
condition and remand this case to the superior court for further proceedings consistent
with this opinion. Because Simants may be resentenced, we do not reach the merits of
her three-judge sentencing panel arguments at this time.


       Background facts and proceedings

              Seventeen-year-old R.H. was adjudicated a delinquent on a charge of
criminal mischief. At the time of his adjudication, R.H. was living with Simants, whom


   1
       AS 11.41.436(a)(6).

                                            2                                        2419
he referred to as his “aunt,” although the two were not related.            Following his
adjudication, R.H. was placed on probation and ordered to live with his mother until he
turned eighteen years old.
              R.H. left his mother’s house within a few days and moved back in with
Simants because he felt like his mother did not treat him with respect. He later testified
that he preferred living with Simants because she “never came at [him] with authority”
and did not set rules for him. R.H.’s probation officer met with R.H., his mother, and
Simants. Because R.H.’s mother was planning to move out of town, R.H.’s probation
officer agreed to allow R.H. to live with Simants. The probation officer developed a case
plan for R.H., which was signed by R.H.’s mother and Simants.
              About two weeks after R.H. moved back into Simants’s house, the two
began having sexual intercourse. This sexual relationship lasted for a few months, until
R.H. decided to move out following an argument. During this time Simants became
pregnant, and she told R.H. that he was the father.
              R.H. did not believe the baby was his, and he told Simants so. Simants then
sent R.H. text messages that he believed to be threatening, so he contacted the police
about obtaining a no-contact order. R.H. told the police that his relationship with
Simants had been sexual. R.H. then assisted the police in recording Simants’s statements
to R.H. under a Glass warrant.2 In that recorded conversation, Simants admitted to
having had sexual intercourse with R.H.
              Simants was charged with three counts of sexual abuse of a minor in the
second degree. Under AS 11.41.436(a)(6), a person is guilty of sexual abuse of a minor


   2
       See State v. Glass, 583 P.2d 872 (Alaska 1978), on rehearing, 596 P.2d 10 (Alaska
1979) (holding that the Alaska Constitution requires police to obtain judicial authorization
before electronically monitoring or recording a person’s private conversations).

                                             3                                        2419
in the second degree if the person engages in sexual penetration with a sixteen- or
seventeen-year-old while occupying “a position of authority in relation to the victim.”
             At trial, Simants disputed that she was in “a position of authority” in
relation to R.H. She acknowledged that she had signed his probation case plan, but
claimed that she had not participated in the development of the plan and had never
asserted any authority over him. In response, the State argued that while Simants may
have been a poor authority figure, she nevertheless voluntarily assumed a position of
authority over R.H. by signing his probation plan.
             The jury convicted Simants of one count of second-degree sexual abuse of
a minor, but was unable to reach a decision as to the other two counts, which were later
dismissed by the State.
             At sentencing, Simants faced a presumptive range of 5 to 15 years for her
offense.3 Simants asked the superior court to impose a sentence below the presumptive
range based on two statutory mitigating factors(1) AS 12.55.155(d)(9) — “the conduct
constituting the offense was among the least serious conduct included in the definition
of the offense”; and (2) AS 12.55.155(d)(12) — “the facts surrounding the commission
of the offense and any previous offenses by the defendant establish that the harm caused
by the defendant’s conduct is consistently minor and inconsistent with the imposition of
a substantial period of imprisonment.” In the alternative, Simants asked the superior
court to refer her case to the statewide three-judge sentencing panel.4
             The superior court rejected Simants’s proposed mitigating factors and
declined to refer the case to the three-judge panel. The court found, however, that jail



   3
       AS 12.55.125(i)(3)(A).
   4
       See AS 12.55.165; AS 12.55.175.

                                           4                                      2419
time was not needed to isolate or deter Simants; instead, rehabilitation should be the
primary goal of Simants’s sentence under the Chaney criteria, with community
condemnation a secondary goal.5
              The court imposed a sentence at the lowest end of the applicable
presumptive range: 8 years with 3 years suspended, 5 years to serve, with 10 years of
supervised felony probation.6 As a result of her conviction, Simants is required to
register as a sex offender for 15 years.7
              Over Simants’s objection, the superior court also imposed a special
condition of probation prohibiting Simants from “resid[ing] in a dwelling in which a
minor is residing or staying” unless she obtains “the permission of [her] probation
officer, [her] sex offender treatment provider, and the parent/guardian of the minor.”
Simants objected to this condition on the ground that it could potentially prevent her
from living with her own children, ages 15, 13, and 1. The court imposed the condition
but encouraged Simants’s attorney to “petition the court to revisit [the probation
condition]” if this became an issue.




   5
        See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970) (setting forth criteria to
guide sentencing, including the seriousness of the offense; the relative need for rehabilitation,
isolation, and deterrence; community condemnation and the reaffirmation of societal norms;
and harm to and restoration of the victim and the community); see also AS 12.55.005
(codifying the Chaney sentencing factors).
   6
       See AS 12.55.125(i)(3)(A) (requiring presumptive range of 5 to 15 years for first
felony offender convicted of second-degree sexual abuse of a minor); AS 12.55.125(o)(2)
(requiring sentencing court to impose 3 years suspended time and 10 years probation for all
class A and B felony sex offenses).
   7
       See AS 12.63.010(a); AS 12.63.020(a)(2).

                                               5                                           2419

        Why we conclude that a remand for further proceedings is needed on the
        two statutory mitigating factors
              A sentencing judge is authorized to impose a sentence below the applicable
presumptive range if the judge finds a mitigating factor.8 Here, Simants proposed two
statutory mitigating factors, both of which were rejected by the superior court.


              The proposed (d)(9) mitigating factor
              To establish the “least serious” statutory mitigating factor under
AS 12.55.155(d)(9), a defendant must prove by clear and convincing evidence that “the
conduct constituting the offense was among the least serious conduct included in the
definition of the offense.” Application of this mitigator to a particular case does not
mean that the case is somehow “not serious” or that the victim has not been harmed.
Rather, the determination of the “seriousness” of the defendant’s conduct is a relative one
— the defendant’s conduct is considered “among the least serious” only in contrast to
the range of conduct included within the definition of the offense.9 Indeed, the structure
of presumptive sentencing presumes that, even for the most serious felonies subject to
presumptive sentencing, there will necessarily be conduct that ranks “among the least
serious,” just as there will be conduct that ranks “among the most serious.”10
              In the current case, Simants was charged with sexual abuse of a minor in
the second degree, a class B felony, for engaging in sexual penetration with R.H., a

   8
        AS 12.55.155(d).
   9
       AS 12.55.155(d)(9); see, e.g., Michael v. State, 115 P.3d 517, 521 (Alaska 2005)
(Bryner, J., concurring) (“By any realistic measure, Michael’s overall conduct ranks among
the least serious within the class of defendants actually convicted of first-degree sexual
assault.”) (emphasis in original).
   10
        AS 12.55.155(c)(10); AS 12.55.155(d)(9).

                                            6                                        2419

seventeen-year-old, while she occupied a position of authority over him.11 The age of
sexual consent in Alaska is sixteen; therefore, the sexual relations between R.H. and
Simants would not have been criminal under Alaska law except for Simants’s decision
to voluntarily sign R.H.’s delinquency case plan and thereby assume a position of
authority over him.
              The prohibition against sexual contact with sixteen- and seventeen-year­
olds by persons who occupy “positions of authority” relative to their victims was added
to Alaska’s sexual abuse laws in 1990.12 The legislative intent behind the prohibition
was to ensure that young people were not subjected to sexual abuse by teachers, coaches,
ministers, or other “substantially similar” adults in a position to exercise undue influence
over them.13 The prohibition was premised on the recognition that while sixteen- or
seventeen-year-olds might otherwise be considered old enough to consent to sexual
activity, they remain vulnerable to sexual exploitation by people in positions of authority
over them.
              Here, however, the superior court found that while Simants occupied a
“position of authority” over R.H., the exercise of authority was never connected with
their sexual relationship. The court specifically found that the State failed to demonstrate
that Simants used her position of authority, either explicitly or implicitly, to commit or
facilitate the sexual offense.

   11
       AS 11.41.436(a)(6)(b); see also AS 11.41.470(5) (position of authority means “an
employer, youth leader, scout leader, coach, teacher, counselor, school administrator,
religious leader, doctor, nurse, psychologist, guardian ad litem, babysitter, or a substantially
similar position, and a police officer or probation officer”).
   12
        See Ch. 151, § 2, SLA 1990.
   13
       See Letter of Intent for S.B. 355, 1990 House Journal 4199; 1990 Senate Journal
4220; see also Wurthmann v. State, 27 P.3d 762, 764 (Alaska App. 2001).

                                               7                                          2419

              The court also found that R.H., who was close to eighteen years old, was
“by all accounts and testimony a tremendously independent though troubled youth who
had little respect for authority.” The court noted that R.H. was described as a person
“who basically did what he wanted when he wanted,” and that R.H. did not appear to
suffer from any particular psychological or physical vulnerabilities.
              After making these findings, the superior court nevertheless rejected the
proposed mitigator, concluding that this case did not qualify as “among the least serious
[within its] class” because the sexual relationship between R.H. and Simants was not
simply a one-time event but was instead an “ongoing thing.” The court concluded that
this factor took the case “out of the realm of least serious offense” because Simants had
multiple opportunities to withdraw from a sexual relationship she knew was wrong and
did not do so.
              When we review a sentencing court’s decision rejecting or accepting a
statutory mitigating factor, we review the court’s factual findings concerning the
defendant’s conduct for clear error.14 Our determination of whether the mitigator applies
given those facts, however, is a question of law that we review de novo.15
              Here, we conclude that the court’s factual findings regarding the nature of
Simants’s conduct are well-supported by the record and not clearly erroneous. However,
these findings are seemingly inconsistent with the superior court’s legal conclusion that
the (d)(9) mitigator should not apply in this case. If Simants had used her position of
authority, implicitly or explicitly, to facilitate her sexual relationship with R.H., we might
agree with the trial court that the ongoing nature of the conduct could be a significant



   14
        Michael, 115 P.3d at 519.
   15
        Id.

                                              8                                         2419
factor in removing Simants’s offense from the category of “among the least serious
included in the definition of the offense,”16 because the longer the relationship endured
the more Simants would have exploited her position of authority and the more R.H.
would have been harmed. But given the superior court’s finding that the sexual
relationship existed independent of Simants’s position of authority, we disagree as a
matter of law with the sentencing court’s ruling that the “ongoing nature” of Simants’s
and R.H.’s sexual relationship was sufficient — standing alone — for the court to reject
the “least serious” mitigator.
              Given the apparent inconsistencies between the superior court’s findings
of fact with regard to this proposed mitigator and its conclusion of law, we remand this
case to the superior court for reconsideration of this proposed mitigating factor.


              The proposed (d)(12) mitigating factor
              To establish the “consistently minor harm” statutory mitigating factor under
AS 12.55.155(d)(12), a defendant must prove by clear and convincing evidence that “the
facts surrounding the commission of the offense and any previous offenses by the
defendant establish that the harm caused by the defendant’s conduct is consistently minor
and inconsistent with the imposition of a substantial period of imprisonment.” Unlike
the “least serious” mitigating factor, which is concerned primarily with the nature of the
defendant’s criminal conduct, this mitigating factor focuses solely on its consequences
— not just the “actual physical injuries or property losses occasioned by the defendant’s




   16
        See Joseph v. State, 315 P.3d 678, 684 (Alaska App. 2013).

                                            9                                        2419
criminal conduct, but also ‘the risks ... [and the] disruption of the social fabric’ that the
defendant’s criminal conduct entailed.”17
              The superior court rejected this proposed mitigator because Simants had a
prior felony offense — a drug possession conviction from seventeen years earlier, when
Simants was eighteen years old, for which Simants received 18 days of jail time. The
superior court’s remarks suggest that the court erroneously believed that, as a matter of
law, a defendant who has been convicted of a felony cannot prove the (d)(12) mitigator.
              We do not read AS 12.55.155(d)(12) so narrowly. We recognize that when
the legislature declares that an offense is punishable as a felony, it has made a broad
judgment that the offense is serious enough to warrant imposition of a substantial term
of imprisonment. But we do not believe that the legislature intended the “consistently
minor harm” mitigating factor to be unavailable to any offender who has a prior felony
conviction.
              The legislature created statutory mitigating factors because it recognized
that presumptive sentencing, if rigidly applied, might lead to unfairness in particular
cases.18 We think it reasonable to infer from this statutory scheme that the legislature
intended sentencing courts to assess the harm caused by a defendant’s criminal conduct
on a case-by-case basis, rather than based on a mechanical assessment of whether the
defendant’s conduct is punishable as a misdemeanor or felony offense.
              This interpretation is supported by the language of AS 12.55.155(d)(12).
Under the statute, to establish the “consistently minor harm” mitigator, the defendant
must show not only that the harm caused by past crimes was consistently minor, but also

   17
        Id. at 684-85 (quoting Ison v. State, 941 P.2d 195, 198 (Alaska App. 1997)).
   18
        See, e.g., Dancer v. State, 715 P.2d 1174, 1178 (Alaska App. 1986) (discussing
legislative history of presumptive sentencing).

                                             10                                        2419
that the harm caused by the defendant’s current offense or offenses was minor. The
defendant’s current offense or offenses will always be a felony — because statutory
mitigating factors only apply to presumptive sentencing, and presumptive sentencing
only applies to felonies. We think it unlikely that the legislature would have worded the
statute this way if it intended to limit the “consistently minor harm” mitigator to
offenders who have no prior felony convictions.
                This interpretation is also supported by the legislative history of the statute.
In the commentary accompanying the “consistently minor harm” mitigator, the
legislature provided one example of when this mitigator might apply“when the defendant
has committed a number of felony property offenses, such as check forgeries, but they
all involve relatively small amounts of money.”19 Clearly, the legislature would not have
used this example if it intended to preclude the application of this mitigating factor to
offenders with one or more prior felony convictions.
                We conclude that the superior court rejected the “consistently minor harm”
mitigator for an improper reason. On remand, therefore, we direct the superior court to
reconsider under the correct legal standard whether Simants established this mitigating
factor.


          Why we vacate the special condition of probation barring Simants from
          residing in a home where minors are present
                Simants challenges a special condition of her probation that prohibits her
from residing in a home where a minor is present without the permission of her probation
officer, her sex offender treatment provider, and the minor’s parent or guardian. Simants



   19
          Joseph, 315 P.3d at 685 (quoting 1980 Senate Journal Supp. No. 44 at 26).

                                               11                                         2419
argues that this probation condition is unconstitutional as applied to her because it could
prevent her from living with her own minor children.
              To be valid, a condition of probation must be “reasonably related to the
rehabilitation of the offender and the protection of the public” and must “not be unduly
restrictive of liberty.”20 A probation condition that infringes a defendant’s constitutional
rights by restricting the defendant’s family associations is reviewed with special
scrutiny.21 The court must find that such a condition is both “reasonably related to the
rehabilitation of the offender and protection of the public” and “narrowly tailored to
avoid unnecessary interference with [the defendant’s] family relationships.”22 In this
analysis, the court must affirmatively consider, and have good reason for rejecting, any
less restrictive alternatives.23
              The superior court did not apply this heightened level of scrutiny in
Simants’s case. The judge asked the probation officer who proposed this condition of
probation whether the officer intended to preclude Simants from living with her own
children, and the probation officer said that he did — at least until a sex offender
treatment provider determined that it was safe for Simants to live with her children. The
probation officer conceded that this determination would not necessarily be made until
after Simants was released from prison and already on probation.


   20
      Diorec v. State, 295 P.3d 409, 412 (Alaska App. 2013) (quoting Roman v. State, 510
P.2d 1235, 1240 (Alaska 1977)).
   21
        Diorec, 295 P.3d. at 414.
   22
        Id.; see also Hinson v. State, 199 P.3d 1166, 1174-75 (Alaska App. 2008); Dawson
v. State, 894 P.2d 672, 680-81 (Alaska App. 1995); Roman, 570 P.2d at 1240-41.
   23
       Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App.1995); see also Diorec, 295
P.3d at 414; Dawson, 894 P.2d at 680-81.

                                            12                                        2419

                In other words, the record shows that the superior court imposed this
condition of probation based solely on the probation officer’s uncorroborated speculation
that, because Simants engaged in a consensual sexual relationship with a seventeen-year­
old boy, she might also pose a sexual danger to her own children. The superior court
apparently adopted the probation officer’s view that Simants’s relationship with her
children should therefore be restricted until it was affirmatively established that Simants
did not pose a danger to her children.
                This approach is the opposite of what the law requires.         Given the
constitutional importance of a person’s right to maintain familial relationships, the
superior court could not impose this kind of restriction unless the State affirmatively
demonstrated good reason to believe that Simants would, in fact, pose a danger to her
children when she was released from prison. Nothing in the current record supports such
a conclusion.
                We accordingly vacate this condition of Simants’s probation to the extent
that it applies to her own children (the specific ground on which the condition was
challenged below and on appeal).


       Conclusion
                We REMAND this case to the superior court for reconsideration of whether
Simants established the proposed statutory mitigating factors of “least serious conduct”
and “consistently minor harm.” If the superior court concludes that Simants established
one or both mitigating factors and that a mitigated sentence is called for, it shall
resentence Simants. Our resolution of these issues makes it unnecessary for us to address
at this juncture Simants’s alternative claim that the superior court erred by refusing to
refer her case to the statewide three-judge panel.

                                            13                                       2419

                We VACATE the special condition of probation limiting Simants from
residing in a home where a minor is present to the extent that the condition bars her from
living with her own children. If the State wishes to renew its request for a probation
condition that restricts Simants’s contact with her children, the State must affirmatively
show (1) that there is good reason to believe Simants will pose a danger to her children
when she is released from prison, and (2) that the State’s proposed condition of probation
is narrowly tailored to avoid unnecessary interference with Simants’s relationship with
her children.
                We retain jurisdiction.




                                           14                                       2419

