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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DANA RAY THOMPSON,
                                                      Court of Appeals No. A-11054
                            Appellant,              Trial Court No. 3AN-08-13856 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                    No. 2505 — June 24, 2016


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Michael R. Spaan, Judge.

              Appearances: Michael Schwaiger, Assistant Public Defender,
              and Quinlan Steiner, Public Defender, Anchorage, for the
              Appellant. Tamara E. de Lucia, Assistant Attorney General,
              Office of Special Prosecutions and Appeals, Anchorage,
              and Michael C. Geraghty, Attorney General, Juneau, for the
              Appellee.

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

              Judge MANNHEIMER.




   *
      Sitting by assignment pursuant to Article IV, Section 16 of the Alaska Constitution
and Administrative Rule 24(d).
              Dana Ray Thompson was convicted of multiple counts of first- and second-
degree sexual abuse of a minor, plus multiple counts of exploitation of a minor and
possession of child pornography.
              Thompson’s first-degree sexual abuse convictions were based on the
alternative theories that he either (1) occupied a “position of authority” over his teenage
victim as defined in AS 11.41.470(5), or that he (2) “resid[ed]” in the same household
as the victim and had authority over her. See AS 11.41.434(a)(3)(A) & (B). In this
appeal, Thompson contends that his jury was misinstructed regarding the meaning of
these two terms (“position of authority” and “reside”), and thus his first-degree sexual
abuse convictions should be reversed.
              With regard to the meaning of “position of authority”, we conclude that
Thompson’s jury was correctly instructed regarding this term.
              With regard to the meaning of “reside”, the trial judge failed to tell the
jurors what this term meant. Instead, the judge allowed the attorneys to argue competing
definitions of “reside” during their summations to the jury — and then, in response to a
jury request for further instruction on the correct legal meaning of this term, the judge
told the jurors that it was up to them to decide what “reside” meant. We agree with
Thompson that the judge’s actions constituted obvious error.
              However, given the way the prosecutor argued this issue to the jury, we
conclude that this error was harmless.
              Thompson raises several separate double jeopardy claims — contending
that many of his separate convictions must be merged. We agree with some of these
double jeopardy claims. Specifically, we hold that Thompson’s separate convictions for
penetration of the victim’s vagina with his fingers, his penis, and the insertion of
“ben-wa” balls must merge, and we further hold that Thompson’s separate convictions
for exploitation of a minor and possession of child pornography must merge when they

                                           –2–                                        2505

are based on evidence that Thompson (1) took a sexually explicit photograph of his
victim and then (2) kept this photograph.


       Underlying facts


              On appeal, Thompson does not challenge the allegations that he engaged
in sexual conduct with J.C., but he argues that his crimes were of a lesser degree because
he was not in a “position of authority” over J.C., and because he did not “reside” with
her. For this reason, our statement of the underlying facts assumes the truth of the
allegations of sexual conduct, and it focuses on the evidence describing the type of
relationship that existed between Thompson and J.C.
              Because Thompson challenges the sufficiency of the State’s evidence to
support his “position of authority” convictions, we present the evidence on that issue in
the light most favorable to the jury’s verdicts. 1
              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 (we are using a pseudonym) often entrusted J.C. to Rita’s care and, later,
to Thompson’s care for various purposes.
              Laura met Rita at a meditation group in Anchorage, several years before
J.C. was born. Rita provided emotional support to Laura, and Laura came to view Rita



   1
        See, e.g., Augustine v. State, 355 P.3d 573, 587 (Alaska App. 2015) (“The question
on appeal is whether, viewing [the evidence] (and the reasonable inferences to be drawn from
[it]) in the light most favorable to upholding the jury’s verdicts, reasonable jurors could
conclude that the State had proved its allegations beyond a reasonable doubt.”).

                                            –3–                                        2505

as a mother figure. Although Laura later moved from Anchorage to Wasilla, Laura
maintained her friendship with Rita. When J.C. was an infant, Laura would sometimes
run errands in Anchorage and leave J.C. with Rita.
               From the time J.C. was 4 years old until she was 10, Laura would travel
to Anchorage once or twice a month to teach basket-weaving classes, or to run errands.
During these trips to Anchorage, Laura would stay with Rita, and she would leave J.C.
in Rita’s care when she was teaching her class or running errands.
               At this time, Laura knew Thompson (because he was Rita’s son), but she
had only limited interactions with him because he was not living with Rita. Laura’s
daughter J.C. met Thompson for the first time at Thompson’s wedding, when she was
8 years old.
               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. In the
winter, this cabin was accessible only by snowmachine or dog sled. 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, because her mother Laura would come
to Anchorage to sell baskets at a Saturday market. 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.




                                           –4–                                        2505

             The year 2004 also marked the beginning of Thompson’s inappropriate
behavior toward J.C. That year, J.C. went to Anchorage to attend an event connected to
her home schooling program, but Laura could not leave Trapper Creek due to a snow
storm. Laura called Rita to ask if J.C. could stay with her, and Rita agreed, so Thompson
drove to retrieve J.C. from the event and bring her to Rita’s trailer. During this ride,
Thompson told 13-year-old J.C. that she had grown up, and he asked her about her bra
size. Later that night, Thompson mentioned to J.C. that he wanted a sex slave.
             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. According to Laura’s later testimony,
“as [Rita’s] health deteriorated, [Thompson] morphed into [the] person [who] was in
charge of [J.C.], and in charge of her safety.”
             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 called Rainbow Earth. J.C. also enrolled
in a computer camp during this two-month stay in Anchorage.



                                          –5–                                       2505

              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. Also around this time, Thompson started taking nude and
sexually suggestive photographs of J.C.
              On J.C.’s fifteenth 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 through the
Arctic National Wildlife Refuge (as part of her home schooling program). 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 backpackingtrip, 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.

                                            –6–                                          2505

              Thompson’s relationship with J.C. came to light in the summer of 2008,
when J.C. spoke with a childhood friend who described being molested by an older man.
J.C. “broke up” with Thompson and moved back in with her mother. 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.
              As part of the investigation, the police obtained a Glass warrant to record
a conversation between J.C. and Thompson. 2 During this conversation, Thompson
admitted to having a sexual relationship with J.C., beginning when she was 14 years old.
              The police also obtained a warrant to search the Anchorage trailer. During
their search, the police seized a digital camera and two memory cards. On these, the
police found nude photographs of J.C. and two other children. (The State did not allege
that Thompson took the photographs of these other children — only that he possessed
them.)
              Based on the foregoing, the State charged Thompson with eighteen 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 ten 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 her.
              In addition, the State charged Thompson with fifteen counts of child
exploitation based on his acts of taking sexual photographs of J.C. while she was under


   2
        See State v. Glass, 583 P.2d 872 (Alaska 1978) (holding that, under the Alaska
Constitution, the police must obtain a warrant before electronically monitoring or recording
a private conversation, even when one or more participants to the conversation consent to the
police surveillance).

                                            –7–                                         2505

the age of 18. And for each of these photographs, the State also charged Thompson with
a separate count of possessing child pornography.
             (The State also filed another five charges of possessing child pornography
based on two photographs found in Thompson’s possession that were not of J.C., and
three photographs of J.C. that had been digitally altered.)
             At Thompson’s trial, the main points of contention were whether
Thompson’s relationship to J.C. constituted a “position of authority” for purposes of the
sexual abuse statute, and whether J.C. had been “residing” at the Anchorage trailer.
             The jury convicted Thompson of thirteen counts of first-degree sexual
abuse, four counts of second-degree sexual abuse, and all of the counts of child
exploitation and child pornography possession.


      Thompson’s various attacks on the State’s “position of authority” theory
      of prosecution


             All of the sexual abuse charges against Thompson contained the allegation
that Thompson occupied a “position of authority” in relation to J.C. On appeal,
Thompson challenges this element of the State’s proof on various grounds.
             Initially, Thompson asserts that Wurthmann v. State, 27 P.3d 762 (Alaska
App. 2001) — this Court’s primary decision interpreting the statutory definition of
“position of authority” — was wrongly decided. Thompson asks us to overturn the
interpretation of the statute adopted in Wurthmann and, instead, adopt the interpretation
advocated in the Wurthmann dissent.
             More particularly, Thompson argues that “position of authority” should be
limited to adults who play a professional or quasi-professional role in caring for a child
(as advocated in the dissent), and that “position of authority” should not include live-in


                                          –8–                                        2505

boyfriends or other members of the household who function as quasi-parents by virtue
of “the dynamics of the household, the personalities of the individuals involved, and the
amount of authority the legal or biological parent delegates”. Wurthmann, 27 P.3d at
765.
              We have considered Thompson’s arguments, but those arguments are not
so convincing as to clearly demonstrate that Wurthmann was wrongly decided. More
specifically, we conclude that we would defeat the legislature’s intent, rather than
advance it, if we construed the statute so that it did not cover the situation presented in
Thompson’s case. Here, the evidence (viewed in the light most favorable to the State)
showed that Thompson effectively functioned as J.C.’s surrogate parent or full-time sitter
for weeks, and even months, while J.C. was living in Anchorage, away from her mother.
We are convinced that the legislature intended the term “position of authority” to apply
to an adult caretaker in these circumstances. We therefore stand by our decision in
Wurthmann.
              Thompson next argues that even if we adhere to the interpretation of
AS 11.41.470(5) that we adopted in Wurthmann, we must still reverse his convictions
because the trial judge gave the jurors an incorrect instruction on the meaning of
“position of authority”.
              Here is the definition of “position of authority” contained in AS 11.41.­
470(5). We have italicized the phrase that Thompson relies on to support his argument
that his trial judge misinstructed the jury:

              “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 other than when the officer
              is exercising custodial control over a minor[.]

                                               –9–                                    2505

              At the end of Thompson’s trial, the judge gave the jurors an instruction —
Instruction No. 31 — which defined the term “position of authority” in the words of the
statute. But after the jurors began their deliberations, they sent a note to the judge asking
for clarification of this definition — in particular, clarification of the language that we
italicized above:

                      We the jury would like to pose this question to you:
              Does “substantially similar position” pertain to the listed
              titles, or does it leave ... open to our consideration ... a
              broader list of authority figures/roles?

After consulting the attorneys, the trial judge answered the jurors as follows:

                     The jury may consider a broader list of authority
              figures/roles in its deliberation[s,] but the roles must be
              substantially similar, not slightly similar, to the list in
              Instruction #31.

              Thompson argues that the judge’s response was incorrect — that it
improperly allowed the jurors to consider whether Thompson’s position vis-a-vis J.C.
resembled any type of authority figure or authority role, even if that role was not listed
in the statute.
              We do not read the judge’s response in that fashion, nor do we think there
is any reasonable possibility that the jurors did either.
              The judge told the jurors that, if they found that Thompson’s relationship
to J.C. did not put him in any of the authority roles specifically listed in Instruction
No. 31 (i.e., the ones specifically listed in AS 11.41.470(5)), then the jurors could
consider whether Thompson’s position amounted to some other authority role, but only



                                           – 10 –                                       2505

if that other authority role was “substantially similar” to the ones listed in Instruction
No. 31.
              This is precisely what the statutory definition says. We therefore conclude
that the judge’s answer to the jurors’ question was proper.
              Finally, Thompson argues that the State’s evidence was not legally
sufficient to support the conclusion that Thompson held a position of authority in relation
to J.C. at the times specified in Counts 2 and 3 (June 27, 2005), Counts 5 through 7 (July
through October 2005), Counts 11 through 13 (November 2005 through July 2006), and
Counts 14 through 18 (August 2006 through October 27, 2006).
              We have already summarized the State’s evidence — in particular, the
various times when J.C. stayed in the Anchorage trailer without her mother, and
Thompson looked after her. The prosecutor’s theory of this case was that Thompson
occupied a position substantially similar to a “babysitter” during these times — one of
the authority figures or roles specifically identified as a “position of authority” in
AS 11.41.470(5).
              In his brief to this Court, Thompson argues that the State’s evidence did not
necessarily prove that his role during these time periods was substantially similar to the
role of a babysitter. But Thompson’s argument hinges on viewing the evidence in a
manner favorable to himself, while we are obliged to view the evidence in the light most
favorable to the jury’s verdicts. Viewing the evidence in that light, we conclude that it
was sufficient to convince fair-minded jurors that the State had proved, beyond a
reasonable doubt, that Thompson occupied a role substantially similar to that of a
babysitter taking care of an older child during the specified periods of time. The
evidence was therefore legally sufficient to establish the “position of authority” element
of the charged crimes.



                                          – 11 –                                      2505

               In sum, we reject all of Thompson’s attacks on the State’s “position of
authority” theory of prosecution.


         Thompson’s attacks on the State’s “residing in the same household”theory
         of prosecution


               Of the twenty-eight sexual abuse charges against Thompson, the first
eighteen charges involved allegations of sexual penetration that occurred before J.C.
reached the age of 16. Each of these eighteen charges alleged alternative theories of the
crime: first, that Thompson resided in the same household as J.C. and exercised
authority over her, and second, that Thompson occupied a “position of authority” in
relation to J.C.
               In their summations to the jury, the prosecutor and the defense attorney
argued differing interpretations of what it meant to “reside in the same household” as a
child.
               The defense attorney acknowledged that J.C. had stayed at Thompson’s
mother’s trailer from time to time, but he argued that “[her] visits [were] temporary in
duration ... , much the same [as] if you go and stay at a hotel.” Overall, the defense
attorney argued that the trailer could not have been J.C.’s residence because the word
“reside” connotes “permanence”.
               In response, the prosecutor argued that the summer of 2005 was a two-
month period of time when the Anchorage trailer was definitely J.C.’s “residence”, even
though the trailer might not have been her permanent residence. The prosecutor noted
that J.C. lived continuously in the trailer during those months, working for Rainbow
Earth. The prosecutor told the jurors that, according to the testimony, J.C. referred to




                                          – 12 –                                    2505

Anchorage as her “home” during this time, and J.C. listed Thompson’s address (i.e., the
trailer’s address) as her home address in her Planned Parenthood records.
              Given the attorneys’ differing positions as to whether the term “residence”
should be limited to permanent residences, it is unsurprising that the jurors asked the
judge for clarification of this issue. The jurors sent the following note to the trial judge:

                    We the jury would like to request a legal definition of
              the word “residing”.

              When the judge consulted the attorneys about the jury’s question, each of
the attorneys (unsurprisingly) asked the judge to respond to the jury’s question with an
answer that favored their own position: the prosecutor advocated a flexible definition
of “residing”, while Thompson’s defense attorney asked the judge to tell the jurors that
a “residence” had to be permanent.
              Unable to reach consensus, the trial judge decided to tell the jurors that the
definition of “residing” was “a question of fact for [them] to resolve”. Here is the
judge’s exact response to the jury:

                    The definition of “residing” is a question of fact for the
              jury. Please refer to Instruction #2. Sorry I could not be of
              more assistance.

(The pertinent portion of Instruction No. 2 reads: “In considering the evidence in this
case[,] you are not to set aside your own observations and experience in the affairs of
life, but you have a right to consider all of the evidence in the light of your own
observations and experiences.”)
              The judge’s answer to the jury’s question was obvious error. The proper
interpretation of the word “residing” (as that term is used in AS 11.41.434(a)(3)(A))
is clearly not a “question of fact” for the jury to resolve. It is a question of statutory

                                           – 13 –                                       2505

interpretation — i.e., a question of law. And as we held in Roth v. State, 329 P.3d 1023,
1026 (Alaska App. 2014), when a jury asks the court to clarify the meaning of a statute,
it is the judge’s duty to answer the jury’s question — not tell the jurors that they must
interpret the statute for themselves, using their “experience in the affairs of life”.
              We must next decide whether the judge’s error — his decision not to tell
the jurors what “residing” meant — might have affected the jury’s verdicts in this case.
              On appeal, Thompson no longer argues that a “residence” must be
permanent. He acknowledges that the word “residing” can have many definitions,
depending on the context and purpose of the underlying statute or regulation in which
the word is used. But Thompson argues that, at least for purposes of Alaska’s sexual
abuse of a minor statutes, the word “residing” must be interpreted as referring to
something other than “intermittent sojourning” or “crashing” at someone else’s
residence.
              We do not construe the “residing” clause of AS 11.41.434(a)(3)(A) as
requiring proof of a permanent abode. The purpose of this statute is to prohibit adults
from improperly taking sexual advantage of children. Thus, the focus of the “residing”
clause should be the nature and duration of the cohabiting relationship between the adult
and the child, not the particular geographic location or locations where that cohabiting
relationship takes place. For instance, a homeless or transient adult and child could
“reside” together for years, even though they never stayed at one location more than a
few days or weeks.
              Because the focus of the statute is the cohabitingrelationship, we agree with
Thompson that the term “residing” should not cover any and all instances where a child
might temporarily stay in the same dwelling as an adult (or vice-versa). But we conclude
that, given the facts of Thompson’s case, we need not decide the precise contours of
“residing” for purposes of AS 11.41.434(a)(3)(A).

                                           – 14 –                                        2505

              Thompson’s case presents the following situation: At Thompson’s trial, his
attorney argued that a “residence” for purposes of the statute had to be permanent. The
prosecutor argued that a person could “reside” at a location even though the residence
was not permanent, and the prosecutor told the jurors that there had been two periods of
time covered by the indictment when Thompson and J.C. resided together: the two-
month period in the summer of 2005 when J.C. lived at the Anchorage trailer while she
worked at Rainbow Earth, and the month in the summer of 2006 when J.C. was
preparing for her trip into the Arctic National Wildlife Refuge.
              The trial judge improperly refused to resolve this dispute — telling the
jurors to figure out for themselves what “residing” meant. As a practical matter, though,
the judge’s error could only have affected the jury’s resolution of one issue: whether the
prosecutor was correct when she argued that Thompson and J.C. resided together during
the two months in the summer of 2005 and the one month in the summer of 2006.
              Thus, we need only decide whether, when Thompson and J.C. were jointly
living in his mother’s Anchorage trailer for two months in the summer of 2005, and for
one month in the summer of 2006, this constituted “residing in the same household” for
purposes of the sexual abuse statute. If the answer is “yes”, then the judge’s error in
failing to give the jury a better definition of “residing” was harmless.
              We conclude that, even viewing the evidence in the light most favorable to
Thompson, Thompson’s and J.C.’s cohabitancy of the trailer duringthe summer of 2005
and the summer of 2006 constituted “residing in the same household” for purposes of the
first-degree sexual abuse statute. These were not brief visits or sleep-overs; J.C. was not
temporarily “crashing” at the trailer before moving on. J.C.’s mother negotiated her
daughter’s weeks-long stays at the trailer so that her daughter could live in a residence
where there were adults to take care of her and look after her while she fulfilled the
requirements of her home schooling.

                                           – 15 –                                     2505

              As we said earlier, we believe that the focus of the “residing in the same
household” clause is the nature and duration of the cohabiting relationship between the
adult and the child. Although this clause may not cover brief visits or sleep-overs, we
conclude that it does cover the two-month and one-month living arrangements at issue
here.
              Accordingly, we conclude that the judge’s error in Thompson’s case was
harmless beyond a reasonable doubt.


        Thompson’s double jeopardy claims relating to his convictions for sexual
        abuse


              In Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997), this Court re­
affirmed that the unit of prosecution in sexual assault and sexual abuse cases is the
penetration of separate bodily orifices. That is, a defendant’s penetration of separate
orifices during the same criminal episode will support separate convictions.
              Thompson argues that the Erickson decision waserroneous and should now
be overruled. In recent years, this Court has repeatedly addressed this issue, and each
time we rejected the argument that Erickson was so clearly erroneous that it should be
overruled. 3 But more importantly, in Johnson v. State, 328 P.3d 77, 89-90 (Alaska
2014), the Alaska Supreme Court expressly endorsed the rule that “the harms from
non-consensual sexual penetration of distinct orifices of the victim’s body are so
independently significant that multiple counts of sexual assault are permissible under the
Alaska Constitution[.]”




   3
      See Joseph v.State,293 P.3d488, 492 (Alaska App. 2012); Iyapana v. State,284 P.3d
841, 851-52 (Alaska App. 2012).

                                          – 16 –                                     2505

              Because of the supreme court’s decision in Johnson, we could not overrule
Erickson even if we thought it was wrongly decided (which we do not).
              Thompson next argues that even if the Erickson rule continues to define the
proper unit of prosecution in sexual assault cases, the rule should be different in sexual
abuse of a minor cases, at least where the sexual activity is not coerced by force or threat
of force. We rejected this same argument in an unpublished decision, Lincecum v. State,
2012 WL 4039820 (Alaska App. 2012), and we again reject it here.
              As we noted in Lincecum, both the sexual assault statutes and the sexual
abuse statutes protect the same underlying societal interest:          the prevention or
punishment of socially unacceptable sexual acts. Id. at *4. In cases of sexual assault, the
sexual conduct is prohibited either because it is achieved through coercion (direct
application of force, or the threat of imminent force), or because the victim is
incapacitated and either unaware that anything sexual is happening, or incapable of
giving meaningful consent. In cases of sexual abuse, the sexual conduct is prohibited
because the child is too young to meaningfully consent. We are not convinced that these
distinctions imply, much less constitutionally require, a different rule defining the unit
of prosecution.
              Finally, Thompson argues that he should not have received separate
convictions for penetrating the same orifice during the same episode of sexual activity.
              Specifically, Thompson points out that he was convicted of three separate
counts (Counts 8, 9, and 10) for an episode of sexual activity that occurred on October
28, 2005 — one conviction for penile penetration, one for cunnilingus, and one for
digital penetration. Thompson was also convicted of three separate counts (Counts 11,
12, and 13) for sexual activity that occurred sometime between November 2005 and July
2006 — one conviction for penile penetration, one for digital penetration, and one for
penetration of J.C.’s vagina with “ben-wa” balls — a device designed to produce or

                                           – 17 –                                      2505

enhance sexual stimulation. 4 And Thompson was convicted of another three separate
counts (Counts 14, 16, and 17) for sexual activity that occurred sometime between
August 2006 and October 27, 2006 — one conviction for penile penetration, one for
cunnilingus, and one for penetration of J.C.’s vagina with ben-wa balls.
               Thompson argues that, for each of these three episodes, he should receive
only a single conviction because the separate counts in each episode involved the same
orifice.
               We partially agree with Thompson. Under this Court’s decision in Oswald
v. State, 715 P.2d 276, 280-81 (Alaska App. 1986), digital penetration that accompanies
penile penetration will not support a separate conviction. The State’s evidence did not
go into sufficient detail for the jurors to know whether Thompson’s digital penetration
of J.C. did or did not fall within the Oswald rule. Because the record does not
affirmatively establish that the State was entitled to separate convictions, Thompson’s
convictions for digital and penile penetration must merge. See Wiglesworth v. State, 249
P.3d 321, 330 (Alaska App. 2011); Simmons v. State, 899 P.2d 931, 937 (Alaska App.
1995).
               Attempting to avoid this result, the State asks us to overrule Oswald. We
decline to do so.
               Although we agree with Thompson that he should not have received a
separate conviction for the digital penetrations, we reject his contention that his
convictions for cunnilingus should also merge with his convictions for penile
penetration. In Yearty v. State, 805 P.2d 987, 992, 995 (Alaska App. 1991), we treated
cunnilingus as a form of sexual penetration that is distinct from penile or digital
penetration of the female genitals. This is because, in Murray v. State, 770 P.2d 1131,


   4
         See https://en.wikipedia.org/wiki/Ben_Wa_balls.

                                           – 18 –                                  2505

1138-39 (Alaska App. 1989), this Court rejected the contention that cunnilingus requires
proof of physical penetration of the genitals. Instead, we endorsed the view that
cunnilingus encompasses “[all] sexual activity involving oral contact with the female
genitals”, regardless of whether that contact includes physical penetration. Id. at 1139.
               In other words, cunnilingus is classified as a form of “sexual penetration”
under AS 11.81.900(b)(60), not because it necessarily involves physical penetration of
the genitals, but because the legislature concluded that it constituted a separately
punishable form of sexual activity if performed without consent, or if performed on a
person younger than the age of consent. For this reason, we reject Thompson’s argument
that his convictions for cunnilingus must merge with his convictions for penile
penetration.
               Thompson’s remaining double jeopardy argument — the one involving his
two convictions for inserting ben-wa balls into J.C.’s vagina — is more difficult to
resolve.
               Thompson argues that, because the unit of prosecution is the penetration
of a particular orifice, he should not receive separate convictions for penetrating his
victim’s genitals with his penis and also penetrating her genitals with an object (the
ben-wa balls) duringthe same episode. The difficulty is that the evidence at Thompson’s
trial leaves it unclear whether Thompson’s use of the ben-wa balls (as charged in Counts
13 and 17) did, in fact, occur during the same episodes as his penile penetration of J.C.
               According to J.C.’s testimony, Thompson used the ben-wa balls in two
distinct ways. Sometimes, Thompson would have J.C. insert the ben-wa balls and then
Thompson would engage in intercourse with her. But at other times, Thompson would
make J.C. wear the ben-wa balls internally when they went to the movies or went grocery
shopping.



                                          – 19 –                                     2505

             This latter use of the ben-wa balls would clearly support separate
convictions — because, in these instances, Thompson’s use of the ben-wa balls was
distinct from any act of penile penetration. But Counts 13 and 17 do not draw this
distinction; they simply charge Thompson with the insertion of an object into J.C.’s
vagina. And when the prosecutor argued these counts to the jury, she did not distinguish
between (1) Thompson’s use of the ben-wa balls in conjunction with acts of genital
intercourse versus (2) the times when Thompson would have J.C. wear the ben-wa balls
when she went out.
             Because the record does not affirmatively establish that the jurors relied on
this latter theory when they found Thompson guilty of Counts 13 and 17, Thompson’s
convictions on those counts must merge with his two related convictions for acts of
penile penetration. See Wiglesworth, 249 P.3d at 330; Simmons, 899 P.2d at 937.


       Thompson’s double jeopardy claims relating to his convictions for sexual
       exploitation of a minor and possession of child pornography


             Thompson began taking sexually suggestive or explicit photographs of J.C.
when she was around 14 years old. He was ultimately charged with 15 counts of sexual
exploitation of a minor (Counts 29 through 43) for photographs that he took between
June 2005 and January 2006. 5
             Thompson was also charged with 20 counts of possessing child
pornography (Counts 44 through 63). 6 Most (but not all) of those possession charges
were paired with a related charge of sexual exploitation: Thompson was charged with
sexual exploitation for taking the photograph, and he was charged with possession of

   5
       AS 11.41.455(a).
   6
       AS 11.61.127(a).

                                         – 20 –                                      2505

child pornography for keeping the photograph in his possession. See Counts 29 through
43 (exploitation) and the related Counts 44 through 58 (possession).
             Thompson argues that, for each of these pairs of convictions, the
convictions must merge. He contends that his taking of the photographs and his ensuing
possession of the photographs violate the same societal interests, and that they should be
viewed (for double jeopardy purposes) as one criminal act.
             The State responds that the sexual exploitation statute is aimed at a different
societal interest from the child pornography statute. The State argues that the sexual
exploitation statute protects minors from being sexually used and humiliated, while the
statute prohibiting the possession of child pornography is aimed at preventing the
distribution and possession of images that may incite future sexual abuse of children.
             The State’s second argument — that the social interest underlying the
possession of child pornography statute is to suppress images that might incite future
sexual abuse of children — is inconsistent with the United States Supreme Court’s
decisions dealing with the relationship of child pornography and the First Amendment.
             The First Amendment limits the power of the government to enact criminal
laws that prohibit the production and distribution of books, films, photographs, and the
like. With regard to laws that prohibit the production of child pornography through the
use of real children (like our sexual exploitation statute), or laws that prohibit the
distribution and possession of this kind of pornography, the United States Supreme Court
has upheld these laws against First Amendment challenges — concluding that the
government has a compelling interest in (1) preventing the sexual exploitation of
children that underlies the creation of this pornography, and in (2) destroying the market
for this type of pornography by criminalizing the distribution and possession of it. See
New York v. Ferber, 458 U.S. 747, 756-760; 102 S.Ct. 3348, 3354-56; 73 L.Ed.2d 1113



                                          – 21 –                                       2505

(1982), and Osborne v. Ohio, 495 U.S. 103, 109-110; 110 S.Ct. 1691, 1696; 109 L.Ed.2d
98 (1990).
              However, in Ashcroft v. Free Speech Coalition, 535 U.S. 234; 122 S.Ct.
1389; 152 L.Ed.2d 403 (2002), the Supreme Court suggested that protectingrealchildren
from sexual exploitation is the only government interest that is sufficiently compelling
to outweigh First Amendment concerns.
              Free Speech Coalition involved a First Amendment challenge to a statute
that criminalized simulated child pornography — e.g., pornography that depicted minors,
but where the images were computer-generated, rather than made using real children.
The government argued that this law should be upheld because even simulated child
pornography might encourage the future sexual abuse or exploitation of real children,
and because it might be used by pedophiles to encourage children to participate in sexual
activity. Id., 535 U.S. at 241, 122 S.Ct. at 1397. In other words, the government took
the position that the social harm of this type of pornography “flow[ed] from the content
of the images, not from the means of their production.” Ibid.
              The Supreme Court held that the government’s argument was insufficient
to overcome First Amendment concerns. The Court pointed out that, in instances where
child pornography did not involve the exploitation of real children, the government’s
rationale for suppressing it was purely content-based. Id., 535 U.S. at 253-54, 122 S.Ct.
at 1403.     That being so, the First Amendment prohibited the government from
criminalizing this type of pornography unless its content was actually “obscene” (as that
term is defined in First Amendment jurisprudence). Id., 535 U.S. at 251-52, 122 S.Ct.
at 1402. Because the criminal statute at issue in Free Speech Coalition applied to
pornographic material that was not obscene, the Court held that the statute was
unconstitutional. Id., 535 U.S. at 256, 122 S.Ct. at 1405.



                                         – 22 –                                     2505

              (See Ferrick v. State, 217 P.3d 418, 421 (Alaska App. 2009), where we
construed Alaska’s child pornography statute in conformity with the Supreme Court’s
decision in Free Speech Coalition, holding that the government was required to prove
that the pornography in the defendant’s possession was actually generated through the
conduct prohibited by the sexual exploitation statute, AS 11.41.455(a) — that is,
generated by using a real child under the age of 18.)
              We now return to the question in Thompson’s case: whether he can
lawfully be subjected to separate child pornography convictions for keeping the sexual
photographs that he took of J.C., when he had been convicted of sexual exploitation for
taking the same photographs.        The State’s rationale for imposing separate child
pornography convictions is that Thompson’s possession of these images, or his potential
later distribution of them, might encourage future sexual abuse or exploitation of
children.
              But this is the same content-based rationale that the Supreme Court declared
was inconsistent with the First Amendment in Free Speech Coalition. We therefore
conclude that it would be improper for us to rely on this rationale as the justification for
subjecting Thompson to separate exploitation and possession convictions for each of the
photographs he took. These pairs of convictions must merge.
              Thompson also argues that the double jeopardy clause requires a merger
of any sexual exploitation convictions involving photographs that were taken during the
same photo shoot. We reject this argument. In the statute forbidding the possession of
child pornography, AS 11.61.127(c), our legislature expressly stated that every
pornographic photograph in a person’s possession constitutes a separate offense. We
infer that the legislature likewise intended, for purposes of the sexual exploitation statute,
that the defendant’s creation of separate photographs will support separate convictions,
even if those photographs are created during the same photo shoot.

                                            – 23 –                                       2505

       Conclusion


              For the reasons explained here, we uphold the jury’s verdicts at
Thompson’s trial, but we conclude that many of his separate convictions must merge.
And because these convictions are merging, we direct the superior court to re-sentence
Thompson.
              (Thompson has not challenged his sentence on appeal, so we do not retain
jurisdiction of this case.)




                                        – 24 –                                   2505

