Opinion
Court of Appeals No. A-11145 No. 6210
07-22-2015
NATHAN B. OLSEN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 1KE-10-668 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Ketchikan, William B. Carey, Judge. Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, 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 made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Nathan B. Olsen engaged in a series of e-mails and telephone conversations with a police officer posing as a teenage girl. Olsen told this "girl" that he wanted to get together with her and have sex, and he continued to solicit her even after she told him that she was only fifteen years old. Based on this conduct, Olsen was convicted of online enticement of a minor, AS 11.41.452.
In this appeal, Olsen argues that the evidence presented at his trial was legally insufficient to support his conviction. He also argues that the prosecutor engaged in two types of improper argument at the end of the trial: first, by referring to Olsen as a "pedophile"; and second, by urging the jurors not to "ignore [Olsen's] case" simply because it involved "a fake victim", since "another [future] case could involve a real victim."
For the reasons explained here, we conclude that the evidence was sufficient to support Olsen's conviction, and that the prosecutor's argument to the jury did not constitute plain error.
Underlying facts
When a defendant challenges the legal sufficiency of the evidence to support a criminal conviction, an appellate court must view the trial evidence (and all reasonable inferences to be drawn from it) in the light most favorable to upholding the verdict. We therefore present the evidence in Olsen's case in that light.
E.g., Dorman v. State, 622 P.2d 448, 453 (Alaska 1981);Spencer v. State, 164 P.3d 649, 653 (Alaska App. 2007).
In the spring of 2010, a series of advertisements appeared in "Sitnews", a web-based classified ads service in Ketchikan. These advertisements were for "[a]ny lady [wanting] to make some money." A nineteen-year-old woman living in Ketchikan saw one of the ads and sent a response to the listed email address, "KetchikanLover6969@hotmail.com".
"KetchikanLover" (who turned out to be Olsen) sent an e-mail back to this young woman, telling her that she had to be at least eighteen years old if she wanted the job, and that she should submit photographs of herself. When the young woman asked for a job description and additional details, Olsen responded that he wanted to pay for sex. Upon receiving this information, the young woman contacted the Ketchikan police.
Based on the young woman's report, the Ketchikan police began an investigation. They created an e-mail account with a fictitious name, "Pamela Gerrik", and in early June 2010 they used this account to respond to one of the ads placed by "KetchikanLover". Over the next two months, "Pam" and Olsen exchanged dozens of e-mails.
During this e-mail exchange, Olsen repeatedly told "Pam" that she had to be at least eighteen years old, and he inquired as to her age. Olsen also declared that, when he met her in person, he was going to ask her to produce an ID.
"Pam" initially told Olsen that she was eighteen years old. But after "Pam" and Olsen had exchanged a significant amount of correspondence regarding the kind of sex that Olsen was looking for, and the amount of money that he was willing to pay for various sex acts, the Ketchikan police decided to see what Olsen would do if they changed "Pam's" age. So in late June, "Pam" told Olsen that she was fifteen years old, not eighteen.
(The officers made this decision after they began to suspect that "KetchikanLover" was Olsen, based on the content of the e-mail and texting correspondence. The officers knew that Olsen had a prior conviction for attempted sexual abuse of a minor.)
"Pam" first told Olsen in late June that she was fifteen years old, and she later mentioned this information three more times, including during a telephone conversation with Olsen. But Olsen never responded to this information; he never explicitly acknowledged "Pam's" age in his e-mails to her, or during their phone call.
Based on his exchanges with "Pam", Olsen was charged with online enticement of a minor, AS 11.41.452. This statute makes it illegal for a person who is 18 or older to knowingly use a computer to communicate with another person to "entice, solicit, or encourage" them to engage in sexual conduct if (1) the other person is a child under the age of 16, or (2) the defendant believes that the other person is a child under the age of 16.
Olsen's first trial ended in a hung jury. At his second trial, he was convicted and sentenced to 6 years' imprisonment.
Olsen's arguments regarding the sufficiency of the evidence
On appeal, Olsen contends that the evidence presented at his trial was insufficient, in two different respects, to establish his guilt of online enticement.
Olsen argues that the evidence was insufficient to establish that he "enticed, solicited, or encouraged" Pam to engage in sexual acts. Olsen concedes that he and Pam engaged in sexual conversations, and that they discussed various sexual acts, but Olsen argues that he said nothing to entice, solicit, or encourage Pam to actually engage in those acts.
Olsen also argues that the evidence was insufficient to establish that he believed Pam was younger than 16. Olsen concedes that Pam said that she was only 15 years old. But Olsen points out that, throughout his series of communications with Pam, he never explicitly acknowledged that he had heard or understood what Pam had said about her age, nor was there any other evidence that directly proved Olsen's belief that Pam was younger than 16.
Olsen's arguments hinge on viewing the evidence in the light most favorable to himself. But when we evaluate the sufficiency of the evidence to support a guilty verdict in a criminal trial, we must view the evidence (and the inferences that could reasonably be drawn from that evidence) in the light most favorable to upholding the jury's verdict. Viewing the evidence at Olsen's trial in that light, we conclude that the evidence was sufficient to convince reasonable jurors that the State had proved its case beyond a reasonable doubt. The evidence was therefore legally sufficient.
See, e.g., Dorman v. State, 622 P.2d at 453; Spencer v. State, 164 P.3d at 653. --------
Olsen's challenges to the prosecutor's summation to the jury
Duringthe defense summation to the jury, Olsen's attorney argued that the State had failed to prove that Olsen believed that Pam was younger than 16. The defense attorney pointed out that Olsen was "very, very up-front" in communicating his sexual desires and requests to Pam, and the defense attorney argued that this frankness showed that Olsen believed he was talking to an adult:
Defense Attorney: He's not [trying to] bond[] with Pam; he's not trying to find things that he has in common with her. He's not communicating with her like she's a 15-year-old, [a] young teenager who he's trying to connect with. He's not pretending to be a high school student.
... [W]e talked about the show, "To Catch a Predator". That's not what he's doing. He's very, very up-front, as though he's speaking to an adult. As though he's speaking to an adult. And at no time do we see any ... evidence showing him bonding, as though he's trying to get into a relationship with this woman.
. . .
[Olsen's] mindset doesn't match what the State is [alleging]. And why? ... [Because] he's being very explicit about what he wants.
In response, the prosecutor began his rebuttal with the following argument:
Prosecutor: Ladies and gentlemen, the defense is taking the mindset of a pedophile and trying to trade it off as reasonable doubt. ... The defense is saying [that] we need a written affidavit saying, "I understand you're 15", or we need a confession, or we need something like that. And they're saying that's what we need for this case to somehow be proven.
They're taking the mindset of somebody like him and saying [that], because he didn't admit to it, that must be reasonable doubt. ... [But the] reason he didn't confess, the reason he didn't talk about [Pam's] age, is because the mindset of who he is — not because there's reasonable doubt in this particular case.
Olsen's attorney did not object to the prosecutor's argument. But now, on appeal, Olsen argues that the prosecutor engaged in improper argument when he referred to the "mindset of a pedophile".
We agree with Olsen that it was improper for the prosecutor to use the term "pedophile". The prosecutor's use of this term suggested that Olsen's conduct was the product of a permanent underlying sexual attraction to children — a suggestion that potentially might lead the jurors to convict Olsen based on their assessment of the kind of person he was, rather than based on what the State proved through the evidence in this case.
It was, however, proper for the prosecutor to respond to the defense attorney's assertions about Olsen's "mindset". The prosecutor could validly point out that Olsen's frank discussion of sexualmatters with Pam was not necessarily exculpatory (as the defense attorney argued), since this frankness was also consistent with the conclusion that Olsen did not care that Pam was under-age.
And this, indeed, appears to be the main focus of the remarks that Olsen challenges here. Given that the focus of the prosecutor's remarks (taken as a whole) was proper, and that the prosecutor used the term "pedophile" only in passing, and given the fact that the defense attorney did not object or make any other request for relief, we conclude that the prosecutor's use of this term does not constitute plain error.
Olsen also challenges the concluding portion of the prosecutor's summation:
Prosecutor: [T]he most dangerous [thing] you could do is to ignore this case ... [simply] because [this] is a case with a fake victim. ... Another case could involve a real victim. In this particular case, because the State has met the elements of online enticement of a minor, I'm going to ask you to return to the jury room, review my case, and return a guilty verdict. Thank you very much for all of your time.Again, Olsen's attorney did not object to the prosecutor's remarks at the time, but Olsen now contends that these remarks were improper.
Olsen argues that the prosecutor was improperly urging the jurors to base their decision on the general societal need to protect children, on unfounded predictions of what Olsen might do in the future, and on the larger social consequences of their verdict, rather than on a dispassionate assessment of the evidence in Olsen's case.
(See Patterson v. State, 747 P.2d 535, 540-41 (Alaska App. 1987), where this Court held that it was improper for a prosecutor to ask the jurors to convict a defendant based on a concern for the continued safety of the alleged victim, rather than on the strength of the evidence presented at the defendant's trial.)
We agree that the prosecutor should have worded this argument more carefully, to avoid any suggestion that the jury should convict Olsen out of fear for future victims. But it was proper for the prosecutor to point out that the legislature had good reason to make it a crime for a person to use the Internet to entice an under-age teenager even when, as in Olsen's case, the supposed under-age teenager was actually a police officer. Likewise, it was proper for the prosecutor to urge the jurors not to ignore the State's proof of Olsen's guilt simply because no one was actually endangered by Olsen's actions. Moreover, just after the prosecutor made the remarks that Olsen challenges here, the prosecutor reminded the jurors of the true question in front of them: whether the State had proved all the elements of the crime of online enticement.
So again, we find no plain error.
Conclusion
The judgement of the superior court is AFFIRMED.