CRIMINAL LAW
Court of Appeals of Alaska (2023)
Cara Shanahan
In Cunningham v. State, 536 P.3d 739 (Alaska Ct. App. 2023), the court of appeals held that (1) to elevate second-degree indecent exposure to first-degree on the basis of a prior conviction in another jurisdiction, the defendant’s prior offense must have elements similar to those in Alaska’s indecent exposure statue; (2) courts should not adopt an alternative definition of a term without providing notice to the parties and an opportunity to be heard; and (3) Alaska’s first-degree indecent exposure statute does not require proof that a child actually saw a defendant masturbating (Id. at 741). Here, Cunningham, a bookstore employee, removed his penis from his pants and touched it while talking to a child that was facing away from him. (Id. at 742). The child testified that she saw his penis. (Id.). Cunningham was indicted on first degree indecent exposure because he had previously been convicted of a sex offense in Oregon. (Id. at 743). He appealed, claiming that (1) his offense in Oregon did not contain elements similar to Alaska’s indecent exposure statute; (2) the superior court erred in using a different dictionary definition of masturbation than the one provided by the defense; and (3) the state failed to show that the child witnessed him masturbating. (Id. at 741). The court of appeals agreed that the Oregon statute prohibited a broader scope of conduct than the Alaska statute, Cunningham had not been previously convicted for purposes of elevating his exposure to a felony. (Id. at 743–44). It also agreed that the state should not have used a different definition of masturbation than the one previously relied upon without providing the parties with notice and an opportunity to be heard. (Id. at 746–47). However, the court concluded that using this different definition of masturbation was not reversible error because it did not change court’s legal test. (Id.). The court next disagreed with Cunningham’s claim that the state needed to prove that the child witnessed his masturbation. (Id. at 748–51). Finding no support for the Cunningham’s claim in the plain text of the statute or its legislative history, the court held that the state did not need to prove that the child witnessed the masturbation. (Id.). Thus, the court of appeals held that (1) to elevate second-degree indecent exposure to first-degree on the basis of a prior conviction in another jurisdiction, the defendant’s prior offense must have elements similar to those in Alaska’s indecent exposure statue; (2) courts should not adopt an alternative definition of a term without providing notice to the parties and an opportunity to be heard; and (3) Alaska’s first-degree indecent exposure statute does not require proof that a child actually saw a defendant masturbating (Id. at 741).
