No. 5133 | Alaska | Apr 17, 1981
Lead Opinion
OPINION
Ignacio M. Alvarado was convicted of two counts of lewd and lascivious acts toward a child, committed in violation of former' AS 11.15.134.
We are not convinced that the superior court was clearly mistaken. McClain v. State, 519 P.2d 811" court="Alaska" date_filed="1974-03-15" href="https://app.midpage.ai/document/mcclain-v-state-1180334?utm_source=webapp" opinion_id="1180334">519 P.2d 811 (Alaska 1974). Accordingly, Alvarado’s sentence is AFFIRMED.
RABINOWITZ, C. J., joined by DIMOND, Senior Justice, dissents.
. Alvarado, a 48-year-old man, invited two female children, ages 11 and 12, to spend the night with him at a motel. During their stay he showed them pornographic materials, fondled the bare breasts of both children, engaged in an act of cunnilingus with one and had her sit on his pelvic region until he ejaculáted, while the other child watched. While no force was involved, and the children were apparently willing to participate, the serious nature of Alvarado’s conduct is obvious.
Dissenting Opinion
dissenting, joined by DIMOND, Senior Justice.
I am of the view that the superior court was clearly mistaken in imposing concurrent eight-year terms of imprisonment, with three years suspended. Given the circumstances that these were Alvarado’s first convictions (he did have a seventeen-year-old OMVI conviction as well as a two-year-old OMVI conviction), and that he is forty-eight years of age, is hard working and has a solid employment history, I have concluded that the sentences were excessive.
Admittedly, Alvarado’s conduct is serious. Given the ages of the children, the potential harmful consequences of such conduct to the children involved, and the need to protect society from such anti-social conduct, a significant period of incarceration is warranted. On the other hand, in light of the absence of any serious prior record, and the positive elements in Alvarado’s background, I am of the view that Alvarado’s concurrent sentences should not exceed five years’ incarceration with two years thereof suspended.