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PETERSEN v. STATE12/20/1996
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Petersen argues that the record does not support aggravator (c)(21) (repeated similar criminal violations). He acknowledges that he has two prior convictions involving R.H. — the 1992 trespass conviction and the 1993 assault conviction — but he points out that he received a suspended imposition of sentence for the trespass conviction and this conviction was ultimately set aside. Petersen argues that a set-aside conviction should not be counted toward his criminal history under aggravator (c)(21).
This court has consistently interpreted aggravator (c)(21) to encompass all of a defendant's prior crimes, whether or not the defendant was prosecuted for those crimes. See Turpin v. State, 890 P.2d 1128, 1132 (Alaska App. 1995); Fagan v. State, 779 P.2d 1258, 1260 (Alaska App. 1989). Thus, the sentencing court would have been authorized to consider Petersen's 1992 trespass at R.H.'s house even if Petersen had never been prosecuted for this offense. We see no rationale for interpreting AS 12.55.155(c)(21) differently when the defendant has been convicted of a prior crime, even when the conviction is ultimately set aside under the provisions of a suspended imposition of sentence. We therefore uphold Judge Hunt's finding of aggravator (c)(21).
Petersen also argues that the record does not support aggravator (c)(9) (that he knew the offense involved more than one victim). Judge Hunt found aggravator (c)(9) because several of Petersen's acts of stalking also involved R.H.'s husband and R.H.'s children. Petersen admits that other members of
R.H.'s family were present during some of his contacts with R.H., but he argues that the contacts involving other family members all occurred before the effective date of the stalking statute (that is, these were not acts for which Petersen could be charged). Petersen argues that, in the absence of clear evidence that other family members were present during his contacts with R.H. after May 28, 1993, the State could not establish aggravator (c)(9).
The record does not support Petersen's claim that all of his contacts with R.H. after May 28, 1993 involved R.H. alone. The State points out that R.H.'s children were with her on July 3, 1993, when Petersen approached R.H. twice at the Bear Paw Festival. The State also points out that R.H.'s children were with her on the day of Petersen's arrest one week later (July 18, 1993), when R.H. came home and found Petersen and Officer Shore in the family's driveway. Moreover, the sentencing record contains evidence that R.H.'s children were fearful for their mother's safety, and for their own safety, because of Petersen's actions.
Under AS 11.41.270(b)(1), the "course of conduct" that constitutes the actus reus of stalking is defined as "repeated acts of nonconsensual contact involving the victim or a family member". (Emphasis added) The record is sufficient to support findings that R.H.'s children were present during more than one of Petersen's post-May 1993 acts of nonconsensual contact with R.H., that Petersen's conduct placed the children in fear for their own safety or the safety of their mother, and that Petersen acted with recklessness concerning this result.
Nevertheless, aggravator (c)(9) is troublesome when applied to stalking prosecutions. When a person is stalked, the stalking almost inevitably affects the person's family, close friends, and co-workers. As these other people become aware of the stalking and come to realize that their association with the targeted victim puts them in the stalker's path, they may justifiably become concerned for their own safety as well as for the safety of the targeted victim. If these other people are considered victims of the st
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