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PETERSEN v. STATE12/20/1996
alking, then stalking will rarely (if ever) involve only one victim.
One portion of the stalking statute seems to indicate that family members, friends, and co-workers are not to be considered "victims" of the stalking. AS 11.41.270(b)(4) defines "victim" as a person who is the "target" of repeated acts of nonconsensual contact. On the other hand, AS 11.41.270(a) declares that stalking is committed when a defendant, through repeated acts of nonconsensual contact, "recklessly places another person in fear of death or physical injury". If "another person" is read to mean "any other person", then a defendant who targets one person but whose conduct places many people in fear of injury or death may conceivably have committed many counts of stalking. Compare Cooper v. State, 595 P.2d 648, 649-650 (Alaska 1979) (a defendant who commits one assaultive act can be convicted of a separate count of assault for each person placed in fear).
We find that we do not need to resolve these issues in Petersen's case. Even assuming that R.H. was Petersen's only victim for purposes of the stalking statute, or even assuming that stalking almost inevitably involves other victims (so that aggravator (c)(9)
should have received little or no weight, see Pusich v. State, 907 P.2d 29, 39 (Alaska App. 1995)), Petersen's sentence is amply justified without reference to aggravator (c)(9). We are convinced that, even if the sentencing court erred in finding aggravator (c)(9), this error had no appreciable effect on Petersen's sentence.
As discussed above, Judge Hunt found a separate aggravator, (c)(21), based on Petersen's two prior crimes against R.H. (trespass in 1992, assault in 1993). This aggravating factor authorized her to consider sentences above the Austin limit. Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App. 1983).
As this court has repeatedly stated, the presence of aggravating factors does not necessarily justify a substantial departure from the presumptive terms established by the legislature. See Pusich, 907 P.2d at 39. By analogy, proof of aggravating factors does not necessarily call for a sentence above the limit established in Austin for a first felony offender like Petersen. Having found aggravator (c)(21), Judge Hunt's next task was to weigh that factor in light of the sentencing criteria codified in AS 12.55.005 to determine whether the presence of the aggravator showed Petersen to be an atypically serious offender or showed his crime to be more serious than a typical instance of first-degree stalking. See Juneby v. State, 641 P.2d 823, 833, 835 & n. 21 (Alaska App. 1982), modified on other grounds, 665 P.2d 30 (Alaska App. 1983) (in cases governed by presumptive sentencing, even when aggravating factors are proved, a sentencing court should be cautious when making adjustments to the prescribed presumptive term; any adjustment should be based on the sentencing criteria established in State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970)).
In the present case, Petersen's two prior crimes comprise only a minor aspect of Petersen's long-term assault on R.H.'s privacy and security. Technically speaking, Petersen stalked R.H. for only a few weeks (because the stalking statutes did not take effect until May 28, 1993). However, Petersen terrorized R.H. for much longer than that.
For more than two years (from the spring of 1991 until his arrest in July 1993), Petersen hounded R.H.. Peterson followed R.H., he spied upon her, he unexpectedly confronted her, and one time he assaulted her (by attempting to ram her car). He intruded upon her at her home, at her workplace, when she did her shopping, and when she went out for recreation with family
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