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Knutsen v. State11/26/2004
The State charged John C. Knutsen with six counts of producing indecent photographs of minors under the age of 13 without their parents' consent (a felony), and two counts of producing indecent photographs of adults without their consent (a misdemeanor). Knutsen worked as a lifeguard at the Bristol Bay Borough swimming pool in Naknek. In January 2002, before a community swim night, Knutsen secretly installed a video camera in the women's locker room at the pool, and he pre-set the camera to record. The video camera captured images of two women and six young girls in various states of undress. Another pool employee apparently discovered the camera before the community swim ended. Shortly afterwards, Knutsen told the police that he was the one who had set up the video camera in the locker room. Knutsen never viewed the videotape.
Knutsen essentially conceded that he was guilty of the two misdemeanor charges (taking indecent photographs of the adult women), but he asserted that he was innocent of the felony charges (taking indecent photographs of the young girls). Knutsen contended that his sole intent was to videotape adult women, and he asserted that he had not realized that minors would be present in the locker room. The jury found that Knutsen acted "knowingly" with respect to the fact that he would capture images of minors on his video camera, and thus the jury convicted Knutsen on all counts. Knutsen now appeals, raising two issues.
Knutsen first contends that Superior Court Judge Fred J. Torrisi gave the jurors a misleading and incorrect instruction concerning Knutsen's defense that he was unaware that he might photograph minors in the swimming pool locker room. We conclude that this issue is moot because, under the facts of this case, Knutsen's asserted defense was no defense at all.
As we explain in more detail below, if there had been evidence that Knutsen attempted to notify and obtain the consent of the persons he videotaped - or, in the case of the young children, evidence that Knutsen attempted to notify and obtain the consent of their parents or guardians - then the State would have been obliged to prove that Knutsen acted with a culpable mental state regarding the age of his victims. However, when (as in Knutsen's case) there is no evidence that a defendant charged with indecent viewing or photography attempted to notify and obtain the consent of the proper persons, the State need not prove that the defendant acted with any culpable mental state regarding the age of the victim(s). Thus, Knutsen was not entitled to any jury instruction on the issue of his awareness (or lack of awareness) concerning the possibility that the video camera he installed might photograph minors.
Knutsen next contends that, because he performed only a single act of photography (i.e., one act of placing a camera in the women's locker room and recording a videotape), he could only be convicted of one count of indecent photography, not eight. He argues that the superior court violated the double jeopardy clause of the Alaska Constitution by entering eight convictions against him (six felony counts and two misdemeanor counts). But we conclude that the rationale of Knutsen's offense is the violation of the victims' privacy. Because Knutsen violated the privacy of eight victims, he was properly convicted of a separate offense for each victim.
The elements of the indecent photography statute, and the issue of whether the State must prove that the defendant acted with a culpable mental state with regard to the age of the victim Alaska Statute 11.61.123(a) defines the offense of indecent viewing or photography. The actus reus of this offense consists of "knowingly view or prod
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