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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

MICHAEL STEVEN CUNNINGHAM, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-13108 

Trial Court No. 3AN-16-05903 CR 

O P I N I O N 

No. 2757 — August 25, 2023 

Appeal from the Superior Court, Third Judicial District, 

Anchorage, Michael L. Wolverton, Judge. 

Appearances: Emily Jura, Assistant Public Defender, and 

Samantha Cherot, Public Defender, Anchorage, for the 

Appellant. Donald Soderstrom, Assistant Attorney General, 

Office of Criminal Appeals, Anchorage, and Clyde “Ed” Sniffen 

Jr., Acting Attorney General, Juneau, for the Appellee. 

Before: Allard, Chief Judge, and Wollenberg and Harbison, 

Judges. 

Judge WOLLENBERG. 

Following a bench trial, the superior court found Michael Steven 

Cunningham guilty of two counts of first-degree indecent exposure based on a single 

incident. As to the first count, the State alleged that Cunningham was guilty of firstdegreeindecent exposurebecausehecommitted second-degreeindecentexposurewithin 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the observation of a person under sixteen years of age and “knowingly masturbate[d]” 

while committing “the act constituting the offense.”1 As to the second count, the State 

alleged that Cunningham was guilty of first-degree indecent exposure because he 

committed second-degree indecent exposure within the observation of a person under 

sixteen years of age, and he had been previously convicted of a similar crime in Oregon.2 

The superior court merged the two counts into a single conviction, and Cunninghamnow 

appeals. 

Onappeal, Cunninghamdoes notcontest thefact thathecommitted seconddegree indecent exposure — i.e., that he knowingly exposed his genitals in the presence 

of another person, with reckless disregard for the offensive, insulting, or frightening 

effect the act might have.3 Rather, he raises various challenges to the factors that 

elevated his offense to first-degree indecent exposure. 

As to thecountofrecidivistindecentexposure, Cunninghamargues that the 

statute under which he was convicted in Oregon does not contain “elements similar” to 

Alaska’s indecent exposure statute, and that he therefore does not have a qualifying prior 

conviction for the purpose of elevating his offense to first-degree indecent exposure. On 

this point, we agree with Cunningham. 

We must therefore address Cunningham’s challenges to the alternative 

count that requires proof of masturbation. As to this count, Cunningham raises two 

challenges. 

First, Cunningham argues that the superior court erred when it considered 

an alternative dictionary definition of “masturbation” — a different definition than the 

1 Former AS 11.41.458(a)(1) (2016). 

2 Former AS 11.41.458(a)(2)(c) (2016). 

3 AS 11.41.460(a). 

– 2 – 2757
 
one used by the parties in their closing arguments. We agree that the superior court 

should not have considered an alternative dictionary definition of masturbation after 

closing arguments without providing notice to the parties and an opportunity to be heard. 

But we disagree with Cunningham that this caused the superior court to apply a 

meaningfully different legal test when rendering its verdict, and we therefore find the 

error harmless. 

Second, Cunningham argues that to find himguilty of first-degree indecent 

exposure under the masturbation theory, the State was required to prove (and the 

superior court was required to find) that the masturbation was “within the observation 

of a person under 16 years of age.” He further argues that “within the observation of” 

means that the State was required to prove that the victim actually saw his act of 

masturbation. For the reasons explained in this opinion, we conclude that the State was 

required to prove that the indecent exposure was “within the observation of a person 

under 16 years of age,” but that the State was not required to prove that the victim 

actually saw Cunningham’s act of masturbation. Because there was no dispute that a 

child directly observed Cunningham’s act of exposure, we affirm the superior court’s 

guilty verdict on Count I (the masturbation theory), and we affirm Cunningham’s 

conviction. 

Cunningham also raises two challenges to his sentence. 

First, Cunningham argues that the superior court erred in imposing a 

lifetime sex offender registration requirement instead of a 15-year registration 

requirement. The State concedes error on this point. We conclude that the State’s 

concession is well-founded, and we remand for revision of the registration requirement 

in the judgment. 

Lastly, Cunningham argues that the superior court erred in finding an 

aggravating factor —that, under AS 12.55.155(c)(5), Cunningham“knew or reasonably 

– 3 – 2757
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

should haveknown that the victimoftheoffensewas particularly vulnerableor incapable 

of resistence” due to her young age. We conclude that this claim is moot because the 

court, relying solely on the child’s age, ultimately imposed a sentence within the 

presumptive range. 

Underlying facts and proceedings 

On July 5, 2016, seven-year-old A.C. was at a bookstore in Anchorage 

when she asked an employee, Michael Steven Cunningham, to showher where the Harry 

Potter books were located. Cunningham walked A.C. to the Harry Potter section, and 

A.C. pulled out several books while Cunningham stood behind her, speaking to her and 

pointing out books on the shelf. While A.C. was facing the shelf, Cunningham removed 

his penis from his pants. This incident was captured on one of the bookstore’s 

surveillance cameras. 

Over the course of the next two minutes, A.C. can be seen on the 

surveillance video continuing to look at and read books. During this time, Cunningham 

remained in close proximity to A.C. and can be seen taking his penis in and out of his 

pants and manipulating it with his hand. Cunningham was carrying books in his left 

hand for much of the incident, and at times he used the books to partially shield his penis 

from view. 

At one point, Cunninghamcan be seen walking toward the camera and past 

A.C., who at that point was sitting on a stool reading a book. As Cunningham walked 

past A.C., his penis was fully exposed, and he appeared to be touching his penis with his 

hand, close to A.C.’s eye level. Cunningham eventually walked out of view of the 

camera. A.C. then stood up and went to find her mother’s friend, the adult who had 

taken her to the bookstore. 

– 4 – 2757
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A.C. testified at trial that she saw Cunningham’s “privates” and became 

“worried.” She explained that she ultimately told her mother what had happened. A.C.’s 

mother called the bookstore manager and reported what her daughter had told her. The 

manager reviewed the store’s surveillance video and, after seeing Cunningham expose 

himself to A.C., the manager contacted the police. 

A grand jury indicted Cunningham on two counts of first-degree indecent 

exposure — first, for committing second-degree indecent exposure within the 

observation of a person under sixteen years of age and while doing so, knowingly 

masturbating; and second, for committing second-degree indecent exposure within the 

observation of a person under sixteen years of age, while having previously been 

convicted in another jurisdiction of a crime with elements similar to Alaska’s seconddegree indecent exposure statute.4 (Cunningham was previously convicted, in a single 

judgment, of three counts of public indecency under Oregon law.) 

Cunningham waived his right to a jury trial and proceeded to a bench trial. 

The superior court, sitting as fact-finder, found Cunningham guilty of both counts, and 

the court merged the two counts into a single conviction. The court sentenced 

Cunningham to 12 years with 8 years suspended (4 years to serve), with a 10-year term 

of probation. The superior court also imposed a lifetime sex offender registration 

requirement. 

This appeal followed. 

– 5 – 2757
 

4 Former AS 11.41.458(a)(1), (a)(2)(c) (2016). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The offense for which Cunningham was convicted in Oregon does not have 

“elements similar” to Alaska’s indecent exposure statute for the purpose 

of elevating his act of exposure to a felony 

Prior to trial, Cunningham filed a motion to dismiss the count of the 

indictment charging him with first-degree indecent exposure under a recidivist theory. 

Cunningham argued that his prior public indecency convictions from Oregon did not 

have“elements similar”to Alaska’s indecentexposurestatutebecausetheOregon statute 

prohibited a broader scope of conduct compared to the Alaska statute. Cunningham 

therefore argued that he had not been “previously convicted” for purposes of elevating 

his act of exposure at the Anchorage bookstore to a felony.5 

The superior court denied Cunningham’s motion. First, the court relied on 

the facts of Cunningham’s prior convictions to conclude that his conduct would support 

a conviction in Alaska. To reach this conclusion, the court relied on handwritten 

notations of unknown origin on the Oregon charging document that was introduced at 

the grand jury proceeding. (These notations were redacted in the exhibits later 

introduced at trial.6

) Second, the court concluded that, while the Oregon statute did have 

broader elements than the Alaska statute, the two statutes were sufficiently similar 

because, according to the court, the broader language in the Oregon statute only 

encompassed “a narrow spectrum of unusual cases.”7 

Cunningham now challenges the court’s ruling. 

5 Former AS 11.41.458(a)(2)(c) (2016). 

6 The Oregon charging document listed four counts of public indecency against 

Cunningham. (The fourth count of public indecency was ultimately dismissed by the State 

pursuant to a plea agreement.) 

7 Quoting Phillips v. State, 330 P.3d 941, 944 (Alaska App. 2014). 

– 6 – 2757
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As an initial matter, we agree with Cunningham that the superior court 

erred in relying on the facts underlying Cunningham’s prior convictions to determine 

whether the Oregon statute had “elements similar” to Alaska’s for the purpose of 

elevating his offense to first-degree indecent exposure. For one thing, these facts were 

based solely on handwritten notations of unknown origin on the Oregon charging 

document — notations that were later redacted from the trial exhibits.8

 Moreover, the 

recidivist theory of first-degree indecent exposure requires a comparison of statutory 

elements: a person must have been previously convicted of indecent exposure in Alaska 

or a crime in Alaska or another jurisdiction with “elements similar” to one of the Alaska 

statutes defining indecent exposure.9 

When interpreting similar language in other statutory contexts, both the 

Alaska Supreme Court and this Court have applied a categorical approach, analyzing the 

elements of the two relevant statutes to determine whether an out-of-state statute is 

“similar” to the Alaska statute. For example, in State, Dep’t of Pub. Safety v. Doe, the 

supremecourtanalyzedwhether an out-of-stateconvictionqualified as an offensesubject 

to sex offender registration in Alaska.10 The supreme court interpreted statutory 

language that read, “a similar law of another jurisdiction,” as requiring a comparison of 

“the elements of the [out-of-state] statute of conviction to the elements of the allegedly 

similar Alaska statute,” without reference to the underlying facts.11 We have employed 

8 Cf. Morgan v. State, 523 P.3d 1254, 1259 (Alaska App. 2023) (recognizing that the 

State cannot rely on factual allegations in the probable cause statement in a complaint to 

establish what subsection of a statute the defendant was later convicted of). 

9 Former AS 11.41.458(a)(2)(c) (2016). 

10 State, Dep’t of Pub. Safety v. Doe, 425 P.3d 115 (Alaska 2018). 

11 Id. at 119-20 (holding that the Alaska Sex Offender Registration Act “requires a 

(continued...) 

– 7 – 2757
 
 

 

 

a comparable analysis in determining whether an out-of-state statute of conviction is 

“similar” to an Alaska statute for purposes of presumptive sentencing.12 

Applying this analysis, we conclude that the Oregon public indecency 

statute does not have “elements similar” to Alaska’s indecent exposure statute. At the 

time of Cunningham’s offense, the Oregon statute provided: 

(1) A person commits the crime of public indecency if 

while in, or in view of, a public place the person performs: 

(a) An act of sexual intercourse; 

(b) An act of deviate sexual intercourse; or 

(c) An act of exposing the genitals of the person with 

the intent of arousing the sexual desire of the person or 

another person.[13] 

Cunningham was convicted under subsection (1)(c).14 That is, Cunningham was 

11 (...continued) 

comparison of laws” to determine whether the out-of-state conviction was based on a 

“similar law” to Alaska). 

12 Borja v. State, 886 P.2d 1311, 1314 (Alaska App. 1994); see also State v. Delagarza, 

8 P.3d 362, 366-68 (Alaska App. 2000). 

13 Former Or. Rev. Stat. § 163.465 (2015). The statute has since been amended to delete 

“[a]n act of deviate sexual intercourse” and include “[a]n act of oral or anal sexual 

intercourse” and “[m]asturbation.” See Or. Rev. Stat. § 163.465. 

14 Cunningham’s Oregon judgment does not specify which subsection supports each of 

his convictions. However, the Oregon complaint charged Cunningham with violating 

subsection (1)(c) — “unlawfully and with [the] intent of arousing the sexual desire of 

defendant or another person, expos[ing] his genitals while in or in view of a public place” 

— on three different dates. And in his petition to enter a guilty plea, Cunningham wrote the 

following, as to each of the dates: “I unlawfully and with the intent of arousing the sexual 

desire of myself exposed my genitals in view of a public place.” 

Under the modified categorical approach to comparing statutes, if the statute of 

(continued...) 

– 8 – 2757
 
 

 

 

 

 

 

 

 

 

convicted of exposing his genitals while in, or in view of, a public place, with the intent 

of arousing himself or another person.15 Under the Oregon statute, “public place” is 

broadly defined as “a place to which the public has access,” including “hallways, lobbies 

and other parts of apartment houses and hotels not constituting rooms or apartments 

designed for actual residence.”16 

As Oregon courts acknowledge, Oregon’s public indecency statute is 

focused on the harm to the public, and is not a victim-centric crime.17 There is no 

requirement of another person’s “presence”; rather, a person exposing themselves need 

only be in, or in view of, a public place.18 

14 (...continued) 

conviction is divisible into alternative sets of elements, a court may look to certain court 

records in the out-of-state case — documents such as jury instructions, a plea agreement and 

colloquy, and the judgment — for the limited purpose of determining the statutorysubsection 

under which the defendant was previously convicted. Doe, 425 P.3d at 123 & n.34 (adopting 

the modified categorical approach with respect to the determination of whether a person with 

a prior out-of-state conviction must register as a sex offender in Alaska); see also Morgan 

v. State, 523 P.3d 1254, 1259 (Alaska App. 2023). 

15 See former Or. Rev. Stat. § 163.465(1)(c) (2015); see also State v. Gialloreto, 457 

P.3d 1105, 1111 (Or. App. 2019). 

16 Former Or. Rev. Stat. § 161.015(10) (2015). 

17 See Gialloreto, 457 P.3d at 1112 (concluding that charges of, inter alia, rape and 

public indecency were improperly joined, noting that “the offense of public indecency does 

not require a victim”); State v. Van Hoomissen, 866 P.2d 521, 522 (Or. App. 1994) (“[T]he 

crime of public indecency is committed against the public at large, not against the person 

who incidently witnessed the act, and, accordingly, . . . it is not subject to civil compromise.” 

(discussing State v. Dugger, 698 P.2d 491 (Or. App. 1985))). 

18 See, e.g., State v. Louis, 672 P.2d 708, 709 (Or. 1983) (en banc) (defendant was 

convicted of three counts of public indecency after the police, investigating a citizen’s 

complaint that a neighbor had been exposing himself through the window of his own home, 

(continued...) 

– 9 – 2757
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

In contrast, Alaska’s indecent exposure statute is victim-focused. Under 

Alaska’s second-degree indecent exposure statute, a person commits indecent exposure 

if the person “knowingly exposes [their] genitals in the presence of another person[,] 

with reckless disregard for the offensive, insulting, or frightening effect the act may 

have.”19 Thus, unlike the Oregon statute, Alaska’s statute requires another person’s 

“presence” and is focused on the possible negative impact of the defendant’s conduct on 

others. Alaska’s first-degree indecent exposure statute is similarly victim-focused and, 

at the time of Cunningham’s offense, elevated the base-level crime to a felony if the 

indecent exposure occurred before a person under sixteen years old and the defendant 

knowingly masturbated or had been previously convicted.20 

As this Court has previously explained, when analyzing whether an out-ofstate statute is similar to an Alaska statute, the question is not simply whether the out-ofstate statute reaches a broader range of conduct than the Alaska statute.21 Rather, the 

question is “whether the difference is significant enough to place the statute outside the 

18 (...continued) 

used a camera with a telephoto lens to photograph the defendant exposing his genitals 

through the window). 

19 AS 11.41.460(a). Although the recidivist provision of the first-degree indecent 

exposure statute provides that any out-of-state prior conviction must have elements similar 

to either Alaska’s first- or second-degree indecent exposure statute, Cunningham 

acknowledges that, for all practical purposes, a prior out-of-state conviction must be similar 

to second-degree indecent exposure under AS 11.41.460(a) because that offense is broader 

than first-degree indecent exposure. 

20 Former AS 11.41.458 (2016). The legislature has since amended the first-degree 

indecent exposure statute to make indecent exposure before an adult a felony under certain 

circumstances. AS 11.41.458 (as amended by FSSLA 2019, ch. 4, § 15). 

21 Phillips v. State, 330 P.3d 941, 944 (Alaska App. 2014). 

– 10 – 2757
 
 

 

 

 

 

 

 

Alaska Legislature’s definition of a ‘similar’ offense.”22 Alaska’s first-degree indecent 

exposure statute contains elements sufficiently distinct from the Oregon statute to 

disqualify Cunningham’s prior convictions from elevating his offense to a felony under 

AS 11.41.458.23 

The State argues that the core prohibited conduct of both statutes is 

nevertheless “similar,” and the State points to various Oregon cases involving conduct 

prosecuted under Oregon’s public indecency statute that would also be covered by 

Alaska’s indecent exposure statute.24 

22 Id.; see also Scroggins v. State, 951 P.2d 442, 444 (Alaska App. 1998) (holding that 

a California statute was sufficiently dissimilar from the corresponding Alaska statutes 

because the Alaska statutes were “considerably narrower” than California’s statute). 

23 Compare Timothy v. State, 90 P.3d 177, 180-81 (Alaska App. 2004) (holding that the 

Illinois and Oklahoma burglary statutes, which criminalized unlawful entries in any motor 

vehicle, were not sufficiently similar to Alaska’s burglary statute, which covered “only those 

comparatively few vehicles that are adapted for overnight accommodation or for carrying on 

business”), and Scroggins, 951 P.2d at 444 (holding that Alaska’s sexual abuse of a minor 

statutes were not sufficiently similar to California’s statute because, while the California 

statute prohibited “the touching of any body part of the child,” the Alaska statutes focused 

on specific parts of the body), with Phillips, 330 P.3d at 944-45 (holding that the Texas 

prohibition on driving under the influence was “similar” to Alaska’s statute because, while 

the Texas statute encompassed intoxication by “any substance,” few Texas offenders were 

actually intoxicated by a non-controlled substance), and State v. Simpson, 53 P.3d 165, 170 

(Alaska App. 2002) (holding that Montana’s driving under the influence statute was 

sufficientlysimilar to Alaska’s statute, even assuming the defense of involuntaryintoxication 

is not available to a Montana driver, as it is to an Alaska driver, since “instances of 

involuntary intoxication are rare” and thus “any purported difference . . . would apply only 

to a narrow spectrum of unusual cases”). 

24 See, e.g., State v. Althouse, 375 P.3d 475, 483 (Or. 2016) (defendant exposed himself 

on the side of a popular jogging path, near a middle school); State v. Davidson, 380 P.3d 963, 

965-66 (Or. 2016) (defendant masturbated in a school playground, in a parking lot, and in 

a public park in the presence of others, among other things); State v. Hawkins, 380 P.3d 979, 

(continued...) 

– 11 – 2757
 
 

 

 

 

 

 

 

We agree that there is overlap between the conduct criminalized by both 

statutes. But multipleappellatecases in Oregon involveconvictions forpublicindecency 

that occurred outside the presence of another person or with a willing participant, and 

therefore could not be prosecuted under Alaska’s indecent exposure statute. Several 

cases involved men who were discovered by officers either alone or with a consenting 

partner, masturbating in a public restroom.25 And one case involved a bus driver who 

was discovered receiving oral sex from another person in the back of a public bus.26 

24 (...continued) 

980 (Or. App. 2016) (defendant exposed his genitals while masturbating on public 

transportation); State v. Smith, 372 P.3d 549, 551 (Or. App. 2016) (defendant held penis and 

appeared to be masturbating in public park); State v. Collins, 300 P.3d 238, 240-41 (Or. App. 

2013) (driver on highway exposed genitals and masturbated while pulling up alongside car 

with children); State v. Sills, 317 P.3d 307, 308 (Or. App. 2013) (defendant exposed himself 

to a thirteen-year-old girl who was walking home from the school bus stop); State v. Dugger, 

698 P.2d 491, 492 (Or. App. 1985) (en banc) (defendant publicly exposed himself in a 

department store). 

25 State v. Wilson, 422 P.3d 402, 403 (Or. App. 2018) (defendant convicted of public 

indecency after police officers “glanced under a partition of a public restroom stall and saw 

defendant lying on the floor masturbating”); State v. Casconi, 766 P.2d 397, 398-99 (Or. 

App. 1988) (defendant convicted of public indecency for masturbating in a public bathroom 

stall where “[n]o one in the restroom saw defendant expose his genitals or masturbate,” but 

where he was caught on surveillance recording; court reversed as illegal warrantless search); 

State v. Holt, 630 P.2d 854, 856 (Or. 1981) (defendant convicted of public indecency after 

an officer observed him masturbating in a public restroom stall which had no doors; the court 

noted that “130 arrests” had been made by one officer at that restroom “in less than three 

months of surveillance”); State v. Owczarzak, 766 P.2d 399, 400-01 (Or. App. 1988) 

(defendant convicted of public indecency after he was captured on surveillance recording 

masturbating in front of another person in a public restroom in what appeared to be 

consensual conduct; court reversed as illegal warrantless search under state constitution). 

26 State v. Sullivan, 952 P.2d 100, 101-02 (Or. App. 1998). Indeed, Oregon’s public 

indecency statute is, in some ways, more akin to disorderly conduct under the Anchorage 

(continued...) 

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Contrary to the superior court’s reasoning, these cases comprise more than “a narrow 

spectrum of unusual cases.” 

For thesereasons,we conclude that Oregon’s public indecency statutedoes 

not have “elements similar” to Alaska’s indecent exposure statutes, and Count II must 

be dismissed.27 We accordingly proceed to address Cunningham’s challengesto Count I. 

The superior court’s reliance on a second dictionary definition of 

“masturbation” does not constitute reversible error 

To prove that Cunningham committed the crime of first-degree indecent 

exposure under Count I, the State was required to prove, inter alia, that Cunningham 

masturbated. As we have explained, Cunningham waived his right to a jury trial, and 

proceeded to a bench trial. Prior to trial, the parties agreed on an instruction delineating 

the elements of the offense, but they did not discuss the need for any other instructions, 

including a definition of “masturbation.” 

Following the close of evidence, the parties submitted written closing 

arguments. In the State’s closing argument, the prosecutor noted that the term 

“masturbate” is not defined by statute, and argued that the court should therefore adopt 

26 (...continued) 

Municipal Code, which prohibits a person from “knowingly engag[ing] in consensual sexual 

penetration . . . in a public place or a place reasonably exposed to public view.” 

AMC 08.30.120(A)(1). 

27 We note that Oregon also has a second crime, entitled “private indecency,” which 

more closely resembles Alaska’s indecent exposure statute: it criminalizes exposing one’s 

genitals in view of another person, when that exposure “reasonably would be expected to 

alarm or annoy the other person,” and the perpetrator knew the other person did not consent. 

(The crime is narrower than Alaska’s indecent exposure statute, in that it must occur in “a 

place where another person has a reasonable expectation of privacy” and the perpetrator must 

intend to arouse their own or another person’s sexual desire.) See Or. Rev. Stat. 

§ 163.467(1). 

– 13 – 2757
 
the reasonable, common sense meaning of the word. The prosecutor then referenced the 

following definition of “masturbation” from Merriam-Webster.com: “the erotic 

stimulation especially of one’s own genital organs commonly resulting in orgasm and 

achieved by manual or other bodily contact exclusive of sexual intercourse.” Applying 

that definition, the prosecutor argued that Cunningham masturbated because the 

surveillance video revealed that he “exposed his penis and then manually stimulated 

himself with his hand.” 

In his closing argument, Cunningham’s attorney accepted the State’s 

definition of masturbation, but argued that the video did not show him masturbating. 

Instead, the attorneyarguedthatCunninghamwas only adjusting theposition of his penis 

for other purposes — either so A.C. would see his penis, or so other bookstore patrons 

would not. 

After reviewing the parties’ written closing arguments, the superior court 

concluded that Cunningham was masturbating. In reaching this conclusion, the court 

recognized the parties’ definition but consulted and applied a different dictionary 

definition than the one discussed by the parties — a definition from the Third College 

Edition of Webster’s New World Dictionary: “to manipulate one’s own genitals or the 

genitals of another for sexual gratification.” Relying on this definition, the court made 

the following oral findings in support of its conclusion that Cunningham was 

masturbating: 

So there — it’s essentially any manipulation, and there was 

clearly manipulation by Mr. Cunningham of his genitals. It 

wasn’t simply [an] exposure and nothing more. There was 

clearly manipulation. And so I — and also, you know, the 

statement that Mr. [Cunningham] had made on the recording 

that he was on probation from Oregon for indecent exposure. 

He said — essentially he said I lost my mind as an adrenaline 

thrill sort of kind of thing and it would happen in stores. I 

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showed — he said he showed it to kids. He said I lost my 

mind, I’d been a pedophile all of my life since [becoming] 

sexually aware at age 12 or 15, and he stated that I find small 

girls — small — or smaller young girls attractive. So I find 

that the State has proven that charge beyond a reasonable 

doubt[.] 

After the court issued its oral findings, Cunningham’s attorney requested 

written findings under Alaska Criminal Rule 23(c). The court later issued its written 

findings, in which the court again applied its alternative definition of masturbation and 

concluded that Cunningham had been masturbating. In its written findings, the court 

also agreed with the State’s assertion that Cunningham “exposed his penis and then 

manually stimulated himself with his hand.” The court further concluded that 

Cunningham “very clearly did more than simply expose himself.” 

Cunningham’s trial attorney did not object to the superior court’s reliance 

on a second dictionary definition. On appeal, however, Cunningham argues that it was 

improper for the court to adopt and apply a different definition than the one used by the 

parties without first notifying them of its intent to do so and giving them an opportunity 

to object. 

We agree with Cunningham that, as a general matter, it was improper for 

the court to adopt an alternative definition of “masturbation” without providing notice 

to the parties and an opportunity to be heard. But we disagree that this error requires 

reversal of his conviction. 

Alaska Rule of Criminal Procedure 30(a) states that the trial court “shall 

inform counsel of the final form of jury instructions prior to their arguments to the jury” 

and requires that the court give both parties an opportunity to object to those instructions. 

Jurors are also instructed not to consult dictionaries and other outside reference materials 

during their deliberations. The purpose of these rules is to allow the parties to litigate, 

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prior to closing argument, the precise law under which the jury will decide the case, 

which in turn allows the parties to tailor their arguments to the language of the 

instructions.28 Basic principles of due process and fairness require this approach. 

Although these rules are specifically directed at jury trials, the underlying 

principles are equally applicable to bench trials. It was therefore improper for the 

superior court to use a different definition than the one agreed upon by the parties, 

without first informing the parties about this decision and giving them an opportunity to 

object. 

That said, reversal of Cunningham’s conviction is only required if the 

alternative definition of “masturbation” changed the legal test the court applied to the 

case.29 After reviewing the parties’ arguments and the court’s oral and written rulings, 

we conclude that it did not. 

Thedictionarydefinition ultimately consulted by thesuperior court was not 

meaningfully different from the definition agreed to by the parties in their closing 

arguments. Both definitions require that the person touch their genitals for an erotic or 

sexual purpose, and neither defines in precise terms the manner or nature in which this 

touching must occur. 

Despite these apparent similarities, Cunningham argues that the definition 

adopted by the superior court improperly allowed the court to find that he was 

masturbating if he engaged in any touching of his genitals, even touching that was done 

28 See Riley v. State, 515 P.3d 1259, 1265 (Alaska App. 2022) (citations omitted). 

29 Cf. Bowers v. State, 2 P.3d 1215, 1221 (Alaska 2000) (holding that the trial court erred 

in giving a supplemental jury instruction allowing the jury to find the defendant guilty on an 

alternative theory of culpability on which the State had indicated it would not rely, but still 

requiring the defendant to show how the new instruction “created a potential for prejudice”); 

see also Price v. State, 590 P.2d 419, 420 (Alaska 1979) (applying harmless error analysis 

in the context of a bench trial). 

– 16 – 2757
 
only to adjust the position of his penis or move it in order to avoid detection, as long as 

the underlying act of exposure was sexually motivated. 

We agree with Cunningham that the term “masturbation,” as used in the 

first-degree indecent exposure statute, requires more than the touching incidental to 

exposing oneself, even if the underlying act of exposure is erotic or sexually gratifying 

for the defendant. To conclude otherwise would collapse the act of exposure for 

purposes of second-degree indecent exposure with the act of masturbation that elevates 

the base-level crime to a felony. Such a construction is therefore contrary to the statutory 

scheme. 

Wedisagree, however,withCunningham’s assertion that the superior court 

found that Cunningham was masturbating simply because (1) Cunningham touched his 

penis, and (2) Cunningham’s underlying act of exposure was sexually gratifying for him. 

Cunninghamfocuses primarily onthecourt’s comment inits oralruling that 

masturbation includes “essentially any manipulation and there was clearly manipulation 

by Mr. Cunningham of his genitals.” But this overlooks the context in which the court 

made these remarks and also the court’s written findings. 

In its oral ruling, the court found that Cunningham’s conduct was not 

“simply [an act of] exposure and nothing more. There was clearly manipulation.” This 

suggests that the court was distinguishing between genital touching incidental to the act 

of exposure and genital touching for the purpose of sexual gratification. 

Moreover, in the superior court’s written findings, the court adopted the 

description of the facts contained in the State’s written closing argument. That 

description included the fact that Cunningham “exposed his penis and then manually 

stimulated himself with his hand.” In other words, the superior court found that after 

Cunningham exposed himself, he continued to manipulate his penis for purposes of 

sexual stimulation and not solely in order to adjust its position or to avoid detection. The 

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court also found that Cunningham “very clearly did more than simply expose himself.” 

The court found that Cunningham was “manipulating his penis,” and the court relied on 

his admissions to the police as circumstantial evidence that he was doing so for sexual 

gratification. 

These findings are well supported by the record, which includes a copy of 

the video recording from the bookstore’s surveillance camera. We have reviewed the 

video recording, and it supports the court’s finding that Cunningham’s actions included 

genital touching that went beyond the touching incidental to the act of exposure. 

For these reasons, we conclude that, while the superior court erred when 

it consulted an alternative dictionary definition of “masturbation” and relied on that 

definition without informing the parties, this error does not require reversal of 

Cunningham’s conviction. 

The first-degree indecent exposure statute does not require proof that the 

child saw the defendant’s act of masturbation 

At the time of Cunningham’s offense, Alaska’s first-degree indecent 

exposure statute provided, in pertinent part: 

An offender commits the crime of indecent exposure in the 

first degree if the offender violates AS 11.41.460(a) [the 

second-degree indecent exposure statute], the offense occurs 

within the observation of a person under 16 years of age, and 

. . . while committing the act constituting the offense, the 

offender knowingly masturbates[.][30] 

30 Former AS 11.41.458(a)(1) (2016). 

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The phrase “within the observation of” is not specifically defined by statute, and Alaska 

courts have not previously determined whether “within the observation of” means actual 

observation, or within one’s ability to observe.31 

On appeal, Cunningham argues that the offense of first-degree indecent 

exposure requires that the masturbation be “within the observation of a person under 16 

years of age” and he further argues that “within the observation of” requires proof that 

the child victim specifically saw the act of masturbation. Thus, according to 

Cunningham, we must reverse his conviction because the superior court never made an 

explicit finding that A.C. saw Cunningham masturbate. 

We agree that the court never explicitly ruled on this question. While the 

superior court found that “the events were within [A.C.’s] observation” (emphasis 

added), the court did not explain whether it found that A.C. actually saw Cunningham’s 

act of masturbation (or whether Cunningham’s act of masturbation was simply within 

her range of observation), and it did not address whether actual viewing of the 

masturbation is required by the statute. 

Cunningham’s argumentthereforeraisestwo distinctquestions ofstatutory 

interpretation. The first question is the meaning of the phrase “within the observation 

of.” If this phrase means, as the State argues, that the victim only has to be within the 

“observational range” of the defendant’s conduct, then the victim would not need to 

actually witness the defendant’s act of masturbation. Even assuming the phrase “within 

31 See Jerry B. v. Sally B., 377 P.3d 916, 926 n.33 (Alaska 2016) (“Neither we nor the 

court of appeals has ever evaluated whether ‘within the observation’ means ‘observation 

range’ or ‘actual observation,’ and the pattern jury instruction’s use note explicitly highlights 

the lack of clarity on this issue and takes no position on ‘whether the child . . . must observe 

the act of masturbation.’” (citing Alaska Criminal Pattern JuryInstruction AS 11.41.458 (rev. 

2009))). 

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the observation of” means “actual observation,” the second question is whether this 

phrase modifies only the act of exposure or also the act of masturbation. 

After close consideration of the statute and the legislative history of the 

statute, we conclude that we need not decide the first question because — regardless of 

whether “within the observation of” means actual observation — this phrase does not 

apply to the act of masturbation, but only to the act of exposure. 

Overview of the legislative history related to the initial 

enactment of the indecent exposure statutes 

ThelegislatureenactedAlaska’sindecentexposurestatutein1983.32 Using 

language from the disorderly conduct statute, the new indecent exposure statute 

criminalized the act of“intentionally expos[ing]the offender’s genitals to another person 

with reckless disregard for the offensive, insulting, or frightening effect the act may have 

on that person.”33 The legislature split the classification of the new offense into two 

different levels based on the age of the victim: “Indecent exposure before a person under 

16 years of age is a class A misdemeanor. Indecent exposure before a person 16 years 

of age or older is a class B misdemeanor.”34 (This language still exists in the seconddegree indecent exposure statute today.35) The sectional analysis for this amendment 

stated the following: “This section raises the classification of Indecent Exposure to an 

32 SLA 1983, ch. 78, § 4. 

33 Id.; Commentary and Sectional Analysis for C.S.S.B. 74, Senate Jud. Comm., Senate 

Bill 74 (1983), at 3; Commentaryand Sectional Analysis for the Proposed 1983 Amendments 

to Alaska’s Laws Relating to Sexual Assault and Sexual Abuse of a Minor, Senate Health, 

Educ. & Soc. Serv. Comm., Senate Bill 74 (1983), at 5. 

34 SLA 1983, ch. 78, § 4 (emphasis added). 

35 AS 11.41.460(b). 

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A misdemeanor level if the object of the exposure is a child under the age of 16. The 

offense remains a B misdemeanor if the witness to the exposure is an adult.”36 

In 1998, the legislature separated the crime of indecent exposure into two 

offenses — first- and second-degree indecent exposure.37 Under these new statutes, a 

person committed first-degree indecent exposure if: 

(1) the offender violate[d] AS 11.41.460(a) [the seconddegree indecent exposure statute]; 

(2) while committing the act constituting the offense, the 

offender knowingly masturbate[d]; and 

(3) the offense occur[red] within the observation of a person 

under 16 years of age.[38] 

This new offense had the effect of elevating indecent exposure “within the observation 

of” a person under sixteen years old to a felony if the defendant “knowingly 

masturbated” while committing the act constituting the offense. 

But the legislature did not use the term “before,” as it had in delineating the 

different levels of penalties based on age in the original indecent exposure statute. 

Instead, under the new first-degree indecent exposure statute, a person committed firstdegree indecent exposure if the offense occurred “within the observation of a person 

under 16 years of age.”39 

36 Commentary and Sectional Analysis for the Proposed 1983 Amendments to Alaska’s 

Laws Relating to Sexual Assault and Sexual Abuse of a Minor, Senate Health, Educ. & Soc. 

Serv. Comm., Senate Bill 74 (1983), at 6 (emphasis added); see also Commentary and 

Sectional Analysis for C.S.S.B. 74, Senate Jud. Comm., Senate Bill 74 (1983), at 3. 

37 SLA 1998, ch. 81, §§ 3, 4. 

38 Former AS 11.41.458(a) (1998). 

39 Id. (emphasis added). 

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At this same time, the legislature also amended the language of the original 

indecent exposure statute and recodified it as second-degree indecent exposure. In 

particular, the legislature replaced the phrase “intentionally exposes the offender’s 

genitals to another person” to “knowingly exposes the offender’s genitals in the presence 

of another person[.]”40 The legislature also removed the requirement that the exposure 

be directed at a particular person, by removing “on that person” from the phrase “with 

reckless disregard for the offensive, insulting, or frightening effect the act may have on 

that person.”41 Thus, under the new statute, a person committed second-degree indecent 

exposure if the person “knowingly expose[d] [their] genitals in the presence of another 

person with reckless disregard for the offensive, insulting, or frightening effect the act 

may have.”42 

The phrases “within the observation of” and “in the presence of” were 

therefore adopted in the same bill, Senate Bill 323.43 Although the use of different 

phrases in each of the statutes would typically suggest disparate meanings, there are a 

number of indications in the legislative history that the legislature considered “within the 

observation of” to be equivalent to “in the presence of.” 

For example, when Senator Drue Pearce, the sponsor of Senate Bill 323,44 

requested a hearing before the House Judiciary Committee, she noted that the bill would 

“strengthen the penalties for sexual offenses against a child, such as . . . masturbation 

40 SLA 1998, ch. 81, § 4 (emphasis added). 

41 Id. (emphasis added). 

42 AS 11.41.460(a). 

43 SLA 1998, ch. 81, §§ 3, 4. 

44 See 1998 Senate Journal 2529. 

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within the presence of a child[.]”45 At that point, the phrase “within the observation of” 

was already part of the draft statutory language for first-degree indecent exposure.46 

In addition, in the House Judiciary Committee files, there is a table entitled, 

“Senate Bill 323 Comparison.”47 The table provides an overview of the offenses 

addressed in the bill.48 First-degree indecent exposure is described in the table as 

occurring if the “offender masturbates within the presence of a person under 16 years.”49 

There are multiple other examples of the legislature using variations of 

these phrases interchangeably.50 In supplemental briefing on the meaning of this 

45 Memorandum from Sen. Drue Pearce to Rep. Joe Green, House Jud. Comm., 

regarding Senate Bill 323 (Mar. 31, 1998) (emphasis added). 

46 S.B. 323, 20th Leg., 2d Sess., § 3 (as introduced, Feb. 16, 1998). 

47 Senate Bill 323 Comparison, House Jud. Comm., Senate Bill 323 (modified Apr. 28, 

1998). 

48 Id. 

49 Id. (emphasis added). 

50 See, e.g., Audio of House Fin. Comm., Senate Bill 323, testimony of Kristie Tibbles, 

legislative assistant to Sen. Drue Pearce, at 56:20-56:30 (May 5, 1998) (stating that Senate 

Bill 323 would make it a felony offense if the offender “masturbates in front of a minor”) 

(emphasis added). Additionally, the phrase “in the presence of” was not added to the seconddegree indecent exposure statute until the bill reached the House Finance Committee, which 

was after the legislature had repeatedly used multiple similar phrases without distinguishing 

among them. Compare S.B. 323, 20th Leg., 2d Sess. (as introduced, Feb. 16, 1998), with 

H.C.S. C.S.S.B. 323, 20th Leg., 2d Sess. (as introduced by House Fin. Comm., May 7, 1998); 

see also Amendment #1 offered in the House Fin. Comm., Reps. Kelly & Berkowitz, Senate 

Bill 323 (May 5, 1998). Lastly, the legislature proposed Senate Bill 272 two weeks before 

it proposed Senate Bill 323. Senate Bill 272 included the same language as Senate Bill 323 

— that an offender commits first-degree indecent exposure if the offense occurs “within the 

observation of a person under 16 years of age.” S.B. 272, 20th Leg., 2d Sess., § 8 (as 

introduced, Feb. 2, 1998) (emphasis added). This bill was accompanied by a table, which 

(continued...) 

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legislative history, both Cunningham and the State agree that the legislature used the two 

phrases — “within the observation of” and “in the presence of” — interchangeably and 

that we should assign the same meaning to both phrases. 

The parties, however, are not in agreement as to what meaning should be 

assigned to these two phrases. Cunningham argues that we should interpret both phrases 

as requiring an element of direct observation by the victim. The State argues that we 

should interpret both phrases as only requiring proximity to the exposure and the 

masturbation — i.e., that the defendant’s conduct was within the observational range of 

the victim, even if the victim did not observe the defendant’s genitals or his act of 

masturbation. 

The State’s view more closely aligns with the common law understanding 

of the crime of indecent exposure, which remains in force in some jurisdictions.51 

Generally, under the common law, the crime of indecent exposure did not require actual 

observation of a person’s genitals; rather, “[a]t common law, the elements of indecent 

exposure were the willful exposure of the person in a public place in the presence of 

50 (...continued) 

stated that the proposal “[c]reates felony indecent exposure for [a] sex act in [the] presence 

of a child.” Child Protection Bill Comparison, Senate Jud. Comm., Senate Bill 272 (1998) 

(emphasis added). 

51 Rollin M. Perkins & Ronald N. Boyce, Criminal Law, at 473 (3d ed. 1982) (“Indecent 

exposure of the person to public view is also a common-law misdemeanor.”); State v. 

Whitaker, 793 P.2d 116, 118 (Ariz. App. 1990) (“Indecent exposure and particular acts and 

forms of lewdness or gross indecency with respect to sexual relations constituted criminal 

offenses at common law.”). 

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others.”52 The government generally had to prove that the public exposure “was 

observed, or was likely to have been observed, by one or more persons.”53 

Some states have construed statutes similar to Alaska’s in a like manner. 

These courts have generally concluded that a person need not actually see the 

defendant’s exposed genitals, although the State must prove more than mere proximity. 

52 Whitaker, 793 P.2d at 118; see also 3 Jens D. Ohlin, Wharton’s Criminal Law § 52:17, 

at 547-48 (16th ed. 2021) (“At common law, the ‘indecent exposure’ of the private parts of 

a person to public view was treated as a nuisance and punishable as a misdemeanor. It was 

not required that the exposure be observed; it was necessary merely that the exposure occur 

in a public place.”). 

53 See Wisneski v. State, 921 A.2d 273, 279-85 (Md. App. 2007) (emphasis added) 

(reviewing cases from other jurisdictions construing the common law and interpreting 

Maryland’s common law crime of indecent exposure as requiring a public exposure that “was 

observed, or was likely to have been observed, by one or more persons”); Noblett v. 

Commonwealth, 72 S.E.2d 241, 244 (Va. 1952) (recognizing that, under the common law 

crime of indecent exposure, the question was whether the person exposing their genitals 

“could reasonably have been seen, or was likely to have been seen, by persons using the 

street”); People v. Vronko, 579 N.W.2d 138, 142 (Mich. App. 1998) (“[T]here is no 

requirement that the defendant’s exposure actually be witnessed by another person to 

constitute ‘open or indecent exposure,’ as long as the exposure occurred in a public place 

under circumstances in which another person might reasonably have been expected to 

observe it.”); see also People v. Carbajal, 8 Cal.Rptr.3d 206, 211-12, 114 Cal.App.4th 978, 

986 (Cal. App. 2003) (“Our review of the common law and cases from other jurisdictions 

leads us to conclude that a conviction for indecent exposure . . . requires evidence that a 

defendant actually exposed his or her genitals in the presence of another person, but there is 

no concomitant requirement that such person actually must have seen the defendant’s 

genitals. Thus, we will uphold defendant’s conviction for indecent exposure in the absence 

of evidence of any direct visual observation of his genitals so long as there is sufficient 

circumstantial evidence to show that actual exposure occurred.”); Young v. State, 849 P.2d 

336, 343 (Nev. 1993) (“[I]ndecent exposure of one’s genitals was punishable at common law 

without regard to whether the exposure was observed, or observed by a consenting adult, as 

long as the exposure occurred in a public place.”). 

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That is, the State must show a reasonable probability or likelihood that another person 

would see the defendant’s genitals.54 

At the same time, the use of phrases like “witness” and “viewer” at points 

in the legislative history of Alaska’s statutes suggest that actual observation is required.55 

And Alaska’s statute has departed from the common law in other ways. Under some 

circumstances, indecent exposure is a felony sex offense56 — rather than a lower-level 

crime against public morality and decency, as under common law.57 Further, the seconddegree indecent exposure statute requires exposure of the defendant’s genitals “with 

54 See, e.g., State v. Stevenson, 656 N.W.2d 235, 239 (Minn. 2003) (recognizing that the 

phrase “in the presence of a minor” in the state’s fifth-degree sexual conduct statute, while 

necessarily broader than “actually viewed,” could mean either “in the proximity of a minor” 

or “reasonably capable of being viewed by a minor,” and adopting the latter (narrower) 

definition under the rule of lenity); State v. Vars, 237 P.3d 378, 382 (Wash. App. 2010) 

(“Simply because [the statute] requires an exposure of genitalia in the presence of another, 

it does not mean that the other person must observe the defendant’s private parts for an 

indecent exposure to have occurred. . . . So long as an obscene exposure takes place when 

another is present and the offender knew the exposure likely would cause reasonable alarm, 

the crime has been committed.”). 

55 See Commentary to Alaska’s Revised Criminal Code, 1978 Senate Journal Supp. 

No. 47 (June 12), at 96 (noting that the exposure provision of the disorderly conduct statute 

would not apply if the “viewer” consented to the conduct); Commentary and Sectional 

Analysis for the Proposed 1983 Amendments to Alaska’s Laws Relating to Sexual Assault 

and Sexual Abuse of a Minor, Senate Health, Educ. & Soc. Serv. Comm., Senate Bill 74 

(1983), at 6 (providing that the offense of indecent exposure is a class B misdemeanor if the 

“witness” to the exposure is an adult). As a practical matter, in 1983, the absence of modernday video cameras likely meant that viewing was often necessary to establishing criminal 

liability. 

56 AS 12.55.185(16) (defining “sexual felony” as including first-degree indecent 

exposure). 

57 See Rollin M. Perkins & Ronald N. Boyce, Criminal Law, at 473 (3d ed. 1982). 

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reckless disregard for the offensive, insulting, or frightening effect the act may have,”58 

as opposed to the common law, which required the “willful exposure” in a public place 

“in the presence of others.”59 

To the extent there is any lingering ambiguity in the meaning of the 

disputed phrases, the rule of lenity would require us to adopt Cunningham’s proposed 

interpretation — that both phrases require an element of observation.60 

Ultimately, we conclude, however, that it is unnecessary in this case to 

decide whether “within the observation of” means actual observation or observational 

range. Even assuming that the phrase means “actual observation,” we disagree with the 

underlying premise of Cunningham’s argument — that the masturbation specifically (as 

opposed to the exposure of the genitals in general) must be seen. Rather, we agree with 

the State that, to prove the crime of first-degree indecent exposure, the State must 

establish only that the defendant masturbated while committing the continuing offense 

of indecent exposure, and that the victim does not need to personally witness the act of 

masturbation (although as a practical matter, observation will often be required to prove 

the offense). 

Why we conclude that proof that the child actually saw the 

act of masturbation is not required 

In interpreting a statute, we examine de novo “the meaning of the statute’s 

language, its legislative history, and its purpose” in light of “reason, practicality, and 

58 AS 11.41.460(a). 

59 See State v. Whitaker, 793 P.2d 116, 118 (Ariz. App. 1990). 

60 See State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985) (“Ambiguities in 

criminal statutes must be narrowly read and construed strictly against the government.”). 

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common sense.”61 Alaska employs a “sliding scale” approach to statutory interpretation; 

under this approach, “the plainer the statutory language is, the more convincing the 

evidence of a contrary legislative intent must be.”62 

The version of AS 11.41.458 under which Cunninghamwas convicted was 

enacted in 2005 and provided: 

(a) An offender commits the crime of indecent exposure in 

the first degree if the offender violates AS 11.41.460(a) 

[second-degreeindecent exposure], theoffenseoccurs within 

the observation of a person under 16 years of age, and 

(1) while committing the act constituting the offense, 

the offender knowingly masturbates; or 

(2) the offender has been previously convicted under 

(A) this section [i.e., AS 11.41.458]; 

(B) AS 11.41.460(a); or 

(C) a law or ordinance of this or another 

jurisdiction with elements similar to a crime 

listed under (A) or (B) of this paragraph. 

(b) Indecent exposure in the first degree is a class C felony.[63] 

Based on the plain language of the statute, “the offense” that must “occur[] within the 

observation of a person under 16 years of age” is the predicate offense of second-degree 

indecent exposure. That is, “within the observation of” does not modify the act of 

masturbation. We reach this conclusion for several reasons. 

61 Hayes v. State, 474 P.3d 1179, 1183 (Alaska App. 2020) (citations omitted). 

62 Id. (citations omitted). 

63 Former AS 11.41.458 (2016). The masturbation theory was first enacted in 1998, but 

the language of the statute was restructured in 2005, when the legislature added the recidivist 

theory. SLA 1998, ch. 81, § 3; SLA 2005, ch. 62, § 1. 

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First, the syntax of the introductory language — stating that a person 

“violates AS 11.41.460(a), [and] the offense occurs within the observation of a person 

under 16” —supportstheinterpretationthattheword “offense” refers to the immediately 

preceding reference to AS 11.41.460(a), second-degree indecent exposure. The word 

“offense” would not generally refer to first-degree indecent exposure itself because that 

is the offense being defined. 

For thesamereason, andbecausewegenerally ascribeaconsistent meaning 

to the same word within the same statute,64 the word “offense” in subsection (a)(1) — 

i.e., “while committing the act constituting the offense, the offender knowingly 

masturbates” — refers to the conduct element of second-degree indecent exposure, i.e., 

the offender’s act of exposing their genitals. 

Second, and more notably, the introductory clause —which again requires 

that “the offense occur[] within the observation of a person under 16” — applies to both 

circumstances that elevate second-degree indecent exposure to first-degree — (1) a 

defendant’s act of knowingly masturbating, and (2) a defendant’s prior conviction. If the 

observational requirement in the introductory clause applies to the act of masturbation, 

it must also apply to the prior conviction element. 

But this would make little sense. Rather, in light of the impracticality of 

applying the observational requirement to the prior conviction element, it becomes clear 

that the “offense” that must “occur[] within the observation of a person under 16 years 

of age” refers to the act of exposure, being done by a defendant who has a prior similar 

64 Fancyboy v. Alaska Vill. Elec. Coop., Inc., 984 P.2d 1128, 1133 (Alaska 1999). 

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conviction. Likewise, it is the act of exposure — not the act of masturbation — that must 

occur within the observation of a person under sixteen years old.65 

Finally,wenotethatthefirst-degreeindecent exposurestatuteonly requires 

that the “act constituting the offense” — i.e., the offender knowingly exposing their 

65 The initial version of AS 11.41.458 further supports this interpretation. Felony-level 

(first-degree) indecent exposure was first enacted in 1998. SLA 1998, ch. 81, § 3. The only 

aggravating circumstance at that time was a theory of masturbation. The statute, as enacted 

in 1998, provided: 

(a) An offender commits the crime of indecent exposure in the first degree if 

(1) the offender violate[d] AS 11.41.460(a) [the second-degree indecent 

exposure statute]; 

(2) while committing the act constituting the offense, the offender 

knowingly masturbate[d]; and 

(3) the offense occur[red] within the observation of a person under 16 years 

of age. 

It is clear that the “act constituting the offense” in subsection (a)(2) refers to the conduct 

underlying the offense of second-degree indecent exposure — and that it is this offense that, 

for purposes of subsection (a)(3), must “occur within the observation of a person under 16 

years of age.” (In 2005, the legislature restructured the first-degree indecent exposure statute 

to add a recidivist theory — and it is this version of the statute under which Cunningham was 

convicted. There is no indication in the legislative history that the 2005 amendments were 

intended to change the meaning of the masturbation theory.) 

In 2019, after Cunningham’s offense in this case, the statute was further amended. 

FSSLA 2019, ch. 4, § 15. Under the current version of the statute, a person is guilty of firstdegree indecent exposure if the person commits second-degree indecent exposure and 

(1) “while committing the act constituting the offense, . . . knowingly masturbates,” or (2) the 

person has been previously convicted. AS 11.41.458(a). The age of the victim determines 

the classification of the felony offense; the offense is elevated from a class C to a class B 

felony “if the offense occurs within the observation of a person under 16 years of age.” 

AS 11.41.458(b). We express no opinion on the import of these revisions to the statutory 

question presented here. 

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genitals — occur “within the observation” of the child victim.66 Alaska’s criminal code 

divides the elements of crimes into three different categories: conduct, circumstances, 

and results.67 “Conduct” refers to an “act or omission and its accompanying mental 

state” — i.e., what a defendant did or failed to do.68 The “conduct” or “act” of 

second-degree indecent exposure is “knowingly expos[ing] the offender’s genitals.”69 

The additional requirement that the exposure occur “in the presence of another person” 

does not refer to the defendant’s conduct, but rather to a result or circumstance of their 

conduct.70 We therefore conclude that the “act constituting the offense” of 

second-degree indecent exposure is the defendant’s continuing act of exposing 

themselves. The implication of this conclusion is that the child does not need to see the 

defendant’s act of masturbation in order for the defendant to be guilty of first-degree 

indecent exposure. 

Indeed, one would expect most children (and, for that matter, most adults) 

to quickly turn away if they encountered an unwanted act of genital exposure. If the 

State were required to prove that another person (particularly, a child) actually saw the 

defendant masturbating, the defendant’s culpability in such cases might be determined 

largely by chance, even when video evidence clearly established that the defendant was, 

in fact, masturbating. For example, did the other person look up at the moment the 

defendant was masturbating? Did the other person look for long enough to be able to 

determine that the defendant was in fact masturbating? And is the other person able to 

66 Former AS 11.41.458 (2016) (emphasis added). 

67 AS 11.81.610. 

68 AS 11.81.900(b)(7). 

69 AS 11.41.460(a). 

70 Id. 

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describe what was seen as masturbation?71 Based on our review of the statute underlying 

Cunningham’s conviction and its legislative history, we conclude that the legislature 

intended to tie the defendant’s culpability to their underlying conduct, not to the 

particular moment the child actually saw the defendant’s exposed genitals. 

In short, there is no indication that the legislature intended to hinge the 

elevated offense on whether the child actually saw the defendant masturbating (although 

as a practical matter, in the absence of a surveillance camera, viewing by someone will 

often be necessary). 

For all these reasons, even if we were to interpret “within the observation 

of” as requiring actual observation (as opposed to observational range), as Cunningham 

contends, that requirement would only apply to the act of exposure, not the act of 

masturbation. And because there is no dispute that A.C. actually saw Cunningham’s 

genitals — she testified that she saw Cunningham’s “privates” and the superior court 

found that she actually saw Cunningham’s genitals — we need not definitively decide 

the meaning of the phrase “within the observation of.” 

We therefore uphold the superior court’s guilty verdict on Count I (the 

masturbation theory), and we affirm Cunningham’s conviction. 

Cunningham is subject to a 15-year registration requirement, not a lifetime 

registration requirement 

Under the Alaska Sex Offender Registration Act (ASORA), a person is 

subject to a lifetime sex offender registration requirement if the person has been 

71 Indeed, in this case, A.C.’s mother testified that she had no reason to believe that A.C. 

was aware of what it means to masturbate. 

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convicted of one “aggravated sex offense” or two or more “sex offenses.”72 A person is 

subject to a 15-year registration requirement — i.e., a registration requirement that ends 

15 years following the defendant’s unconditional discharge from the conviction — if the 

person has been convicted of only a single, non-aggravated “sex offense.”73 

The term “sex offense” is defined under AS 12.63.100 and includes firstdegree indecent exposure (or a similar law of another jurisdiction).74 There is therefore 

no dispute that Cunningham now has an obligation to register due to his conviction for 

first-degree indecent exposure under AS 11.41.458. 

In the superior court, however, the parties disputed the duration of 

Cunningham’s registration requirement. First-degree indecent exposure is not an 

aggravated sex offense.75 Thus, whether Cunningham has a lifetime registration 

requirement hinges on whether Cunningham’s prior convictions in Oregon qualify as 

“sex offenses,” such that Cunninghamnowstands convicted of two or more sex offenses. 

The superior court accepted the State’s argument that Cunningham had two or more 

convictions for sex offenses and imposed a lifetime registration requirement. 

On appeal, the State now concedes that the superior court’s ruling was 

incorrect. We conclude that the State’s concession is well-founded.76 

Cunningham’sprior Oregon offenses do notqualify as“sex offenses”under 

ASORA. The definition of “sex offense” at the time of Cunningham’s offense included 

second-degree indecent exposure or “a similar law of another jurisdiction,” but only “if 

72 AS 12.63.020(a)(1)(A). 

73 AS 12.63.020(a)(1)(B). 

74 AS 12.63.100(7)(C)(iii). 

75 See AS 12.63.100(1). 

76 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972). 

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the indecent exposure is before a person under 16 years of age and the offender ha[d] a 

previous conviction” under AS 11.41.460.77 Regardless of whether Cunningham 

committed his prior offenses before a person under sixteen years old,78 at the time 

Cunningham committed his prior offenses, he had not been previously convicted of 

indecent exposure.79 

For these reasons, we agree with Cunningham and the State that 

Cunningham has been convicted of only a single “sex offense” for purposes of ASORA 

and is thus subject to a 15-year registration requirement. We therefore remand this case 

to the superior court with directions to delete the lifetime registration requirement in the 

77 Former AS 12.63.100(6)(C)(iv) (2016). The statute has since been slightly reworded 

and renumbered. See AS 12.63.100(7)(C)(iv). 

78 As we noted earlier, when determining whether an Alaska statute is “similar” to an 

out-of-state statute for purposes of ASORA, we look only at the elements of the statutes at 

issue, not the specific facts underlying the crime. State, Dep’t of Pub. Safety v. Doe, 425 

P.3d 115, 119-20 (Alaska 2018). The Oregon statute under which Cunningham was 

convicted did not require proof that the indecent exposure occurred before any person, let 

alone someone under the age of sixteen. Former Or. Rev. Stat. § 163.465 (2015). 

79 See Ward v. State, Dep’t of Pub. Safety, 288 P.3d 94, 99 (Alaska 2012) (“The 

legislature’s specific directive that only those individuals with ‘previous’ convictions for 

certain offenses would be subject to sex offender status [under ASORA] demonstrates that 

it did not intend to impose an equivalent requirement for those convicted of different sex 

offenses.”). At the time of Cunningham’s offense in Alaska, a different Alaska statute — 

AS 12.63.020(a)(1)(B) — provided that “a person convicted of indecent exposure before a 

person under 16 years of age under AS 11.41.460 more than two times has been convicted 

of two or more sex offenses[.]” (This statute has now been renumbered as 

AS 12.63.020(a)(1)(A)(ii). FSSLA 2019, ch. 4, § 83.) But this provision does not apply to 

Cunningham because he was not convicted under AS 11.41.460 (second-degree indecent 

exposure) — and the provision does not provide that convictions under “similar” laws of 

another jurisdiction may qualify, as other sections of ASORA do. Moreover, as we already 

noted, the Oregon statute does not require, as an element, that the person subject to the 

indecent exposure was under sixteen years old. 

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judgment and replace it with a 15-year registration requirement under 

AS 12.63.020(a)(1)(B). 

Cunningham’s challenge to the “vulnerable victim” aggravating factor is 

moot 

For the crime of first-degree indecent exposure, Cunningham was subject 

to a presumptive sentencing range of 2 to 12 years.80 The maximum sentence for this 

offense was 99 years.81 

The State argued that the superior court (sitting as fact-finder) should find 

the“vulnerablevictim”aggravatorunderAS12.55.155(c)(5) —that Cunningham“knew 

or reasonably should have known that [A.C.] was particularly vulnerable or incapable 

of resistance due to . . . extreme youth or was for any other reason substantially incapable 

of exercising normal physical or mental powers of resistance[.]” The State argued that 

this aggravator applied based solely on A.C.’s young age at the time of the offense 

(seven years old). Cunningham opposed, arguing that A.C. did not qualify as a 

particularly vulnerable victim based on her age alone. 

The superior court found the aggravator, stating simply, “I’m going to find 

the aggravator (c)(5) because of the age of the victimhere.” The court nonetheless found 

that the Chaney criteria — and in particular community condemnation and reaffirmation 

of societal norms — could be met by a sentence within the presumptive range. The court 

imposed a sentence of 12 years with 8 years suspended (4 years to serve). 

In Braaten v. State, we held that the (c)(5) aggravator “requires a finding 

that the victim was ‘substantially incapable of exercising normal physical or mental 

80 Former AS 12.55.125(i)(4)(A) (2016). 

81 Id. 

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powers of resistance,’ either for one of the reasons listed or for some similar reason[.]”82 

On appeal, Cunningham argues that the evidence failed to establish that A.C. was 

“substantially incapable of exercising normal physical or mental powers of resistance” 

due to her age, or that she was particularly vulnerable relative to the class of victims to 

whom the statute applies (i.e., children under the age of sixteen).83 

We conclude that any error is moot and does not require a remand for 

reconsideration or resentencing. The court did not impose a sentence above the 

presumptive range. That is, the sentence imposed was authorized even absent any 

aggravating factors.84 Moreover, the court found the aggravator based solely on a single 

fact, A.C.’s age, and did not rely on any legally impermissible considerations.85 In 

imposing a sentence within the presumptive range, the court was authorized to take into 

account this single fact, even without the formal finding of an aggravator.86 

82 Braaten v. State, 705 P.2d 1311, 1322 (Alaska App. 1985). 

83 See Lee v. State, 2019 WL 320137, at *2 (Alaska App. Jan. 23, 2019) (unpublished) 

(stating that the (c)(5) aggravator applies if the victim was “particularly vulnerable compared 

to the typical victim” of a crime, i.e., “particularly vulnerable among the class of victims” of 

a certain crime). 

84 See Allen v. State, 56 P.3d 683, 685 (Alaska App. 2002). 

85 Cf. Anderson v. State, 123 P.3d 1110, 1121 (Alaska App. 2005) (remanding for 

reconsideration of the defendant’s sentence when the court found legally impermissible 

aggravating factors based on conduct for which the defendant had been separately 

convicted), abrogated on other grounds in Young v. State, 374 P.3d 395 (Alaska 2016). 

86 See AS 12.55.005(4) (requiring that a sentencing court consider “the circumstances 

of the offense and the extent to which the offense harmed the victim or endangered the public 

safety or order”); see also State v. Andrews, 707 P.2d 900, 911 (Alaska App. 1985) (agreeing 

with sentencing court’s ruling that, while sexual abuse of a minor statutes required an age 

disparitybetween the victim and the defendant, eight- and nine-year-old sexual abuse victims 

were “particularly vulnerable” due to their youth). Cf. Krack v. State, 973 P.2d 100, 104 

(continued...) 

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Cunningham does not argue that his sentence is excessive. We therefore 

affirm his sentence. 

Conclusion 

We REMAND this case to the superior court to correct the judgment in two 

respects: (1) to eliminate any reference to a guilty verdict on Count II, and (2) to amend 

the term of sex offender registration to 15 years under AS 12.63.020(a)(1)(B). In all 

other respects, the judgment of the superior court is AFFIRMED. 

86 (...continued) 

(Alaska App. 1999) (recognizing that, even though the judge did not find the small-quantity 

mitigating factor by clear and convincing evidence, the judge was still authorized to consider 

the small amount of drugs when imposing sentence for an offense not subject to presumptive 

sentencing). 

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