Benboe v. State
In Benboe v. State, 698 P.2d 1230 (Alaska App. 1985), the Court held that Benboe's 8-year sentence for second-degree sexual assault was excessive.
Although Benboe could have been prosecuted for first-degree sexual assault, we concluded that Benboe's conduct would have been among the least serious within the definition of firstdegree sexual assault because the assault was unplanned, of extremely brief duration, and involved only slight digital penetration; the victim suffered only slight physical injury and no long-lasting emotional harm; the defendant did not threaten the victim; and the defendant stopped as soon as the victim protested.
The Court also observed that Benboe accepted responsibility for the assault and that the probation officer believed Benboe's claims of remorse and shame were genuine. (See 698 P.2d. at 1231.)
The Court held that a sentencing judge could properly find that a defendant's conduct is "among the most serious" for purposes of aggravator (c)(10) when the defendant's conduct would support a conviction for a higher degree of the same crime.
Thus, it appears that Judge Stephens could justifiably find this aggravator and, concomitantly, reject Ceideburg's proposed mitigator of "least serious conduct".