with whom FABE, Justice, joins, concurring.
I agree with the result of today's opinion but would reach that result by a somewhat different approach: Under AS 12.55.155(f), Parker bore the burden of proving his alleged mitigating factor by clear and convine-ing evidence.1 Parker failed to meet this burden.
Parker offered no evidence to support his claim that he privately created and kept the disputed photos and videos exclusively for his own personal use. He relied instead on the conclusory and unsworn claims he made in his presentence report and while he was being investigated by the police. The only hard evidence supporting his claims appears to be that his photos and videos of V.M. were kept in a locked briefcase in Parker's bedroom. But the record further suggests that Parker's son knew that the photos existed and where they were kept: he evidently became angry at Parker, broke into the briefcase so that he could use the photos against him, and proceeded to share them with friends. The totality of this evidence hardly instills confidence in Parker's self-serving claim that he created and kept the photos and videos exclusively for his own private use.
Parker similarly offered nothing but con-clusory claims to support his assertions that V.M. was his "girlfriend" and "lover." And V.M.'s description of their relationship provides compelling evidence refuting these claims. By her own account, V.M. was neither a lover nor girlfriend to Parker: she came to his house and was willing to pose for sexually explicit photos and videos simply because he continuously plied her with LSD, marijuana, and tobaceo.
Despite Parker's failure to present any solid evidence, let alone clear and convine-ing proof, to support his claims of a lover's relationship with V.M. and of private possession, the court of appeals accepted his claims at face value and used them, together with V.M.'s age-which the court viewed as making her sexual relations with Parker "lawful"-as the core facts supporting its conclusion that the proposed mitigating factor applied to Parker's case.
In reaching its decision, the court of appeals evidently overlooked Parker's burden and standard of proof. The court's opinion does not mention these points. In fact, the opinion appears to have faulted the state for failing to present evidence refuting Parker's argument that the proposed mitigator applied:
In arguing for mitigator (d)(9), Parker noted that all of the photographs and videos seized by the State depicted V.M., Parker's seventeen-year-old girlfriend. As we have explained, Parker's sexual relations with V.M. were lawful (because she was over the age of consent). Parker further noted that the State produced no evidence that Parker had distributed or shown these photos and videos to anyone else (besides V.M.). Parker argued that, considering all of the conduct encompassed by the statutes defining exploitation of a minor and possession of child pornography, Parker's private creation and private possession of photographic and videographic images for the personal use of himself and his lover was among the least serious conduct.
We agree. ... Parker was ... entitled to argue that, given the lawfulness of his sexual relations with V.M., and given the lack of evidence that Parker distributed these images to anyone else (whether commercially or non-commercially), his con*700duct was minimally serious when compared to the chief evils targeted by these statutes[.][2]
In short, I would affirm the superior court's rejection of Parker's proposed mitigating factor on the ground that Parker failed to present clear and convincing evidence that his conduct was among the least serious in its class. Parker offered no clear and convine-ing evidence that V.M. was his "girlfriend" or "lover"; nor did he prove that he created and kept her photos and videos solely for his own private use. And although his relations with V.M. may have been "lawful" in the narrow sense that V.M. was over the age of legal consent to have sex, Parker hardly proved that they were lawful in any broader sense. Parker obtained V.M.'s consent by constantly giving her tobacco and drugs-conduct amounting to an unclassified felony-and then took advantage of her consent to involve her in a lengthy course of criminal conduct involving the production of child pornography.
When viewed in its totality from any perspective but Parker's, this conduct is not among the least serious included in the definition of his crimes. And even from Parker's perspective, the record discloses no evidence providing clear and convincing support for his claim that this factor applies.
I coneur with the court on this ground.
. At the time of Parker's sentencing, AS 12.55.155(f) provided, in relevant part: "[Flac-tors in aggravation and factors in mitigation must be established by clear and convincing evidence[.]" The court of appeals has consistently interpreted this provision to mean that "each alleged factor must be proved by clear and convincing evidence, and the proponent of the factor bears the burden of proof." Juneby v. State, 665 P.2d 30, 32 (Alaska App.1983); see also Lewandowski v. State, 18 P.3d 1220, 1223 (Alaska App.2001).
. Parker v. State, 90 P.3d 194, 199-200 (Alaska App.2004) (emphasis added).