Opinion
Court of Appeals No. A-8876.
April 25, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric Smith, Judge, Trial Court No. 3PA-01-2455 CR.
Paul Malin, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
Kelly Carr was convicted at a jury trial of two counts of first-degree sexual abuse of a minor, two counts of second-degree sexual abuse of a minor, one count of unlawful exploitation of a minor, and five counts of possession of child pornography. Carr argues that the trial court improperly denied his pre-trial motion to sever the five child pornography counts from the remaining counts. We reject this argument because we conclude that the superior court did not abuse its discretion.
Carr also argues that the superior court improperly excluded evidence that his wife purportedly sexually assaulted him. Carr contended that this evidence was relevant to his defense that he falsely confessed to sexually abusing the children only to escape his abusive marriage, not because he actually abused the victims. The superior court found that the probative value of this evidence was outweighed by its prejudicial impact. We conclude that this ruling was not an abuse of discretion.
At sentencing, the court merged the two first-degree sexual abuse counts and merged all five child pornography counts. Shortly thereafter, the court concluded that it was error to merge these counts, and at another hearing, imposed sentence on each first-degree sexual abuse count and on each child pornography count. Carr contends that the superior court could not "unmerge" the counts after merging the counts at the first sentencing. Because the counts should not have been merged to begin with, we reject this claim.
Finally, Carr argues that the court improperly applied statutory aggravating factor AS 12.55.155(c)(18)(B) (Carr had committed another sexual offense specified in AS 11.41.410-460) to impose a sentence in excess of the presumptive term. We agree. The superior court violated the principle announced in Juneby v. State that when a defendant is being sentenced on more than one count, the court cannot aggravate the sentence on one count based on the defendant's conduct underlying the conviction on another count. Accordingly, the superior court erred by applying aggravating factor (c)(18)(B) in Carr's case. Therefore, we must remand the case for resentencing.
41 P.2d 823, 842 (Alaska App. 1982), modified in part 665 P.2d 30 (Alaska App. 1983).
Factual and procedural background
Carr lived in Anchorage with his wife Connie, his son Justin, and his daughter C.C. In 1994, Carr was involved in a car accident that left him disabled, with only partial use of his arms, and no use of his body below his chest area.
In August 2000, Connie discovered Carr watching a video that showed C.C. sleeping with a breast exposed. Connie obtained Carr's promise not to tape C.C. again without C.C.'s knowledge.
In September 2001, while cleaning the bathroom, Connie found a video tape in Carr's shaving container. She watched the video tape while Carr was present, although he tried to convince her not to. The video tape showed C.C. in her bedroom and getting dressed after taking a shower. It also showed C.C. sitting on Carr's lap while he was touching her breast, and it showed Carr trying to pull up her shirt. In addition, the tape showed C.C. catheterizing Carr and cleaning his genitals, after which Carr encouraged her to continue touching him, and then touched himself.
While they watched the tape, Carr admitted that he had performed oral sex on his young niece M.H., and that this was depicted on the video tape. The tape showed M.H. sitting on Carr's bed, showed Carr telling M.H. to move her shorts to the side to expose her genitals, and showed Carr performing oral sex on M.H.
Carr and Connie showed C.C. the portions of the tape on which she appeared. Afterwards, they destroyed the video tape. At Connie's request, Carr moved out of the house to the home of a friend. A few weeks later, Carr moved back into the family home, and Connie and the children moved out.
The day after they destroyed the video tape, Connie and Carr called M.H.'s mother (Carr's sister). During the call, Carr admitted that he had abused M.H.
In November 2001, Carr's sister reported Carr's abuse of M.H. to the Alaska State Troopers in Palmer. The troopers obtained a Glass warrant and recorded a telephone call between Carr and his sister during which he again admitted abusing M.H.
See State v. Glass, 583 P.2d 872, 881 (Alaska 1978), on reh'g, 596 P.2d 10 (Alaska 1979) (holding that under the Alaska Constitution police must obtain judicial authorization before surreptitiously recording a private conversation).
In November 2001, the grand jury charged Carr with two counts of first-degree sexual abuse of a minor for abusing his 4-year-old niece M.H. (Counts 1 and 2 in the indictment), two counts of second-degree sexual abuse of a minor for abusing his 11-to 13-year-old daughter C.C. (Counts 3 and 4), and one count of unlawful exploitation of a minor for making a video recording of the abuse of M.H. (Count 5). After the police searched Carr's home and computer, they obtained evidence to support an additional five counts of possession of child pornography (Counts 6-10), with each count referring to a different prohibited category of pornography listed in AS 11.41.455(a).
AS 11.41.434(a)(1).
AS 11.41.436(a)(2) (3).
AS 11.41.455(a)(2) (6).
AS 11.61.127(a).
Before trial, Carr moved for an order severing Counts 1-5 from Counts 6-10. Superior Court Judge Eric Smith denied the motion. Judge Smith found that joinder of the two sets of counts was appropriate under Alaska Criminal Rule 8. He stated:
[F]ilming the video [charged in Count 5] is a version of child pornography. In addition, the acts that are depicted in . . . the child pornography are similar to what is alleged in counts 1 through 4, so that material . . . would have been likely to be admissible to show motive, intent, or plan, and also that given the video, that there was ongoing conduct here; at least for purposes of these motions.
When Judge Smith addressed the issue of whether severance was appropriate under Criminal Rule 14 because of unfair prejudice, Judge Smith found that "there are a lot of links between these counts," and that there was "no actual prejudice or unfair prejudice" by virtue of the joinder.
At trial, Carr testified that he had videotaped C.C. without her knowledge as part of a plan to determine if any of his children were stealing alcohol from the liquor cabinet. He denied that he had sexually abused C.C.; he argued mistake and nonsexual motives with respect to the allegations that he had inappropriately taped or touched her.
Carr also denied that the child pornography images on the computer were his. He claimed that some other person, such as his son Justin or a computer hacker, had placed the images on his computer.
Finally, Carr denied that he had abused M.H. Carr claimed that he had
falsely confessed to abusing M.H. in order to escape his marriage to Connie, because the strict requirements of his religion demanded proof of adultery to obtain a divorce. Carr testified that Connie was frequently abusive to him, which made him want to leave his marriage. He testified that she sometimes left him stranded and unable to move on his bed, that she left him in the dark in the shower with the cold water running, and that she dragged her fingernails on the sensitive bottoms of his feet. In addition, he attempted to introduce evidence that Connie had forced him to have sex. The State objected. Carr made an offer of proof, stating that once when Carr was lying naked on their bed, Connie had climbed on top of him and started having sex with him, despite his protests. The State objected to this evidence. Judge Smith excluded the evidence under Alaska Evidence Rule 403.
The jury convicted Carr of all ten counts.
The court held a sentencing hearing on June 25, 2004. The State alleged four aggravating factors and Carr proposed two mitigating factors. Carr argued that Blakely v. W ashington, which had been decided the day before, precluded Judge Smith's reliance on any aggravating factors in violation of that decision. Blakely holds that when the upper limit of a judge's sentencing authority for a particular crime hinges on proof of facts other than the defendant's prior convictions, the Sixth Amendment forbids the judge from relying on any fact that has been neither (a) tried to a jury nor (b) expressly admitted by the defendant.
The State alleged the following aggravators under AS 12.55.155: (c)(5) (vulnerable victim); (c)(9) (more than one victim); (c)(18)(A) (a victim was a member of the defendant's household); and (c)(18)(B) (defendant's offense was a sexual offense under AS 11.41 and the defendant had engaged in other sexual offenses prohibited by AS 11.41 with the same or another victim).
Carr alleged the following mitigators under AS 12.55.155: (d)(9) (defendant's conduct constituting the offense was among the least serious within the definition of the offense) and (d)(13) (the harm caused by the defendant's conduct is consistently minor and inconsistent with the imposition of a substantial period of imprisonment).
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
At that hearing, Judge Smith ruled that Blakely did not apply to Carr's sentencing because he had been convicted by a jury before Blakely was decided. Judge Smith found all four of the State's proposed aggravating factors and rejected Carr's proposed mitigators. At Carr's request and without objection from the State, Judge Smith merged Counts 1 and 2 (the first-degree sexual abuse of a minor counts with M.H. as the victim) and merged Counts 6 through 10 (possession of child pornography). Carr was a first felony offender and faced a presumptive 8-year term for the merged Counts 1 and 2, but was not subject to presumptive sentencing on any of the other offenses. Judge Smith imposed a composite 30-year term with 16 years suspended.
See AS 12.55.125.
A few days later, Judge Smith reversed himself and concluded that Blakely did apply to Carr's sentencing. He ruled that aggravating factors (c)(5), (c)(9), and (c)(18)(A) could not properly be found by the court sitting without a jury. However, he also ruled that aggravator (c)(18)(B) (prior sexual offenses) was a Blakely-compliant aggravator because "the jury had already resolved the factual underpinning of that aggravator." Judge Smith reasoned that because he should only have applied aggravator (c)(18)(B), Carr would need to be resentenced.
At resentencing, Judge Smith applied aggravator (c)(18)(B) to Counts 1-4. He also heard reargument on the issue of merger. He ruled that none of the counts should have been merged. Nevertheless, Judge Smith ultimately imposed a lesser composite term of 29 years with 15 years suspended. Carr appeals.
Should Judge Smith have granted Carr's motion to sever?
Carr maintains that Counts 1-5 and Counts 6-10 were improperly joined under Criminal Rule 8(a). Alternatively, even if the two groups of charges were properly joined, Carr contends that he was entitled to severance under Criminal Rule 14 because joinder of the charges unduly prejudiced the fairness of his trial. Carr's argument tracks the two-part inquiry we apply to review a trial court's denial of a motion to sever. First, we must determine whether joinder of charged offenses is proper under Criminal Rule 8(a). Second, we review the superior court's ruling that joinder of the offenses would not unfairly prejudice the defendant.
See Nell v. State, 642 P.2d 1361, 1363 (Alaska App. 1982).
Id.
Id.
When this court reviews whether joinder was proper under Criminal Rule 8(a), we view the evidence in the light most favorable to the superior court's ruling, and uphold the ruling absent abuse of discretion.
Phillips v. State, 70 P.3d 1128, 1133 (Alaska App. 2003).
Reese v. State, 54 P.3d 316, 322 (Alaska App. 2002).
Criminal Rule 8(a)(3) provides that two or more offenses may be joined for trial if they "are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Under the facts of this case, Judge Smith could properly conclude that the sexual abuse of a minor charges and the child pornography charges constituted "acts or transactions [that were] connected together."
The evidence showed that, over a span of years, Carr sexually abused the two children, and, during that time period, Carr produced videotapes showing sexual conduct with both victims and possessed the images that supported the five counts of child pornography.
Because the evidence showed this nexus between the two groups of charges, Judge Smith did not abuse his discretion when he ruled that Counts 1-5 were properly joined with Counts 6-10 under Criminal Rule 8(a)(3). Because the two groups of counts were properly joined under Criminal Rule 8(a)(3), we need not consider whether joinder was proper under Criminal Rule 8(a)(1) and (2).
Next, we consider Carr's argument that his trial was unfairly prejudiced by the joinder of the two groups of charges. The superior court's refusal to grant a motion to sever based on a claim of prejudicial joinder is reviewed for an abuse of discretion. Criminal Rule 14 provides:
Sharp v. State, 837 P.2d 718, 724 (Alaska App. 1992).
If it appears that a defendant . . . is unfairly prejudiced by a joinder of offenses . . ., the court may order . . . separate trials of counts . . . or provide whatever other relief justice requires.
Cross-admissibility of evidence on the challenged counts or sets of counts is also relevant to the question of prejudice. According to Rule 14, "[a] showing that evidence of one offense would not be admissible during a separate trial of a joined offense . . . does not constitute prejudice that warrants relief under this rule." Therefore, it is difficult for a defendant to claim prejudice where evidence of one offense or set of offenses would be admissible at a separate trial on the others.
Pease, 54 P.3d 316, 322 (Alaska App. 2002).
Although Judge Smith acknowledged that the images supporting the child pornography counts were disturbing, it was obvious that the jury would hear evidence pertaining to the other counts that would also show disturbing conduct on Carr's part. Judge Smith did not abuse his discretion when he ruled that Carr would not be subjected to unfair prejudice when Counts 1-5 were tried with Counts 6-10.
Carr's attack on Judge Smith's evidentiary ruling
Carr argues that Judge Smith abused his discretion when he ruled that Carr could not testify that his wife sexually assaulted him. We uphold a trial court's ruling on the admissibility of evidence, including whether the probative value of evidence is outweighed by its prejudicial effect, unless we are convinced that the court abused its discretion.
H awley v. State, 614 P.2d 1349, 1361 (A laska 1980); Adkinson v. State, 611 P.2d 528, 532 (Alaska 1980).
Carr argues that Judge Smith's exclusion of the evidence of Carr's testimony regarding the alleged incident of forced sex violated Carr's due process right to fully present his defense. He also argues that Judge Smith improperly applied Alaska's rape shield law, AS 12.45.045.
But a defendant's right to present evidence supporting the defense theory may properly be limited by considerations of relevance and the balancing test in Evidence Rule 403. We uphold the trial court's ruling unless the ruling substantially infringes on the right to present a defense.
Smithart v. State, 988 P.2d 583, 586 n. 7 (Alaska 1999) (citing Larson v. State, 656 P.2d 571, 574-75 (Alaska App. 1982)).
Smithart, 988 P.2d at 586.
Judge Smith found that the evidence of the alleged forced sex was relevant to Carr's defense that his wife abused him, but that Carr had presented substantial other evidence that Connie was abusive. Judge Smith found that this other evidence adequately illustrated and explained Carr's contention that he was motivated to falsely confess to the sexual abuse of M.H. and C.C. to escape the marriage. Judge Smith also found that the probative value of the alleged forced sex evidence was undercut by its remoteness in time from Carr's admissions that he sexually abused the children. And Judge Smith found that evidence of Connie forcing Carr to have sex with her was potentially inflammatory. From our review of the record, we conclude that Judge Smith did not abuse his discretion when he ruled that the evidence added little to Carr's other evidence and that it was likely to divert the jury's attention to collateral matters. We therefore conclude that Judge Smith's evidentiary ruling did not substantially interfere with Carr's right to present his defense.
See Cleveland v. State, 91 P.3d 965, 974-75 (Alaska App. 2004).
Carr also argues that Judge Smith improperly relied on Alaska's rape shield law, AS 12.45.045. Although the parties first proceeded under the assumption that the rape shield law applied, after further research, Judge Smith concluded that the rape shield law did not apply. Judge Smith's conclusion was correct. Alaska Statute 12.45.045 prohibits evidence of a victim's sexual conduct when the purported relevance of the prior sexual conduct is the inference that the victim is likely to have consented to sexual conduct with the defendant because the victim consented to sexual conduct with others. Furthermore, Judge Smith did not actually base his ruling on AS 12.45.045 — he explicitly based his ruling on Evidence Rule 403, and only used the time period from the rape shield statute as guidance. The sentencing issues
See Napoka v. State, 996 P.2d 106, 108-09 (Alaska App. 2000).
AS 12.45.045(b) provides that evidence of sexual conduct that occurred more than one year before the date of the offense charged is presumed to be inadmissible.
Carr argues that Judge Smith violated his right against double jeopardy when he reversed his earlier position regarding the propriety of the merger of Counts 1-2 and Counts 6-10. Carr contends that Judge Smith's original merger of Counts 1-2 and 6-10 required him to vacate the convictions on every count that was merged into another. However, when a sentencing court merges two counts on which a jury has found a defendant guilty, the court does not dismiss the merged count. The jury's guilty verdict remains otherwise valid, and the defendant may be sentenced on a charge which had previously been merged into another count without violating double jeopardy.
Hurd v. State, 107 P.3d 314, 322 (Alaska App. 2005).
Id. at 322-23.
In general, a defendant's sentence may not be increased once it has been meaningfully imposed. But "[i] f a defendant's sentence is illegal, it has not been `meaningfully imposed' for double jeopardy purposes, and it can be corrected even if this means increasing the severity of the sentence" to the extent necessary to correct the illegality.
Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971).
Smith v. State, 892 P.2d 202, 203 (Alaska App. 1995) (citing Dunham v. Juneau, 790 P.2d 239, 240-41 (Alaska App. 1990)).
Christensen v. State, 844 P.2d 557, 558 (Alaska App. 1993).
Judge Smith merged the counts because he initially accepted Carr's argument at the first sentencing that merger was required under Whitton v. State because the instances of sexual abuse "happened very close in time." But at the second hearing, Judge Smith concluded that merger was not required under Whitton. He noted that the incidents leading to the two counts of sexual abuse of M.H. were violations of the same statute, involved the same victim, and occurred on the same day. However, Judge Smith reviewed the evidence presented at trial and found that there was a sufficient break between the separate incidents and that merger was not required. The evidence showed that Carr first touched M.H.'s genitals while she was positioned in his lift. He then repositioned M.H. on the bed, set up his video camera to record, and instructed M.H. to open her shorts and performed oral sex on her.
479 P.2d 302 (Alaska 1970).
In Williams v. State, we held that connected acts of sexual abuse are not considered part of the same offense for purposes of double jeopardy if "there was a sufficient break in time and circumstance between each act of sexual contact." The evidence in Carr's case supports Judge Smith's finding that there was a sufficient break between the separately charged acts of sexual abuse to uphold separate convictions under the Williams test. Under those facts, the counts were not subject to merger.
928 P.2d 600 (Alaska App. 1996).
Id. at 604.
Carr does not argue that Judge Smith's findings were subject to any other constitutional restriction.
Carr also argues that Judge Smith erroneously "unmerged" Counts 6-10, the five counts of possession of child pornography. Each of the five child pornography counts alleged possession of an image prohibited under AS 11.41.455(a) that showed a different type of sexual conduct.
In AS 11.61.127(c), the legislature provided that each item of pornography possessed by a defendant constitutes "a separate violation of this section." Thus, Carr's possession of several images did not constitute one offense for purposes of double jeopardy, and the convictions were not subject to merger.
See also State v. Parker, 147 P.3d 690, 696 (Alaska 2006).
Carr argues that Judge Smith could not increase his sentence once it had been meaningfully imposed. But Judge Smith did not increase Carr's composite sentence. Although Carr received separate convictions on the "unmerged" counts, Judge Smith imposed a composite term that was less than Carr's original sentence by 1 year of suspended imprisonment.
Finally, we address Carr's claim that Judge Smith's application of aggravator (c)(18)(B) violated Juneby v. State. In Juneby, we established the rule that a sentencing court cannot base an aggravating factor on conduct for which the defendant has been separately convicted by the jury and for which the judge can impose a separate sentence. This rule is grounded on the goal of preventing a defendant's double punishment for the same conduct.
Juneby v. State, 641 P.2d at 842.
Id.
Judge Smith found that aggravator (c)(18)(B) applied to each sexual abuse count because Carr had been convicted of sexual abuse in the other counts. This was error. We addressed a similar factual situation in Ritter v. State. In that case, the sentencing judge found that aggravator (c)(21) (repeated instances of criminal conduct similar in nature to the offense for which the defendant is being sentenced) applied to each of four counts of sexual assault. We concluded that the judge's reliance on the jury's simultaneous verdicts to support the aggravator violated Juneby.
97 P.3d 73 (Alaska App. 2004).
Id. at 81.
Id. at 81-82.
We reach the same conclusion in this case. Aggravator (c)(18)(B) cannot be based on conduct that underlies a jury's simultaneous verdict on another count. Conclusion
The judgment of the superior court is AFFIRMED in all respects except we VACATE the superior court's finding of aggravator (c)(18)(B). The superior court must reconsider Carr's sentence without this aggravator.