Opinion
A-13128
11-17-2021
DON ADAM CREECH, Appellant, v. STATE OF ALASKA, Appellee.
Sharon Barr, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Palmer, Trial Court No. 3PA-15-00264 CR Jonathan A. Woodman, Judge.
Sharon Barr, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
RuthAnne Beach, 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 Terrell, Judges.
MEMORANDUM OPINION
ALLARD JUDGE
Don Adam Creech was convicted, following a jury trial, of two counts of first-degree sexual abuse of a minor and three counts of second-degree sexual abuse of a minor for sexually abusing his girlfriend's two young daughters. Creech was also convicted of first-degree tampering with a witness for attempting to get the two girls to recant their accusations.
AS 11.41.434(a)(1) and AS 11.41.436(a)(2), respectively.
AS 11.56.540(a)(1).
Creech raises three claims of error on appeal. First, Creech argues that the trial court abused its discretion when it granted the State's motion for courtroom accommodations for the victims that allowed them to testify without directly facing Creech. For the reasons explained here, we find no abuse of discretion.
Second, Creech argues that the trial court abused its discretion when it permitted the State to play recordings in which Creech referred to being housed with sex offenders when he was incarcerated and that the experience may have "poisoned [his] mind." For the reasons explained here, we find no abuse of discretion.
Lastly, Creech argues that his sentence is excessive and that the trial court erred in refusing to find the "least serious" mitigating factor with regard to the second-degree sexual abuse of a minor convictions. Having independently reviewed the record, we conclude that the sentence is not clearly mistaken and any failure to find the mitigator is harmless.
Background facts and prior proceedings
In early February 2015, after bedtime, ten-year-old B.T. got out of bed, approached her mother, and disclosed that her mother's boyfriend, Don "Adam" Creech had "been touching [her] inappropriately" and in her "private area" for at least a year. B.T.' s mother went and woke B.T.' s seven-year-old sister, A.T., to ask her if Creech had also been touching her inappropriately. A.T. told her mother that Creech had touched her genitals under her clothes and put his finger inside of her. The children's mother called the police, and the police arranged a forensic interview with B.T. and A.T. at the Children's Place for the following day.
During her interview, B.T. reported that Creech had been touching her in her "private area" by rubbing up and down with his hand over her clothing. B.T. described three incidents of touching, each incident at a different house in Palmer where she lived at different times with Creech, her mother, and her sister since October 2013.
A.T. reported that Creech touched her privates underneath her clothes and put a finger inside of her on two occasions.
Around the same time that the Children's Place interviews were occurring, the police obtained a Glass warrant and recorded a conversation between the children's mother and Creech. During this conversation, Creech did not admit to touching either child on their genitals, but he did admit that he had once put his hand on A.T.'s bare stomach area just above her underwear line. During the same recorded conversation, Creech told the children's mother that he had been housed with sex offenders during his prior incarceration in Texas and that this experience could have "poisoned [his] mind."
Following this conversation, Palmer police brought Creech to the station for an interview. Creech waived his Miranda rights and consented to the interview. During the interview, Creech again stated that he served time in a sex offender unit and that it may have influenced his feelings of normalcy.
Creech was later arrested and indicted on two counts of first-degree sexual abuse of a minor (for digitally penetrating A.T.) and three counts of second-degree sexual abuse of a minor (for having contact with B.T.'s genitals over her clothing).
After he was arrested and in jail, Creech stayed in contact with the children's mother and continued a romantic relationship with her. Over the course of the year, Creech repeatedly attempted to convince the children's mother to get them to recant their accusations. During this time, the children were interviewed twice by a defense investigator. During the second interview, both children recanted, claiming that Creech never touched them inappropriately. However, by the time of trial, the children again claimed that Creech had sexually abused them.
The Office of Children's Services became involved with the children after it was discovered that their mother was maintaining a relationship with Creech. A guardian ad litem was appointed to represent the children's best interests. Prior to trial, the guardian ad litem and the State moved for various courtroom accommodations for the children's testimony. The defense attorney objected to any accommodations. An evidentiary hearing was held on the motion, and the children's therapist testified in favor of the courtroom accommodation requests, which included a request that the children be permitted to testify through a closed-circuit television or with their backs toward Creech.
The trial court partially granted the motion for courtroom accommodations. Specifically, the court allowed the children to testify from a table in the well of the courtroom so that the defendant could see them in profile while they testified. The court worked out the seating logistics with the parties to make sure that the defendant's and the jury's view of the children's faces was not obscured. The court also allowed the children to each carry a small comfort object of their own choosing, provided that it remain hidden from the jury.
During trial, the State sought to admit recordings of the Glass warrant telephone call and the police interview, both of which contained Creech's statements regarding being housed with sex offenders while he was incarcerated. The defense attorney objected to this evidence as inadmissible propensity evidence and unfairly prejudicial. The trial court overruled the objection, although the court provided a limiting instruction as to the proper use of the evidence.
The jury subsequently convicted Creech of all charges. At sentencing, the court found that the "least serious" mitigating factor under AS 12.55.155(d)(9) applied to the first-degree sexual abuse of a minor convictions, but not to the second-degree sexual abuse of a minor convictions. The court did not explain its reasoning for this decision. The court ultimately sentenced Creech to a composite term of 48 years to serve.
This appeal followed.
Whether the trial court abused its discretion when it permitted the children to testify from a table in the well of the courtroom
Alaska Statute 12.45.046(a)(2) authorizes a trial court to allow a child victim to testify through closed-circuit television but only in exceptional cases and only upon a case-specific showing of actual necessity. However, a court may provide more modest courtroom accommodations "to safeguard the child from emotional harm or stress."
See Reutter v. State, 886 P.2d 1298, 1303-04, 1308 (Alaska App. 1994) (upholding statute as constitutional but recognizing that it implicates a defendant's constitutional right of confrontation).
AS 12.45.046(f).
In Brandon v. State, the trial court granted a guardian ad litem's request to allow a six-year-old witness to testify from a table and chair rather than from the witness stand. The chair was angled so that the child did not directly face the defendant but the child could still see the defendant "out of the corner of his eye." The defendant appealed his conviction, arguing that this arrangement violated his constitutional right of confrontation. We affirmed the trial court's decision as within the trial court's discretion.
Brandon v. State, 839 P.2d 400, 409 (Alaska App. 1992).
Id.
Id.
Mat 410.
We come to the same conclusion here. In the current case, the trial court denied the State's request to have the children testify through closed-circuit television or with their backs toward the defendant, but the court approved an arrangement similar to the one in Brandon. Moreover, the court approved this arrangement only after holding an evidentiary hearing in which the children's therapist testified at length regarding the mental and emotional strain that testifying would have on the children. The court also took affirmative steps to make sure that Creech could see the children and that the jury's view of the children was not obscured.
Given these circumstances, we find no abuse of discretion in the trial court's decision to have the children testify from a table in the well of the courtroom rather than from the witness stand.
Whether the trial court abused its discretion when it failed to exclude Creech's out-of-court statements regarding having been previously housed with sex offenders
As already explained, the State was allowed to introduce, over Creech's objection, two recordings that included statements from Creech about having been previously housed with sex offenders while he was incarcerated. Creech objected to this evidence, arguing that it was inadmissible propensity evidence under Alaska Evidence Rule 404(b) and that any probative value it had was outweighed by its potential for unfair prejudice under Alaska Evidence Rule 403. The trial court disagreed, finding that the statements were relevant for a non-propensity purpose because "Mr. Creech appears to be making inculpatory statements and linking it to his experiences in prison." The court also found that the evidence was not unfairly prejudicial, and the court agreed to give the jury a limiting instruction to not consider the evidence for any impermissible propensity purpose.
On appeal, Creech argues that the trial court erred when it overruled his objection to this evidence. We disagree. A review of the record indicates that the challenged statements were directly linked to Creech's inculpatory statements and therefore admissible for non-propensity purposes under Evidence Rule 4O4(b)(1). In the Glass warrant recording of the telephone call with the children's mother, Creech denied touching the children's genitalia but he admitted to an incident in which he placed his hand on A.T.'s bare stomach area just above her underwear line, although he claimed that there was nothing sexual about the touching. Creech also claimed that he touched A.T. because A.T. told him that she liked to be touched and he was trying to find out what she meant so he could address the issue of "bad touch" with A.T.
When the children's mother asked Creech to explain why he would do such a thing, Creech speculated that it might be related to his previous incarceration with sex offenders in Texas:
Mother. No, you never made me aware that you were putting your hands on her. ... [You never] made me aware that she was telling you to touch her. You never made me aware of any of that. I had no idea.
Creech: I just tried to make you aware of the negative behavior in general and hope that it would get better. . . . I'm sorry for what I did. And I'm pretty sure that I'm going to pay the ultimate price for it. I don't know what else to do, you know, I've ruined your life. I've-I've given up on my life. And I don't know - and I don't know why. That's - that's what scares me. I don't even know why it went that far other than all the fucking horror stories and all the people and
- I don't know if it poisoned my mind. I don't know. I have no idea. I don't know.
Mother. So you think time in jail made you act like this and do these things?
Creech: Well... I was on a fucked-up unit that was full of all kinds of crazy shit.
Mother. Like what?
Creech: Like sex offenders. I told you that. The guy right next to me was. Everybody was. They put me there because they weren't allowed to work with the public, so I was there working with the meat factory and there was a few hundred of us out of the 3, 500 that was privileged, and the rest of the people were all people that were there for programs. And it-and it-and it fucking sickened me and it fucking - it ate away at me, and I don't know why. I don't know. I want to go back in time and undo it. I can't.
Creech made similar statements during the police interview:
Officer: How has it poisoned your mind? I mean, what'd you mean when you said that?
Creech: Just the constant hatred or all the things that I had to deal with while I'm in prison.
Officer: As it relates to this particular incident, how can that poison your mind?
Creech: Just being around all -
Officer: You think that that behavior-because of the time around them, that behavior maybe seems less intolerable to you?
Creech: You know, some days I feel so normal, like everything's okay. And other days, I feel, you know, lost and confused and (indiscernible). That's all I have.
Given the context in which Creech talked about being housed with sex offenders, we find no abuse of discretion in the trial court's ruling allowing the State to introduce these statements with a limiting instruction.
Creech's sentencing claims
Prior to this case, Creech had one drug felony from his time living in Texas. As a second felony offender, Creech faced the following presumptive ranges: (1) first-degree sexual abuse of a minor - 30 to 40 years; (2) second-degree sexual abuse of a minor - 10 to 25 years; (3) tampering with a witness - 1 to 3 years. Creech conceded that a statutory aggravated applied to these offenses-AS 12.55.155(c)(20) (defendant was on parole at the time of the offense). Because of the aggravated, the court was authorized to impose up to 99 years on the sexual abuse of a minor convictions and up to 5 years on the witness tampering conviction. The court was also required to impose consecutive sentences of one-fourth of the presumptive term for Creech's second first-degree sexual abuse of a minor conviction and some additional term of imprisonment for each second-degree sexual abuse of a minor conviction. Under the sentencing laws that applied to Creech, the court was not required to impose any suspended time or a probationary period.
See AS 12.55.l25(i)(1)(C) & (3)(B); former AS 12.55.125(e)(3) (2016).
See AS 12.55.127(c)(2)(E) & (F).
Former AS 12.55.l25(o) (2015) required minimum amounts of suspended time and probation for sexual felony convictions. That provision was eliminated with the passage of Senate Bill 91 in 2016 and was not reinstated until November 2017 with the passage of Senate Bill 54. See SLA 2016, ch. 36, § 179; SLA 2017, ch. 1, § 34. Because Creech committed his offenses and was convicted prior to that date, the reinstated provision was not applicable to his sentencing. See SLA 2017, ch. 1, § 75.
Thus, in total, Creech faced a minimum composite sentence of 38 years, 9 months, and 3 days to serve. The trial court had the authority to go above that number, but the court only had the authority to go below this number if it found a statutory mitigator.
The trial court also had the option of referring the case to the three-judge sentencing panel which has the authority to go below the minimum presumptive term in cases where a non-statutory mitigating factor exists or manifest injustice would result from imposition of the presumptive term. See AS 12.55.165(a). Creech did not request a referral to the three-judge panel in this case.
In his sentencing memorandum, Creech proposed that the court apply the mitigator under AS 12.55.155(d)(9)-that the defendant's conduct was among the least serious included in the definition of the offense. Creech argued that this mitigator applied to the first-degree sexual abuse of a minor convictions because the digital intrusion was minimal, and there was no evidence of any grooming or other classic pedophilic behavior. Creech argued that the mitigator also applied to the second-degree sexual abuse of a minor convictions because the conduct involved sexual contact over clothing and also did not involve any grooming or other classic pedophilic behavior. The defense attorney recommended a composite sentence of 34 years to serve, a sentence that could only be reached if the court found the mitigator and gave it weight.
The State opposed the statutory mitigators, arguing that the trial court should not find that the conduct was among the least serious included in the definition of the offense because it included multiple incidents that took place over a course of a year, involved young children who had been emotionally scarred by the experience, and involved further trauma to the children when Creech worked to convince their mother to get them to recant. The State recommended a composite sentence of 50 years to serve.
The State noted that it was not asking for suspended time because Creech faced extradition to Texas for his parole violation.
In his allocution at sentencing, Creech continued to assert his innocence.
In its sentencing remarks, the trial court referred to the mitigators as "a close question." The court rejected the mitigator as it applied to the second-degree sexual abuse of a minor convictions but accepted the mitigator as it applied to the first-degree sexual abuse of a minor convictions. But the court stated that it was not giving the mitigator weight, in part because of the aggravator that also applied. The court then sentenced Creech as follows: 30 years to serve for Count I, first-degree sexual abuse of a minor; 30 years (9 years to serve consecutive to Count I) for Count II, first-degree sexual abuse of a minor; 15 years (2 years to serve consecutive to Count I) for Count III, second-degree sexual abuse of a minor; 15 years (2 years to serve consecutive to Count I) for Count IV, second-degree sexual abuse of a minor; 15 years (2 years to serve consecutive to Count I) for Count V, second-degree sexual abuse of a minor; and 3 years to serve consecutive to Count I for Count VI, tampering with a witness.
Creech's composite sentence is therefore 48 years to serve.
Creech now appeals that sentence as excessive. Creech also argues that the trial court erred when it failed to find that the "least serious" mitigator applied to the second-degree sexual abuse of a minor convictions. We agree that it is difficult to discern why the trial court applied the mitigator to the first-degree sexual abuse of a minor convictions but not the second-degree sexual abuse of a minor convictions because the trial court provided no explanation for either decision. But the court was clear that it was giving the mitigator it found no weight, and the court ultimately sentenced Creech to a composite sentence that was approximately 9 years higher than the minimum composite sentence it could have imposed within the presumptive range. Because the record is clear that the court would have given no weight to the mitigator, even if it did apply to the second-degree sexual abuse of a minor convictions, we consider this issue moot. Accordingly, we only address Creech's argument that his composite sentence is excessive.
When we review an excessive sentence claim, we independently examine the record to determine whether the sentence is clearly mistaken. The "clearly mistaken" standard contemplates that different reasonable judges, confronted with identical facts, will differ on what constitutes an appropriate sentence, and that a reviewing court will not modify a sentence that falls within a permissible range of reasonable sentences. Here, the trial court's sentencing remarks make clear that the focus of the sentence was on community condemnation and the reaffirmation of societal norms. The court also emphasized that the victims in this case were in "an almost family situation" with Creech. The court noted that the children had trusted Creech and viewed him as their protector, and Creech had violated that trust. Having independently reviewed the sentencing record, we conclude that the sentence imposed is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
Conclusion
The judgment of the superior court is AFFIRMED.
WOLLENBERG Judge, dissenting in part.
I agree with the majority's resolution of Don Adam Creech's challenges to his convictions. I also agree with the majority that the trial court's failure to find the least serious mitigator with respect to Creech's three convictions for second-degree sexual assault of a minor is moot. Even though the mitigator would have allowed the trial court to impose as little as 5 years on each offense (half of the minimum 10-year presumptive term), the trial court had the authority to impose these sentences almost entirely concurrently to Creech's other sentences. The trial court declined to exercise this authority, instead imposing 2 years on each count consecutively.
AS 12.55.125(i)(3)(B); AS 12.55.155(a)(2).
The trial court was only required to impose at least one day consecutively as to each conviction for second-degree sexual abuse of a minor. See AS 12.55.127(c)(2)(F); Osborne v. State, 182 P.3d 1155, 1158 (Alaska App. 2008) (interpreting AS 12.55.127(c)(2)(F)'s consecutive sentencing requirement).
The real question then is whether Creech's total sentence (48 years to serve) is excessive, given the trial court's unwillingness to mitigate his sentences on the first-degree sexual abuse of a minor counts and the imposition of consecutive sentences on the remaining convictions. The majority concludes that Creech's sentence is not excessive. It does so, however, on a sentencing transcript that contains little explanation for the total sentence selected or the need for consecutive terms. (The court's remarks regarding the Chaney criteria in relation to the sexual abuse of a minor counts comprise less than one page.) Given the abbreviated and generalized nature of the trial court's sentencing remarks, I believe that it is premature to address the question of whether Creech's sentence is excessive. I would instead remand this case to the trial court to provide a more complete explanation of its sentencing decisions and why the sentence imposed in this case is consistent with the sentencing goals codified in AS 12.55.005.
Both this Court and the Alaska Supreme Court have repeatedly emphasized the importance of a thorough explanation for the sentence imposed. We have recognized that such an explanation serves many purposes:
[A] full explanation of a sentencing decision contributes to the rationality of the sentence, facilitates the reviewing court's evaluation of the propriety of the sentence, and fosters public confidence in the criminal justice system. A full explanation may also aid the correctional authorities and have therapeutic value in assisting the defendant to accept his sentence without bitterness.
Houston v. State, 648 P.2d 1024, 1027 (Alaska App. 1982); see also Perrin v. State, 543 P.2d 413, 418 (Alaska 1975).
In explaining a sentence, a trial court need not use any particular words, so long as it is evident from the record that the court considered how its sentence satisfies the goals of sentencing. But, as the Alaska Supreme Court has observed, "[A] good sentence is one which can be reasonably explained. An attempt by the sentencing judge to articulate his reasons for a sentence in each case should in itself contribute significantly to the rationality of sentences" and "help the defendant and the public understand why a particular sentence was imposed."
Evans v. State, 574 P.2d 24, 26 (Alaska 1978); see also State v. Chaney, 477 P.2d 441, 444 (Alaska 1970) (explaining the goals of sentencing), as codified in AS 12.55.005.
Perrin, 543 P.2d at 418 (internal quotations omitted).
In this case, the court offered mostly generalized comments about its decision to impose a sentence approximately 9 years above the low end of the composite presumptive range-and no specific reasons for the sentences it selected on the second- degree sexual abuse of a minor counts. The trial court had the authority to impose these sentences almost entirely concurrently to Creech's other sentences. Yet it chose instead to require Creech to serve 2 years on each count consecutively and did not explain why. Nor did the court address rehabilitation at all, even though rehabilitation has long been recognized as a key component of sentencing in Alaska and Creech's counsel argued at length about his rehabilitative potential.
Alaska Statute 12.55.127(c)(2)(F) requires the imposition of a consecutive sentence of imprisonment for "some additional term" if a defendant is sentenced for two or more crimes under certain criminal statutes, including second-degree sexual abuse of a minor. We have previously held that at least one consecutive day satisfies this requirement. See Osborne, 182 P.3dat 1158.
See Alaska Const, art. I, § 12 ("Criminal administration shall be based upon the following: the need for protecting the public, community condemnation of the offender, the rights of victims of crimes, restitution from the offender, and the principle of reformation."); AS 12.55.005(2) (setting out the defendant's "likelihood of rehabilitation" as a required sentencing consideration).
Sentencing is governed by the principle of parsimony, which provides that a "defendant's liberty should be restrained only to the minimum extent necessary to achieve the objectives of sentencing." This principle is best served - and the goals of a thorough sentencing explanation most likely achieved - when a sentencing judge provides an affirmative explanation for any upward deviation in the active term of imprisonment from the low end of the presumptive range.
Pears v. State, 698 P.2d 1198, 1205 (Alaska 1985); see also ABA Standards for CriminalJustice: Sentencing § 18-2.4 (3d ed. 1994) ("Sentences authorized and imposed, taking into account the gravity of the offenses, should be no more severe than necessary to achieve the societal purposes for which they are authorized."); id. at § 18-6.1(a) ("The sentence imposed should be no more severe than necessary to achieve the societal purpose or purposes for which it is authorized.").
But even absent an affirmative explanation, it should still be plain from the record why a judge imposed a particular sentence. After reviewing the record, I am left with little sense of why the court believed that the 48-year term imposed was the minimum necessary to achieve the objectives of sentencing.
I acknowledge that judges have wide discretion in imposing sentence, as long as that discretion is exercised within "a permissible range of reasonable sentences."As a result, an appellate court will not overturn a sentence unless it is clearly mistaken.
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997) (quoting State v. Wentz, 805 P.2d 962, 965 (Alaska 1991)).
Id. (citing McClain v. State, 519 P.2d 811, 813 (Alaska 1974)).
But the natural corollary to this principle is that the appellate court must be able to review a trial court's decision to determine whether it is clearly mistaken. Accordingly, in situations where a trial court has failed to adequately explain its sentence, we should remand for the trial court - in the first instance - to explain its reasons for imposing a particular sentence.
Because I do not believe that we can meaningfully rule on Creech's excessive sentence claim without an adequate sentencing explanation, and without an understanding of why the court appeared to completely discount rehabilitation as a sentencing factor, I would vacate the sentence and remand this case to the superior court for resentencing.