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rejecting a similar argument where the past incident was different in nature and several years earlier
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Court of Appeals No. A-10540 Trial Court No. 3PA-08-643 CR No. 5782
12-21-2011
JOHN HERSH, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge.
Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
John Hersh appeals from several convictions relating to his sexual abuse of his two daughters, A.H. and C.H. Hersh argues that the superior court should have allowed him to introduce evidence that A.H. had been abused by her grandfather several years before the incidents described in this case. But the superior court reasonably concluded that the probative value of this evidence was outweighed by the danger of unfair prejudice. Hersh also argues that the superior court failed to make sufficient findings to support his lengthy suspended sentences, but we conclude that the judge's remarks and the sentencing record show that the sentence was not clearly mistaken.
Background
Hersh began touching A.H. inappropriately when she was about nine or ten years old. Hersh continued to touch A.H. between ten and twenty times a month over the course of a "couple years." Hersh also began touching C.H., A.H.'s younger sister, when she was eight years old. The girls decided not to tell anyone about the abuse because they did not think anyone would believe them, and they believed their father would get mad.
One evening, C.H. and A.H. finally told their mother, Suzanne Hersh, about the abuse they had suffered. The next day Suzanne reported her daughters' statements to the Alaska State Troopers in Palmer.
Investigator Sherry Ferno obtained a Glass warrant, and Suzanne participated in a recorded telephone conversation with Hersh. Suzanne then agreed to meet Hersh in person at a Wal-Mart in Wasilla. Hersh made several admissions during this conversation. Hersh admitted that "[t]he kids don't lie." When Suzanne asked if Hersh used more than just his hands, he answered yes. He promised that he would "never offend [his] daughters' honor in any way again ever" and would "not touch [his] girls inappropriately again." Hersh said, "[E]very time I heard that word child molester, it made me sick. Because that's what I've done."
Hersh was indicted on one count of first-degree sexual abuse of a minor for engaging in sexual penetration with A.H., four counts of second-degree abuse of a minor for engaging in sexual contact with A.H. and C.H., and one count of incest for engaging in sexual penetration with A.H. The State later added two counts of first-degree unlawful contact after Hersh sent birthday cards to A.H. and C.H. in violation of his conditions of release.
Prior to trial, the State filed a motion in limine under the rape shield statute to prevent Hersh from introducing evidence that, when A.H. was three or four years old, she reported to Suzanne that she had been abused by her grandfather. After hearing Suzanne's testimony at a pretrial hearing, the court granted the State's motion and precluded Hersh from introducing this evidence.
The jury convicted Hersh of all eight counts. Hersh waived his right to a jury finding on an aggravating factor (that the victims were members of the same family), and the court found that the factor was established. At the sentencing hearing, Judge Smith found another aggravating factor — that Hersh had been on furlough, probation, or parole at the time of the offense.
Hersh had two prior felony convictions, and was subject to a presumptive range of forty to sixty years' imprisonment for the first-degree sexual abuse of a minor conviction. Hersh was also subject to a presumptive term of twenty to thirty-five years' imprisonment for each of the second-degree sexual abuse convictions, and to a term of fifteen to twenty-five years for the incest conviction.
AS 12.55.125(i)(1)(E).
AS 12.55.125(i)(3)(D), (i)(4)(D).
At the sentencing hearing, Judge Smith imposed a composite sentence of ninety-five years' imprisonment with forty-five years suspended, leaving fifty years to serve. The judge sentenced Hersh to fifty-five years with ten years suspended for first-degree sexual abuse of a minor; thirty years with ten years suspended for each of the convictions of second-degree sexual abuse of a minor, with one year on each conviction consecutive and the suspended time completely consecutive; and six consecutive months for each of the misdemeanor counts. The court merged the incest conviction into the conviction for first-degree sexual abuse of a minor. Hersh now appeals.
Discussion
The trial judge did not abuse his discretion when he excluded the evidence that A.H. had been abused by Hersh's father.
Hersh argues on appeal that the trial judge committed reversible error when he excluded evidence that A.H. was sexually molested by her grandfather when she was three or four years old. We review the trial court's decision on the admissibility of this evidence for abuse of discretion.
Kvasnikoff v. State, 674 P.2d 302, 305 (Alaska App. 1983).
Alaska Evidence Rule 403 provides that "evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." More particularly, Alaska's rape shield statute authorizes a court to admit evidence of a complaining witness's previous sexual conduct only if it finds that the evidence is relevant and that the probative value of the evidence is not outweighed by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim.
AS 12.45.045(a).
Hersh argues that the rape shield statute does not apply because it was primarily intended to prevent the use of past sexual conduct as proof of consent, an issue that is not present in this case. In response, the State points out that the statute explicitly applies to cases involving sexual abuse of a minor. We need not resolve this dispute because our conclusion is the same under the more general provisions of Evidence Rule 403.
Hersh first argues that the evidence should have been admitted because it showed that Suzanne Hersh was biased against him. But Hersh only presented unfounded speculation that Suzanne might have been angry at Hersh because of his father's misconduct. Suzanne's testimony indicated that she never spoke with A.H. or C.H. again about their grandfather's misconduct with A.H. And Suzanne testified that Hersh was also angry at his father because of this incident. There was no evidence suggesting that Suzanne blamed Hersh for his father's misconduct.
Hersh also argues that the evidence was relevant to show A.H. might have confused the prior incident involving Hersh's father with Hersh's acts of sexual misconduct many years later. But Judge Smith reasonably concluded that, because the nature of the abuse involving Hersh was different than that involving his father, the evidence of the prior abuse did not tend to show that A.H. somehow confused the prior incident with Hersh's conduct. The abuse by Hersh and the abuse by A.H.'s grandfather were years apart. The incident with A.H.'s grandfather allegedly involved A.H. kissing his penis on one occasion, whereas the abuse by Hersh involved touching and occurred ten to twenty times per month over the course of a "couple years." There was no evidence suggesting that A.H. was likely to confuse her father with her grandfather under these circumstances. We conclude that the trial judge did not abuse his discretion when he excluded this evidence.
Hersh argues that Judge Smith erred when he stated that A.H.'s grandfather only asked A.H. to kiss his penis and that there was no completed act. Hersh correctly asserts that the judge initially erred in his characterization of this evidence. But the judge ultimately assumed for purposes of making his ruling that a completed sexual act occurred. Any error by the judge in characterizing this evidence did not affect the court's final decision.
Hersh also argues that the exclusion of this evidence violated the confrontation clause. But "Evidence [Rule] 403, when properly applied, does not violate a defendant's constitutional right to confront the witnesses against him." The court's decision to exclude the evidence in this case did not violate the confrontation clause because the court reasonably concluded that the questionable probative value of this evidence did not overcome the danger of unfair prejudice.
Larson v. State, 656 P.2d 571, 575 (Alaska App. 1982).
The judge miscalculated Hersh's sentence.
The parties agree that the trial court miscalculated Hersh's composite sentence. At the sentencing hearing, the court indicated that Hersh's composite sentence was ninety-five years' imprisonment with forty-five years suspended, which is fifty years to serve.
But Judge Smith actually imposed the following sentences for Hersh's individual convictions:
+--------------------------------------------------------------------+ ¦ ¦ ¦Unsuspended¦Suspended ¦ ¦ ¦ ¦ ¦ ¦ ¦Consecutive¦ ¦Count ¦Sentence ¦Consecutive¦Consecutive¦ ¦ ¦ ¦ ¦ ¦ ¦Total ¦ ¦ ¦ ¦Years ¦Years ¦ ¦ +----------------------+---------+-----------+-----------+-----------¦ ¦I (1st Degree Sexual ¦55/10 ¦ ¦ ¦ ¦ ¦ ¦ ¦45 ¦10 ¦55 ¦ ¦Abuse of a Minor) ¦suspended¦ ¦ ¦ ¦ +----------------------+---------+-----------+-----------+-----------¦ ¦II (2nd Degree Sexual ¦30/10 ¦ ¦ ¦ ¦ ¦ ¦ ¦1 ¦10 ¦11 ¦ ¦Abuse of a Minor) ¦suspended¦ ¦ ¦ ¦ +----------------------+---------+-----------+-----------+-----------¦ ¦III (2nd Degree Sexual¦30/10 ¦ ¦ ¦ ¦ ¦ ¦ ¦1 ¦10 ¦11 ¦ ¦Abuse of a Minor) ¦suspended¦ ¦ ¦ ¦ +--------------------------------------------------------------------+
+--------------------------------------------------+ ¦IV (2nd Degree Sexual ¦30/10 ¦ ¦ ¦ ¦ ¦ ¦ ¦1 ¦10 ¦11 ¦ ¦Abuse of a Minor) ¦suspended¦ ¦ ¦ ¦ +------------------------+---------+----+----+-----¦ ¦V (2nd Degree Sexual ¦30/10 ¦ ¦ ¦ ¦ ¦ ¦ ¦1 ¦10 ¦11 ¦ ¦Abuse of a Minor) ¦suspended¦ ¦ ¦ ¦ +------------------------+---------+----+----+-----¦ ¦VI (Incest) ¦0 ¦0 ¦0 ¦0 ¦ +------------------------+---------+----+----+-----¦ ¦VII (Unlawful Contact 1)¦6 months ¦.5 ¦0 ¦.5 ¦ +------------------------+---------+----+----+-----¦ ¦VII (Unlawful Contact 1)¦6 months ¦.5 ¦0 ¦.5 ¦ +------------------------+---------+----+----+-----¦ ¦Total ¦176/50 ¦50 ¦50 ¦100 ¦ +--------------------------------------------------+
Hersh's composite sentence thus totals 100 years with 50 years to serve, which is inconsistent with the court's oral statement that it intended to impose only forty-five years of suspended time. We must remand Hersh's case to the superior court so that Judge Smith can correct Hersh's sentence.
The judge's findings were adequate to support Hersh's composite sentence.
Hersh also argues that Judge Smith failed to articulate a good reason for imposing "so much suspended time over the presumptive range." Hersh's argument is based on this court's decision in Farmer v. State. In Farmer, we held that, when a first offender is convicted of multiple crimes, the presumptive term for a second-felony offender for the most serious conviction is an important benchmark that is not to be exceeded without good reason. The appropriate focus is on whether "a composite sentence exceeding the presumptive term is warranted under the totality of the circumstances."
746 P.2d 1300 (Alaska App. 1987).
Id. at 1301.
Id. at 1301-02.
There are several reasons why the Farmer rule may not apply to this case. We have recently questioned whether Farmer continues to apply to sentencing decisions after the legislature's 2005 changes to the presumptive sentencing laws, whether the Farmer rule applies to suspended sentences, and whether the Farmer rule applies if a defendant is not a first-felony offender. But even if we assume that the Farmer rule applies to this case, there was a sufficient record to support Hersh's composite sentence.
See, e.g., Kosbruk v. State, Mem. Op. & J. No. 5691, 2011 WL 1330805, at *3 (Alaska App. Apr. 6, 2011) ("Because Kosbruk was not a first felony offender, it appears that the Farmer rule does not apply to his sentencing. It is also questionable whether the Farmer rule applies to suspended incarceration, or at all to post-2005 sentences.").
We have noted that the existence of statutory aggravating factors could constitute the good reason required by Farmer. In this case Judge Smith found two applicable aggravating factors: Hersh's offenses were committed against members of the same social unit and Hersh was on furlough, parole, or probation for another felony when he committed the offenses.
See Smith v. State, 187 P.3d 511, 528 (Alaska App. 2008); Randall v. State, 44 P.3d 984, 985 (Alaska App. 2002) (holding that the existence of statutory aggravators constitutes "good cause" as required by Farmer).
AS 12.55.155(c)(18)(A), (c)(20).
We have also indicated that the good reason required by Farmer could include the fact that the crimes involved several victims or that the crimes were made up of "discrete criminal episodes spread out over a period of months." In this case, Hersh's crimes involved more than one victim and the sexual abuse took place repeatedly over the course of two or three years.
Smith, 187 P.3d at 528.
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Moreover, after considering Hersh's prior record and the circumstances of these offenses, Judge Smith specifically found that "a significant amount of suspended time is important to protect the public." We accordingly conclude that the composite sentence the judge imposed was not clearly mistaken.
Conclusion
We AFFIRM the superior court's judgment and REMAND for correction of the sentence.