Opinion
Court of Appeals No. A-10005.
August 18, 2010.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge, Trial Court No. 3KN-02-966 CR.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Marika Athens, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
In Worden v. State, we affirmed Worden's convictions of three counts of sexual abuse of a minor in the first degree, six counts of sexual abuse of a minor in the second degree, one count of indecent exposure in the second degree, and unlawful exploitation of a minor. We reversed Worden's conviction on four merged counts of possession of child pornography, holding that the State presented insufficient evidence to convict Worden. Because we reversed this conviction, we remanded the case to the superior court to resentence Worden. This case has now returned to us following resentencing.
213 P.3d 144 (Alaska App. 2009).
AS 11.41.434(a)(1).
AS 11.41.436(a)(2), (4).
AS 11.41.460(a).
AS 11.41.455(a)(6).
AS 11.61.127.
Worden, 213 P.3d at 147-50.
In our former decision, we set out the facts of the case as follows:
On May 27, 2002, Juanita T[.] was visiting her son and daughter-in-law . . . and her grandchildren, including C.C. (age eleven) and S.B. (age nine) at their home in Kenai. Worden, a family friend, was also at the house. At some point, Worden, C.C., and S.B. went into another room to watch a movie. In a reflection in a window, [Juanita T.] saw Worden rubbing and squeezing S.B.'s buttocks and touching her vaginal area over her clothes. The next weekend, [Juanita T.], [the mother], S.B., and C.C. reported the assault to the Kenai police.
On June 3, 2002, Kenai police officers interviewed Worden. Worden admitted to having engaged in some inappropriate conduct with C.C. and S.B. and was arrested. Worden's wife, Renee, gave the police permission to seize and search two computers from her home that Worden had used. Police department employee Virgil Gattenby conducted a forensic examination of the computers. He found multiple images of child pornography in the computer's cache files. Worden was indicted on numerous felony charges.
At trial, S.B. testified that Worden had touched her on her breasts, buttocks, and genital area numerous times, including the incident on May 27, 2002. She also stated that Worden digitally penetrated her vagina and anus, and made her masturbate him. C.C. testified that Worden had touched her buttocks and breasts on a few occasions.
Id. at 145.
Following Worden's conviction, Superior Court Judge Charles T. Huguelet sentenced him. Judge Huguelet found that Worden had sexual contact on many occasions with the two young girls for his own sexual gratification. He concluded that Worden had not taken responsibility for his conduct and that consequently it would be very difficult for Worden to achieve rehabilitation. Judge Huguelet relied on State v. Andrews. (In Andrews, decided in 1985, we reviewed prior cases involving sexual assaults of both adult and child victims. We concluded that those prior cases supported "a sentencing range for aggravated offenses of 10 to 15 years." Aggravated offenses were defined as cases involving (1) "multiple victims; (2) multiple assaults on a single victim; or (3) serious injuries to one or more victims.") Judge Huguelet stated that the 10-to 15-year range in Andrews w as "appropriate for the offenses against S.B. and C.C." Judge Huguelet imposed a composite sentence of 15 years to serve, not counting the suspended term of imprisonment for the sexual conduct involving S.B. and C.C. In addition to this sentence, Judge Huguelet merged the convictions for possession of child pornography and imposed 2 years with 1 year suspended, consecutive to the other sentences. Worden appealed his convictions and sentence. Because we reversed Worden's conviction for possession of child pornography, we remanded the case to allow Judge Huguelet an opportunity to reconsider his sentence.
707 P.2d 900, 913-15 (Alaska App. 1985).
Id. at 913.
Worden, 213 P.3d at 145.
Id. at 149.
On remand, over Worden's objection, Judge Huguelet did not make any findings indicating that he was reconsidering his earlier sentence. He stated that he was entering acquittals on the possession of child pornography charges but otherwise was leaving all other parts of the sentencing order in effect, including the conditions of probation which he had previously imposed. This had the effect of eliminating the 2 years with 1 year suspended sentence for possession of child pornography. It left intact the sentence of 15 years imprisonment (not counting suspended time) that Judge Huguelet had imposed for the sexual acts Worden had committed on S.B. and C.C.
On appeal, Worden argues that Judge Huguelet was required to reconsider his sentence in its entirety in light of the acquittal on the possession of child pornography charges. He argues that the presentence report contains materials that should be stricken in light of the acquittal. He argues that probation conditions restricting his access to computers and the Internet are also now inappropriate. He also argues that his composite sentence is excessive.
We conclude that Judge Huguelet did not abuse his discretion in deciding to modify Worden's sentence by simply striking the conviction and sentence for possession of child pornography, but not otherwise reconsidering his sentence. From his earlier sentencing remarks, it appears that Judge Huguelet concluded that a sentence of time to serve of 15 years of imprisonment was appropriate for Worden's sexual abuse of S.B. and C.C. It appears that he imposed a separate consecutive sentence of 2 years with 1 year suspended for possession of child pornography. Under these circumstances, we conclude that Judge Huguelet had the discretion to modify Worden's sentence by simply vacating the conviction and sentence for possession of child pornography.
In his original sentence appeal, Worden never objected either to the presentence report or to his conditions of probation. And, on remand, he also did not object. And it is not obvious that the information in the presentence report about Worden's possession of pornography and the conditions of probation that restrict Worden's access to computers and the Internet have become inappropriate simply because he now stands acquitted of possession of child pornography. At Worden's trial, S.B. testified that Worden showed her pornographic images and videos on his computer, apparently grooming her for sexual activity. Under these circumstances, Worden has not established plain error.
We now turn to Worden's argument that his sentence is excessive. Worden accepts Judge Huguelet's conclusion that his offense is aggravated for purposes of the Andrews benchmark sentencing range of 10 to 15 years to serve. But he argues that, within that benchmark range, his sentence should be toward the bottom of the sentencing range.
The sentencing provisions for sexual offenses have been substantially modified since the Andrews benchmark was announced in 1985. However, in Worden's case, the State has not asked us to re-examine the benchmark. We nevertheless conclude that Judge Huguelet acted within his discretion when he sentenced Worden. Judge Huguelet found that Worden engaged in conduct that involved multiple offenses against two young victims over a significant period of time. The judge also found that Worden had poor prospects for rehabilitation. We conclude that the sentence is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment of the superior court is AFFIRMED.