Carr v. State, Court of Appeals No. A-8876 (Alaska App. 4/25/2007), Court of Appeals No. A-8876.

CourtCourt of Appeals of Alaska
Writing for the CourtStewart
PartiesKELLY R. CARR, Appellant, v. STATE OF ALASKA, Appellee.
Docket NumberCourt of Appeals No. A-8876.
Decision Date25 April 2007

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KELLY R. CARR, Appellant,
Court of Appeals No. A-8876.
Court of Appeals of Alaska.
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.



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.

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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. State1 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

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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.

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.

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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 warrant2 and recorded a telephone call between Carr and his sister during which he again admitted abusing M.H.

In November 2001, the grand jury charged Carr with two counts of first-degree sexual abuse of a minor3 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 minor4 for abusing his 11- to 13-year-old daughter C.C. (Counts 3 and 4), and one count of unlawful exploitation of a minor5 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 pornography6 (Counts 6-10), with each count referring to a different prohibited category of pornography listed in AS 11.41.455(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:

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[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

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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 factors7 and Carr proposed two mitigating factors.8 Carr argued that Blakely v. Washington,9 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.10

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.

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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.11 Judge Smith imposed a composite 30-year term with 16 years suspended.

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,...

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