Creech v. State
| Docket Number | A-13128 |
| Decision Date | 17 November 2021 |
| Parties | DON ADAM CREECH, Appellant, v. STATE OF ALASKA, Appellee. |
| Court | Alaska Court of Appeals |
UNPUBLISHED See Alaska Appellate Rule 214(d)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.
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.[1] Creech was also convicted of first-degree tampering with a witness for attempting to get the two girls to recant their accusations.[2]
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.[3] However, a court may provide more modest courtroom accommodations "to safeguard the child from emotional harm or stress."[4]
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.[5] 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."[6] The defendant appealed his conviction, arguing that this arrangement violated his constitutional right of confrontation.[7] We affirmed the trial court's decision as within the trial court's discretion.[8]
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...
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