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Anderson v. State (11/23/2012) ap-2382

Anderson v. State (11/23/2012) ap-2382

                                              NOTICE
 

        The text of this opinion can be corrected before the opinion is published in the 

        Pacific Reporter.   Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts: 



                              303 K Street, Anchorage, Alaska  99501
 

                                        Fax:   (907) 264-0878
 

                        E-mail:   corrections @ appellate.courts.state.ak.us
 



              IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



MARK D. ANDERSON, 

                                                           Court of Appeals No. A-10776 

                               Appellant,                 Trial Court No. 3PA-07-2136 Cr 



                       v. 

                                                                   O  P  I  N  I  O  N 

STATE OF ALASKA, 



                               Appellee.                 No. 2382     -    November 23, 2012 



                Appeal from the Superior Court, Third Judicial District, Palmer, 

                Vanessa White, Judge. 



                Appearances:      Renee McFarland, 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 

                Michael C. Geraghty, Attorney General, Juneau, for the Appel- 

                lee. 



                Before:     Coats,   Chief   Judge,   and   Mannheimer   and   Bolger, 

                Judges. 



                MANNHEIMER, Judge. 

                MANNHEIMER, Judge, concurring. 


----------------------- Page 2-----------------------

                 Mark D. Anderson was convicted of ten counts of second-degree sexual 

abuse of a minor, 1  based on evidence that Anderson engaged in multiple instances of 



sexual contact with three different victims, each under the age of eleven. 



                 Anderson now appeals these convictions on three grounds: (1) that the trial 



judge   improperly   restricted   the   public's   access   to   his   trial;   (2)   that   the   trial   judge 



committed error by failing to instruct the jurors that they had to unanimously agree on 



what   conduct   formed   the   basis   for   each   conviction;   and   (3)   that   the evidence   was 



insufficient to support the counts involving one of the children, G.B.. 



                 In addition, Anderson challenges his composite sentence, arguing that it is 



mistakenly severe. 



                 Finally, Anderson argues that the trial court committed error by charging 



him the full fee for his court-appointed counsel, when Anderson was represented by 



private counsel at trial and did not receive court-appointed counsel until his sentencing. 



                 For the reasons explained here, we affirm Anderson's convictions and his 



sentence,   but   we   remand   his   case   to   the   superior   court   for   reconsideration   of   the 



attorney's fee. 



        Anderson's argument   that   the   trial   judge   improperly   restricted   public 

         access to his trial 



                 Anderson contends that the trial judge improperly restricted the public's 



access to his trial during the testimony of the three child victims. 



                 Just before the presentation of evidence began, the trial judge proposed 



restricting     access   to  the   courtroom      while   the   children    were   testifying,    to  avoid 



interruptions or distractions during the children's testimony, and to provide the children 



     1   AS 11.41.436(a)(2). 



                                                   - 2 -                                                2382 


----------------------- Page 3-----------------------

with a "consistent environment".   The judge acknowledged that Anderson was entitled 



to a public trial, and she did not clear the courtroom while the children were testifying. 



Instead, she had court personnel post a "closed hearing" sign on the courtroom door, so 



that no additional people would enter the courtroom while the three children were on the 



stand. 



               Although Anderson now challenges the trial judge's action, his attorney 



explicitly agreed to this procedure at the time.          When the trial judge suggested the 



procedure described in the preceding paragraph, she asked the parties for their response. 



Anderson's attorney concurred in the judge's proposal.              He told the judge that this 



procedure "sound[ed] reasonable". 



               Accordingly, we conclude that this situation is governed by the doctrine of 



"invited error". The doctrine of invited error applies when a court takes improper action 



at the express request of a party, and then, on appeal, the party seeks reversal of the 

court's judgement on the basis of that action. 2 



               When an error is invited, an appellate court will still review the claim of 



error, but the claim of error is evaluated under a stricter standard than the "plain error" 



test that applies to claims of error that were simply not preserved in the lower court.   In 



cases of invited error, an appellate court will examine the record to see if, because of 



exceptional circumstances, reversal "is necessary to preserve the integrity of the judicial 

process or to prevent a miscarriage of justice". 3          If not, the claim of error will be 



rejected.    As our supreme court has explained, "The invited error doctrine does not 



prohibit appellate review, but rather embodies the notion that errors that are invited are 



    2   Roderer v. Dash, 233 P.3d 1101, 1114 (Alaska 2010). 



    3   Ibid. 



                                               - 3 -                                           2382 


----------------------- Page 4-----------------------

less worthy of consideration by an appellate court than those where a party merely fails 

to object." 4 



                In Anderson's case, it is not clear that the judge's action was, in fact, error. 



As we have explained, the judge did not forbid the public from attending these portions 



of Anderson's trial, in the sense of clearing the courtroom of all spectators while the 



children were testifying.   (The record shows that non-participants were, in fact, present 



in the courtroom during the children's testimony.) Rather, the judge posted a sign on the 



outside of the courtroom door to prevent additional people from entering the courtroom 



in the middle of the children's testimony. 



                Both the Sixth Amendment to the United States Constitution and Article I, 



Section 11 of the Alaska Constitution guarantee the right to a public trial in criminal 



cases.     But a trial judge can place reasonable   limitations on the public's access to 



criminal proceedings without offending this constitutional guarantee. See, for example, 



Bell   v.   Evatt,   72   F.3d   421,   433   (4th   Cir.   1995),   where   the   court   declared   that   a 



"temporary limitation of ingress and egress to the courtroom to prevent disturbance of 



the proceedings" does not offend the defendant's right to a public trial. 



                Even under the less restrictive "plain error" test, the party claiming error 

must show that the trial judge's action was obviously improper. 5               Here, it was not.   The 



propriety of the trial judge's action might be debatable, but that action was not obviously 



improper.      And as we explained in Simon v. State, 121 P.3d 815, 820 (Alaska App. 



2005), "If a claim of error is reasonably debatable - if reasonable judges could differ 



    4   Parson v. Dept. of Revenue, Alaska Housing Finance Corp., 189 P.3d 1032, 1038 



(Alaska 2008). 



    5   See Adams v. State, 261 P.3d 758, 771 (Alaska 2011) (when a party claims "plain 



error", the party must show that the error prejudiced their substantial rights, and that the error 

was "obvious"). 



                                                  - 4 -                                               2382 


----------------------- Page 5-----------------------

on what the law requires - then a claim of plain error fails."               Accordingly, we reject 



Anderson's claim of error. 



        Whether Anderson was prejudiced by the trial judge's error in failing to 

        instruct the jurors that they had to unanimously agree on the conduct 

        underlying each of Anderson's convictions 



                Anderson was charged with eleven counts of sexual abuse of a minor, and 



he was convicted of ten of these counts. In Counts 2 through 5, Anderson was convicted 



of   engaging   in   sexual   contact   with   G.B..   In   Counts   6   through   11,   Anderson   was 



convicted of engaging in sexual contact with two half-sisters from a different family, 



K.M. and A.K..        (The jury acquitted Anderson of Count 1, which was another count 



involving G.B..) 



                As is often true in prosecutions for sexual abuse of a minor, the three 



victims in this case each testified that Anderson engaged in sexual contact with them on 



numerous occasions, and several of the charges against Anderson encompassed many 



months of alleged sexual activity. 



                Anderson's trial judge neglected to instruct the jurors that, with respect to 



each count, they could not convict Anderson unless they unanimously agreed on the 



particular conduct underlying that count.           Anderson's attorney did not request such a 



unanimity instruction, nor did he object to the judge's omission.               But now, on appeal, 



Anderson contends that the lack of such an instruction constitutes plain error. 



                The trial judge's failure to give this kind of unanimity instruction was 



obvious error.      Alaska law clearly requires jury unanimity on this aspect of a sexual 



abuse charge.  See Covington v. State, 703 P.2d 436, 440-41 (Alaska App. 1985).   But 



to prevail in this claim of plain error, Anderson must show (1) that his attorney had no 



tactical reason to refrain from bringing this problem to the trial judge's attention, and (2) 



                                                 - 5 -                                            2382
 


----------------------- Page 6-----------------------

that   the   absence   of   a   factual   unanimity   instruction   prejudiced   the   fairness   of   the 

proceedings to such an extent as to create manifest injustice. 6 



                (a) Whether Anderson has shown that his attorney had no tactical 

            reason for failing to object to the omission of a "factual unanimity" 

            instruction 



                The State does not argue that Anderson's attorney made a tactical decision 



to keep silent about the omission of a "factual unanimity" instruction.                 Nevertheless, 



Anderson's attorney potentially had a tactical reason for refraining from bringing this 



omission to the judge's attention. 



                As we are about to explain in more detail, Anderson's defense at trial was 



that no improper touchings had occurred - that he was factually innocent of all the 



charges.     Anderson's attorney argued to the jury that none of the three children were 



telling   the   truth when they asserted   that Anderson   had abused them.               The defense 



attorney contended that all of the children's accusations of abuse stemmed either from 



conscious falsehood or from suggestions planted by overly suspicious adults. 



                Given this trial strategy, Anderson's attorney might reasonably conclude 



that   the absence of a factual unanimity instruction was inconsequential - that the 



presence or absence of such an instruction would have no practical effect on the jury's 



deliberations.     Moreover, as this Court noted in Potts v. State, 712 P.2d 385, 388 n. 1 



(Alaska App. 1985), in cases where the State fails to elect a single, specific act as the 



basis for a charge of sexual abuse, a defense attorney might purposely choose not to 



object - and might even choose to run the risk of a non-unanimous verdict - in order 



to avoid the possibility that the State, if pressed on this issue, might decide to pursue 



    6   See Adams v. State, 261 P.3d 758, 771 (Alaska 2011). 



                                                 - 6 -                                              2382 


----------------------- Page 7-----------------------

multiplecharges. For thesereasons, Anderson'sattorneymightreasonably concludethat 



it would be better to keep silent about the omission of such an instruction, since this 



omission   would   furnish   a   point   on   appeal   if   the   jury   did   not   decide   the   case   in 



Anderson's favor. 



                Obviously, we do not knowwhat was going through Anderson's attorney's 



mind - in particular, whether Anderson's attorney consciously thought about this issue 



and decided that it was not worthwhile to object.   But as we noted in Potts, "[o]ne of the 



purposes of the Plain Error Rule is to prevent parties from gambling on jury verdicts by 



[ignoring] errors perceived as harmless in the expectation that [the] error will not affect 



the verdict, but might result in a successful appeal if the verdict is unfavorable." Id., 712 



P.2d at 390 n. 7. 



                Thus, under Alaska law, it is the burden of the party claiming plain error 

to show that there was no tactical reason to withhold an objection in the lower court. 7 



                In    Anderson's     case,   a  competent      defense    attorney   might    well   have 



concluded that there would be no real advantage in insisting on a factual unanimity jury 



instruction, and that there was more to be gained by allowing the case to be submitted 



to the jury with this omission in the instructions.            In other words, the record currently 



before us does not show that Anderson's attorney acted incompetently when he failed 



to object to the omission of this instruction. 



                (See Potts, 712 P.2d at 394 n. 11, noting that "[a] finding of plain error is 



... virtually the equivalent of a finding of ineffective assistance of counsel" - because, 



to qualify as "plain error", the error must be "so obvious and so prejudicial that ... 



    7   Borchgrevink v. State, 239 P.3d 410, 421 (Alaska App. 2010); Vann v. State, 229 P.3d 



197, 212 (Alaska App. 2010); Edwards v. State, 158 P.3d 847, 857 (Alaska App. 2007). 



                                                  - 7 -                                               2382 


----------------------- Page 8-----------------------

competent   trial   counsel   should   recognize   it   and   seek   its   correction   ...   by   a   timely 



objection.") 



                We will nevertheless address the final element of the plain error test - the 



question of prejudice - because we are also convinced that the omission of a factual 



unanimity instruction was harmless in Anderson's case. 



                (b) The applicable test for harmless error 



                Lack     of  jury   unanimity     (when     the  law   requires    it)  is  an  error  of 

constitutional dimension. 8       Thus, if all other aspects of the plain error test are met, the 



remaining question is whether the State can show that, under the facts of Anderson's 



case, the error was harmless beyond a reasonable doubt.  See Adams v. State, 261 P.3d 



758, 773 (Alaska 2011); Khan v. State, 278 P.3d 893, 895, 899-901 (Alaska 2012). 



                Anderson concedes that four of the charges against him - Counts 4 and 



5, and Counts 10 and 11 - were based on specific incidents, and thus the jury must have 



unanimously agreed on the facts underlying these counts. 



                But Anderson contends that the trial judge's error was not harmless with 



respect to six of the charges against him - Counts 2 and 3, and Counts 6 through 9. 



Anderson points out that each of these six counts covered a range of time, and there was 



no   testimony   linking   these   counts   to   a   single,   specified   incident   of   abuse.  Thus, 



Anderson argues, there is a distinct possibility that the jurors did not reach unanimity 



with respect to the precise incident that justified Anderson's conviction on these six 



counts. 



    8   Khan v. State, 278 P.3d 893, 899 (Alaska 2012). 



                                                  - 8 -                                              2382 


----------------------- Page 9-----------------------

                This may be true, but that is not the test for assessing whether the judge's 



failure to give a unanimity instruction was harmless. 



                A finding of "harmlessness" in this context does not mean that the record 



demonstrates   that   the   jurors   indeed   reached   factual   unanimity   on   each   of   the   six 



challenged   counts.       Instead,   "harmlessness"   in   this   context   means   that   the   record 



demonstrates,   beyond   a   reasonable   doubt,   that   if   the   jury   had   received   the   proper 



instructions (i.e., if the jurors had been told that factual unanimity was required), their 



verdicts on these six counts would have been the same. 



                This particular issue of law was addressed and decided by the United States 



Supreme Court in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 



(1999). 



                The   underlying   problem   in Neder  was   that   the   trial   judge   improperly 



removed one element of the offense (the materiality of Neder's false statements) from 



the jury's consideration - incorrectly telling the jurors that this element was not for 



them to decide, but was rather for the judge to decide.  Id., 527 U.S. at 6, 119 S.Ct. at 



1832. 



                Inaddressingthis problem,theSupremeCourtdiscussed two issues that are 



relevant to Anderson's case:         First, does a trial judge's failure to instruct the jury on a 



necessary   element   of   the   offense   automatically   require   reversal   of   the   defendant's 



conviction, or is this type of error subject to harmless error analysis on appeal?                   And 



second, if this type of error can be harmless, what is the test for evaluating harmlessness 



in this context? 



                The Supreme Court first held that a judge's failure to have the jury decide 



every element of the offense is the type of error that is subject to harmless error analysis 



on appeal. Id., 527 U.S. at 10-15, 119 S.Ct. at 1834-37.   Next, the Supreme Court took 



up the issue of what "harmlessness" meant in this context. 



                                                  - 9 -                                             2382
 


----------------------- Page 10-----------------------

               The defendant in Neder argued that, even though there was overwhelming 



evidence that his false statement was material, it would nevertheless be improper to 



categorize the error in the jury instructions as harmless beyond a reasonable doubt. 



Neder pointed out that it was clear, from the record, that the jurors in his case never 



considered the issue of materiality - because the trial judge expressly told them not to. 



Based on this, Neder argued that if the Supreme Court were to affirm his conviction 



simply because the evidence of materiality was overwhelming, this would (as a practical 



matter) mean that the element of materiality was being decided by an appellate court 



rather than by a jury.  Id., 527 U.S. at 17, 119 S.Ct. at 1837-38. 



               The Supreme Court rejected this contention, viewing it as "simply another 



form of the argument that a failure to instruct [the jury] on any element of the crime is 



not subject to harmless-error analysis."   527 U.S. at 17, 119 S.Ct. at 1838.       The Court 



held that the true question in these circumstances - i.e., instances where an element of 



the offense is wrongly removed from the jury's consideration - is whether, given the 



evidence at trial, there is a reasonable possibility that the jury would have reached a 



different verdict if they had been asked to decide whether the government had proved 



the omitted element of the offense.   527 U.S. at 18-20, 119 S.Ct. at 1838-39. 



               Seven years later, in Washington v. Recuenco, 548 U.S. 212, 220-22; 126 



S.Ct. 2546, 2252-53; 165 L.Ed.2d 466 (2006), the Supreme Court held that this same 



harmless error test applies to cases involving Blakely error - that is, cases where the 



trial court fails to give the defendant a jury trial on a factual issue that will increase the 



                                            -  10 -                                       2382
 


----------------------- Page 11-----------------------

defendant's maximum penalty (and instead decides the issue itself). 9                We note that 



Justice Scalia, one of the primary dissenters in Neder, 10 joined the Recuenco majority. 



                We acknowledge that the Neder decision has drawn criticism from some 

legal commentators, 11  and that one state has rejected the Neder harmless error test on 



state grounds. 12 



                However, this Court followed the Neder / Recuenco harmless error test in 



Lockuk v. State, 153 P.3d 1012 (Alaska App. 2007).  Lockuk involved a Blakely error; 



we held that the error was harmless because, given the evidence in Lockuk's case, there 



was no reasonable possibility that, if the issues of fact had been submitted to a jury, the 



jury's decision would have been any different from the trial judge's: 



                Lockuk has never disputed the fact that he has seven prior 

                convictions for assault and one prior conviction for resisting 

                arrest.   Thus, on the record before us, there is no reasonable 

                possibility that a jury would find in Lockuk's favor on the 



    9   See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). 



    10  Justice Scalia's dissenting opinion on the question of harmless error is found in Neder, 



527 U.S. at 30-40, 119 S.Ct. at 1844-48. 



    11  See Linda E. Carter, "The Sporting Approach to Harmless Error in Criminal Cases: 



The Supreme Court's 'No Harm, No Foul' Debacle in Neder v. United States", 28 American 

Journal of Criminal Law 229, 232-33 (2001) (arguing that the Neder decision "is inconsistent 

with the underlying principles of our adversary system and the [proper] role of appellate 

courts");    Roger   A.  Fairfax   Jr.,  "Harmless   Constitutional   Error   and  the  Institutional 

Significance of the Jury", 76 Fordham Law Review 2027, 2030 (2008) (arguing that when 

jury instructions entirely omit an element of the offense, this leads to "flawed verdicts" that 

cause "profound ... injury" to "the very structure of the Constitution itself" and to the jury's 

role in criminal trials). 



    12  See State v. Kousounadis, 986 A.2d 603, 616 (N.H. 2009) (citing the authorities listed 



in the preceding footnote, and holding that, under the New Hampshire Constitution, a jury's 

failure to decide an element of the offense is a structural error that requires reversal). 



                                               -  11 -                                         2382
 


----------------------- Page 12-----------------------

                question     of  whether    he   had   these  prior   convictions,    or 

                whether these convictions constituted instances of assaultive 

                behavior (aggravator (c)(8)), or whether these convictions 

                constituted instances of criminal behavior similar in nature to 

                the assault for which he was being sentenced (aggravator 

                (c)(21)). 



Lockuk, 153 P.3d at 1018. 



                Accordingly, we hold that Anderson's case is governed by the same test. 



To   determine   whether   the   lack   of   a   unanimity   instruction   was   harmless   beyond   a 



reasonable   doubt,   we   must   ask   whether,   if   Anderson's   jury   had   received   a   proper 



instruction on factual unanimity, there is a reasonable possibility that the jury's verdicts 



would have been different. 



                (c) Why we conclude that, under the facts of Anderson's case, there 

            is no reasonable possibility that the jury's verdicts would have been 

            different 



                As we noted earlier, the charges against Anderson involved three different 



young girls. Two of the girls (K.M. and A.K.) were sisters living in the same household, 



but the third girl (G.B.) lived in a separate household, and she was not acquainted with 



the other two girls. The sexual abuse involving G.B. was reported first. Several months 



later, when the police were nearing completion of their investigation into the allegations 



involving G.B., the police received a separate, independent report that Anderson had 



sexually abused K.M. and A.K.. 



                The   only   obvious   link   between   the   case   involving   G.B.   and   the   case 



involving K.M. and A.K. was that each girl had a parent who was friends with Anderson 



through work.   (The mother of G.B. and the father of K.M. and A.K. both worked at the 



same car dealership where Anderson was employed.) 



                                                -  12 -                                           2382
 


----------------------- Page 13-----------------------

               At trial, Anderson's attorney argued that all of the accusations against 



Anderson were false. In his summation to the jury, the defense attorney pointed out that 



Anderson had never wavered in his denial of these charges, from the time he was first 



interviewed by the police.       The defense attorney also pointed out that there was no 



medical evidence to corroborate the girls' testimony, nor had any adult ever observed 



Anderson acting inappropriately with the girls. 



               With respect to the charges involving G.B., the defense attorney suggested 



that G.B. was a troubled young girl who was manifesting behavioral problems (her 



parents were separated at the time), and that G.B.'s accusation of sexual abuse was the 



product of a suggestion planted in her mind by an overly suspicious day-care provider. 



               According to the trial testimony, this day-care provider observed G.B. 



playing in a manner that, to him, contained an inappropriate sexual aspect. The day-care 



provider's observation prompted him to "ask [G.B.] several times what was wrong". 



When G.B. did not immediately respond, the day-care provider told G.B., "You need to 



tell me who's touched you inappropriately, so I can fix it."   At that point, G.B. told him 



that "Mr. Andy [i.e., Anderson] had done some things." 



               Anderson'sattorneyarguedthatG.B.'sanswer to theday-careprovider was 



simply the product of suggestion -and that things mushroomed fromthere, as more and 



more adults became involved, and G.B. felt that she could no longer retract what she had 



said. 



               To   explain   the   apparently   independent   accusations   that   Anderson   had 



sexually abused two sisters from another family, the defense attorney noted that G.B.'s 



mother worked in the same car dealership as K.M. and A.K.'s father.                 The defense 



attorney argued that the older of the two sisters, K.M., was aware of rumors circulating 



at the car dealership (i.e., rumors that Anderson had engaged in sexual improprieties), 



                                             -  13 -                                        2382
 


----------------------- Page 14-----------------------

and   that   she   fabricated   her   own   accusations   against   Anderson   simply   because   she 



"[wanted] to get some man in trouble". 



                 The   defense   attorney   then   suggested   that   K.M.'s younger   sister,   A.K. 



simply went along with her sister's lie because K.M. was older and was "the leader". 



                 In sum, Anderson offered one blanket defense to all of the charges against 



him:  the charges were false, the girls knew that the charges were false, and Anderson 



was factually innocent. 



                 Given this defense, and given the State's evidence, we conclude that even 



if Anderson's jury had been instructed on the need for factual unanimity, there is no 



reasonable      possibility    that  the   jury   would    have    reached    different    verdicts.     We 



accordingly conclude that the trial judge's error in failing to give such a unanimity 



instruction was harmless beyond a reasonable doubt. 



                 To round out our discussion of this issue, we need to address the jury's 



"not guilty" verdict on Count 1. 



                 In Count 1, Anderson was accused of sexually abusing G.B. sometime 



between   December   1,   2005   and   April   27,   2006.         According   to   the   trial   evidence, 



Anderson had contact with G.B. both at her mother's house and at the car dealership 



where   Anderson   and   G.B.'s   mother   worked.            But   also   according   to   the   evidence, 



Anderson did not start visiting G.B.'s mother's house until July 2006 at the very earliest. 



Thus,   of   necessity,   the   conduct   alleged   in   Count   I   must   have   occurred   at   the   car 



dealership. 



                 Even though a portion of G.B.'s police interview suggested that some of 



the   sexual   abuse   occurred   at   the   car   dealership,   G.B.   testified   at   trial   that   all   of 



Anderson's wrongful sexual touching occurred at her mother's house, and not at the car 



dealership   (even   though   G.B.   acknowledged   that   she   sometimes   spent   time   with 



Anderson when she visited the dealership with her mother). 



                                                  -  14 -                                              2382
 


----------------------- Page 15-----------------------

                In this context,   the   jury   acquitted Anderson   of Count I   - apparently 



because they concluded, based on G.B.'s trial testimony, that the State's evidence was 



insufficient to establish, beyond a reasonable doubt, that Anderson had sexually abused 



G.B.  at   the   car   dealership.    Understood   in   this   way,   the   jury's   decision   to   acquit 



Anderson of the charge contained in Count 1 is fully consistent with their decision to 



convict Anderson of the remaining ten counts. 



        The sufficiency of the evidence to support the jury's verdicts on Counts 2 

        and 3 



                Anderson       argues   that   the  evidence     presented    at  his  trial  is  legally 



insufficient to support the jury's guilty verdicts on Counts 2 and 3, both involving G.B.. 



                Count 2 alleged that Anderson engaged in sexual abuse of G.B. between 



April 28 and July 31, 2006.   During most of this time period, Anderson's only contact 



with G.B. was at the car dealership - and, as we have already described, it appears that 



the jury rejected the State's contention that any of the sexual abuse occurred at the car 



dealership. However,theevidenceshowedthat Anderson began visitingG.B.'smother's 



house in July 2006 - where G.B. asserted that all of the abuse occurred. 



                Thus, Anderson's argument really amounts to the contention that it   is 



unlikely that Anderson sexually abused G.B. at her mother's house in mid- to late July. 



But viewing the evidence in the light most favorable to upholding the verdict (as we 

must), 13  the jury could reasonably have concluded that Anderson began to abuse G.B. 



in July 2006. 



    13  See Silvera v. State, 244 P.3d 1138, 1142 (Alaska App. 2010) (citing Morrell v. State , 



216 P.3d 574, 576 (Alaska App. 2009); Daniels v. State, 767 P.2d 1163, 1167 (Alaska App. 

1989)). 



                                                 -  15 -                                             2382 


----------------------- Page 16-----------------------

              We now turn to Anderson's claim that there was insufficient evidence to 



support Count 3.     Count 3 spanned a time frame of approximately seven months:          it 



alleged that Anderson sexually abused G.B. between July 1, 2006 and January 27, 2007. 



Anderson claims that the evidence was insufficient to support the jury's verdict on this 



count because, in her testimony, G.B. failed to connect any particular incident of sexual 



abuse to Count 3. 



              Even though G.B. may not have specified a particular incident of sexual 



abuse, there was sufficient evidence to justify the jury's verdict on Count 3.         G.B. 



testified that Anderson sexually abused her often during his visits to her mother's house. 



These visits began in July or early August 2006, and they continued until late January 



2007, when G.B. disclosed the abuse to an adult.         This testimony was sufficient to 



support a guilty verdict on Count 3. 



              It appears that Anderson's argument is really a jury unanimity claim - the 



problem that we addressed in  Covington, and the problem that we addressed in the 



preceding section of this opinion, where we held that the lack of a unanimity instruction 



was harmless error in Anderson's case. 



       Anderson's claim that his sentence is excessive 



              Anderson was a first felony offender, and he thus faced a presumptive 



sentencing range of 5 to 15 years' imprisonment for each of the ten counts of second- 

degree sexual abuse of a minor. 14 Anderson stipulated that one aggravator applied to his 



sentencing for the crimes involving A.K. and G.B.:   that he knew or reasonably should 



have known that his victims were particularly vulnerable because of their   extreme 



    14 See AS 12.55.125(i)(3)(A). 



                                          -  16 -                                      2382 


----------------------- Page 17-----------------------

youth. 15  (A.K. and G.B. were respectively five to six years old, and seven to eight years 



old, at the time of the abuse.) 



               Because of this aggravating factor, the sentencing judge - Superior Court 



Judge   Vanessa   White   -   was   authorized   to   impose   sentences   that   exceeded   the 

presumptive sentencing range. 16       However, she ultimately chose not to exercise this 



authority.     Judge   White   imposed   sentences   on   each   count   that  were   within   the 



presumptive     range,   but  she  made    these  sentences    partially  consecutive,   so   that 



Anderson's composite sentence was 37 years with 18 years suspended - 19 years to 



serve. 



               Anderson arguesthat JudgeWhitefailed toadequately justify her sentences 



on each individual count.   Anderson relies on what the Alaska Legislature said in 2005 



when, following the United States Supreme Court's decision in Blakely, it amended our 



state's presumptive sentencing law to provide for presumptive ranges of imprisonment 



for various categories of offense, instead of specifying a particular presumptive term of 



imprisonment. 



               Althoughthenewpresumptiveranges weregenerally constructedby taking 



the pre-existing presumptive term of imprisonment as the low end of the new sentencing 



range, the legislature declared that it did not intend to produce an overall increase in the 



sentences for felonies.   Here is the pertinent text of section 1 of SLA 2005, Ch. 2 - the 



session law that enacted our current system of presumptive sentencing ranges: 



                      Legislative Intent . ... Although the presumptive terms 

               [under    current   law]  are  being   replaced   by  presumptive 

               ranges, it is not the intent of this Act ... to bring about an 



    15 AS 12.55.155(c)(5). 



    16 AS 12.55.155(a)(2). 



                                             -  17 -                                         2382 


----------------------- Page 18-----------------------

                overall increase in the amount of active imprisonment for 

                [felonies].     Rather, this Act is intended to give judges the 

                authority     to   impose     an   appropriate     sentence,    with   an 

                appropriate amount of probation supervision, by taking into 

                account the [sentencing] consideration[s] set out in AS 12.- 

                55.005 and 12.55.015. 



                Anderson   argues   that,   in   light   of   this   expression   of   legislative   intent, 



sentencing judges should be required to affirmatively justify any upward departure from 



the low end of the applicable presumptive sentencing range. 



                Whatever may be the merits of Anderson's argument, this issue is moot in 



Anderson's case.        Even if Judge White had sentenced Anderson to a 5-year term of 



imprisonment for each of his ten offenses (the low end of the applicable presumptive 



sentencing range), Judge White might still have reached a composite sentence of up to 



50 years to serve by imposing these sentences consecutively. 



                The real question here is whether, given the totality of Anderson's conduct 

and history, a sentence of 19 years to serve is clearly mistaken. 17 



                Anderson was found guilty of repeatedly abusing three different children 



over a period of many months.           Judge White found that Anderson was predatory, and 



that his non-threatening, avuncular demeanor made him a particular danger to children. 



The   judge   thought   that   Anderson   was   capable   of   achieving   rehabilitation,   but   she 



concluded   that   Anderson's   path   to   rehabilitation   would   be   "a   very   difficult   and 



protracted period of climbing [a] very high mountain". 



    17  See Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747 P.2d 



554, 558-59 (Alaska App. 1987) (when reviewing a composite sentence imposed for two or 

more criminal convictions, an appellate court will assess whether the combined sentence is 

clearly mistaken, given the whole of the defendant's conduct and history). And see McClain 

v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing 

decision unless the decision is clearly mistaken). 



                                                 -  18 -                                            2382
 


----------------------- Page 19-----------------------

                These factors can legitimately support a lengthy sentence.               We note that 



even   under   the   pre-2005 sentencing   ranges for   sexual abuse of a minor, when the 



penalties were substantially lower, this Court repeatedly approved sentences of up to 



20 years to serve for offenders who committed multiple acts of abuse against the same 



victim, or who committed acts of abuse against multiple victims. 



                See State v. Andrews, 707 P.2d 900, 913 (Alaska App. 1985) (establishing 



a benchmark sentencing range of 10 to 15 years to serve for first offenders convicted of 



aggravated instances of sexual abuse of a minor); and Haire v. State, 877 P.2d 1302, 



1306 (Alaska App. 1994) (acknowledging that in "exceptional first-offense cases", this 



Court had "typically approved composite sentences involving up to twenty years of 



unsuspended incarceration"). 



                The sentencing ranges for sexual abuse of a minor are now significantly 



higher than they were when Andrews and Haire were decided. Given this fact, and given 



the facts of Anderson's case, we conclude that Anderson's sentence of 19 years to serve 



is not clearly mistaken. 



        The   question   of   whether   Anderson   should   be   ordered   to   pay   the   full 

        attorney's fee specified in Alaska Criminal Rule 39 



                Under   Alaska   Criminal   Rule   39(c),   a   defendant   who   receives   court- 



appointed counsel must normally be ordered, at the time of sentencing, to partially 



reimburse the State for the costs of the defendant's publicly funded counsel.   According 



to the schedule of costs set forth in Criminal Rule 39(d), a defendant who receives the 



services of court-appointed counsel in a prosecution for a class B felony (such as second- 



                                                -  19 -                                           2382
 


----------------------- Page 20-----------------------

degree sexual abuse of a minor 18) must pay an attorney's fee of $1500 if the case goes 



to trial.   This is the amount of money that Judge White ordered Anderson to pay. 



                But Anderson's case is different from the norm, in that he was represented 



at trial by a privately retained attorney.   Anderson did eventually receive the services of 



a court-appointed attorney, but this attorney represented Anderson only in connection 



with the sentencing proceedings. 



                Anderson argues that the $1500 fee set forth in Rule 39 is premised on the 



assumption   that   the   defendant   received   the   services   of   a   court-appointed   attorney 



throughout the case, and not just at sentencing.           Thus, Anderson, argues, it is plainly 



unfair to require him to pay the same amount of money as if he had been represented at 



trial by a court-appointed lawyer. 



                Although there appears to be no provision of Rule 39 that deals directly 



with this situation, we note that Criminal Rule 53 gives the superior court the authority 



to relax the provisions of Rule 39(d) if "strict adherence to them will work injustice". 



The facts of Anderson's case may present a situation where imposition of the normal 



$1500 fee will work injustice.   We therefore direct the superior court to reconsider this 



matter. 



        Conclusion 



                For   the   reasons   explained   in   this   opinion,   we   AFFIRM   Anderson's 



convictions and his composite sentence, but we REMAND Anderson's case to the 



superior court for reconsideration of the amount of attorney's fee he should pay. 



    18  AS 11.41.436(b). 



                                                - 20 -                                            2382 


----------------------- Page 21-----------------------

Judge MANNHEIMER, concurring. 



                 I write separately to address the issue of the superior court's decision to 



post a "closed hearing" sign on the courtroom door during the testimony of the three 



children.   Although we find no plain error in this case, I believe that trial judges should 



be cautious about closing courtrooms to the public, even to this limited extent. 



                 The superior court's rationale for preventing members of the public from 



entering     the   courtroom     while    the  three   children    were    testifying   was    to  prevent 



disruptions   of   the   proceedings   and   avoid   distractions   to   the   children.       But   in   my 



experience, courtroom proceedings are generally not interrupted by the comings and 



goings ofspectators. Generally speaking,spectators areawarethat courtproceedings are 



taking place (or may be taking place) behind the courtroom doors, and they are careful 



to enter quietly. 



                 I also note that, in the present case, the superior court made no effort to 



prevent   spectators   who   were   already   present   in        the   courtroom   from     leaving  the 



courtroom during the children's testimony - an action that was seemingly just as likely 



to distract the children. 



                 It may be that the judge had some case-specific reason to impose this 



restriction on people entering the courtroom, and that the only reason the judge failed to 



explain   her   rationale   on   the   record   was   that   neither   party   objected   to   the   judge's 



proposed action. 



                 Nevertheless,   I   do   not   believe   that   the   mere speculative   possibility   of 



disruption or distraction could justify the trial judge's action in this case.   In particular, 



I question whether it is proper to prevent people from entering a courtroom during public 



judicial proceedings in the absence of an affirmative demonstration of need, and in the 



                                                  - 21 -                                              2382
 


----------------------- Page 22-----------------------

absence of some reason to believe that lesser measures - for example, a sign reading 



"Quiet Please; Court is in Session" - would not be sufficient to deal with the problem. 



                                         - 22 -                                    2382
 

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