(File)

(File)

Court of Appeals upholds sexual assault conviction; remands to court issue of sentencing

The Alaska Court of Appeals has upheld the conviction of a Fairbanks man who sexually assaulted a Homer woman in August 2011, but sent back to the Superior Court and a three-judge sentencing pannel issues of sentencing. The man had appealed his case in 2015.

The Court of Appeals discussed its findings in an opinion released on April 3. A jury in 2013 convicted Jeffery K. Holt, now 58, of one count of first-degree sexual assault and four counts of second-degree sexual assault. A three-judge sentencing panel found Holt had “extraordinary potential for rehabilitation” and sentenced him to 21 years in jail with five years suspended on the first-degree sexual assault conviction and four years with three years suspended for each of the second-degree sexual assault convictions, for a composite sentence of 28 years with eight years suspended or 20 years to serve.

At trial, a jury found Holt guilty of sexually assaulting a Homer woman at her home while she was incapacitated from drinking. The two had known each other from when she lived in Fairbanks. Holt had come to visit her in Homer while fishing. She considered him to be a friend, but had not expressed any interest in a sexual relationship, according to details of the case. Holt brought food and alcohol, and mixed the woman drinks, including one drink that she said had an odd color and tasted like cough syrup.

After a series of sexual assaults, the woman got help when she texted “rape 911” to a friend who also lived in Homer, and the friend reported the incident to Alaska State Troopers. Troopers responded to the scene and Holt was charged in September 2011 with four counts of second-degree sexual assault and one count of attempted second-degree sexual assault. A grand jury later indicted Holt with five counts of first-degree sexual assault.

The Sexual Assault Response Team at South Peninsula Hospital, a team of nurses trained in forensic examination, looked at the victim and found she had bruises and abrasions on her body. Lab tests showed a blood-alcohol level of 0.155, almost twice the legal limit for driving under the influence, and the presence of Tylenol. The woman said she had not taken Tylenol.

Holt appealed both the conviction and his sentencing. On the first-degree sexual assault conviction, Holt argued that there was insufficient evidence the sexual act was “without consent” or coerced. The Court of Appeals rejected that claim.

On the second-degree assault convictions, Holt also argued there was a “fatal variance” between the indicted charges of first-degree sexual assault and his convictions for second-degree sexual assault. In legal terms, fatal variance occurs when there’s a difference between an indicted charge and the theory presented by the prosecution at trial, thus depriving a defendant of fair notice of the charges. However, the Court of Appeals ruled that Holt received proper notice of the state’s theory that it would attempt to prove he assaulted the woman under an incapacitation “without consent” theory.

Holt also argued that some charges should merge together because the assaults happened close in time to each other. The court rejected that claim, saying each act of assault can be treated as a separate incident if the kind of sexual act changed.

The Court of Appeals did agree to send back to the Superior Court issues of sentencing. The court agreed with Holt that the trial court erred in making corrections to Holt’s pre-sentence report. The state conceded this point.

Holt also argued that his sentence was excessive. The Court of Appeals said the three-judge sentencing panel should reassess Holt’s case, but because that reassessment could result in a different sentence, did not address the excessive sentencing claim.

The Court of Appeals also found that Holt’s sentence should be reassessed because the three-judge panel may have made an error because it gave Holt a 1-year sentence on each count of second-degree sexual assault, less than the minimum 2.5-year sentence required under the sentencing statute that applied to Holt. The state argued that this error could be fixed by adjusting which part of Holt’s sentence are consecutive — served one after another — and which are concurrent — served at the same time.

On another issue, however, the Court of Appeals said it had concerns about the three-judge panel’s sentencing analysis. The individual judge concluded that based on Holt’s potential for rehabilitation it would be “manifestly unjust” to sentence him to 20 years and four days, the minimum sentence under Alaska law. At the sentencing hearing, the victim asked that Holt be put away for “a very, very long time.”

The three-judge panel agreed with the individual judge, but then sentenced Holt to a composite sentence of 20 years.

“Moreover, the panel’s sentencing remarks gave no indication of why they did not further reduce Holt’s composite time to served based on their other findings,” Court of Appeals Judge Marjorie Allard wrote in the opinion.

The Court of Appeals directed the three-judge panel to resentence Holt within 90 days. After that sentencing, the court also allowed Holt 30 days to notify it if he wished to renew his excessive sentence claim.

According to online records, Holt is serving his sentence at Wildwood Correctional Center.

Reach Michael Armstrong at marmstrong@homernews.com.

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