CHARLES v. STATE, A-10501 (Alaska App. 6-23-2010)
Court of Appeals No. A-10501.Court of Appeals of Alaska.
June 23, 2010.
Appeal from the District Court, First Judicial District, Ketchikan, Kevin G. Miller, Judge, Trial Court No. 1KE-08-1009 CR.
Alexandra Foote-Jones, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Nicholas A. Polasky, Assistant District Attorney, and Stephen R. West, District Attorney, Ketchikan, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.
Murphy J. Charles was convicted of one count of fourth-degree assault[fn1] and one count of first-degree unlawful contact.[fn2] On appeal, Charles asserts that the district court erred when it allowed the State to introduce evidence that he assaulted the victimPage 2
after he was charged with the conduct that led to his convictions in this case. For the reasons set out here, we affirm the judgment of the district court.
Facts and proceedings
Charles was charged with two assaults on his then-wife, Dana Craig. Craig claimed that Charles assaulted her on October 4 and October 5, 2008. The jury acquitted Charles of the October 4 assault but convicted him of the October 5 assault. That assault occurred at a service station where, after an argument, Charles pushed Craig into a freezer door, injuring her. The assault was recorded by the store’s security camera. Photos at trial showed that after this assault Craig had a bruise on her side and a mark on her face.
The State also charged Charles with unlawful contact based on this conduct because his conditions of probation in two other cases barred him from contacting Craig.
Prior to the start of the trial, District Court Judge Kevin G. Miller ruled that the State could introduce evidence that Charles had assaulted Craig three times before. The State also notified the court and Charles that it was contemplating offering evidence that Charles had assaulted Craig again in January 2009, after he committed the offenses charged in this case, if Charles “opened the door” to the admission of that evidence.
During Craig’s direct examination, she testified about Charles’s prior assaults, including a 2006 assault that resulted in Charles’s conviction for fourth-degree assault. As described by Craig, Charles punched her “a couple of times” and “grabbed” her hair. Craig admitted on cross-examination that she willingly married Charles after this assault. She also admitted that even after the October 2008 offenses charged in this case, she continued to have contact with Charles and to write him letters.
Following this testimony, the State moved to introduce the evidence that Charles assaulted Craig in January 2009. Charles objected on the ground that he had not been convicted of that assault. Judge Miller ruled that Evidence Rule 404(b)(4) did notPage 3
exclude subsequent bad act evidence if it was otherwise relevant and admissible. He found that, because there was no conviction, the strength of the State’s evidence that the assault had occurred was “moderate to low.” But after weighing the evidence under Evidence Rules 402 and 403 and Bingaman v. State, [fn3] he concluded that the evidence was relevant, more probative than prejudicial, and admissible.
Was it error to admit evidence of the January 2009assault?
Charles asserts that it was error to admit evidence of the January 2009 assault. He argues that the evidence was erroneously admitted under the “curative admissibility” theory. In other words, he claims that admission of the evidence was not required to correct any misleading evidence before the jury.
Charles did not raise this objection at trial; he only objected to admission of this evidence on the ground that he had not “been found guilty yet” of the January 2009 assault. In any event, as Judge Miller found, the evidence was independently admissible under Evidence Rule 404(b)(4) as “evidence of other crimes involving domestic violence by the defendant against the same or another person.” Judge Miller therefore had no reason to rely on a theory of curative admissibility to admit the evidence.
Charles also contends that Judge Miller should have excluded the bad act evidence because the State did not give him sufficient notice that it planned to offer the evidence. But Charles did not raise this objection at trial, and he has not shown that the court committed plain error by not ruling sua sponte that the State’s notice w as inadequate.
Finally, Charles claims that Judge Miller erred when he allowed the State to present this evidence. He argues that the evidence was not relevant and that, to the extent it was relevant, it was cumulative and more prejudicial than probative. He primarilyPage 4
claims that the evidence was unduly prejudicial because the January assault was different than the charged assaults, and more inflammatory. He points out that there was no mention of, or use of, a weapon in the October assaults. Craig testified that during the January incident Charles told her that if he went to jail for the October assaults he would “come after her with a knife after he got out of jail.”
Again, Charles did not object on this ground below, so he must show plain error. Under Evidence Rule 404(b)(4), evidence of other acts of domestic violence is admissible in a domestic violence case unless the evidence must be excluded under Evidence Rules 402 or 403.[fn4] Evidence Rule 402 states that irrelevant evidence is not admissible, while Evidence Rule 403 requires trial courts to exclude evidence if its probative value is outweighed by the danger that it will engender unfair prejudice, confuse the issues, or mislead the jury.
In Bingaman, we set out a number of factors trial courts must consider in deciding whether to admit Rule 404(b)(4) evidence:
1. How strong is the government’s evidence that the defendant actually committed the other acts?
2. What character trait do the other acts tend to prove?
3. Is this character trait relevant to any material issue in the case? How relevant? And how strongly do the defendant’s other acts tend to prove this trait?[fn5]
The court held a hearing outside the presence of the jury before admitting evidence of the January assault. Craig testified that during this incident Charles accused her of cheating on him, and that he was also upset about the pending criminal chargesPage 5
from the October assaults. Craig said that Charles hit her on and off throughout the day and told her that if he was charged with another assault and went to jail he would come after her and knife her. Later that day, she went to a women’s shelter. Although she said this was the worst incident in their relationship, she also said that she had, afterwards, sent Charles a Valentine card and letters.
Judge Miller recognized that he had to apply the Bingaman factors before he could admit the evidence of the January assault. He concluded that the January assault was relevant to Charles’s “propensity [for] assaulting Ms. Craig” and to “the circumstances in which that occurs.” He also found that the evidence of the January assault was relevant to show the nature of their relationship. When Judge Miller ruled that the evidence was admissible, Charles did not object that the court’s findings were inadequate under Bingaman.
Charles’s defense was to convince the jury not to believe Craig’s testimony about the assaults. One of Charles’s witnesses testified that Craig was not truthful. Charles also argued that Craig was emotionally confused about her relationship with him. During his cross examination of Craig — before the State decided to offer evidence of the January 2009 assault — Charles elicited Craig’s testimony that she agreed to marry him despite his conviction for assaulting her (and his two convictions for harassment). He also showed that Craig continued to have contact with him and to write him letters after the conduct charged in this case. During closing argument, Charles pointed out that one of these letters was a love letter.
Charles’s defense was partially successful — he was acquitted of one assault charge. In light of Charles’s defense attacking Craig’s credibility, and the history of contact between Charles and Craig, which continued even after the assaults charged in this case, we conclude that Judge Miller did not err when he admitted evidence of the January 2009 assault. Evidence of that assault was relevant, more probative thanPage 6
prejudicial, and admissible to show that Charles had a propensity to assault Craig. We conclude that Charles has not shown any error, let alone plain error.
Conclusion
The district court’s judgment is AFFIRMED.
[fn1] AS 11.41.230(a)(1). [fn2] AS 11.56.750. [fn3] 76 P.3d 398 (Alaska App. 2003). [fn4] Id. at 410, 413-16. [fn5] Id. at 415.Page 1