JACKSON v. STATE, A-10690 (Alaska App. 5-25-2011)


Court of Appeals No. A-10690.Court of Appeals of Alaska.
May 25, 2011.

Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-07-10536 CR.

Lance C. Wells, Law Offices of Lance C. Wells, P.C., Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

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

BOLGER, Judge.

Albert Eric Jackson was convicted of second-degree assault for causing serious physical injury to his former girlfriend, Sheena Cundiff. At trial, Superior Court Judge Michael L. Wolverton allowed the State to introduce evidence of a prior instance of domestic violence between Jackson and a different girlfriend, Deshia Whisamore, pursuant to Alaska Evidence Rule 404(b)(4). Jackson now argues on appeal that the trialPage 2
court abused its discretion in allowing Whisamore to testify about the prior instance of domestic violence. We conclude that the trial judge considered and applied the proper factors when he admitted this testimony.


On September 16, 2007, Sheena Cundiff and her on-again, off-again boyfriend, Albert Jackson, went to the Great Alaskan Bush Company, an Anchorage strip club. Jackson asked Cundiff to accept a lap dance from a stripper, but she said that there w as “no need” and that Jackson should “save [his] money.” Jackson apparently felt that Cundiff’s response showed a lack of appreciation for his generosity. He ordered Cundiff to “get your ass outside . . . before I beat you right here.”

Cundiff left the bar and walked toward the truck. When Cundiff was walking back to Jackson’s truck, Jackson hit her in the face and partly lifted her into the vehicle. He also grabbed her by the back of her head and knocked her face into the truck’s console. Cundiff escaped through the passenger door, but Jackson met her on the back side of the vehicle. Jackson chased Cundiff and grabbed her by the coat and neck, but she was able to slip out of her coat and run back into the club.

Cundiff ran into the back of the club, screaming for help. Employees stopped Jackson at the front door. Cundiff explained to employees what happened and the employees called the police. Jackson denied that he had anything to do with the assault.Page 3

During the assault, Jackson fractured one of Cundiff’s orbital bones, and she needed to have her eye socket reconstructed. Jackson was charged with second-degree assault.[fn1]

Prior to trial, the State filed a notice of the State’s intent to introduce evidence pursuant to Evidence Rule 404(b), including testimony from Jackson’s former girlfriend, Deshia Whisamore, about Jackson’s prior acts of domestic violence. The court conducted an evidentiary hearing on the State’s motion. Whisamore testified about an incident that took place when she and Jackson were at a nightclub. Whisamore was dancing with friends at the club in the mid-1990s when Jackson told her “it was time to go.” Jackson then pulled Whisamore out of the club by her arm and tried to push her into his truck. Bystanders confronted Jackson and stopped him from forcing Whisamore into the car.

The court allowed the State to present Whisamore’s testimony about the incident at the club, but indicated she would not be allowed to testify about other prior incidents without further approval of the court. The court found that “the strength of the State’s evidence is fairly strong, and that the similarity of the behavior alleged is relevant and appropriate.” The court further noted that the testimony of Whisamore “is not lengthy, and there is little likelihood that a jury would consider the case on improper grounds.”

At trial, Cundiff testified about the incident at the Bush Company as described above. She also testified that she was certain that the person who attacked her was Jackson.Page 4

Jackson testified that he did not assault Cundiff. Jackson indicated that he stayed in the club for approximately five to ten minutes after Cundiff went outside. When Jackson left the club, he discovered that Cundiff was hysterical and was running from his truck into the club. Jackson testified that he thought an ex-boyfriend or someone else committed the assault.

Jackson also testified about the incident with Whisamore. Jackson said that Whisamore was at a party, and that she asked Jackson to “come in and get her” after twenty minutes. When Jackson went to get Whisamore to leave, several men at the party started questioning Whisamore about Jackson, and then a fight broke out. Jackson denied ever grabbing Whisamore by the arm and trying to force her into his car.

The jury found Jackson guilty of second-degree assault. Jackson now appeals the court’s decision to allow Whisamore’s testimony.


In general, evidence of a defendant’s other crimes or acts cannot be offered at trial to show that the defendant has a propensity to commit similar acts.[fn2] Alaska Evidence Rule 404(b)(4) creates an exception to the general ban on propensity evidence. Rule 404(b)(4) provides that “[i]n a prosecution for a crime involving domestic violence . . . evidence of other crimes involving domestic violence by the defendant against the same or another person . . . is admissible.” Under this provision, evidence of a defendant’s character can be used as “circumstantial evidence that the defendant acted true to character during the episode being litigated.”[fn3]Page 5

In Bingaman v. State, we outlined several factors to “guide trial courts in applying these rules of evidence in cases in which the government seeks to admit evidence of a defendant’s other crimes or bad acts.”[fn4] The factors that a trial judge must examine w hen deciding whether to admit evidence of a defendant’s other acts under Rule 404(b)(4) are the following: (1) the strength of the government’s evidence that the defendant actually committed the other acts; (2) the character trait the other acts tend to prove; (3) whether this character trait is relevant to any material issue in the case; (4) how seriously this issue is disputed; (5) whether litigation of the defendant’s other acts will require an inordinate amount of time; and (6) whether the evidence of the defendant’s other acts will lead the jury to decide the case on improper grounds.[fn5]

The trial judge must conduct this balancing test and must explain its decision on the record.[fn6] But trial judges are not required explain their analysis of each Bingaman factor in every case.[fn7] We review a trial court’s decision to admit evidence of the defendant’s prior bad acts under Rule 404(b)(4) for abuse of discretion.[fn8]

In Jackson’s case, the trial judge expressly stated his conclusions on several of these factors. The judge concluded the State’s evidence of the prior incident was strong, the incident was similar to the charged offense, the incident was relevant to thePage 6
issue of identity, the testimony would not be lengthy, and there was “little likelihood that a jury would consider the case on improper grounds.”

The judge’s findings on these factors are supported by the record. The judge reasonably concluded that the State presented strong evidence of the prior incident. Whisamore testified at the pretrial hearing about the incident where Jackson pulled her out of a nightclub and tried to force her into his truck. On appeal, Jackson asserts that the evidence was weak because there was no police report and Whisamore did not know certain details such as the name of the club. But Jackson had submitted no contrary testimony at the time the trial judge made his ruling. Given this record, it was reasonable for the judge to conclude that there was sufficient evidence that the prior act occurred.

There was also substantial similarity between the incident with Whisamore and the incident with Cundiff. Both instances involved situations where Jackson’s girlfriends were in public with Jackson when he suddenly wanted to leave. Jackson forced both women outside in each instance and attempted to force the women into his truck.

Unlike Cundiff, however, there was no indication that Whisamore was actually injured. Whisamore’s testimony was not lengthy or inflammatory, and it did not take up an inordinate portion of the trial. There was therefore little likelihood that the jury would decide the case on improper grounds.

The trial judge’s conclusions on the remaining factors were implicit in his decision. For example, it was apparent that Whisamore’s testimony was relevant to an issue that was seriously disputed. Jackson’s defense was that he did not commit the assault on Cundiff. Although the State had Cundiff’s testimony, the State also had a legitimate need to show that, because of Jackson’s history of assaultive conduct, he was likely the individual who assaulted Cundiff.Page 7

Moreover, the trial judge minimized any potential prejudice when he instructed the jury that “evidence of the defendant’s other acts is never sufficient standing alone to justify the defendant’s conviction,” that “it is the government’s burden to prove beyond a reasonable doubt that the defendant committed the crime currently charged,” and that the State could not meet its burden “simply by showing that the defendant has committed a similar act in the past.”[fn9]

In summary, Whisamore’s testimony was not so unfairly prejudicial as to require exclusion under Evidence Rule 403. The trial judge specifically considered the Bingaman factors when deciding whether to allow this testimony, and his decision was not an abuse of discretion.

We therefore AFFIRM the superior court’s judgment.

[fn1] AS 11.41.210(a)(2).

[fn2] Alaska Evid. R. 404(b)(1).

[fn3] Bingaman v. State, 76 P.3d 398, 408 (Alaska App. 2003).

[fn4] Bennett v. Anchorage, 205 P.3d 1113, 1117 (Alaska App. 2009) (discussing Bingaman, 76 P.3d at 415-16).

[fn5] Bingaman, 76 P.3d at 415-16.

[fn6] Id. at 416.

[fn7] Bennett, 205 P.3d at 1119.

[fn8] Id. at 1118.

[fn9] See generally Harris v. State, 195 P.3d 161, 183 (Alaska App. 2008).Page 1