O’DONNELL v. STATE, A-10543 (Alaska App. 6-29-2011)

LEON LEE O’DONNELL, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10543.Court of Appeals of Alaska.
June 29, 2011.

Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-08-3155 CR.

Beth Lewis Trimmer and Robert Lee Griffin, Assistant Public Advocates, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, 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.

Leon Lee O’Donnell was convicted of felony assault charges committed against E.W., a woman he had dated on and off for three or four years. He argues that the superior court should not have admitted evidence of two prior incidents of domestic violence under Evidence Rule 404(b)(4). He argues that the term “dating” used inPage 2
defining domestic violence is unconstitutionally vague and that the prejudice from the evidence of these prior incidents outweighed its probative value. We recently concluded that the term “dating” is sufficiently definite for a court to apply, [fn1] and our decision resolves O’Donnell’s constitutional claim. We also conclude that the trial judge did not abuse his discretion when he admitted these two prior incidents.

O’Donnell also argues that the court should have declared a mistrial because the State’s expert based part of her opinion on testimony by E.W. that was not provided in pretrial discovery. We conclude that O’Donnell waived his objection to the discovery violation by failing to object to E.W.’s testimony or to the expert’s opinion. And we conclude that O’Donnell has shown no prejudice because the expert could legitimately base her opinion on E.W.’s trial testimony.


On October 30, 2008, E.W. went with O’Donnell from Anchorage to his one-bedroom trailer in Big Lake. O’Donnell tried to start the generator, while E.W. stayed in the truck and began drinking. According to E.W., O’Donnell returned to the truck and began strangling her with his hands. She was not certain whether she provoked O’Donnell or whether he was upset about the malfunctioning generator.

E.W. felt like she “couldn’t breathe” and estimated that O’Donnell strangled her for approximately ten minutes. After E.W. stopped moving, O’Donnell started hitting her and pulling her hair. O’Donnell told E.W. that he was going to kill her and threatened to cut up her body and burn it in a barrel along with his trash.Page 3

O’Donnell eventually left E.W. alone and tried again to start the generator. E.W. called 911 from her cell phone. Alaska State Trooper James Streicher responded to the 911 call, but he did not find the trailer until approximately eight hours after the call.

Streicher observed red marks on E.W.’s cheeks and purple and yellow marks on her neck. When Streicher asked E.W. about the marks on her neck, E.W. initially told him the marks were hickeys since she did not want O’Donnell to go to jail. Streicher continued to question E.W. about the marks, and E.W. eventually admitted that O’Donnell strangled her.

At trial, O’Donnell’s attorney argued that E.W. was not a credible witness and that there was insufficient evidence to prove that she had been strangled.

O’Donnell was convicted of one count of second-degree assault by intentionally causing physical injury to E.W. and two counts of third-degree assault by recklessly placing E.W. in fear of imminent serious physical injury and recklessly causing physical injury to E.W. These three convictions were merged for sentencing purposes. He now appeals.

Is the rule allowing evidence of prior incidents of domesticviolence void for vagueness because it includes violence betweenpeople who are “dating”?

Evidence Rule 404(b)(4) states 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.” A “crime involvingPage 4
domestic violence” includes an assault committed against another “household member.” A “household member” includes “adults or minors who are dating or who have dated.”[fn2] Prior to trial, the State filed a notice of its intent to introduce evidence of several prior acts of domestic violence committed by O’Donnell against other women. O’Donnell’s attorney objected, saying that the State had not established that O’Donnell and E.W. were dating in order to qualify this case as one involving domestic violence. The trial court found that there was sufficient evidence that O’Donnell and E.W. had dated to satisfy the definition of a household member.

On appeal, O’Donnell argues that the definition of a household member, and specifically the phrase “adults or minors who are dating or who have dated,” is unconstitutionally vague. O’Donnell did not make this argument at trial, so now he must show plain error.[fn3]
O’Donnell cannot show plain error because we recently held that this definition is not unconstitutionally vague.

In Bates v. State, we concluded that the traditional vagueness test does not apply to the definitions used in this evidence rule.[fn4] The evidence rule does not restrict anyone’s freedom of choice or freedom of association.[fn5] The alleged ambiguity in this definition does not deprive anyone of fair notice of what conduct the law requires or forbids; it only determines what evidence will be admissible at trial.[fn6] And any ambiguityPage 5
in the term “dating” presents no danger of discriminatory enforcement since the term has no bearing on the elements of the crime of assault.[fn7]

O’Donnell does have an interest in “having the trial judge apply the law of evidence rationally and even-handedly.”[fn8] But the use of the term “dating” in the definition of a household member does not result in a definition that is “so conflicting [or] confused that it cannot be given meaning in the adjudication process.”[fn9]

O’Donnell also asserts that there was insufficient evidence to establish that he was “dating” E.W. On this issue, E.W. testified that she met O’Donnell in 2004 or 2005 and that they dated “on and off” for three or four years. There was no evidence to the contrary. We conclude that there was sufficient evidence to support Judge Smith’s finding that E.W. and O’Donnell were dating.

Did the superior court properly admit two prior incidentsinvolving domestic violence?

Judge Smith allowed the State to introduce evidence of two prior acts of domestic violence committed by O’Donnell: a 1997 incident committed against I.A. and a 2006 incident committed against R.W. O’Donnell objected to the admission of both incidents, and he now argues that the court erred by admitting this evidence.

In Bingaman v. State, this court outlined several factors that a trial judge should examine when deciding whether to admit evidence of a defendant’s other acts under Evidence Rule 404(b)(4): (1) the strength of the government’s evidence that thePage 6
defendant actually committed the other acts; (2) the character trait the other acts tend to prove; (3) whether this character trait is relevant to a material issue in the case; (4) how seriously this material 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.[fn10]

In O’Donnell’s case, the trial judge explained his conclusions on several of the Bingaman factors. Speaking about both the 1997 and 2006 incidents, the court made the following conclusions: (1) that the government’s evidence was strong since O’Donnell was convicted of both incidents; (2) the relevant character trait in the previous incidents was related to the manner of attack in the current case and was a material issue in the case; (3) there was little reason to believe there would be “a major trial within a trial” or that the evidence would take up an “inordinate amount of time”; and (4) the court could provide a cautionary instruction that would mitigate the risk that the jury would consider the prior acts for improper purposes.

The judge’s findings on these factors are supported by the record. We conclude that the superior court’s decision to admit the evidence of these prior incidents of domestic violence was not an abuse of discretion.

Did the superior court properly deny O’Donnell’s motion for amistrial?

When E.W. was first interviewed by Streicher, the trooper did not observe symptoms of strangulation such as loss of consciousness, vomiting, hoarseness, or reddened eyes. In his opening statement, O’Donnell stated that this evidence indicated that E.W. had not been strangled. But when E.W. took the stand, she testified that herPage 7
neck was sore following the assault and her voice was hoarse. E.W. testified that the soreness in her neck lasted two or three days.

Tara Henry, an expert in the field of forensic nursing and domestic violence, testified about the general symptoms of strangulation and discussed the bruises on E.W.’s neck and face. During Henry’s testimony, she stated that the hoarseness of E.W.’s voice was a symptom of strangulation.

In response to a question from the jury, the court inquired about how E.W. could have a hoarse voice if her voice did not sound hoarse on the recording of her interview with Streicher. Henry explained how a victim of strangulation can experience delayed hoarseness. Then in response to questioning by defense counsel, Henry clarified that she did not have personal knowledge of whether E.W. was hoarse and was simply trying to explain how hoarseness might not occur immediately.

The next day, O’Donnell filed a motion for a mistrial. O’Donnell asserted that Henry went beyond the scope of the State’s notice about her testimony, which stated that Henry would testify about the general symptoms of strangulation. O’Donnell also claimed that Henry’s opinion was tainted by hearsay information obtained from the prosecutor. O’Donnell asserted that there was nothing in the pretrial discovery to indicate that E.W. experienced hoarseness.

The prosecutor admitted that he met with Henry the day before trial, and that Henry asked several questions about E.W. that the prosecutor could not answer. When the prosecutor asked E.W. these questions, E.W. told the prosecutor about her hoarseness. The prosecutor indicated that the failure to bring this new information about E.W.’s hoarseness to O’Donnell’s attention was an oversight.Page 8

The court ultimately concluded that there was a discovery violation, but Henry’s testimony about E.W.’s hoarseness was a “relatively minor” issue. The court denied O’Donnell’s motion for a mistrial.

For experts who testify at trial, Alaska Criminal Rule 16(b)(1)(B) provides that the prosecutor must “furnish to the defendant . . . a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying basis of that opinion.”[fn11] If the prosecutor fails to timely disclose this information, the defendant will be entitled to a continuance.[fn12]

The trial court properly concluded that there was a discovery violation in this case. The State’s notice of its intent to use Henry as an expert witness at trial stated that Henry would testify about the symptoms of strangulation, but did not include a written description of the substance of her testimony or the basis for her opinion. If O’Donnell had raised this issue in a timely manner, the court could have compelled the State to provide an expert report, continued the trial, or considered whether to preclude or limit the expert’s testimony. But O’Donnell did not raise any objection until after Henry had completed her testimony. It thus appears that O’Donnell waived any objection to the State’s failure to provide a written description of the basis for her opinion.

O’Donnell specifically argues that the judge should have declared a mistrial based on the State’s failure to disclose that Henry would rely on E.W.’s testimony that she suffered from hoarseness after the incident. A defendant may be entitled to a mistrial if the defendant offers a plausible way in which the defense case could have beenPage 9
prejudiced by a discovery violation.[fn13] But we conclude that O’Donnell did not suffer any recognizable prejudice.

O’Donnell’s motion for a mistrial was focused on the fact that the prosecutor told Henry about E.W .’s expected testimony on this issue. But Evidence Rule 703 allows an expert witness to base her opinion on “facts or data . . . made known to the expert at . . . the hearing.” O’Donnell did not object when E.W. testified about her hoarseness after the incident, so this testimony was a proper basis for an expert opinion. O’Donnell also did not object when Henry testified that E.W. had suffered from hoarseness. We conclude that O’Donnell has not identified any recognizable prejudice because Henry could have based her opinion on E.W.’s testimony, regardless of her conversation with the prosecutor before taking the stand.

Moreover, when O’Donnell cross-examined Henry on this issue Henry admitted that she did not have personal knowledge of whether or when E.W. was hoarse and indicated she did not listen to the recording of E.W.’s interview with the trooper.

O’Donnell does not identify a plausible way in which his defense was prejudiced by the untimely disclosure of the basis for this portion of Henry’s opinion. We conclude that the superior court’s decision to deny the motion for a mistrial was not an abuse of discretion.[fn14]Page 10

We AFFIRM the superior court’s judgment.

[fn1] See Bates v. State, ___ P.3d ___, Op. No. 2310, 2011 WL 2177298, at *12 (Alaska App. June 3, 2011).

[fn2] AS 18.66.990.

[fn3] R.R. v. State, 919 P.2d 754, 758 n. 6 (Alaska 1996),overruled on other grounds by Evans v. Taggart,88 P.3d 1078, 1085 n. 34 (Alaska 2004).

[fn4] Bates, 2011 WL 2177298, at *7.

[fn5] Id. at *5.

[fn6] Id.

[fn7] Id. at *6.

[fn8] Id.

[fn9] Id. at *7 (quoting Williams v. State, Dep’t ofRevenue, 895 P.2d 99, 105 (Alaska 1995)).

[fn10] 76 P.3d 398, 415-16 (Alaska App. 2003).

[fn11] Alaska R. Crim. P. 16(b)(1)(B).

[fn12] Id.

[fn13] See Friedmann v. State,172 P.3d 831, 833 (Alaska App. 2007) (“[I]f the trial has already started, and if the defendant’s preparation or presentation of the case has been prejudiced by the lack of this information, the trial court should ordinarily grant a defendant’s request for a mistrial.”).

[fn14] See generally Roussel v. State,115 P.3d 581, 585 (Alaska App. 2005) (reviewing the trial judge’s decision on a motion for a mistrial for abuse of discretion).Page 1