Opinion
Court of Appeals No. A-9506.
June 6, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge, Trial Court No. 4FA-04-4494 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Tariq Eskridge of attempted first-degree assault, a lesser included offense of the charge for which he was indicted, attempted first-degree murder. Eskridge raises a single issue in this appeal. Eskridge contends that the superior court abused its discretion when it overruled his objection to evidence that he contended was inadmissible under Evidence Rule 404(b).
AS 11.41.200 AS 11.31.100.
AS 11.41.100 AS 11.31.100.
We conclude that the superior court did not abuse its discretion when it ruled the challenged evidence admissible. Therefore, we affirm Eskridge's conviction.
Background facts and proceedings
Eskridge was charged with attempting to kill Fairbanks Police Officer Matthew Soden a few minutes after Eskridge tried to force his way into Wayne Jex's residence. Eskridge knocked on Jex's door, and when Jex answered the door by opening it slightly, Eskridge's dog ran inside. (Jex and Eskridge did not know each other.) Eskridge tried to follow his dog, but Jex did not want Eskridge to come inside and decided to close the door. Jex leaned on the door "real hard" and managed to close the door despite Eskridge's attempt to get in. Jex got his loaded .44 magnum revolver and called 911.
Eskridge called out, asking for his dog back. The dog and one of Jex's cats started growling and snarling at each other, creating a lot of noise. Eskridge left, apparently on foot, without the dog.
Officer Soden, who was the second officer to arrive on the scene, cruised Jex's neighborhood on the lookout for any possible suspects. A few blocks from Jex's residence, Soden saw an individual (Eskridge) on foot. Soden had received a radioed report of the suspect's description, and Eskridge shared characteristics with the suspect. Soden tried to contact Eskridge, but Eskridge hurried to the door of Louis Shepherd's residence and knocked. (Shepherd and Eskridge also did not know each other.) Shepherd answered the door and Eskridge swept inside past Shepherd without invitation.
Several times, Eskridge signaled Shepherd to be quiet by putting his finger to his lips. However, Shepherd was upset with Eskridge's presence, and wanted Eskridge out of his home. Shepherd armed himself by picking up his inoperable Crossman CO2 pellet gun. Shepherd held the gun in his left hand so the absence of the CO2 cartridge would not be visible to Eskridge in the event Eskridge understood the significance of the missing cartridge. Shepherd asked Eskridge if he wanted to die inside or outside the house.
When Officer Soden heard yelling from inside Shepherd's home, he went to the door and knocked. Shepherd answered the door with the Crossman CO2 pellet gun in his hand. Soden thought Shepherd was holding a revolver.
Soden asked Shepherd what was going on and why Shepherd had the revolver in his hand. Shepherd had his back turned to Eskridge and quietly told Soden that he was not holding an actual revolver. Officer Soden briefly examined the pellet gun, concluded that it was not an actual revolver, and asked Shepherd to put the pellet gun away. Soden stepped inside to contact Eskridge.
Soden spoke to Eskridge but Eskridge did not respond other than to stare blankly at Soden. Soden decided to handcuff Eskridge. As Officer Soden told Eskridge to turn around and kneel down, Shepherd passed between Soden and Eskridge.
Eskridge lunged at Shepherd and grabbed for the pellet gun. Officer Soden removed his hand-held electric shocking device from its holster while Eskridge and Shepherd struggled. Eskridge gained control of the pellet gun, pointed it at Soden's face in a two-handed grip, and repeatedly pulled the trigger. At the same time, Soden activated the shocking device and temporarily disabled Eskridge. Another police officer arrived and the two officers handcuffed Eskridge.
The State did not charge Eskridge for any misconduct that day other than the attempted first-degree murder of Soden.
Apparently, the case had received substantial local publicity, because minutes before the jury panel was to be summoned, Superior Court Judge Niesje J. Steinkruger asked the parties to assist with a summary of the facts of the case which was to be read to the jury so that the court and the parties could identify the jurors who might recall media coverage of the case. While providing the court with this assistance, Eskridge stated that the jury should not be informed of his contact with Jex because it was "404(b) evidence."
Noting that Eskridge had let the normal motion deadline pass, Judge Steinkruger informed Eskridge she would address whatever he might raise as a motion in limine later. During a break in jury selection, the court addressed Eskridge's request to bar the evidence of his contact with Jex. The court considered the parties' arguments and the State's proffer of the likely evidence. Judge Steinkruger ruled that the evidence was relevant for a non-propensity purpose — Eskridge's state of mind and intent — and that the probative value of the evidence outweighed any potential for unfair prejudice. Part of the court's rationale was that the evidence of Eskridge's contact with Jex was part of "the complete string of actions" that helped explain "what actions defendant was willing to take or not take in order to not have subsequent contact with the police. . . ."
The jury convicted Eskridge of the lesser included offense of attempted first-degree assault. Eskridge appeals.
Discussion
We uphold a trial judge's decision on the admissibility of evidence unless we are convinced that the trial court abused its discretion. When a trial judge considers the admissibility of "other acts evidence" under Alaska Evidence Rule 404(b)(1), the trial judge must conduct a two-step analysis. First, the court must decide if the evidence has relevance apart from the defendant's propensity to engage in similar misconduct. Second, if the court determines that the evidence has some relevance apart from propensity, it must determine whether the nonpropensity relevance outweighs the prejudicial impact under Alaska Evidence Rule 403.
Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).
Lerchenstein v. State, 697 P.2d 312, 315-16 (Alaska App. 1985), aff'd, 726 P.2d 546 (Alaska 1986).
Id.
Id. at 316.
In several cases, we have approved the admission of evidence that a defendant committed a related offense shortly before another offense. In Hoffman v. State, Hoffman was charged with sexual assault and raised the defense of consent. We approved the admission of evidence that Hoffman had sexually assaulted another victim immediately before the charged assault, reasoning that the earlier assault was relevant to the charged offense because it could be "inferred that Hoffman was in the same emotional state during both encounters." In Hoffman, we relied on Lerchenstein v. State, in which we held "that Evidence Rule 404(b) allowed the introduction of evidence that a murder defendant had been `angry and combative . . . immediately prior to the [homicide].'"
950 P.2d 141 (Alaska App. 1997).
Id. at 147.
Id.
Hoffman, 950 P.2d at 147 (quoting Lerchenstein, 697 P.2d at 319) (alteration in Hoffman).
In Miller v. State, we held that Miller's participation in a robbery and burglary at a nearby residence less than one hour before a homicide was "relevant to establish Miller's state of mind at the time of the murder, to show that he was acting in concert with [his codefendant], and to prove his capacity to form the specific intent required for murder." Similarly, in Ciervo v. State, we upheld the admission of evidence of a confrontation between Ciervo and another individual five hours before the charged shooting.
778 P.2d 593 (Alaska App. 1989).
Id. at 596-97.
756 P.2d 907 (Alaska App. 1988), overruled on other grounds by Swain v. State, 817 P.2d 927, 931-34 (Alaska App. 1991).
Id. at 911.
The evidence of Eskridge's conduct at Jex's home occurred minutes before and only a few blocks from Eskridge's entry into the Shepherd residence and was admissible to show Eskridge's state of mind while inside the Shepherd residence. Judge Steinkruger could reasonably conclude that the probative value of this evidence outweighed any danger of unfair prejudice. We thus conclude that the superior court did not abuse its discretion when it admitted this evidence. Therefore, we affirm Eskridge's conviction.
Conclusion
The judgment of the superior court is AFFIRMED.