Opinion
Court of Appeals No. A-8920.
August 23, 2006.
Appeal from the Superior Court, First Judicial District, Ketchikan, Michael A. Thompson, Judge. Trial Court No. 1KE-03-685 CR.
Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
In June 2003, Steven L. Reed, a convicted felon, broke into his ex-girlfriend's residence near Ketchikan while armed with a loaded handgun and confronted her. After half an hour, Jody Ostrom, the ex-girlfriend, escaped by jumping out of an open window while holding her three-year-old son. For Reed's misconduct, the grand jury returned a five-count indictment that included one count of kidnapping. Reed was convicted on all counts at trial.
AS 11.41.300(a)(1) (2).
In this appeal, Reed claims that the prosecutor's instructions to the grand jury on kidnapping inadequately defined the restraint necessary to commit kidnapping. He also claims that the State presented insufficient evidence to the grand jury to support the kidnapping charge.
We reject Reed's grand jury claims, concluding that the State presented sufficient evidence to support the indictment and that even if the grand jury had received a more thorough instruction defining restraint, the grand jury would still have indicted Reed.
Reed also claims that insufficient evidence supported the trial jury's verdict convicting him of kidnapping. But fair-minded jurors exercising reasonable judgment could conclude that the prosecution had proven its case beyond a reasonable doubt.
Finally, Reed attacks the superior court's decision to admit evidence of two incidents, one that arose in 1993, and the other that arose in 1996. We conclude that the superior court did not abuse its discretion when it admitted evidence of the 1996 incident. We conclude that the court erred in admitting evidence of the 1993 incident, but conclude that the error is harmless. Accordingly, we affirm Reed's convictions.
Background and proceedings
Reed and Ostrom began dating in 1999 and moved in together shortly thereafter. When problems arose in their relationship, Reed moved into a small cabin on Ostrom's property.
Reed and Ostrom had a three-year-old son, Julian. Reed would visit with Julian in his cabin and, at times, would not return Julian to Ostrom at night. Ostrom worried that Reed would take Julian and not return him at all.
Reed also placed threatening phone calls to Ostrom. Based on these calls, a magistrate granted Ostrom's request for a protective order against Reed.
During the evening of June 17, 2003, Ostrom was lying in bed with her son Julian and talking to her friend Sonja Alvarez on the telephone when she heard the glass in her front door break. Alvarez told Ostrom that she would call 911.
Alvarez called 911 at 9:58 p.m. and talked first to a dispatcher at the Ketchikan Police Department (KPD) who put her through to the trooper dispatcher (Ostrom's house was located outside the jurisdiction of the KPD). Alvarez gave the trooper dispatcher directions to Ostrom's house and Ostrom's cell phone number.
Meanwhile, the intruder (Reed) broke through the front door. Ostrom locked the bedroom door, but Reed kicked the door in, holding a handgun. Reed said that he and Ostrom needed to talk. Ostrom responded, "Okay, let's talk." Reed did not put the gun away, and Ostrom feared that Reed would kill her and her son.
Ostrom suggested that Reed throw the gun over a nearby cliff. She advised him that Alvarez was calling the cops, and if Reed threw the gun over the edge and left, she would not tell them anything about him being there.
Reed refused. He told Ostrom that he had come to "take care of everything" and that it "was time to end the bad seed." Ostrom thought this meant that Reed was going to kill her son Julian. Ostrom screamed, "Are you talking about Julian?", but Reed did not answer. Instead, he put the gun in his mouth, suggesting that he might also be referring to himself.
After Alvarez finished talking with the trooper dispatcher, she called Ostrom's tenants, who were renting the upstairs part of her house. One of the tenants, Thomas Guadagno, answered. He had heard the glass break downstairs and the yelling but did not know what to do. Alvarez told Guadagno that she had just called the police and asked Guadagno to please go check on Ostrom. Alvarez stayed on the line while Guadagno went down the exterior stairs and asked from outside whether Ostrom was okay. Ostrom yelled "no." Reed told Guadagno that if he wanted to see Ostrom alive again, he should leave. Guadagno left and called 911. At this point, Ostrom was still terrified that Reed would kill her and Julian, and she did not feel free to leave the apartment.
The trooper dispatcher, Sharon Furey, called Ostrom's number. Furey could hear that Ostrom was hysterical and that Reed was threatening her with the gun. Furey asked Ostrom whether she thought Reed would let her leave. Ostrom said no and told Furey that Reed was trying to get her to go upstairs with him. Ostrom thought Reed would shoot her if she left.
Ostrom was also afraid that if she went upstairs, Reed would rape and kill her. She worried about leaving Julian downstairs with all the broken glass around. Ostrom refused to go upstairs with Reed and leave Julian's side.
Reed continued to point the gun at himself and threatened to commit suicide. At one point, Ostrom begged Reed not to kill himself in front of Julian. Ostrom thought that Reed was threatening suicide in an effort to control her.
Reed began turning off the lights in the apartment and looking out the windows, apparently to see if the police were outside. At one point, Reed instructed Ostrom to open a window. Ostrom thought he had decided to leave, so she opened the curtain, removed the screen, and cranked the window open. But as soon as she did, Reed told her he meant the curtain, not the window.
Reed took the telephone from Ostrom and talked to the dispatcher. He told the dispatcher that he was not "fucking around" and that if the troopers stayed away, Ostrom and Julian "would walk." While Reed was on the phone and walking around the apartment looking out windows, Ostrom picked up Julian and jumped out the open window. Reed came to the window after Ostrom but was too big to fit through the window. Ostrom ran across the yard and into some brush.
The grand jury indicted Reed on one count of first-degree burglary, one count of third-degree assault, two counts of third-degree misconduct involving weapons, and one count of kidnapping.
AS 11.46.300(a)(1).
AS 11.41.220(a)(1)(A) ("A person commits the crime of assault in the third degree if that person recklessly places another person in fear of imminent serious physical injury by means of a dangerous instrument[.]").
AS 11.61.200(a)(1) (a)(9).
AS 11.41.300(a)(1)(C) (2)(B).
Reed moved to dismiss the indictment, arguing that the prosecutor presented prejudicial evidence to the grand jury, that the prosecutor presented false hearsay evidence, and that the State failed to preserve evidence. Reed also moved to dismiss the indictment for kidnapping on the ground that there was insufficient evidence presented to the grand jury to prove restraint. Superior Court Judge Michael A. Thompson denied Reed's motion to dismiss.
Before trial, the State filed notice of its intent to offer evidence under Evidence Rule 404. In particular, the State sought to admit evidence of three prior bad acts: a stalking conviction arising from conduct in 1996 and the surrounding circumstances; a 1993 incident in which Reed locked himself in his bedroom with his baby; and an assault conviction from 1988. Reed opposed the introduction of this evidence.
Judge Thompson ruled that the State could introduce evidence of the first two incidents because they were sufficiently similar to the charged offense. But he ruled that the 1988 conviction was more prejudicial than probative.
Reed was convicted at trial and now appeals.
The grand jury issues
The State charged Reed with kidnapping under two theories: that Reed kidnapped Ostrom by restraining her with the intent to inflict physical injury upon or sexually assault her or to place her or a third person in apprehension that any person would be subject to serious physical injury or sexual assault; or that Reed restrained Ostrom under circumstances which exposed her to a substantial risk of serious physical injury.
See AS 11.41.300(a)(1)(C) (2)(B).
In addition to the evidence noted above, Ostrom testified at grand jury that she suspected the intruder was Reed and jumped up to lock the bedroom door. Reed broke down the door and entered the bedroom, swinging a .357 caliber Ruger Blackhawk revolver. Reed said "we have to talk." Ostrom testified that she thought Reed was going to kill her and her three-year-old son because Reed said that he had made up his mind to "end the bad seed." The "only thing [Ostrom] could think of . . . was he was going to kill [her] three-year-old boy and then [Ostrom] and himself."
Reed told Ostrom to go upstairs and kick her tenants out because "he was going to take care of all the business upstairs[.]" Ostrom refused, and Reed did not force her. Ostrom testified that she tried to leave, but Reed blocked her way.
Reed argues that any restraint was incidental to his crime of assault. Reed contends that the facts of his case resemble the circumstances in Alam v. State. In Alam, we narrowed the construction of the kidnapping statute in conformity with the legislature's commentary. The commentary demonstrated that the legislature did not want the kidnapping statute to be interpreted as broadly as the literal wording of "restrain" might suggest. The legislature declared that "[m]ovements that are merely incidental to the commission of another crime" do not constitute kidnapping.
776 P.2d 345 (Alaska App. 1989) ( Alam I), appeal after remand, 793 P.2d 1081 (Alaska App. 1990) ( Alam II).
Alam I, 776 P.2d at 348 (quoting Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 18, 1978 Senate Journal).
Based on the legislative commentary, we held in Alam that when a defendant restrains a victim to facilitate the commission of another offense, the restraint will not support a kidnapping conviction if the restraint is merely "incidental" to the commission of the other offense. To support a separate conviction for kidnapping, a defendant's restraint of a victim must exceed "either [temporally] or spatially . . . what was necessary to commit [the other offense]."
Alam I, 776 P.2d at 349.
Alam II, 793 P.2d at 1083-84.
Reed contends that any restraint of Ostrom was merely incidental to the restraint occurring because of his third-degree assault of Ostrom. But under the facts of Reed's case, the third-degree assault was complete when Reed burst through the bedroom door waving the .357 revolver, causing Ostrom to fear serious physical injury. Almost half an hour lapsed before Ostrom was able to pick up her sleeping child and jump through an open window. In that interval, Reed voiced several threatening comments and at one point physically barred Ostrom from leaving. The evidence at grand jury showed that Reed restrained Ostrom more than was incidental to the third-degree assault.
Furthermore, Reed's restraint of Ostrom increased the risk Ostrom would be harmed. Ostrom was in Reed's general control. Reed had a loaded handgun, and Reed handled the gun recklessly, creating a risk that Ostrom would be injured.
Viewing the grand jury evidence in the light most favorable to upholding the indictment, the evidence is sufficient to support a finding that Ostrom's liberty and movements were substantially restricted by Reed's actions. Although Reed allowed Ostrom to open a window and talk to the trooper dispatcher, and Ostrom refused to go upstairs with Reed, Ostrom testified that she did not feel free to leave. Reed blocked her from leaving, and Reed told one of Ostrom's tenants to leave if he wanted Ostrom to live. When we view all of the facts of Reed's half-hour invasion of Ostrom's residence in the light most favorable to the indictment, the facts are sufficient to show that Reed restrained Ostrom and that the restraint was more than incidental to the assault.
See AS 11.41.370(3).
Reed next argues that the prosecutor's instructions on kidnapping were insufficient. The prosecutor provided the grand jury with the statutory definitions of "kidnapping" and "restraint." Reed argues that the prosecutor should also have provided the grand jury with the multi-factor analysis this court adopted in Hurd v. State.
22 P.3d 12 (Alaska App. 2001).
In Hurd, we described several factors to consider when determining whether a restraint is "incidental" to another offense or whether it is sufficient to support a separate conviction for kidnapping. A court should consider:
(1) how long the victim was restrained;
(2) if the victim was moved, how far the victim was moved and where the victim was taken;
(3) whether, under the facts, the restraint exceeded what was necessary for commission of the defendant's target crime;
(4) whether the restraint significantly increased the risk of harm to the victim beyond the risk of harm inherent in the target crime itself; and
(5) whether the restraint had some independent purpose — i.e., whether the restraint made it significantly easier for the defendant to commit the target crime or made it significantly easier for the defendant to escape detection.
Id. at 19.
When the Hurd factors are applied to the evidence presented to the grand jury and discussed at length above, it is obvious that the restraint imposed by Reed was more than incidental to his assault. Even if it was error not to instruct the grand jury on the Hurd factors, that error did not appreciably affect the outcome of the grand jury's deliberations. Sufficiency of the evidence at trial
See Oxereok v. State, 611 P.2d 913, 916 (Alaska 1980) (evidence was sufficient to return indictment even without inadmissible hearsay).
Reed argues that the evidence at trial was insufficient to support his conviction for kidnapping because the evidence did not support a finding that he restrained Ostrom beyond what was necessary to commit assault. Reed contends that, because he allowed Ostrom to open a window, talk on the phone, and refuse to go upstairs with him, he did not substantially interfere with her liberty.
Viewing the evidence in the light most favorable to the State, we conclude that fair-minded jurors exercising reasonable judgment could conclude beyond a reasonable doubt that the State had proven that Ostrom was restrained by Reed. In particular, Reed prevented Ostrom from leaving by blocking the door to the apartment; told Guadagno to leave if he wanted to see Ostrom alive again; tried to get Ostrom to go upstairs with him; and suggested that he would kill Ostrom and Julian if the troopers approached the house. Ostrom was only able to leave because she jumped out the window while Reed was distracted.
See Dorman v. State, 622 P.2d 448, 453-54 (Alaska 1981).
Reed's prior acts
Before trial, the State filed notice of its intent to offer evidence of three of Reed's prior acts pursuant to Alaska Evidence Rules 404(b)(4) and 404(b)(1). The State did not specify which of the three incidents were admissible as prior crimes involving domestic violence under Rule 404(b)(4) and which were admissible under Rule 404(b)(1). Reed opposed the State's proposed evidence. He argued that his prior conviction for stalking (the 1996 incident) was more prejudicial than probative and would cause the jury to convict Reed on the basis of its emotional response to that evidence rather than the evidence in this case. He also argued that his act of locking himself in his bedroom with his infant daughter (the 1993 incident) was not admissible under Rule 404(b)(4) because it was not a crime of domestic violence nor admissible under Rule 404(b)(1) because its only relevance was as propensity evidence. Finally, Reed argued that his assault on a police officer in 1988 was not admissible because it was not a crime of domestic violence, it was only relevant to prove Reed's propensity to commit assault, and was more prejudicial than probative.
After considering the factors set forth in Bingaman v. State, Judge Thompson ruled the 1996 stalking conviction fell "squarely in the territory that the legislature, if they thought about it very much, would have proved even if they would have drawn a more circumscribed rule in 404(b). So certainly that should be admitted." Judge Thompson reasoned that this incident was relevant because it arose out of a domestic disturbance and tended to prove that Reed deals with domestic issues in a forceful manner rather than a verbal one and that he "asserts his authority" through the use of force, including a weapon. He further found that this incident was similar to the case at hand because both involved Reed restraining a former girlfriend.
76 P.3d 398 (Alaska App. 2003).
Judge Thompson also ruled that the State could admit evidence of Reed's "bedroom barricade," the 1993 incident. He reasoned that the 1993 incident was not as remote as the 1988 incident, it involved a member of Reed's family, the person Reed barricaded was an infant and an infant was involved in this case, and the situational behavior in that case resembled that at issue here. Judge Thompson found that "it illustrates in graphic detail . . . how far the defendant is willing to go with his domestic — with members of his domestic situation for his own needs, whatever those needs might be." He noted, however, that it was unclear whether this was a "separate criminal offense," but it qualified in the sense that it illustrated that Reed acted out his own difficulties with members of his household. Judge Thompson also suggested that the legislature intended this kind of evidence to come in.
The State presented evidence of the 1996 incident through the testimony of Officer Alan Bengaard and Trooper Albert Charlton. They both testified that law enforcement received a report in August 1996 that Reed had abducted somebody, later identified as Stacy Moore, had her in his pickup truck, and was driving towards the Ketchikan city limits. Trooper Charlton testified that the police set up a road block to try to stop Reed. Before Reed reached the road block, however, the troopers received a report that Moore was out of the vehicle but that Reed was on his way to Ketchikan. When Reed reached the road block, he slowed down and put his hands on the wheel as instructed, but when Trooper Charlton ordered him to stop, he refused. Charlton shot out three of Reed's tires, but Reed proceeded to drive on flat tires. The troopers pursued Reed. Reed eventually jumped out of the truck, ran up a hill, and broke through the door of his parents' house, at which point he was taken into custody. A copy of the stalking judgment was admitted at trial.
Reed argues on appeal that Judge Thompson erred in allowing the State to present evidence of his prior bad acts. He further contends that he was prejudiced by this evidence because the prosecution encouraged the jury to convict Reed based on these prior incidents rather than the evidence of his current offense.
The conduct underlying Reed's stalking conviction, Reed restraining another woman with whom he had had a relationship and a child, paralleled Reed's conduct in this case. Thus, it was admissible under Rule 404(b)(4) as evidence of a crime involving domestic violence and under Rule 404(b)(1) to show Reed's motive or intent in this case.
Reed argues that much of the evidence centered on the details of the police chase and not on his abduction of the woman and the facts supporting the stalking conviction. But when Judge Thompson ruled that the 1996 incident was admissible, he noted that, during trial, when the State was about to present the evidence, the parties could discuss any objections to the form or the content of the evidence. When the police testified about the details of the chase and shooting out Reed's tires, Reed did not object.
Although the evidence about the chase and the police shooting out Reed's tires had little relevance to the stalking conviction and was arguably prejudicial, Reed did not object to that evidence. Reed objected to the stalking conviction, and that evidence was admissible. It was Reed's obligation to object if the State's presentation of the evidence went beyond Judge Thompson's ruling. We conclude Reed did not preserve an objection to this evidence.
We turn now to the 1993 incident. Reed argues that the 1993 incident is not admissible under Rule 404(b)(4) because it did not involve a "crime," and it was not relevant. "Crime involving domestic violence" is broadly defined for purposes of Rule 404(b)(4) as any crime against the person under AS 11.41, burglary, criminal trespass, arson, criminal mischief, terrorist threatening, violating a protective order, or harassment, when committed by one household member against another household member. The 1993 incident involved two members of Reed's domestic household, his daughter and live-in girlfriend. But Reed contends that he did not commit a crime by being in his bedroom with his own child. And, Judge Thompson seems to have acknowledged as much when he said that "whether or not it actually constitutes a separate criminal offense is a different matter."
AS 18.66.990. See also Bingaman, 76 P.3d at 407.
The State contends that Reed's actions in 1993 amounted to kidnapping under AS 11.41.300(a)(1)(B) because Reed used his daughter to prevent anyone from entering the bedroom, removing him from the bedroom, or arresting him on an outstanding bench warrant. But the evidence presented at trial is insufficient to establish that Reed restrained his daughter with the intent to use her as a shield or hostage. As Reed points out, his daughter was a baby who could not get around on her own or express a desire to be released. Although Officer Bengaard testified that the police decided not to arrest Reed on the bench warrant because they did not want to endanger the child, the State presented no evidence to suggest that Reed intentionally used his daughter to prevent his arrest. The fact that Reed had been locked in the bedroom for four hours before the police arrived suggests that Reed did not lock himself in the bedroom in order to prevent his own removal and arrest. We conclude that the evidence of the 1993 incident was not admissible under Rule 404(b)(4) because it has not been shown that Reed's actions constituted a crime involving domestic violence.
AS 11.41.300(a)(1)(B) provides that a person commits the crime of kidnapping if he restrains another person "with intent to use the restrained person as a shield or hostage."
The State argues that this evidence was admissible to show Reed's intent under Rule 404(b)(1). Reed's intent was a contested issue at trial. But Reed's intent in the 1993 incident was uncertain. Obviously, Reed's conduct showed that Reed had an unusual response to whatever caused a conflict between himself and his domestic partner. He did refuse to give his daughter to her mother or to let anyone but his father enter the room where Reed had his daughter. We conclude that the 1993 incident did not tend to show Reed's motive or intent in this case.
Finally, we agree with Reed that the 1993 incident was not relevant. As we noted in Bingaman, Rule 402 provides that evidence that is relevant to an issue in the case is presumptively admissible, and correspondingly, evidence that is not relevant is not admissible. But we conclude that the evidence of the 1993 incident did not tend to make the existence of any material fact in the case more or less likely. While the incident tended to show Reed's capacity for curious behavior and, by inference, an unusual character, this evidence did not tend to illuminate Reed's motive, intent, or mental state for the events in question here.
See Bingaman, 76 P.3d at 408.
Although we conclude the 1993 incident was not admissible, we also conclude that the error was harmless. The evidence supporting Reed's convictions was particularly strong. Reed broke into Ostrom's residence through the front door and broke into her bedroom while armed with a handgun. He restrained her for nearly half an hour before Ostrom jumped from a window with her son in her arms. Reed had a restraining order barring contact. We conclude that the admission of the 1993 incident did not appreciably affect the jury's verdict.
See Love v. State, 457 P.2d 622, 629-32 (Alaska 1969) (holding that the test for harmless error is whether it can be fairly said that the error did not appreciably affect the jury's verdict).
Conclusion
The judgment of the superior court is AFFIRMED.
I agree with the majority that Judge Thompson abused his discretion in allowing the State to admit evidence of the 1993 incident in which Reed locked himself in his bedroom with his baby. But looking at the entire record, including the State's evidence about Reed's conduct after the incident that led to his 1996 stalking conviction, I am unable to join the majority's conclusion that admission of the 1993 incident did not appreciably affect the kidnapping conviction in this case.
We have consistently recognized that proving a defendant's character by admitting evidence of specific bad acts poses a great danger of unfairly prejudicing a jury. In this case, the jury heard inadmissible evidence that Reed had barricaded himself in his bedroom with an infant. The jury also heard other irrelevant testimony about Reed's prior bad acts. The trial court permitted the State to enter a redacted copy of Reed's 1996 stalking conviction. But, in addition, the State presented extensive testimony from a trooper about the 1996 incident that was irrelevant to the existence of that conviction. According to the trooper, he received a report that "Reed had abducted somebody." The trooper described how he set up a roadblock. How Reed, who was alone in his truck, came towards the roadblock and slowed down. How the trooper ordered him to stop. That when Reed refused and tried to go around the roadblock, the troopers had to shoot out Reed's tires. How Reed evaded roadblocks, forced an officer off the road, ran from his truck, and was eventually taken into custody.
See Bingaman v. State, 76 P.3d 398, 416 (Alaska App. 2003).
Even assuming the admission of the redacted copy of Reed's 1996 stalking conviction was proper, the trooper's testimony of Reed's apprehension was irrelevant and thus inadmissible. Although Reed objected generally to admission of this incident, it appears that Reed did not offer a proper objection to the specific details of the State's evidence. Standing alone, Reed's failure to offer a proper objection to this testimony would probably justify our refusal to find plain error.
But the question before us is whether Judge Thompson's erroneous ruling admitting evidence of the 1993 incident constituted harmless error. The State discussed Reed's prior bad acts in arguing the case to the jury. The State argued to the jury that Reed had a life-long history of kidnapping people and knew how he could use a baby to get the police to do what he wanted them to do. I conclude that Reed may very well have been prejudiced by the trial court's erroneous admission of the evidence of the 1993 incident in the context of the other evidence that the State was able to present and argue in this case. I am therefore unable to conclude that the trial court's error was harmless as to Reed's conviction for kidnapping. I agree with the majority in affirming Reed's other convictions.