Opinion
A-13556
12-07-2022
ANTHONY ROBINSON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Matthew A. Michalski, Attorney at Law, Anchorage, for the Appellant. Sarah E. Stanley, Municipal Prosecutor, and Patrick N. Bergt, Municipal Attorney, Anchorage, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Third Judicial District, Anchorage, Trial Court No. 3AN-17-02504 CR Michael Franciosi, Judge.
Matthew A. Michalski, Attorney at Law, Anchorage, for the Appellant.
Sarah E. Stanley, Municipal Prosecutor, and Patrick N. Bergt, Municipal Attorney, Anchorage, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Anthony Robinson was convicted, following a jury trial, of one count of child abuse and one count of harassment for his conduct restraining a six-year-old patient while working as a nurse at North Star Behavioral Health. He raises a single issue on appeal.
Anchorage Municipal Code (AMC) 08.10.030(B).
AMC 08.10.110(A)(5).
Robinson testified in his own defense at trial. During his cross-examination, the prosecutor asked Robinson whether he expected to lose his nursing license if he were convicted: "And do you expect or anticipate that - or do you know that if you're convicted in this case, you'll lose your nursing license?" The defense attorney objected to the question and moved for a mistrial, arguing that it was impermissible for the jury to consider potential punishment or penalty. The trial court took the matter under advisement, and subsequently struck the entire exchange from the record. However, the trial court denied the motion for a mistrial and instead issued a curative instruction directing the jury to disregard that portion of the cross-examination.
Robinson now appeals, arguing that the curative instruction was insufficient and that the trial court abused its discretion when it denied the motion for a mistrial.
We note that the record on appeal indicates that Robinson answered the prosecutor's question in the affirmativei.e., he indicated that he believed he would lose his nursing license if he were convicted. However, Robinson's answer was provided at the same time that the defense attorney was making his objection and it does not appear that anyone heard the answer at the time. In its ruling, the trial court referred to there being no answer to the question. On appeal, Robinson's attorney likewise does not acknowledge that the question was answered. Instead, the attorney argues that it was plain error for the trial court to deny the motion for a mistrial because the prosecutor's question implied that Robinson would lose his nursing license if convicted but the governing statutes suggest that the decision was more discretionary. We find no merit to this plain error argument. Regardless of whether Robinson would or would not lose his nursing license if convicted, the jury was appropriately instructed to disregard this testimony, and we have no reason to believe that the jury did not follow those instructions in this case. See Coffin v. State, 425 P.3d 172, 175 (Alaska App. 2018) ("As a general matter, jurors are presumed to follow the instructions that they are given.").
Ordinarily, when a trial court strikes testimony and then instructs the jury to disregard that testimony, "the cautionary instruction is presumed to cure any error which may have been committed." A mistrial may nevertheless be warranted when an improper remark was "so highly prejudicial as to be incurable by the trial court's admonitions." Whether to declare a mistrial is entrusted to a trial court's discretion and reviewed for an abuse of discretion.
Pruitt v. State, 829 P.2d 1197, 1200 (Alaska App. 1992) (citations omitted).
Williams v. State, 629 P.2d 54, 60 (Alaska 1981).
Hewitt v. State, 188 P.3d 697, 699 (Alaska App. 2008).
We find no abuse of discretion here. There is nothing in the record to suggest that the testimony was so prejudicial that the jury would be unable to follow the curative instruction and disregard the stricken cross-examination as they were instructed.
See Williams, 629 P.2d at 60; cf. Browning v. State, 101 P.2d 266, 269 (Alaska App. 1985) ("We must assume that if the jury had been told to disregard Browning's testimony, and then twice told that it could not consider punishment, the prejudicial effect. . . would have been substantially diluted.").
The judgment of the district court is AFFIRMED.