Opinion
A-13188 A-13197
02-16-2022
JEFFREY DOUGLAS WARNER, Appellant, v. STATE OF ALASKA, Appellee.
Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniff en Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Palmer, Patrick J. McKay, Judge. Trial Court Nos. 3PA-17-01409 CR & 3PA-17-01598 CR
Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniff en Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
Jeffrey Douglas Warner was convicted of two counts of fourth-degree assault and one count of disorderly conduct based on two separate altercations with his wife, Jana Armstrong. Warner raises three issues on appeal.
AS 11.41.230(a)(1), AS 11.41.230(a)(3), and AS 11.61.110, respectively. Warner was found not guilty of second-degree assault (as well as the lesser included offenses of third-degree assault, fourth-degree assault, and reckless endangerment) and an additional count of fourth-degree assault.
First, we address Warner's argument that the evidence was insufficient to support his conviction for fourth-degree assault based on the first altercation. When a defendant challenges the sufficiency of the evidence to support a criminal conviction, we view the evidence, and all reasonable inferences from that evidence, in the light most favorable to upholding the jury's verdict. We then ask whether a reasonable juror could find that the State had proved the defendant's guilt beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
To establish Warner's guilt of fourth-degree assault, the State was required to prove, in pertinent part, that Warner "by words or other conduct . . . recklessly place[d] another person in fear of imminent physical injury." Interpreted in the light most favorable to the verdict, the testimony showed that, while Armstrong was sitting in their truck, Warner opened the door, grabbed her by her shirt collar, and tried to forcefully pull her out. Warner threatened to hit Armstrong with a large flashlight that he held over his head, and, as Armstrong drove away after freeing herself, he smashed the driver's side window. Armstrong testified, "I've never been in fear for my life with him before but I was at that moment." We conclude that this evidence was sufficient to establish that Warner recklessly placed Armstrong in fear of imminent physical injury, and that she reasonably perceived a threat of harm from Warner's conduct.
AS 11.41.230(a)(3); see also Hughes v. State, 56 P.3d 1088, 1090 (Alaska App. 2002) (explaining that whether a person was “placed in fear” of imminent injury is an objective inquiry into whether the person “reasonably perceive[d]” a threat).
Next, we turn to Warner's argument that the court erred in denying his motion for a mistrial based on two comments that Armstrong made during cross- examination. First, when Warner's attorney asked Armstrong how Warner could have come to possess the large flashlight when Armstrong had previously abandoned him without any of his belongings, she responded, "My husband is a known thief, ma'am." Warner's attorney objected, and the superior court instructed the jury to ignore Armstrong's comment. Later, when asked why she told the 911 dispatcher to prioritize picking up Warner over protecting her, Armstrong responded, "Because if- if you look up any of the priors -" at which point Warner's attorney cut her off.
Warner's attorney moved for a mistrial, arguing that Armstrong's two statements - that Warner was a "known thief and had "priors" - were so prejudicial as to require a new trial. The court rejected Warner's request, but offered to issue a second curative instruction addressing Armstrong's comment about the "priors." Warner's attorney declined the instruction.
The decision whether to grant a mistrial is committed to the trial court's sound discretion, and we will reverse the denial of a mistrial only when "we are left with a definite and firm conviction that the trial court erred in its ruling." We first note that both of Armstrong's comments were elicited by defense counsel and responsive to the question posed. The superior court immediately issued a curative instruction after the "known thief comment and offered to do so again after the "priors" comment. A curative instruction is normally presumed to be a sufficient remedy. And we have previously upheld the denial of a mistrial under similar circumstances.
Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005).
Hamilton v. State, 59 P.3d 760, 769 (Alaska App. 2002).
See Mustafoski v. State, 954 P.2d 1042, 1045-46 (Alaska App. 1998) (upholding the denial of a mistrial where the information was elicited by the defense, the witness's answer was responsive to the question posed, and the trial court offered to give a curative instruction (discussing Hines v. State, 703 P.2d 1175, 1178 (Alaska App. 1985))); see also Preston v. State, 615 P.2d 594, 603-04 (Alaska 1980).
Additionally, at the time Armstrong mentioned Warner's "priors," the jury had already heard evidence, under Evidence Rule 404(b)(4), of three prior alleged instances of criminal conduct by Warner: one in which he stabbed the truck seat next to Armstrong with a knife, a second in which he threatened to pour hot coffee on her, and a third in which he strangled her. Warner's attorney cut Armstrong off before she could indicate whether she was referring to any other "priors." Given the admission of these three incidents, which Warner does not challenge, and our review of the record, we conclude that the superior court did not abuse its discretion in declining to order a mistrial.
Finally, we consider Warner's argument that the superior court erred in denying his motion for a new trial based on newly discovered evidence. Evidence is considered "newly discovered" when it both (1) was unknown to the defense at the time of the trial, and (2) could not have been discovered with reasonably diligent investigation.
See, e.g., Angasan v. State, 314 P.3d 1219, 1220 (Alaska App. 2013) (discussing Salinas v. State, 373 P.2d 512 (Alaska 1962)).
In the motion, Warner's attorney asserted that, after sentencing, she learned that Armstrong had been under criminal investigation for two incidents of theft in the weeks preceding trial. The attorney argued that, had she known this information at trial, she would have used it during cross-examination. However, in response to Warner's motion, the State submitted an email exchange between Warner's attorney and the prosecutor that demonstrated that Warner's attorney was aware of cases under investigation against Armstrong in advance of the trial. If Warner's attorney believed that this investigation was potentially relevant to Warner's defense, she could have sought additional information from the State through normal discovery procedures. But she instead stated in her email that she believed that evidence of the investigation would be inadmissible.
In the email correspondence that occurred several days prior to trial, Warner's attorney told the prosecutor that Armstrong was under investigation for incidents on the Kenai Peninsula, and that Armstrong had "been caught shoplifting at Carr's" and "found with access devices which do not belong to her."
Under these circumstances, Warner has failed to show that the evidence he now claims is "newly discovered" could not have been discovered with a reasonably diligent investigation. Accordingly, the superior court did not err when it denied Warner's motion for a new trial based on newly discovered evidence.
The judgment of the superior court is AFFIRMED.