Opinion
Court of Appeals No. A-8826.
September 28, 2005.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Trial Court No. 3AN-03-12845 CR.
Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, 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
The State charged Thomas G. Bullard with sexual assault in the second degree and assault in the fourth degree for attacking S.A., a community service patrol (CSP) staff member. At his trial, Bullard sought to admit evidence of a prior unrelated incident in which, approximately a year and a half previously, S.A. had been charged with disorderly conduct. The charge was later dismissed. Superior Court Judge Michael L. Wolverton determined that the evidence of the prior incident was not sufficiently relevant to allow its admission. Following a trial, a jury convicted Bullard of assault in the fourth degree but acquitted him of sexual assault in the second degree. Bullard appeals, arguing that Judge Wolverton erred in refusing to admit the prior incident in which S.A. was charged with disorderly conduct. We conclude that Judge Wolverton did not abuse his discretion in refusing to admit evidence of this prior incident.
Prior factual and procedural background
On the evening of December 8, 2003, S.A. was working as an emergency medical technician ("EMT") at the Anchorage Community Service Patrol ("CSP") facility. Around 7:00 p.m., the CSP van brought several new clients into the facility. S.A. was in charge of the intake process for the new clients that evening.
Defendant Thomas Bullard had been brought to the CSP facility earlier that day. While S.A. was processing new clients, Bullard woke up and decided he was ready to leave the facility. Bullard approached S.A. and stated that he wanted to leave. S.A. asked Bullard to sit down, explaining that she needed to first take care of the intake process for the new clients and then she would help him. Bullard refused to sit down, and then requested S.A.'s assistance to help him sit down. S.A. placed a hand on his shoulder and arm, guiding him to a sitting position. Bullard raised his fist, and S.A. immediately backed away.
S.A. continued to ask Bullard to sit down several times. Bullard refused, and then finally asked S.A. to help him again. When S.A. moved to redirect Bullard, he grabbed the front of her jumpsuit and hit her several times in the face and shoulder. During the struggle, Bullard scratched S.A.'s face, grabbed her throat, and scratched and grabbed her breasts.
CSP employee Brett Gerstung was sitting at a nearby desk and heard the altercation between S.A. and Bullard. Gerstung testified that he saw Bullard swing at S.A.'s face, at which point he grabbed Bullard's other hand to restrain him. Another CSP employee, William Pfunder, took Bullard's right arm. During the struggle, Bullard made comments about S.A.'s breasts, along the lines of "I would like to get another handful of that," "I want to grab your tits," "Nice tits. I know what you need. I'll give you what you need." The CSP employees eventually took Bullard to the ground by bumping his knees from behind so that his knees would buckle and he could be brought to the floor. Once Bullard was on the ground and restrained by CSP employees, he made kissing noises and continued to make rude comments about S.A.'s breasts.
Because Bullard was out of control and unmanageable, the CSP employees called the police. Anchorage Police Officer Robert Wurst responded. During the investigation, Officer Wurst took photographs of S.A.'s injuries, including redness on her upper chest and her face.
Bullard was charged with second-degree sexual assault and fourth-degree assault. At a pretrial status hearing, Bullard sought permission to cross-examine S.A. about an incident that occurred on March 24, 2002. The incident occurred when a man, who believed S.A. had cut him off in traffic, followed S.A. home and began yelling and grabbed her throat. S.A. knocked a cell phone out of the man's hand. S.A. ran inside and her parents called 911. Anchorage Police Officer Charles Robertson responded to the call and cited both the man and S.A. for disorderly conduct.
The disorderly conduct charge was later dismissed. During the incident, S.A. remarked to Officer Robertson that he could expect longer response times ("ETA's") by the CSP as a result of the incident. During the cross-examination of S.A. that was made as part of Bullard's offer of proof, S.A. explained that she was only joking when she made that comment. Officer Robertson testified that although he reported the comment to his superior, he viewed both his own remarks and S.A.'s remark as "childish" and "petty." He stated that he had not noticed any longer response times after the incident.
Bullard asked to cross-examine S.A. about her remark to Officer Robertson for three different purposes. First, during pre-trial, Bullard requested permission to cross-examine S.A. about the remark to show that S.A. was willing to use her position with CSP "to manipulate the system." Judge Wolverton denied the request, finding that the evidence was not relevant to the claims against Bullard. Second, Bullard offered Officer Robertson's statement to show S.A.'s bias, her prior inconsistent statements, and her willingness to lie to the police. Judge Wolverton denied the request, finding that the officer's testimony related to a collateral matter. Third, Bullard asked for permission to cross-examine S.A. and to offer Officer Robertson's testimony to show that S.A. had lied during the offer of proof when she said that she was only joking about the longer response times. Again, Judge Wolverton denied this request. He stated that whether S.A. was joking was "a matter of interpretation." He pointed out that the evidence related to a collateral matter and was not relevant to the current charges. He therefore declined to admit testimony about this incident.
Following a jury trial, Bullard was convicted of fourth-degree assault but was acquitted of second-degree sexual assault. This appeal followed.
Why we conclude that Judge Wolverton's ruling excluding evidence of the prior incident was not an abuse of discretion.
We conclude that Judge Wolverton did not abuse his discretion in refusing to admit evidence of the prior incident where S.A. was charged with disorderly conduct. Judge Wolverton could properly determine that the incident was remote in time and had little or no relevance to the current incident. It is difficult to tell what happened during this prior incident. S.A. gave her version during Bullard's offer of proof. And Officer Robertson also testified. It appears that Officer Robertson, who had not witnessed the incident, decided to charge both S.A. and the other party to the incident with disorderly conduct on the theory that they could explain their behavior in court and the court could decide the issue. As far as the statement that S.A. made to Robertson about the fact that he could expect longer response times from CSP, Judge Wolverton could reasonably find that it was impossible to determine whether S.A. had made a joke or an intemperate comment. In any event, the statement was not relevant to the current incident. Against this background, Judge Wolverton could properly determine that the prior incident where S.A. had been charged with disorderly conduct had little or no relevance to the present charge. He could also determine that, to the extent that the evidence of the prior incident had any relevance, the probative value of the evidence was outweighed by the danger of unfair prejudice and the amount of time that it would take to present evidence of this incident.
We conclude that Judge Wolverton did not abuse his discretion in refusing to allow Bullard to admit evidence of the prior incident where S.A. was charged with disorderly conduct. We accordingly affirm Bullard's conviction.
AFFIRMED.