Opinion
Court of Appeals No. A-11646 No. 6428
02-08-2017
RONNELL JAMIR BURRELL, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Gavin Kentch, Law Office of Gavin Kentch, LLC, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-12-9589 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge. Appearances: Gavin Kentch, Law Office of Gavin Kentch, LLC, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Ronnell Jamir Burrell was charged with second-degree assault for stabbing his former housemate William Carmack with a pair of scissors. Before trial, the prosecutor sought to introduce evidence of two prior assaults committed by Burrell against other victims. The prosecutor argued that since Burrell and Carmack were living together, Burrell's assault on Carmack was a crime of domestic violence and therefore Burrell's prior crimes of domestic violence against others were admissible under Alaska Evidence Rule 404(b)(4).
AS 11.41.210(a)(1).
Following an evidentiary hearing, the superior court ruled that all three assaults qualified as crimes of domestic violence and that the two prior crimes of domestic violence were more probative than prejudicial under Alaska Evidence Rule 403.
Consistent with these rulings, at trial the prosecutor introduced evidence that Burrell had twice assaulted his former housemates with sharp instruments. Carmack testified and recanted his statement to a police officer that Burrell had intentionally stabbed him, instead claiming that the stabbing was accidental. The jury convicted Burrell of the lesser-included offense of third-degree assault.
AS 11.41.220(a)(1)(B).
On appeal, Burrell argues that the superior court erred when it admitted the prior-crime evidence. He reasons that the State failed to prove that Carmack and the two prior victims had lived with Burrell long enough to establish themselves as members of his household.
Burrell also argues that the superior court erred when it rejected his collateral estoppel claim. Specifically, Burrell points to the judgment forms for his two prior convictions, which failed to state that these earlier offenses were crimes of domestic violence.
We find Burrell's claims to be without merit and affirm the superior court's judgment.
Carmack's status as a member of Burrell's household
The State gave notice before trial that it sought admission of two prior instances of domestic violence pursuant to Evidence Rule 404(b)(4), which reads in relevant part:
In a prosecution for a crime involving domestic violence ... evidence of other crimes of domestic violence by the defendant against the same or another person ... is admissible.Under AS 18.66.990(3)(A), crimes of domestic violence include crimes "against a person under AS 11.41" that are committed by "a household member against another household member." The term "household member" includes "adults ... who live together or who have lived together." Thus, in order to establish that the charged assault and the two prior assaults were crimes of domestic violence, the State bore the burden of showing that Burrell and Carmack were living together and that Burrell and each of his two prior victims were living together as well. Burrell argues on appeal that the State failed to meet this burden.
AS 18.66.990(5)(B).
Superior Court Judge Michael Spaan held an evidentiary hearing on the State's Rule 404(b) request. Anchorage Police Officer David Abbott testified that he interviewed Carmack at the hospital where Carmack was being treated for his wound. The officer testified that Carmack told him that he had been living with Burrell for the two weeks prior to the assault, that he had no other home, and that all of his belongings were at Burrell's apartment.
At the hearing Carmack was a reluctant witness who professed a lack of memory about the relevant circumstances. Carmack testified that Burrell only allowed him to stay for up to three days at a time, but no more.
The judge found that Carmack's testimony that he had never lived with Burrell for more than three days at a time was not credible and that Carmack's claimed lack of memory arose from a bias in favor of Burrell. The judge instead found that Carmack had been truthful in his earlier statement to Officer Abbott that he had lived with Burrell since his release from a halfway house fifteen days earlier and that all his possessions were housed at Burrell's apartment. Based on these findings, the judge concluded that Carmack and Burrell were living together within the meaning of AS 18.66.990(3)(A) and (5)(B) at the time of the assault.
On appeal, Burrell argues that the judge should have disbelieved Carmack's statement to Officer Abbott that he was residing at Burrell's home and instead believed Carmack's testimony that he was only an itinerant resident of Burrell's apartment for at most three days at a time. But it is the superior court's role to weigh conflicting evidence and to determine the credibility of the witnesses. The judge's finding that Carmack was not a truthful witness was not clearly erroneous.
Figueroa v. State, 689 P.2d 512, 513 (Alaska App. 1984).
See Booth v. State, 251 P.3d 369, 373 (Alaska App. 2011) (explaining that a trial court's findings of fact are reviewed under the "clearly erroneous" standard of review).
Burrell also challenges the judge's legal conclusion that Carmack qualified as a member of Burrell's household. He argues that even if Carmack had lived with Burrell for fifteen days prior to Burrell's assault on him, that time period was too short to establish that the two were living together as a matter of law. We review de novo the judge's legal conclusion that the two men were "household members" as that term is used in AS 18.66.990, the statute defining crimes of domestic violence.
Id. at 372.
As the judge noted, even a short period of residency could suffice to qualify two persons as housemates if the two shared an intent to live together indefinitely. There was no evidence that Carmack's residency had any agreed end date. Although we do not hold that any fifteen-day stay by a guest would necessarily signify that two persons were living together for the purposes of the domestic violence statute, on the facts of this case, the judge correctly found that Carmack and Burrell were housemates.
Burrell further argues that two men living together on an open-ended basis is not the sort of relationship that the legislature intended to include in the domestic violence statute. In making this argument, Burrell relies on the fact that the legislative discussion of this law focused on domestic partners who were also sexual partners. But domestic violence is not confined to such situations, as evidenced by such phenomena as elder abuse and child abuse. The fact that the legislature's discussion focused on sexual relationships does not convince us to ignore the plain language of the statute.
Burrell's prior victims were also members of his household
David Chaney testified that he met and became friends with Burrell when they lived in neighboring apartments. Chaney subsequently agreed to share a room with Burrell at the Travelodge in Anchorage. Chaney traveled frequently and the social security payee who managed Chaney's finances paid Burrell $400 a month for rent. When Chaney returned from a trip on September 23, 2011, two to three months into this living arrangement, Burrell was drinking. Chaney became angry at Burrell over a money issue and threatened to call the police. Burrell then cut Chaney below the ear with a knife; the injury required twenty-five stitches.
Chaney initially lied to the police to cover for Burrell and said that three Mexicans had inflicted the injury. But when Burrell later hit Chaney in the face with a closed knife, Chaney told the police the truth about Burrell's earlier assault. Burrell was charged with domestic violence assault but pled guilty to a reduced charge of disorderly conduct.
Anchorage Municipal Code (AMC) 08.10.010.B.1 and AMC 08.30.120.A.6, respectively.
At trial, Chaney explained why he continued to live with Burrell after Burrell had cut his face:
He stabbed me twice, okay. All right. And I keep coming back. I don't—maybe misery loves company or something. But I keep coming back. And when I came back, he hit me in his house.Chaney testified that he eventually sought and obtained a year-long domestic violence protective order against Burrell.
Edward Gutierrez met Burrell through a friend who was moving out of Burrell's trailer. Burrell told Gutierrez that he needed someone to move in to help pay the rent, and Gutierrez did so on December 15, 2002. Each man had his own bedroom. They shared a kitchen and a bathroom.
Then, on December 25, 2002, Burrell became angry with Gutierrez over the use of Burrell's phone. Burrell arrived home drunk and awakened Gutierrez. The two men argued, and Burrell told Gutierrez to pack his belongings and leave. But as Gutierrez departed they scuffled, and Burrell cut Gutierrez below the ear. Burrell pled guilty to fourth-degree assault for this conduct.
The judge found that Gutierrez and Chaney were both renters living with Burrell in his home. This finding is supported in the record. We affirm the judge's ruling that these landlord-tenant occupancies of shared premises sufficed to establish that the parties were housemates living together.
The judge did not abuse his discretion when he found that the prior-crime evidence was more probative than prejudicial under Alaska Evidence Rule 403
Alaska Evidence Rule 403 provides that evidence may be excluded if its probative value is outweighed by its danger of unfair prejudice. In Bingaman v. State we cautioned judges to conduct, on the record, a vigilant Rule 403 balancing of probative force versus prejudicial effect when the State seeks to admit evidence of prior crimes of domestic violence under Rule 404(b)(4). Because the conduct qualifying as domestic violence under AS 18.66.990 is very broad and the rule lacks limiting criteria, we set forth six factors that a judge must consider when deciding whether to admit prior domestic violence evidence:
76 P.3d 398, 416 (Alaska App. 2003).
1. How strong is the government's evidence that the defendant actually committed the other acts?
2. What character trait do the other acts tend to prove?
3. Is this character trait relevant to any material issue in the case? How relevant? And how strongly do the defendant's other acts tend to prove this trait?
4. How great is the government's need to offer the evidence?
5. How likely is it that litigation of the defendant's other acts will require an inordinate amount of time?
6. How likely is it that evidence of the defendant's other acts will lead the jury to decide the case on improper grounds, or will distract the jury from the main issues in the case?
Id. at 415-16.
The judge applied these factors to the prior-crime evidence in this case. He noted that while the assault on Gutierrez had occurred ten years earlier, the similarity between that assault and the current offense countervailed any decreased relevance due simply to the passage of time. The judge found that the evidence that Burrell in fact committed the prior assaults was strong (as noted, Burrell pled to the charges in both prior incidents). The judge found that the prior crimes closely mirrored behavior in this case, that presentation of the evidence would not consume undue trial time, and that a limiting instruction would reduce any potential for unfair prejudice.
We also note that when Burrell testified at trial that he had stabbed Carmack accidentally, that testimony afforded additional relevance to the evidence of Burrell's prior crimes. Indeed a different evidence rule, Alaska Evidence Rule 404(b)(1), expressly authorizes admission of evidence of prior crimes to show that an occurrence was not an accident.
See Lewis v. State, 312 P.3d 856, 858-59 (Alaska App. 2013).
We accordingly uphold the judge's finding that the probative value of the evidence of Burrell's prior crimes outweighed any danger of unfair prejudice.
The trial judge was not bound by any previous characterization of the prior crimes on their respective judgment forms
Burrell pleaded guilty to fourth-degree assault against Gutierrez. Although the complaint charging Burrell with this assault alleged that the crime was one of domestic violence, the judge in that case checked a box on the judgment form indicating that the crime was not one of domestic violence.
In the case involving Chaney, the charge against Burrell was reduced from domestic violence assault to disorderly conduct (which is not a crime of domestic violence under AS 18.66.990). The judge in that case did not check either box on the judgment to indicate whether or not the crime was a crime of domestic violence.
Burrell now argues that the failure of the two judges to designate his prior crimes as crimes of domestic violence bars the State from now claiming that they were such crimes. Judge Spaan rejected this collateral estoppel claim, stating that the presence or absence of a checked box on a judgment form in a change-of-plea case might be mere happenstance.
While the doctrine of collateral estoppel bars the re-litigation of a previously decided issue, "[t]he burden of proof is on the [moving party] to show that the issue was, in fact, necessarily decided at the prior trial." Burrell made no such showing in the trial court. Accordingly, the judge was entitled to independently evaluate Burrell's prior crimes to determine whether they constituted crimes of domestic violence.
Boyles v. State, 647 P.2d 1113, 1117 (Alaska App. 1982). --------
Conclusion
We AFFIRM the judgment of the superior court. But we direct the court to correct a clerical error on the judgment, which cites AS 11.41.220(1)(A) rather than AS 11.41.220(a)(1)(B) as the statute Burrell was convicted of violating.