Opinion
A-13951
11-13-2024
ERNEST WILLIAM BUTLER, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Kayla H. Doyle, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage Trial Court No. 3AN-19-04151 CR, Thomas A. Matthews, Judge.
Michael L. Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Kayla H. Doyle, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
Ernest William Butler was convicted, following a jury trial, of one count of first-degree burglary, one count of second-degree assault, and one count of fifthdegree criminal mischief after he assaulted Mary Ahnangnatoguk. Butler and Ahnangnatoguk had been involved in a romantic relationship for years, and they had two children together. At the time of the events in this case, Butler and Ahnangnatoguk had broken up, but Butler would spend a few nights a week at her apartment, and he told Ahnangnatoguk that he wanted to get back together.
AS 11.46.300(a)(1), AS 11.41.210(a)(1), and AS 11.46.486(a)(2), respectively.
On appeal, Butler challenges his convictions, raising several claims. First, Butler argues that the State made two improper statements during rebuttal closing argument.
Butler also points to a third statement in the prosecutor's rebuttal closing. Butler contends that the prosecutor improperly vouched for Ahnangnatoguk by asserting, "Mary told you the truth." But Butler objected to this argument, and the superior court sustained the objection. Butler did not argue in the superior court, and does not argue on appeal, that the judge should have taken any additional actions.
As to the first statement, Butler asserts that the prosecutor improperly impugned the defense when she argued that defense counsel's closing argument focused on blaming Ahnangnatoguk for what happened in this case. Butler objected to this statement, but the superior court overruled his objection. We have reviewed the record, which shows that Butler's theory of the case was that Ahnangnatoguk manipulated the criminal justice process in order to finally end her relationship with him - i.e., Butler blamed Ahnangnatoguk for the criminal prosecution. Given this argument, we conclude that the court did not abuse its discretion in overruling Butler's objection.
As to the second statement, Butler argues that the prosecutor improperly impugned the defense when she argued: "The defense wants you to believe that this whole trial is about Mary wanting you, as the jury, to help her get out of this violent relationship. How insanely unreasonable is that argument? How detached from reality is that argument?" Specifically, Butler argues that it was improper for the prosecutor to characterize Butler's defense as "insanely unreasonable" and "detached from reality." Butler failed to object to this argument at trial, but he argues that the superior court's failure to intervene constitutes plain error.
See Adams v. State, 261 P.3d 758, 771 (Alaska App. 2011) ("[I]n order for a court to find plain error, the error must not be the result of an intelligent waiver or a strategic Sdecision not to object; the error must affect substantial rights; the error must be obvious; and the error must be prejudicial.").
While the prosecutor's characterization of Butler's argument used language that was overzealous and went a step too far, we conclude that the court's failure to intervene to curtail these comments does not amount to plain error. These comments were made in passing, and although the language was strident, the underlying argument itself - that the version of events advocated by the defense in this case was not supported by the evidence - was not improper. In addition, the jury was properly instructed that closing arguments are not evidence and that the jurors are the sole judges of the weight of the evidence and the credibility of witnesses. We conclude that the State's comments did not prejudice Butler.
See Rogers v. State, 280 P.3d 582, 594 (Alaska App. 2012) (holding that, while the prosecutor "spoke too strongly" in characterizing the defense as "absurd," a "fiction," and a "smoke screen," "there was nothing impermissible about her underlying point: that none of [the defendant's] attacks on the State's evidence undercut his culpability for the charged crimes").
Next, Butler argues that the superior court improperly admitted evidence of six prior incidents of domestic violence committed by Butler against Ahnangnatoguk.
Prior to trial, the State sought permission to introduce evidence of ten prior acts of domestic violence committed by Butler - eight against Ahnangnatoguk and two against a former girlfriend. In a written order, the superior court evaluated and weighed the Bingaman factors and found that six prior incidents against Ahnangnatoguk, which resulted in convictions, were admissible under Alaska Evidence Rule 404(b)(4) and that the evidence was more probative than prejudicial. The court therefore granted the State's request to introduce this evidence to show Butler's propensity to commit acts of domestic violence against Ahnangnatoguk. However, the court excluded evidence of the remaining four incidents - the other two incidents involving Ahnangnatoguk that did not result in convictions and the two incidents involving Butler's former girlfriend, which the court found were remote in time and cumulative.
The State's request to introduce evidence of the two acts involving Butler's former girlfriend was conditional; the State indicated that it only intended to introduce evidence of these two prior acts if the incidents became relevant as the evidence unfolded at trial.
Alaska R. Evid. 404(b)(4) ("In a prosecution for a crime involving domestic violence or of interfering with a report of a crime involving domestic violence, evidence of other crimes involving domestic violence by the defendant against the same or another person or of interfering with a report of a crime involving domestic violence is admissible.").
Bingaman v. State, 76 P.3d 398, 413 (Alaska App. 2003) ("Even when evidence of a defendant's other acts of domestic violence is relevant and admissible under Rule 404(b)(4), Evidence Rule 403 authorizes a trial judge to exclude the evidence if the probative value of the evidence is outweighed by the danger that it will engender unfair prejudice, confuse the issues, or mislead the jury.").
The superior court also admitted evidence of the six prior incidents under Alaska Evidence Rule 404(b)(1) to show Butler's intent when entering Ahnangnatoguk's apartment. Butler challenges this ruling on appeal. Because we conclude that the superior court did not abuse its discretion in admitting the evidence under Evidence Rule 404(b)(4), we do not need to reach this issue.
The court's exclusion of the incidents involving Butler's former girlfriend was provisional, in line with the State's request.
Having reviewed the record, we conclude that the court's ruling admitting evidence of the six prior incidents under Evidence Rule 404(b)(4) was not an abuse of discretion.
See Riggins v. State, 101 P.3d 1060, 1063 (Alaska App. 2004). We note that, at trial, Ahnangnatoguk testified about only four of the six prior incidents that the court had deemed admissible, and the State introduced evidence that Butler had been convicted following five of the incidents.
Finally, Butler points out that the judgment in this case states that he was convicted of fourth-degree criminal mischief but the jury was instructed, and returned a guilty verdict, on a charge of fifth-degree criminal mischief. The State concedes that the judgment improperly indicates that Butler was convicted of fourth-degree criminal mischief.
AS 11.46.486(a)(2).
We therefore REMAND this case so that the superior court can correct the judgment as to this conviction. In all other respects, the judgment of the superior court is AFFIRMED.