Opinion
A-13498
09-28-2022
KARA KIMBERLY GUMP, Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Zjok T. Durst, Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Third Judicial District, Kenai, Trial Court No. 3KN-18-00283 CR Suzanne Cole, Magistrate Judge.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Zjok T. Durst, Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG, JUDGE
Kara Kimberly Gump was convicted, following a jury trial, of violating a domestic violence protective order that her former boyfriend, Andrew Christensen Sr., had obtained against her on behalf of their young son. On appeal, Gump argues that the district court erred in excluding evidence of Christensen's bias as a witness at trial. For the reasons set out in this opinion, we agree with Gump that the court erroneously excluded this evidence and that this error was not harmless beyond a reasonable doubt. We therefore reverse the judgment of the district court.
AS 11.56.740(a)(1).
Factual and procedural background
Kara Gump and Andrew Christensen Sr. were in a dating relationship for approximately two years and had a son together, A.C. They lived in Anchorage along with Gump's two older children.
In April 2017, Christensen obtained a long-term domestic violence protective order against Gump on behalf of their son, who was six months old at the time. The order set out restrictions on Gump's contact with A.C. that were both confusingly worded and to a certain extent, inconsistent.
In one provision, Gump was prohibited from having contact with A.C. except through a particular family friend or Gump's eldest son. A second, supplemental provision on visitation allowed Gump - if sober - to be with A.C, but only while (1) at the family friend's home, (2) in the presence of Gump's eldest son, or (3) at the home that Gump shared with Christensen, if the interaction was supervised by Christensen, the family friend, Gump's eldest son, or "another baby sitter approved by Andrew Christensen Sr." (Strangely, the provision did not clearly authorize supervision of contact by A.C.'s father outside the family home.) A third provision of the order precluded Gump from "entering], following], or interfering] with the operation of any vehicle occupied by [A.C.] or in [A.C.]' s possession"-with no clear exception within that provision for supervision by others.
A few months after Christensen obtained the protective order, the family moved to Soldotna. Christensen commuted from Soldotna to Anchorage for work, and Gump got a job at a local clothing store. Christensen testified that Gump was in charge of getting the two older children on the bus for school and taking A.C. to daycare - even as the protective order remained in force. To facilitate Gump's need to transport A.C, Christensen would approve of and hire drivers to take her and A.C. where they needed to go.
In November 2017, Christensen moved to Seattle - leaving A.C. in Gump's full-time care. However, the terms of the protective order still prohibited her from being alone with A.C, and she continued to organize rides to take her to work and her son to daycare. When an issue arose with the drivers getting paid, Gump began to use public transportation. Specifically, she would arrange for a Central Area Rural Transit System (CARTS) vehicle to pick them up from the house. Gump testified at trial that Christensen approved her use of the CARTS vehicles, but as we discuss later, Christensen disputed this to some extent.
On March 8, 2018, Christensen returned to Alaska to check in with his probation officer. He drove to Soldotna without telling Gump, and when he arrived outside the family home, he called the police and reported to Alaska State Trooper Luke Lemieux that Gump was in violation of the domestic violence protective order. In an audio recording of the call, played outside the presence of the jury, Christensen explained that he was calling from his car, parked some distance away from the family's house, and that he had just observed Gump's oldest son leave the house to get on the bus for school. He told the trooper that Gump was in violation of the protective order and that she would "be in full violation [in] probably about a half hour" - although it is not entirely clear what he meant by this.
Trooper Lemieux expressed some confusion, asking Christensen why, if he was close enough to watch Gump and know that she was about to be alone with A.C., he could not intervene himself and take custody of his son. Christensen responded by asking, "So what... I get to spend a thousand dollars to fly in to get my son from her and ... I don't get no action?" (Although the court authorized defense counsel to introduce this portion of the audio recording, it was not ultimately played at trial, for reasons that are unclear from the record.)
The trooper then agreed to go check on Gump and determine if she was in violation of the protective order. While Trooper Lemieux was driving to the house, Christensen called him again and informed him that Gump had left with A.C. in a CARTS vehicle. Trooper Lemieux passed the CARTS vehicle and stopped it. He found Gump and A.C. inside, alone except for the CARTS driver, and he arrested Gump for violating the protective order. Christensen, who had arrived on the scene, left with A.C.
Gump was charged with one count of violating a protective order - i.e., while subject to a protective order and knowing of the order and its provisions, Gump knowingly committed an act that violated a provision of the order, with reckless disregard for the fact that her act violated the order. The State's theory was that Gump violated the order by entering a vehicle that was occupied by A.C.
See AS 11.56.740(a)(1); State v. Strane, 61 P.3d 1284, 1292 (Alaska 2003).
Gump's case proceeded to a jury trial. At trial, Gump argued that the State had failed to prove that she recklessly disregarded that her conduct - riding in the CARTS vehicle with A.C.-violated the protective order. In particular, she argued that she reasonably interpreted the language of the order as authorizing Christensen to approve third persons to oversee contact between her and A.C, including drivers of vehicles. In support of this interpretation, Gump testified that Christensen had previously approved of specific drivers and had given her permission to use the CARTS vehicles.
See Vickers v. State, 175 P.3d 1280, 1284 (Alaska App. 2008) (explaining that a defendant is entitled to challenge the State's assertion that the defendant "recklessly disregarded" the fact that their conduct violated a no-contact order, either by showing that (1) they were "unaware of the risk that [their] conduct would violate the order," or (2) that their "decision to run that risk was not a gross deviation from what a reasonable person would do in the situation").
As part of the defense case, Gump's attorney called Christensen as a witness to corroborate Gump's account. Christensen confirmed that he had previously approved drivers and that he believed he had the authority to do so under the protective order - i.e., he believed that Gump could ride in a vehicle with A.C. as long as he approved of the driver.
However, Christensen equivocated as to whether he had ever approved of the CARTS vehicles specifically. He initially denied having approved CARTS for Gump to transport A.C. But when confronted with a text exchange with Gump in which he allowed her to schedule a CARTS pickup, he acknowledged that he "probably said that."
At the same time, Christensen testified that he did not know the individual drivers' names and thus did not have the necessary information to approve them. And on cross-examination by the prosecutor, Christensen walked back his earlier assertion that he had the authority under the protective order to approve of drivers - and he testified that he had not approved of the driver on the day of Gump's alleged violation.
Gump sought to impeach Christensen by eliciting testimony from him that he had moved to Seattle, found a new girlfriend there, wanted to bring A.C. to Seattle to live with them, and became angry when Gump refused - thus, in Gump's view, weaponizing the protective order to remove A.C. from Gump. Gump also wanted to introduce two pieces of evidence to demonstrate Christensen's interest in the outcome of the case: (1) text messages from Christensen to Gump that expressed his frustration over the situation with A.C. and told her, "Please Kara I am not wanting to put the kids [sic] mother in jail," and (2) a statement written by Gump that appeared to show her agreeing to let Christensen take A.C. to Seattle after the incident in this case took place, in order to demonstrate that Christensen had gotten the outcome he desired. The district court ruled that all of this evidence was irrelevant to Gump's defense and therefore inadmissible.
In closing argument, the prosecutor maintained that Gump was guilty of the violation because the protective order was unambiguous and any discretion that Christensen had to approve a supervisor was limited to the family home. Gump argued that she reasonably believed, in light of what Christensen had told her, that he could approve of drivers for her to transport A.C. and therefore she did not recklessly disregard whether her act violated the order.
The jury ultimately rejected Gump's defense and found her guilty of violating the protective order. The court sentenced her to "time served" (2 days) and a $50 fine.
Why we conclude that the district court's exclusion of bias evidence constitutes reversible error
Gump argues that the district court erred when it excluded all evidence related to Christensen's bias - i.e., the fact that he was living in Seattle with his new girlfriend, that he wanted custody of A.C., and that he sent a text message to Gump threatening to put her in jail. The district court ruled that evidence of Gump and Christensen's dispute over A.C. was "completely irrelevant" to Gump's defense that she did not recklessly disregard the risk that she would violate the protective order when she took A.C. to daycare.
It is not clear if Gump is also specifically challenging the exclusion of Gump's post-incident statement in which she appeared to agree to let Christensen take A.C. to Seattle. But we have no need to independently address the admissibility of this evidence, as the court erred in excluding all evidence of Christensen's potential bias as a witness.
But evidence of a witness's bias toward a party or interest in the outcome of the case is impeachment evidence that goes to the credibility of the witness, and for that purpose, it is "always relevant to the jury's consideration of the case; it is never a collateral issue" and can thus be proven by extrinsic evidence. In addition, defendants are entitled to "broad latitude in cross-examining a witness, particularly concerning evidence of bias." And a party may impeach their own witness by showing bias.
Alaska R. Evid. 613(a) ("[E]vidence of bias or interest on the part of a witness [is] admissible for the purpose of impeaching the credibility of [the] witness.").
McIntyre v. State, 934 P.2d 770, 773 (Alaska App. 1997).
Stumpf v. State, 749 P.2d 880, 901 (Alaska App. 1988).
Alaska R. Evid. 607(a) ("[T]he credibility of a witness may be attacked by any party, including the party calling the witness.").
Here, Christensen was a central witness whose credibility was at issue. Christensen was called by the State during its case-in-chief to testify that he was present when Gump received the protective order and that he had observed the police officer serve her with the document. Christensen was also called by Gump during the defense case to testify that he had previously approved of various drivers to transport Gump and A.C., which he had understood to be permitted by the protective order. He later provided conflicting testimony - that he was not in fact authorized to approve of drivers under the terms of the protective order and that he had not approved of the CARTS driver on the day Gump was found to be in violation of the order.
Evidence of the relationship between Gump and Christensen - i.e., their custody dispute and Christensen's desire to move to Seattle with A.C. -was therefore relevant to evaluating Christensen's accounting of events. In particular, the evidence was relevant to show that Christensen had an incentive to minimize the extent to which he had approved CARTS drivers - which would in turn weaken Gump's defense that she reasonably believed she was permitted to ride CARTS (and thus did not recklessly disregard the fact that her conduct violated the order).
See McIntyre, 934 P.2d at 7737A (holding that evidence of a romantic relationship between the alleged victim and a witness was relevant and admissible for assessing the witness's potential bias in corroborating the victim's account of the charged assault).
By prohibiting Gump from introducing this evidence, the district court impermissibly limited Gump's ability to impeach him with evidence of potential bias and thus, also limited the jury's ability to fully evaluate the credibility of his testimony and the viability of Gump's defense.
On appeal, the State argues that the court did not preclude all inquiry into Christensen's bias because the court allowed Gump to introduce evidence of Christensen's probation status in order to impeach him. We agree that evidence of a person's probation status can be probative of a general bias in favor of the State, in that a probationer may be more inclined to testify favorably for the State in order to curry favor with the State in their own case. However, the evidence that Gump sought to introduce was of a different kind; it was probative of Christensen's own personal bias in favor of himself-namely, that he stood to personally benefit if Gump was found guilty. As such, the probation evidence was by itself inadequate to allow the jury to fully evaluate Christensen's "bias and motives."
See id. at 773 (recognizing that this Court "will not reverse a trial judge's [decision to exclude bias evidence] unless the jury did not otherwise receive information adequate to allow it to evaluate the bias and motives of a witness"). Moreover, the district court only allowed Gump to introduce evidence of Christensen's probation status to impeach any testimony he might give regarding his reason for being present in Alaska - a ruling that Gump does not challenge on appeal. Because Christensen did not testify as to his reason for being in Alaska, evidence about his probation status was never introduced.
Accordingly, because the district court's ruling had the effect of excluding all evidence related to Christensen's bias and interest in the outcome of the case, we conclude that this ruling was erroneous.
Moreover, because evidence of Christensen's bias was relevant to the core of Gump's defense at trial, we cannot conclude that this error was harmless beyond a reasonable doubt.
See Braund v. State, 12 P.3d 187, 191 (Alaska App. 2000) (noting that the court's preclusion of the defendant's cross-examination of a witness for potential grounds of bias was constitutional error, and the State therefore had the burden of showing that the error was harmless beyond a reasonable doubt).
Gump argued to the jury that she did not act with reckless disregard that getting into the CARTS vehicle with A.C. would violate a provision of the protective order. According to Gump, her mistaken understanding of the terms of the order was reasonable, both because of the confusing nature of the order and because of Christensen's own understanding of the order and his previous approval of drivers to transport her and her son.
As we have noted, Christensen provided conflicting testimony. His testimony, in part, supported Gump's interpretation of the order-that Christensen had the authority to approve drivers. But during the State's cross-examination, Christensen altered his testimony and stated that the terms of the protective order actually did not allow him to authorize drivers. Christensen also testified that he never approved of any CARTS driver - despite being shown text messages he sent Gump instructing her to order a CARTS vehicle on a previous occasion.
The bias evidence excluded by the court would have assisted the jury in evaluating Christensen's conflicting testimony at trial. And given Christensen's central role in the initiation and execution of the terms of the protective order, Christensen's understanding of the language in the order-along with his decision to directly approve various drivers to transport Gump and A.C. - was relevant to assessing the reasonableness of Gump's understanding of the terms of the order. Thus, evidence of Christensen's bias and interest in the outcome of the case would have ultimately informed the jury's determination of the only disputed element at trial-whether Gump recklessly disregarded the fact that her conduct would violate the protective order.
Conclusion
The judgment of the district court is REVERSED.