Opinion
Court of Appeals No. A-10251.
May 19, 2010.
Appeal from the District Court, Third Judicial District, Anchorage, Sigurd E. Murphy, Judge, Trial Court No. 3AN-07-13862 Cr.
Samuel C. Severin, Anchorage, for the Appellant. Hanley Rebecca Smith, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Rolando Hernández-Zamora appeals his convictions under the Anchorage Municipal Code for one count of assaulting his girlfriend and one count of failing to appear.
Anchorage Municipal Code §§ 8.10.010.B.1 and 8.30.090.A, respectively.
Hernández-Zamora first contends that the trial judge committed error by denying Hernández-Zamora's motion to sever the trial of the assault count from the trial of the failure to appear count.
Hernández-Zamora made his motion for severance on the morning that his trial began. The trial judge denied the motion because it was untimely. Under Alaska Criminal Rule 12(b)(4) and (c), all requests for severance of criminal charges must be made no later than 45 days after the defendant's arraignment (unless the court extends this deadline), and must in any event be made prior to trial. The trial judge therefore properly rejected Hernández-Zamora's motion as untimely.
Hernández-Zamora next contends that the evidence presented at his trial was insufficient to support his conviction for failure to appear. This conviction was based on the fact that Hernández-Zamora failed to appear at his arraignment on the assault charge, which was held on January 15, 2008.
Hernández-Zamora conceded that he knew that his arraignment was scheduled for January 15th. He testified he did not appear in court on January 15th because he had recently been visiting Mexico (on a trip that was booked in November 2007, before he committed the assault in this case), and he was prevented from returning to the United States because his passport had expired. Hernández-Zamora testified that it took him several days to obtain a new passport and arrange a flight back to Anchorage. He further asserted that he did not know how to contact the court to alert the court that he would miss his arraignment.
This testimony, if believed, might have established a valid defense to the charge. However, when we assess the sufficiency of the evidence to support a criminal conviction, we must view the evidence, and all reasonable inferences to be drawn from the evidence, in the light most favorable to upholding the verdict.
Grandstaff v. State, 171 P.3d 1176, 1210 (Alaska App. 2007).
Viewing the evidence in this light, a reasonable jury could have concluded that, even though Hernández-Zamora might have unexpectedly encountered difficulty in returning to the United States from his trip to Mexico, he consciously took advantage of this difficulty as an excuse to miss his court date. We note that, according to the evidence, Hernández-Zamora obtained his new passport on January 8, 2008 — thus giving him one week to arrange his return to Anchorage in time to appear at his arraignment. (The evidence showed that Hernández-Zamora did not come back to Anchorage until January 17th.)
Accordingly, we conclude that the evidence is sufficient to support Hernández-Zamora's conviction for failure to appear in court on January 15, 2008.
Hernández-Zamora's final contention on appeal is that the trial judge committed error by allowing the Municipality to introduce evidence of a prior assault that Hernández-Zamora committed against the same victim (his girlfriend) in January 2006 ( i.e., slightly less than two years before the assault charged in this case).
In this prior incident, Hernández-Zamora was upset because he suspected that his girlfriend had been with another man; he threatened his girlfriend over the telephone, and then he went to his girlfriend's house and fired a handgun outside the house. The trial judge ruled that evidence of this incident was admissible under Alaska Evidence Rule 404(b)(4), but the judge also concluded that it would be unfairly prejudicial to let the jury hear evidence that Hernández-Zamora fired a handgun during this incident, so the judge precluded the Municipality from introducing evidence concerning that aspect of the incident.
On appeal, Hernández-Zamora notes that there were significant factual differences between his conduct during this prior incident and his alleged conduct in the present case. Hernández-Zamora argues that, because of these differences in the nature of his conduct on these two occasions, the trial judge abused his discretion when he concluded that the earlier assault was probative on the question of whether Hernández-Zamora committed the assault charged in the present case.
It may be true that there are factual differences between the two incidents. But there is also a significant similarity: in both incidents, Hernández-Zamora was apparently motivated to assault his girlfriend because of feelings of rivalry or jealousy. In the 2006 incident, Hernández-Zamora threatened his girlfriend because he suspected that she had been with another man. In the present case, Hernández-Zamora assaulted his girlfriend after they visited a bar and encountered a man who used to be her boyfriend. Given these facts, the trial judge did not abuse his discretion when he ruled that expurgated evidence of the 2006 incident was admissible under Evidence Rule 404(b)(4).
We note that this evidence may well have been admissible under Evidence Rule 404(b)(1) as well. See Frink v. State, 597 P.2d 154, 169-170 (Alaska 1979). The defendant in Frink was charged with killing his former girlfriend's lover; the supreme court upheld the admission of evidence under Rule 404(b)(1) that Frink had previously assaulted the girlfriend's then-husband. The supreme court explained that "this evidence was relevant to the issue of [the] defendant's motive [and] state of mind [regarding] persons with whom [his former girlfriend] was romantically involved."
For the reasons explained here, we conclude that none of Hernández-Zamora's claims on appeal has merit. Accordingly, the judgement of the district court is AFFIRMED.