Opinion
No. A-9689.
July 8, 2009.
Appeal from the District Court, Third Judicial District, Anchorage, J. Patrick Hanley, Judge, Trial Court No. 3AN-06-149 CR.
Clifford J. G roh II, Anchorage, for the A ppellant. Hanley Rebecca Smith, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Robert Dewan Johnson was convicted of misdemeanor assault for beating up his girlfriend, Dana Thompson. He claims that the district court abused its discretion by admitting certified judgments showing that he p lead ed no contest to domestic violence assault against two other women in 2002 and 2004. He argues that this evidence unfairly prejudiced him and should have been excluded under Evidence Rule 403.
Anchorage Municipal Code 8.10.010.B.1.
We conclude that the evidence of Johnson's prior convictions was relevant for two purposes: to establish his propensity for domestic violence, and to rebut his claim that he injured Thompson in self-defense. Because the Municipality offered no testimony on the details of the prior assaults, only certified copies of the two judgments, there was little risk that the evidence would lead the jury to convict Johnson for improper reasons. We therefore uphold the district court's decision to admit this evidence.
Facts and proceedings
On January 6, 2006, at about 3:00 a.m., Anchorage police responded to a report by a neighbor of a domestic disturbance at an apartment on East 13th Street. When the police arrived at that address, Dana Thompson reported that she had been assaulted by her boyfriend, Johnson. Officer Mitch Kehr took photographs of Thompson's face. Those photos showed a bloody lip, an injury to her left eye, and redness on her temple, neck, chest, back, and hand. Johnson was arrested and charged with assault under the Anchorage Municipal Code.
Before trial, the Municipality filed notice of its intent to present evidence of Johnson's other acts of domestic violence. The Municipality argued that this evidence was admissible under Evidence Rule 404(b)(4) to prove Johnson's character for being "abusive and physically . . . violent" with his girlfriends. In its offer of proof, the Municipality indicated that Thompson would testify that Johnson had "blackened her eye" five times previously during their year-and-a-half relationship. The Municipality also asked the court to admit evidence, in the form of certified judgments, that Johnson had pleaded no contest in 2002 and 2004 to domestic violence assault against two former girlfriends.
District Court Judge J. Patrick Hanley ruled that Thompson could testify about Johnson's previous assaults on her. Judge Hanley concluded that the testimony was admissible under Evidence Rule 404(b)(4) to prove Johnson's propensity to assault Thompson, and as circumstantial evidence that he acted true to that character in the charged incident. Judge Hanley also admitted evidence of Johnson's two prior convictions, reasoning that the assaults were recent, of the same type, and that admission of the certified judgments would not take much time.
At trial, Thompson and Johnson both testified that, on the evening in question, the police came to the apartment they shared with Elizabeth Sebree and arrested Sebree's boyfriend for assaulting Sebree. This incident triggered the subsequent conflict between Thompson and Johnson.
Thompson testified that Johnson blamed her for causing the fight between Sebree and her boyfriend. She said that over the course of the evening, Johnson pushed her into a closet, hit her in the face and on her head and back, grabbed her around the neck, and repeatedly knocked her to the floor. Following these assaults, Thompson told the police that she thought Johnson had broken her nose and ribs. Thompson also testified that, prior to this incident, Johnson had given her a black eye on three to five occasions.
Johnson did not testify about his alleged prior assaults on Thompson. But he said that, on the evening at issue in this case, he injured Thompson only in self-defense. He said Thompson was angry at him for not taking her side in the argument between Sebree and her boyfriend. He said that during this argument he pointed his finger at Thompson and she grabbed it and broke it; while she was still holding his finger, he punched her in the ribs so she would let go. Johnson said Thompson ran toward him as if she was going to hit him and he grabbed her by the wrists; when she went to kick him, he let go, and she fell back and hit her head on the closet door. Thompson jumped up "in a rage," and he pushed her away by her neck. Later, she grabbed the telephone and hit him on the head. He said he responded by slapping her. Then he grabbed her in a bear hug to keep her from swinging at him. He testified that the police arrived shortly after that. The neighbors apparently called the police because of the noise.
After hearing this testimony, the jury rejected Johnson's claim of self-defense and convicted him of assault.
Did the court abuse its discretion by admitting the certified judgments?
Johnson argues that Judge Hanley abused his discretion by admitting the evidence that he pleaded no contest to domestic violence assault against two other women in 2002 and 2004. He argues that the evidence should have been excluded under Evidence Rule 403 as cumulative and unduly prejudicial, because the court had already admitted evidence of his three to five prior assaults on Thompson.
Under Evidence Rule 404(b)(4), when a defendant is prosecuted for a crime involving domestic violence, "evidence of other crimes involving domestic violence by the defendant against the same or another person . . . is admissible." We have previously held that this rule authorizes trial courts to admit evidence of a defendant's other acts of domestic violence even if the sole relevance of that evidence is to show that the defendant has a propensity to commit domestic violence crimes. However, trial courts must still exclude the other-acts evidence if it is not relevant under Evidence Rule 402, or if it will prejudice the fairness of the trial for any of the reasons listed in Evidence Rule 403. Johnson concedes that his two prior convictions were relevant to prove his propensity for domestic violence, but he argues that the probative value of the evidence was outweighed by the risk of unfair prejudice. In Bingaman v. State, we outlined the factors courts must consider in determining whether evidence of other bad acts should be excluded as unduly prejudicial under Evidence Rule 403:
See Bingaman v. State, 76 P.3d 398, 401, 405-08 (Alaska App. 2003).
Id. at 408, 414; see also Fuzzard v. State, 13 P.3d 1163, 1167 (Alaska App. 2000).
Bingaman, 76 P.3d at 410-15. Alaska Evidence Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Assuming that the offered character evidence is relevant to a material issue, how seriously disputed is this material issue? Does the government need to offer more evidence on this issue? And is there less prejudicial evidence that could be offered on this point? In other words, how great is the government's need to offer evidence of the defendant's other acts? Or, if evidence of one or more other acts has already been admitted, how great is the government's need to offer additional evidence of the defendant's other acts?
Id. at 415.
Johnson argues that the Municipality did not need the additional evidence of his two prior convictions because Thompson had already testified that he assaulted her five times previously. But Thompson's testimony on these prior assaults was brief and vague. She said that during the five months she and Johnson lived together in Anchorage, Johnson gave her three black eyes. When the prosecutor asked her if she told the police that Johnson had given her at least five black eyes, Thompson agreed that this "sound[ed] right." Thompson never reported these assaults to the police, and the Municipality offered no medical records or other evidence to corroborate that they took place. Consequently, if the jury doubted Thompson's account of the charged assault, it was likely to doubt her claim about the prior assaults as well. Given these circumstances, the evidence that Johnson pleaded no contest to domestic violence assault against two other women — and the reasonable inference from this evidence that he had a propensity to commit such crimes — was important to the Municipality's case. Moreover, the evidence of Johnson's prior convictions was not likely to lead the jury to improperly convict him based on his prior misconduct. The only evidence the jury received was the certified judgments of conviction; it heard no testimony about the prior assaults. And the court instructed the jury that evidence of other acts "is never sufficient, standing alone, to justify the defendant's conviction in this case."
Johnson has not argued that the district court should have excluded Thompson's testimony about his prior assaults because the Municipality offered insufficient evidence to establish that the assaults occurred. See Bingaman, 76 P.3d at 415.
Johnson urges us to reach a different result based on our decision in Riggins v. State. In Riggins, we reversed the defendant's conviction for assaulting his girlfriend after concluding that the trial court had improperly admitted evidence that Riggins had assaulted a former girlfriend three times. We concluded that evidence of the earlier assaults against the other girlfriend was of questionable relevance and that the potential for prejudice was great.
101 P.3d 1060 (Alaska App. 2004).
Id. at 1063, 1065.
Id. at 1063-64.
The central issue in Riggins was not whether Riggins had assaulted his girlfriend (Riggins admitted he had), but whether Riggins's assault was a felony because he used a telephone, as opposed to his fist. Riggins's assaults on his former girlfriend shed no light on this question. The marginal relevance of the evidence of the prior assaults was therefore outweighed by the risk of prejudice, given that the jury had already heard the more pertinent evidence that Riggins had a history of assaulting his girlfriend. Johnson's case is distinguishable. H e claimed he injured Thompson in self-defense. The central issue at his trial was thus not the manner in which he assaulted Thompson, but whether he assaulted her at all — that is, whether Thompson lied when she testified that Johnson was the primary aggressor. During cross-examination, Johnson's attorney rigorously attacked Thompson's credibility on this point. The evidence of Johnson's prior convictions was thus strongly relevant to corroborate Thompson's testimony that Johnson assaulted her, and to rebut Johnson's claim of self-defense. As already discussed, the potential for unfair prejudice in admitting the certified judgments was slight. We therefore conclude that Judge Hanley did not abuse his discretion by admitting the evidence of Johnson's two prior convictions for domestic violence assault.
Id. at 1064.
Id.
Conclusion
We AFFIRM the district court's judgment.