Opinion
A-13673
12-28-2022
GREGORY BARRERA OTTEN, Appellant, v. STATE OF ALASKA, Appellee.
Shana J. Bachman, Attorney at Law, Las Vegas, Nevada, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Elizabeth T. Burke, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Trial Court No. 3PA-19-01491 CR Third Judicial District, Palmer, Kari C. Kristiansen, Judge.
Shana J. Bachman, Attorney at Law, Las Vegas, Nevada, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
SUMMARY DISPOSITION
Gregory Barrera Otten was convicted, following a jury trial, of one count of third-degree assault for pouring gasoline around his mother's home, causing her to fear for her life, and one count of fourth-degree assault, for flipping over her dining room table, striking her in the face.
AS 11.41.220(a)(1)(A) and AS 11.41.230(a)(1), respectively.
Otten appeals, raising three claims of error.
First, Otten argues that the trial court erred in denying his motion for a mistrial after Otten's mother, Shawnna, testified - to the surprise of all parties - that Otten had once gone through her life insurance paperwork and then complained to her mother (Otten's grandmother) that Shawnna had not listed him as a beneficiary. The trial court struck this testimony from the record and specifically instructed the jury to disregard it.
On appeal, Otten argues that the trial court's instruction was insufficient to cure the resulting prejudice. He contends that the disputed testimony was tantamount to a claim that Otten had a motive to kill his mother, and that we should reverse the trial court's denial of his motion for a mistrial.
But when a trial court withdraws improper testimony from the jury's consideration and provides a curative instruction, the instruction is generally presumed to cure any prejudice created by the introduction of the improper evidence. Here, the challenged testimony did not suggest that Otten had a plan or motive to kill his mother for insurance money. Otten's mother testified that Otten had been angry because he was not listed as a beneficiary on her life insurance policy - i.e., that Otten would receive no tangible benefit from her death. Thus, the testimony established only that Otten and his mother had an acrimonious relationship, which was consistent with other testimony the jury heard. Under these circumstances, we conclude that the trial court did not abuse its discretion in denying Otten's motion for a mistrial.
Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981) (citing Anderson v. State, 438 P.2d 228, 232-33 n.15 (Alaska 1968)).
See Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005) (reviewing a trial court's decision whether to grant a mistrial for an abuse of discretion).
Second, Otten argues that the trial court erred in allowing the State to introduce testimony under Alaska Evidence Rule 404(b)(4) that he previously assaulted Shawnna by pointing a gun at her. Specifically, Otten argues that (1) the trial court failed to sufficiently analyze whether the proffered evidence was more prejudicial than probative, as required by Evidence Rule 403 and this Court's decision in Bingaman v. State, and (2) the trial court failed to consider whether the evidence could be admitted in a more limited form, such as by means of a stipulation.
Bingaman v. State, 76 P.3d 398, 416 (Alaska App. 2003).
But the record shows that the trial court engaged in a detailed and explicit analysis of the six Bingaman factors, including an evaluation of the relevance of the evidence under Rule 402 and its potential prejudice under Rule 403. And, although Otten objected to the admission of the prior-act evidence prior to trial, he did not separately challenge the scope of the testimony or request that the evidence be admitted through a stipulation. Having reviewed the record, we conclude that the court did not abuse its discretion when it allowed this testimony.
See Kasgnoc v. State, 448 P.3d 883, 889 (Alaska App. 2019) ("[W]e wish to remind prosecutors, defense attorneys, and trial judges that the question of the admissibility of prior-act evidence is a question separate and distinct from the nature and scope of that evidence." (citing Conley v. Alaska Commc'ns Sys. Holdings, Inc., 323 P.3d 1131, 1136, 1138-39 (Alaska 2014))).
See Bennett v. Anchorage, 205 P.3d 1113, 1118 (Alaska App. 2009) (noting that a trial court's ruling on admissibility of prior bad acts evidence under Bingaman is reviewed for an abuse of discretion).
Finally, Otten argues that the trial court erred by imposing a condition of probation requiring him to take all prescribed medications as directed by his probation officer. He notes that, in Kozevnikoff v. State, we held that a trial court must first consider the "independent and timely evaluation" of a medical professional and provide an opportunity for the defendant to be heard prior to ordering a defendant to take medication over their objection.
Kozevnikoff v. State, 433 P.3d 546, 548 (Alaska App. 2018).
But the trial court twice asked Otten's attorney if the attorney had any objection to the medication portion of the condition, and both times, the attorney stated that she had no objection. Accordingly, Otten must show plain error.
State v. Ranstead, 421 P.3d 15, 23 (Alaska 2018).
We decline to find plain error. It is clear from the sentencing record that the parties understood this condition to be referring exclusively to mental health medications. And when Otten personally expressed concerns that some mental health medications can have serious side effects, the court expressly informed him that he could request a hearing to modify the medication condition if he did not agree with the recommendations of his medical provider.
We accordingly interpret "any prescribed medications" to apply only to mental health medications that Otten's medical providers view as necessary for his rehabilitation or the safely of the public. And in light of the trial court's comments, we interpret this probation condition as affording Otten some form of judicial review if he objects to taking the prescribed mental health medication - review that will take place prior to Otten being required to take that medication and prior to Otten facing any legal consequences for refusing to take the medication. With these procedural safeguards in place, we reject Otten's challenge to this probation condition.
See Burrell v. State, 626 P.2d 1087, 1089 (Alaska App. 1981) (holding that where a conflict exists between an orally imposed sentence and a subsequently issued written judgment, the oral pronouncement of the sentence "ordinarily controls").
The judgment of the trial court is AFFIRMED.