Opinion
Court of Appeals No. A-10862 Trial Court No. 3DI-09-201 CR No. 5901
12-05-2012
JASON PANAMARIOFF, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Margi Mock, contract attorney, Alaska Public Defender Agency, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District,
Dillingham, Vanessa H. White, Judge.
Appearances: Margi Mock, contract attorney, Alaska Public
Defender Agency, for the Appellant. Eric A. Ringsmuth,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and Michael C. Geraghty, Attorney General,
Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
Jason Panamarioff was convicted of multiple counts of sexual assault, sexual abuse of a minor, and incest for conduct involving his eleven-year-old daughter, J.P. He argues that the superior court committed plain error by admitting evidence that he committed domestic violence against his wife and previously sexually abused J.P. He argues that this evidence was not relevant to any issues disputed at trial. We conclude that the superior court did not commit plain error by admitting this evidence. We therefore affirm Panamarioff's convictions.
Facts and proceedings
On May 30, 2009, R.P. passed out on the couch after drinking with her husband, Jason Panamarioff. Sometime in the night she woke up and went upstairs to check on the children. She heard her eleven-year-old daughter, J.P., crying, and when she looked in J.P.'s room she saw that J.P. was naked from the waist down and that her legs were spread apart. Panamarioff was kneeling in front of J.P. without any clothes on. R.P. was shocked, and she argued with her husband for about twenty minutes. Then she left and went to her father's house. R.P. told her father that she thought her life was in danger, but she said nothing about J.P.. Within a short time, J.P. also arrived at the house, crying, and she told her grandfather that Panamarioff had raped her.
Panamarioff was charged with two counts of first-degree sexual assault, eight counts of first-degree sexual abuse of a minor, and two counts of incest. Before trial, Panamarioff filed a motion in limine asking the court to preclude evidence of some of his domestic violence against R.P., arguing that it was not relevant and would prejudice his case. Panamarioff conceded the relevance of his most recent assault on R.P., which took place about a week before the offenses charged in this case but asked the court to exclude evidence of his earlier domestic violence. Superior Court Judge Vanessa H. White granted the motion in part; she limited the State's evidence to domestic violence against R.P. that took place within the four months preceding the incident in this case.
AS 11.41.410(a)(1) (first-degree sexual assault); AS 11.41.434(a)(1), (2), (3)(A), (B) (first-degree sexual abuse of a minor); AS 11.41.450(a)(1) (incest).
During argument on this motion, the prosecutor announced that J.P. would testify that her father's sexual abuse began in February 2009, about four months before the charged offenses, when the family moved into a new house. Panamarioff did not object to the admission of this evidence. Nor did he object at trial when J.P. testified about the earlier abuse.
In closing argument, Panamarioff conceded that he had sexual contact with J.P., but he argued that the State had failed to prove sexual penetration, an essential element of the charged offenses. The jury rejected that defense and convicted Panamarioff of all charges. He appeals.
Why we conclude that the superior court did not commit plain error by admitting the evidence of Panamarioff's domestic violence against R.P.
During trial, the State asked R.P. if there had been any domestic violence between her and Panamarioff in the four months before the incident charged in this case. R.P. stated that "there were a couple of times from drinking we were fighting." The State then prompted R.P. to describe an incident that took place about a week before Panamarioff's assault on J.P.: R.P. said she and Panamarioff had an argument and that he "threw my head against the side of the door."
Panamarioff argues that Judge White committed plain error by admitting this evidence of his domestic violence against R.P. To constitute plain error, an error "must be obvious, affect substantial rights, and be obviously prejudicial." We will not find plain error if the error was "the result of an intelligent waiver or a strategic decision by [the defendant] not to object."
Brown v. State, 601 P.2d 221, 226 (Alaska 1979).
Adams v. State, 261 P.3d 758, 771 (Alaska 2011).
Judge White ruled that the evidence of Panamarioff's domestic violence against R.P. was relevant to show that R.P. was afraid of Panamarioff and might have delayed reporting the sexual abuse of J.P. because of that fear. We have held that evidence of a defendant's other bad acts is relevant under Alaska Evidence Rule 404(b)(1) to explain the relationship between two people, and in particular to "explain why one person might fear another person or might submit to another person's will." Panamarioff concedes that evidence of his domestic violence against his wife "certainly explain[s] his wife's fear of him." But he argues that the evidence was not relevant to any disputed fact because he never challenged the credibility of R.P.'s testimony that she witnessed the sexual abuse of J.P.
Russell v. State, 934 P.2d 1335, 1341 (Alaska App. 1997) (citing Dulier v. State, 511 P.2d 1058, 1061 (Alaska 1973)).
The record shows that Panamarioff's attorney did cross-examine R.P. about her conduct after she witnessed the sexual assault — specifically, about the fact that she left J.P. with Panamarioff after the assault and said nothing to her father about what she had seen. During this cross-examination, R.P. explained her inaction by stating that she was "afraid for my life because of the past domestic violence."
It is true that in closing argument Panamarioff did not expressly dispute that R.P. had observed sexual contact between Panamarioff and J.P. Instead, he argued that the State had failed to prove sexual penetration. But Judge White could not have anticipated that this would be Panamarioff's defense when Panamarioff asked her to rule on the admissibility of this evidence before trial.
In his reply brief, Panamarioff points out that he had no duty to advise the trial judge of what issues he planned to dispute. But this is not the point. The State presented a viable theory as to why the evidence of Panamarioff's domestic violence was relevant. In response, Panamarioff asserted only that the evidence "has nothing to do with the charges that he's charged with and facing prosecution for at this time." Panamarioff did not assert, even in general terms, that R.P.'s fear of him was not relevant. Nor did he ask the court to reserve a ruling on the issue until later in the case. We conclude that Judge White had no duty to exclude the evidence of Panamarioff's domestic violence based on a theory that Panamarioff never articulated to the court and did not fully develop until closing argument.
Why we conclude that the superior court did not commit plain error by admitting the evidence of Panamarioff's prior sexual abuse of J.P.
Panamarioff also argues that the court committed plain error by admitting J.P.'s testimony that Panamarioff had previously sexually abused her. He argues that the court should have sua sponte excluded J.P.'s testimony because it was not relevant for any purpose other than to prove his propensity to commit sexual abuse.
The State announced before trial that J.P. would testify that Panamarioff began abusing her in February 2009, about four months before the offenses charged in this case, when the family moved into a new house. Panamarioff did not object to the admission of this testimony. Nor did he object later during trial, when J.P. testified that "[a]ll of [the abuse] did happen before." Indeed, Panamarioff's attorney elicited additional testimony on the issue during his cross-examination of J.P.:
Defense counsel: Now, you said that this had happened too many times before, right?Given that Panamarioff never asked the court to exclude this testimony — and in fact elicited this testimony — Judge White reasonably could have concluded that Panamarioff had a tactical reason for not objecting to this evidence.
J.P.: Yes.
Defense counsel: Okay. And that you were scared and that's why you didn't tell; is that right?
J.P.: Yes.
Furthermore, Panamarioff has not shown that the evidence was obviously inadmissible as propensity evidence. Evidence Rule 404(b)(2) authorizes the admission of evidence of a defendant's prior sexual assaults and sexual abuse to prove the defendant's propensity to commit offenses of this type, as long as "the prior offenses (1) occurred within ten years preceding the date of the offense charged; (2) are similar to the offense charged; and (3) were committed upon persons similar to the prosecuting witness." Panamarioff concedes that the first and third criteria were met in this case, but argues that J.P.'s testimony did not establish that the earlier offenses were similar enough to the charged offenses to be admissible.
Bingaman v. State, 76 P.3d 398, 404 (Alaska App. 2003).
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J.P.'s only testimony on this point was her statement that "[a]ll of it did happen before." This statement, though vague, conveys that the prior abuse was similar, if not identical, to the charged offenses. The testimony was corroborated by J.P.'s statement to a state trooper that her father's "touching" began when the family moved into a new house, and that it involved both sexual contact and penetration. Given this record, J.P.'s testimony about the prior sexual abuse was not obviously inadmissible under Evidence Rule 404(b)(2). We therefore conclude that Judge White did not commit plain error by failing to sua sponte exclude the testimony.
Conclusion
We AFFIRM Panamarioff's convictions.