Opinion
Court of Appeals No. A-10553.
July 6, 2011.
Appeal from the District Court, Third Judicial District, Palmer, William Estelle, Judge, Trial Court No. 3PA-09-639 CR.
Caitlin Shortell, Anchorage, for the Appellant. Mary A. Gilson, Assistant District Attorney, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Tamra K. Stone was convicted of fourth-degree assault. On appeal, she claims that the district court allowed the jury to hear impermissible propensity evidence. She also claims that the court erred by refusing to interrupt jury deliberation to give a "lost evidence" instruction to sanction the State for losing an audio recording. For the reasons set out here, we disagree with Stone and therefore affirm her conviction.
AS 11.41.230(a)(1).
Background
On March 26, 2009, Stone, during an argument with her husband, Timothy Stone, picked up a hammer and threatened to hit him with it. She chased him from their bedroom and through the house. Timothy Stone testified that as he ran from her, he expected to get hit in the head at any minute. Stone chased him and cornered him in their kitchen. The kitchen had only one doorway, and Stone was between her husband and this exit. She continued to hold the hammer in a threatening manner and appeared ready to hit him "at any second."
Although she did not hit him with the hammer, she pounded a kitchen counter top with the hammer in a threatening manner. At trial, when asked if he w as afraid of the threat Stone posed that day, Timothy Stone answered "absolutely." Their eleven-year-old daughter, who had witnessed some of the assault, called 911. At trial she testified that her mother "had a hammer and she had my dad cornered in the kitchen. . . . She was yelling and screaming and threatening him." She heard her mom hit the counter top with the hammer.
Alaska State Troopers responded to the 911 call. Ultimately, Stone was charged with fourth-degree assault for recklessly placing her husband in fear of imminent physical harm.
Stone had twice before been convicted for assaulting her husband — once in 2002 and once in 2003. The 2002 conviction resulted in a suspended imposition of sentence and the conviction was set aside. Over Stone's objections, the jury heard evidence of both prior incidents. In addition, the 2003 judgments that had not been set aside were admitted. These judgments showed that Stone had been convicted of assault for threatening her husband and of a related count of malicious destruction of property for damaging property during that assault.
Before trial began, the prosecutor reported that an audio recording of the trooper's interview with Stone's husband apparently had been lost or destroyed. Although it was initially unclear whether the recording had actually been made, Stone indicated that she would like a Thorne instruction telling the jury to presume that the recording would have been favorable to the defense.
See Thorne v. Dep't of Pub. Safety, 774 P.2d 1326, 1331-32 n. 12 (Alaska 1989); State v. Ward, 17 P.3d 87, 90 (Alaska App. 2001).
The trial judge, District Court Judge William Estelle, indicated that he would consider the instruction. Judge Estelle asked the prosecutor when the trooper testified to "ask more closely whether . . . it was not recorded . . . or whether . . . it was lost or destroyed after it w as [recorded]." The trooper testified that the recording had been made, but lost or destroyed.
Yet when the parties discussed jury instructions near the end of trial, Stone did not ask for a Thorne instruction. Nor did she object when the judge failed to give a Thorne instruction. As a result, the instruction was not given. The jury received its final instructions and retired to deliberate.
After the jury retired to deliberate, Stone raised this issue. She asked that the jury be recalled and given a Thorne instruction regarding the missing audio recording. Judge Estelle declined to do so.
Stone appeals. Judge Estelle properly admitted the evidence of Stone's prior assaults
Stone claims that the district court abused its discretion by admitting the evidence that she had twice before assaulted her husband. She argues that this evidence should have been excluded because it had little relevance and was unfairly prejudicial.
Alaska Evidence Rule 404(b)(4) provides that "in a prosecution for a crime involving domestic violence . . . evidence of other crimes involving domestic violence by the defendant against the same . . . person . . . is admissible." In Bingaman v. State, we recognized that admitting this type of propensity evidence can result in unfair prejudice. Accordingly, we ruled that trial courts may exclude this evidence if its probative value is outweighed by the likelihood that it will mislead the jury or induce the jury to decide the case on improper grounds.
76 P.3d 398 (Alaska App. 2003).
Id. at 401.
We also outlined a number of factors that trial courts must consider when deciding whether to exclude evidence that is otherwise admissible under Rule 404(b)(4). These factors include the strength of the government's evidence that the defendant actually committed the other acts; the character trait that the other acts tend to prove; the relevancy of the character trait to any material issue in the case; and how strongly the defendant's other acts tend to prove this trait.
Id. at 415.
W e explained that in assessing the probative force of bad-acts evidence, trial judges should consider the recency or remoteness of the other bad act, as well as the similarity of the other act and the charged act, and how necessary the evidence is to prove the government's case. Trial courts should also consider how likely it is that litigation of the defendant's other acts will take an inordinate amount of time, distract the jury from the main issues of the case, or lead the jury to decide the case on improper grounds.
Id.
Id.
In this case, Stone was accused of committing an assault by threatening her husband with injury. She and her husband argued. During the argument, she armed herself with a hammer and, holding it in a threatening manner, chased him through their house until she cornered him in the kitchen. While he was cornered, she continued to threaten him with the hammer, using it to hit a counter top.
In the 2002 case, Stone and her husband were arguing. When he tried to leave, she struck him on the side of his head with her fist or her hand. She was convicted of this assault, although she received a suspended imposition of sentence and her conviction was later set aside. In the 2003 case, Stone and her husband again argued. When he tried to leave, Stone threatened him with a baseball bat, striking his vehicle as he drove away. In doing so, Stone dented the vehicle with the baseball bat and knocked off one of the vehicle's outside mirrors. She was convicted of assaulting her husband and of malicious destruction of property for damaging the vehicle. These convictions were not set aside.
In the district court, Stone argued that the evidence of these earlier assaults should be excluded as more prejudicial than probative because the circumstances of the prior assaults were so different from the assault charged in this case. But Judge Estelle found that all the assaults involved Stone and her husband acting under stressful conditions. He concluded that the evidence of the prior assaults "was relevant because it show[ed] a trait of character, and [that] trait is [Stone's] propensity for violence in a domestic violence situation with [her] husband." He pointed out the similarity between the prior assault with the bat and Stone's conduct in this case.
Judge Estelle expressly applied the analysis set out in Bingaman. He acknowledged that before admitting propensity evidence under Rule 404(b)(4) he had to find that the evidence was more probative than prejudicial under Evidence Rule 403. He then found that evidence of the prior assaults was not so inflammatory that the relevance of the prior incidents was outweighed by the risk of unfair prejudice. He concluded that the State could introduce the evidence of the prior assaults along with the judgments of conviction that had not been set aside — the judgments showing Stone's convictions for assault and malicious destruction of property.
Stone concedes that Judge Estelle addressed most of the Bingaman factors, but she argues that he did so without "thoroughly applying them to the facts of [Stone's] case." But after applying the Bingaman analysis, Judge Estelle admitted the evidence of the prior assaults because he found that they involved the same two people, engaged in similar conduct under similar situations, and he concluded that the evidence was more probative than prejudicial. Stone has not shown that Judge Estelle's factual findings are clearly erroneous. We conclude that Judge Estelle properly admitted the evidence of Stone's prior domestic violence against her husband.
Stone also claims that Judge Estelle did not separately assess the fact that the prior acts had occurred some six and seven years before the instant assault. But when Judge Estelle made his findings, he w as clearly aware that the prior incidents had occurred in 2002 and 2003, hence he implicitly considered the age of the prior acts.
Stone separately asserts that it was error to allow the victim to testify about the facts of the 2002 assault because the conviction for that assault had been set aside under the provisions of her suspended imposition of sentence. She also claims that Judge Estelle failed to consider that she entered no contest pleas to the 2003 offenses and that the facts of those offenses were not proven. Stone does not provide any authority supporting these claims and we find that they have no merit. Stone's husband testified from first-hand knowledge about the assaults. Under Evidence Rule 404(b)(4), even evidence of uncharged criminal conduct is admissible to show a person's propensity to commit domestic violence.
W e conclude that Judge Estelle did not abuse his discretion when he allowed the State to introduce evidence of Stone's prior domestic violence against her husband.
Judge Estelle did not err when he denied Stone's request to recall the jury for a Thorne instruction
Stone next asserts that Judge Estelle abused his discretion when he refused to recall the jury from its deliberations in order to give the jury "a lost evidence instruction." As already explained, prior to the start of trial, based on the possible loss of evidence — the audio recording of the trooper's interview with Stone's husband — Stone asked that the State be sanctioned with a Thorne instruction. Judge Estelle indicated that he would consider such an instruction.
Later, during trial, the trooper testified that he had recorded his interview with Stone's husband, but the recording had either been lost or destroyed. Yet when the parties discussed jury instructions near the end of the trial, Stone did not request a Thorne instruction, nor did she object to the instruction's omission. It was not until after the jury retired to deliberate that Stone renewed her request for a Thorne instruction. Judge Estelle denied Stone's request to recall the jury to give the instruction.
Under Alaska case law, when the government destroys or loses evidence in its possession, the trial court may — but is not required to — impose sanctions. Before imposing sanctions, the trial court "must carefully examine the circumstances surrounding the state's violation of its duty of preservation." In particular, the trial court must consider the degree of culpability on the part of the state, the importance of the lost evidence, the prejudice suffered by the defendant, and the evidence of guilt adduced at the hearing or trial.
State v. Ward, 17 P.3d 87, 89-90 (Alaska App. 2001).
See Putnam v. State, 629 P.2d 35, 43 (Alaska 1980), rejected on other grounds in Stephan v. State, 711 P.2d 1156, 1163 (Alaska 1985).
Ward, 17 P.3d at 90; Thorne, 774 P.2d at 1331; Putnam, 629 P.2d at 43-44.
Judge Estelle rejected Stone's request for a Thorne instruction in part because it was untimely. Under Criminal Rule 30(a), Stone w as obligated to make all her requests for jury instructions before the jury retired to consider its verdict. Because Stone did not timely object to the omission of the Thorne instruction, she now has to show that the omission of this instruction amounted to plain error. To establish plain error, Stone must show that the error "is one that is (1) so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection and (2) so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice."
Criminal Rule 30(a) provides that "[n]o party may assign as error any portion of the charge [to the jury] or omission therefrom unless the party objects thereto before the jury retires to consider its verdict."
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985), superseded by statute on other grounds as stated in Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996).
Stone never requested a hearing to determine whether a sanction was warranted in this case, even when Judge Estelle pointed out that the issue had not been litigated. She also did not raise the justification for a sanction in the district court that she has asserted on appeal — that because the audio recording of the interview with Stone's husband was missing, Stone's cross-examination of the husband was somehow compromised. In short, Stone did not make any showing to Judge Estelle concerning the degree of the State's culpability, the importance to her case of the lost evidence, or the prejudice she suffered. Under these circumstances, Stone has failed to show that any competent trial judge would have recognized that she was entitled to a Thorne instruction even though her attorney failed to request the instruction or object to its omission before the jury retired to consider its verdict. For these reasons, we conclude that Judge Estelle did not commit plain error when he denied Stone's request for a lost evidence instruction.
Conclusion
The district court's judgment is AFFIRMED.