Opinion
A-13878 A-13888 0372
05-22-2024
BRIAN TODD TUPPER, Appellant, v. STATE OF ALASKA, Appellee.
Monique Eniero, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Madison M. Mitchell, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Third Judicial District, Kenai, Lance Joanis, Judge. Trial Court Nos. 3KN-17-00296 CR, 3KN-16-01476 CR, & 3KN-16-00993 CR
SUMMARY DISPOSITION
Monique Eniero, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
Following a bench trial, Brian Todd Tupper was convicted of first-degree failure to stop at the direction of a peace officer ("felony eluding") and providing false information to a peace officer. Based on his commission of these new crimes, the superior court found that Tupper had violated his probation in three prior felony cases. Although the court later vacated Tupper's new convictions because he had not properly waived his right to a jury trial, the court nonetheless moved forward on the probation violations, for which Tupper was not entitled to a jury trial. The superior court revoked Tupper's probation for the violations in the three prior cases and imposed all of Tupper's remaining suspended time, for a composite sentence of 6 years and 6 months.
AS 28.35.182(a)(1) and AS 11.56.800(a)(1)(B)(i), respectively.
Tupper also admitted to technical probation violations in his prior cases.
Tupper now appeals the probation revocations, raising two issues on appeal.
First, Tupper argues that the superior court relied, at the bench trial, on inadmissible propensity evidence when it determined that he committed the new crime of felony eluding. The evidence in question concerned a prior incident in which Tupper escaped a police pursuit in a similar manner - by speeding and then turning down an unmaintained dirt road. The superior court found that this evidence was admissible to rebut Tupper's claim of mistake - i.e., his claim that he did not know that the police officer had signaled for him to stop.
On appeal, Tupper argues that his prior act of felony eluding was inadmissible propensity evidence under Alaska Evidence Rule 404(b)(1) and unfairly prejudicial under Alaska Evidence Rule 403. But absence of mistake is a permissible non-propensity purpose under Rule 404(b)(1). And while there are some differences between the prior incident and the current incident in this case (notably, the manner in which the pursuit began), the superior court could reasonably find that the similarities between the incidents were significant enough to undermine Tupper's defense and relevant for the "limited purpose" of showing Tupper's knowledge that the police were following him on the current occasion.
See Alaska R. Evid. 404(b)(1) (providing that evidence of other crimes or acts is not admissible solely for propensity purposes but is "admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident").
See, e.g., Allen v. State, 759 P.2d 541, 546-47 (Alaska App. 1988); Calapp v. State, 959 P.2d 385, 388 (Alaska App. 1998); Morrow v. State, 80 P.3d 262, 268 (Alaska App. 2003). To the extent the court admitted the prior eluding for purposes of establishing Tupper's "motive" for fleeing from the police, we note that the facts underlying the prior eluding were not relevant for this purpose. Rather, to properly understand Tupper's motive, the court needed only to consider the fact that Tupper had active arrest warrants at the time he fled - a fact that Tupper conceded at trial. See Willock v. State, 400 P.3d 124, 127 (Alaska App. 2017); cf. State v. Britain, 2016 WL 4132555, at *4-5 (Wash. App. Aug. 2, 2016) (unpublished) (upholding the trial court's decision to admit evidence that the defendant had outstanding arrest warrants to explain why the defendant fled the police, where the court also prohibited evidence explaining why the warrants were issued in the first place).
With respect to Rule 403, we note that this was a bench trial, and the risk that evidence with a potential for unfair prejudice will actually prejudice the fact-finder in that setting is greatly reduced as compared to a jury trial. We expect that judges - who have heard the evidence in order to rule on its admissibility - will exclude any improper inferences from their consideration in reaching a verdict.
Brandner v. Hudson, 171 P.3d 83, 87 (Alaska 2007); see also E.L. v. State, 2008 WL 2609696, at *4 (Alaska App. July 2, 2008) (unpublished) ("Judges routinely hear evidence that has a potential for unfair prejudice, and they are trained and expected to set this prejudicial aspect of the evidence aside when they render their decisions.").
See E.L., 2008 WL 2609696, at *4 (discussing Gulf State Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. 1981)).
Here, the superior court recognized that it could not rely on Tupper's prior acts to show that Tupper "has a propensity to run from the police . . . whenever he's being stopped," and expressly declined to admit evidence of two other prior incidents precisely because the court viewed those other acts as serving primarily an impermissible propensity purpose. Under these circumstances, we conclude that, for the limited purpose for which the court admitted evidence of the prior act of eluding, the court did not abuse its discretion.
We recognize that Tupper may still be awaiting a jury trial on the felony eluding charge. If the State seeks to admit this prior act evidence before a jury, the court must independently analyze the admissibility of the evidence under Evidence Rules 403 and 404 in light of any potential for unfair prejudice and the case-specific manner in which the case is litigated.
See Willock, 400 P.3d at 127 ("[A] judge must identify the issues that are really being disputed.... Only then can the judge meaningfully assess whether the proposed evidence has a case-specific relevance aside from proving the defendant's characteristic willingness to engage in the charged criminal conduct.").
Second, Tupper argues that the sentence imposed for his probation revocations is excessive. Specifically, Tupper asserts that the court failed to adequately account for his potential for rehabilitation and focused too heavily on the need for isolation.
When we review an excessive sentence claim, we independently examine the record to determine whether the sentence is clearly mistaken - i.e., whether the sentence falls within a "permissible range of reasonable sentences." The sentencing court "bears primary responsibility for determining the priority and relationship of the various sentencing objectives in a given case."
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); see also Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
Galindo v. State, 481 P.3d 686, 689 (Alaska App. 2021) (citing Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973)).
We have reviewed the record, and we conclude that the court could reasonably emphasize the need for isolation over rehabilitation. Tupper has a lengthy criminal history that dates back more than twenty years and includes at least three felony convictions. The superior court also found that Tupper had fled from the police on three prior occasions.
In one of these instances, a 2017 case, Tupper was shot five times by the police. The superior court noted that, when Tupper was sentenced for that case, he insisted that his life had changed significantly and that he intended to make the maximum use of any available treatment. Yet, Tupper repeatedly failed to report to his probation officer thereafter and ultimately committed the new offenses at issue in this case while still on probation.
The court found that, in light of Tupper's significant criminal history and pattern of fleeing from the police, Tupper would not be nefit from further probation and that it was "necessary to isolate Mr. Tupper to prevent criminal conduct."
Having reviewed the record, we conclude that the court did not err in reaching these conclusions, and that the sentence imposed is not clearly mistaken.
See LaLonde v. State, 614 P.2d 808, 811 (Alaska 1980) ("It is within the discretion of the sentencing judge to assign priorities among the Chaney factors." (citing Asitonia, 508 P.2d at 1026)).
The judgment of the superior court is AFFIRMED.