Opinion
Court of Appeals No. A-11686 No. 6319
04-27-2016
STEVEN W. WIKAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Laurence Blakely, Mendel & Associates, Anchorage, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Risa C. Leonard, Assistant District Attorney, Fairbanks, and Craig W. Richards, 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 authority for any proposition of law. Trial Court No. 4FA-12-2955 CR
MEMORANDUM OPINION
Appeal from the District Court, Fourth Judicial District, Fairbanks, Raymond M. Funk, Judge. Appearances: Laurence Blakely, Mendel & Associates, Anchorage, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Risa C. Leonard, Assistant District Attorney, Fairbanks, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
In August 2012, Steven W. Wikan was subject to a long-term domestic violence protective order that barred him from contacting his former fiancée, Pascha Mann. Wikan telephoned a mutual friend, Katie Doyle, and left a voice message in which he asked Doyle to tell Mann that he still loved her. Based on this conduct, Wikan was convicted of violating the domestic violence protective order.
AS 11.56.740(a)(1). --------
Wikan now appeals, contending that his trial judge improperly restricted his defense attorney's cross-examination of both Mann and Doyle. For the reasons explained in this opinion, we conclude that many of Wikan's arguments were not preserved for appeal, and that, with respect to the arguments that were preserved for appeal, the trial judge's rulings were correct. We therefore affirm Wikan's conviction.
Underlying facts
Steven Wikan and Pascha Mann started dating in late 2011, and by the spring of 2012 Mann was pregnant with Wikan's child. But their relationship soon deteriorated. In early June, Mann told Wikan that she did not want any further contact with him. Wikan did not want to end the relationship, and his actions led Mann to seek protective orders from the court. In early July 2012, the superior court issued a long-term domestic violence protective order that prohibited Wikan from contacting Mann, either directly or indirectly.
Katie Doyle was friends with both Mann and Wikan. Wikan had been in contact with Doyle, asking her if it was all right if he spoke to her about his sadness arising from his breakup with Mann. Doyle agreed to talk to Wikan about his feelings. But in late July or early August, Wikan started asking Doyle whether Mann was dating somebody else. Doyle told Wikan that she had not heard anything about that, and she then stopped accepting further calls from Wikan.
On August 17, 2012, Wikan called Doyle's mobile phone and left two voice messages — the first one at 6:06 p.m., and the second one at 7:47 p.m. The State introduced recordings of these voice messages at Wikan's trial and played them for the jury.
In the first voice message, Doyle thought that Wikan sounded "very upset". He indicated that he had been having psychiatric problems, and told Doyle to tell Mann that he loved her and cared about her very much.
In the second voice message, Wikan informed Doyle that he was going to leave town. He told Doyle that he had been collecting baby items for Mann (for their baby that was not born yet), and he asked Doyle to deliver these items to Mann.
After leaving these voice messages, Wikan sent Doyle a number of text messages, some of them asking about Mann, and again asking Doyle to deliver the baby items to her.
Doyle later contacted the police and reported these voice and text messages.
Following a jury trial, Wikan was found guilty of violating the domestic violence protective order. The jury found that Wikan violated the protective order when he left the first voice message for Doyle (asking Doyle to contact Mann and tell her that he loved her). (The jury concluded that Wikan's second voice message — the one about the baby items — did not violate the protective order.)
Wikan's claim that the trial judge improperly restricted his attorney's cross-examination of Mann
As we describe in this section, Wikan's attorney wanted to elicit testimony from Pascha Mann that she and Wikan were involved in a custody battle over their child. On appeal, Wikan argues that this proposed testimony was relevant because:
• Wikan and Katie Doyle had an agreement that, no matter what Wikan said to Doyle, she would never pass on anything Wikan said if that communication would violate the protective order; andAs we are about to describe, Wikan's attorney never fully explained this theory of relevance to the trial judge. Moreover, Wikan's attorney failed to develop the factual foundation for this theory of relevance, even though he had ample opportunity to do so.
• Doyle never would have told the police about Wikan's voice messages except that Mann pressured her to do so; and
• Mann pressured Doyle to reveal the voice messages because of her ill will toward Wikan and her desire to obtain an advantage in the custody litigation.
When Mann took the stand at Wikan's trial, Wikan's attorney asked her only two questions on cross-examination. The defense attorney first asked Mann if she had a child with Wikan. Mann said that she did. The defense attorney then asked Mann, "[You and Wikan] are in the middle of a pretty heated custody battle, aren't you?"
The prosecutor immediately objected on the ground that the question lacked relevance. This objection led to a bench conference. In the bench conference, Wikan's attorney told the judge that his question was relevant because "[Mann] was working with Ms. Doyle in order to set Mr. Wikan up, and all this has to do ... with a custody matter." The prosecutor responded that the defense attorney's theory of collusion was meritless on its face. The prosecutor noted that the acts for which Wikan was charged (leaving the voice messages on Katie Doyle's phone) occurred several months before the custody action began.
The trial judge suggested that the defense attorney's question might be relevant if the point of the question was to show or suggest that Doyle was lying about what happened. But the defense attorney said no, he was not trying to suggest this. The judge then asked the defense attorney to explain why Mann's answer to his question would be relevant. Here is the defense attorney's response:
Defense Attorney: You have to get into the idea of when he leaves a message for Ms. Doyle, what does that message mean if they both have an understanding? Ms. Doyle, on the one hand, has an understanding of what's going on. Mr. Wikan has an understanding of what's going on. If he goes up to somebody and he says, "Look, pass on this message for me", knowing that the other side is going to ask him questions and say, "Oh, yeah, now, of course, we both know that will never happen" or "We're not going to do that", or you say things and I counsel you and all the rest. And then if you find out later that this counseling is in part — part of a much bigger picture of what's going on, I mean, it's almost as if you would have a conflict of interest on the other side.
Now, I am laying a very basic foundation. I wasn't really going to go much farther than that, but I am laying a basic foundation for that testimony that comes later on, and I don't know what's going to necessarily come later on.
After hearing the above-quoted explanation, the trial judge sustained the prosecutor's objection. The judge told the defense attorney that he still could not see how the attorney's proposed question was relevant. However, the judge told the defense attorney that if something came up later, during the testimony of Katie Doyle, to demonstrate the potential relevance of the defense attorney's line of inquiry, the judge would allow the defense attorney to raise this issue again.
Following this ruling, Wikan's attorney announced that he had no further questions for Mann.
Katie Doyle was the next witness at Wikan's trial. When the defense attorney cross-examined Doyle, he did not ask Doyle any questions about the custody dispute, nor any questions about Mann's potential ill will toward Wikan. And the defense attorney did not seek to call Mann to the stand again after Doyle gave her testimony.
On appeal, Wikan contends that the trial judge committed error when he refused to let the defense attorney question Mann about the custody dispute. Wikan argues that the potential bias of a witness is always relevant, and (based on this premise) he argues that his attorney should have been allowed to explore the custody battle between Mann and Wikan, and how Mann felt about Wikan.
But no aspect of Mann's testimony was in dispute. Her testimony was confined to (1) the fact that she had been in a romantic relationship with Wikan, (2) her pregnancy, (3) the break-up of the relationship, and (4) the issuance of the domestic violence protective order. Wikan did not dispute any of this.
It is true that the later custody battle was potentially relevant to show that Mann might have additional feelings of ill will toward Wikan — i.e., additional feelings apart from those engendered by the fading of their romantic relationship and Mann's subsequent conclusion that she needed to seek protective orders from the court. But Wikan's attorney failed to show how Mann's potential ill will toward Wikan was relevant to the jury's evaluation of Mann's testimony.
In his brief to this Court, Wikan suggests a theory of relevance that his attorney failed to articulate to the trial judge. Wikan now argues that Mann's potential ill will toward him was relevant to explain Doyle's actions.
More specifically, Wikan claims that Mann's bias against him was relevant to explain why Doyle revealed the voice messages that Wikan left on her phone. According to Wikan's current argument, (1) Doyle promised Wikan that she would never tell Mann anything that Wikan said, if that would violate the protective order, and (2) Doyle fully intended to keep this promise, and not tell Mann about the voice messages, but (3) Mann "interrogated" Doyle "and dragged it out of her", and then (4) Mann insisted that Doyle report the voice messages to the police.
Wikan's trial judge never made a ruling on this theory of relevance because Wikan's attorney never offered this theory of relevance to the judge. For that reason alone, Wikan's argument is waived. See Dyer v. State, 666 P.2d 438, 450-51 (Alaska App. 1983), and Jones v. State, 576 P.2d 997, 1000-01 (Alaska 1978), both holding that when a party offers evidence under a particular theory of admissibility at trial, and the trial judge excludes it, the party is not allowed to attack the judge's ruling by offering a different theory of admissibility on appeal.
There is also a second independent reason why we reject Wikan's argument. If Wikan's trial attorney believed that the custody dispute between Mann and Wikan was somehow relevant to explain Katie Doyle's actions, the defense attorney had the opportunity to develop this theory when he cross-examined Doyle. As we noted earlier, the trial judge expressly invited Wikan's attorney to renew his request to introduce evidence of the custody battle in the event that something was elicited during Doyle's testimony that made this information relevant.
But Wikan's attorney did not ask Doyle any questions about the custody battle or, indeed, Mann's feelings toward Wikan. And even after Doyle described the events that made her decide to disclose the voice messages to Mann, and then to the police, Wikan's attorney never renewed his request to introduce evidence of the custody battle.
For these reasons, we uphold the trial judge's ruling.
Wikan's claim that the trial judge improperly restricted his attorney's cross-examination of Doyle
Wikan's defense at trial — the defense that his attorney argued to the jury (along with several implied requests for jury nullification) — was that Wikan and Doyle had an understanding that Doyle would never reveal to Mann anything that Wikan said if that communication would violate the protective order. According to this theory, even though Wikan left a voice message on Doyle's phone that expressly asked Doyle to tell Mann that he loved her, Wikan still did not "knowingly" communicate with Mann (even indirectly) — since Doyle had promised never to inform Mann of anything that Wikan said if that communication would violate the protective order.
Wikan did not take the stand at his trial. Instead, Wikan's attorney developed the factual basis for this defense during his cross-examination of Katie Doyle. In that cross-examination, Doyle testified (1) that she knew about the protective order, (2) that she made it clear to Wikan that she would never do anything to violate the protective order, and (3) that she believed Wikan understood this. Doyle also testified that she felt that she had violated Wikan's trust when she told Mann and the police about the voice messages that Wikan left on her phone.
But as we are about to describe, Wikan's attorney tried to elicit additional testimony from Doyle about the protective order and whether Wikan's actions (his voice messages) violated that order. In each instance, the trial judge sustained the prosecutor's objections to the defense attorney's questions. On appeal, Wikan contends that the judge's rulings were error.
The defense attorney asked Doyle whether a state trooper had told her that he (the trooper) did not think that Wikan's plan to drop off baby items for Mann constituted a violation of the protective order. The trial judge correctly sustained the prosecutor's objection to this question. The trooper's opinion or belief as to whether Wikan's conduct violated the protective order was irrelevant on the issue of whether Wikan's conduct actually violated the protective order.
The defense attorney also asked Doyle whether, after Doyle told Mann about Wikan's two voice messages, Mann urged Doyle to go to the police and tell them what had happened. The prosecutor objected that it was irrelevant whether Mann asked Doyle to go to the police. Wikan's attorney responded to this objection by arguing that, if it was Mann's idea for Doyle to go to the police, this fact tended to show that Doyle did not think that Wikan's voice messages violated the protective order.
But Doyle's opinion as to whether Wikan's voice messages violated the protective order was not admissible on the question of whether the voice messages actually did violate the protective order.
On appeal, Wikan makes a separate argument for admitting the proposed testimony: Wikan suggests that Doyle's opinion as to whether the voice messages violated the protective order was relevant to the question of Wikan's intent. Specifically, Wikan argues that if Doyle did not think that Wikan's voice messages violated the protective order, this made it more likely that Wikan reasonably believed that his voice messages did not violate the protective order.
This argument was not presented to the trial judge, and the trial judge never made a ruling on this theory of admissibility. For these reasons, Wikan's argument is waived. We additionally note that if Wikan's attorney had offered Doyle's opinion for the purpose of proving Wikan's likely state of mind, Doyle's opinion would not have been admissible for this purpose.
For these reasons, we uphold the trial judge's rulings.
Wikan's motion for a new trial
Two days after Wikan's trial ended, Katie Doyle was deposed in the custody lawsuit between Mann and Wikan. In her deposition, Doyle testified that Mann had contacted her and had asked her questions about what Wikan was doing. Based on this testimony, Wikan's attorney asked for a new trial. He argued that Doyle's deposition testimony was "newly discovered evidence" which tended to show that Mann prompted Doyle to disclose the voice messages to her, and that Doyle would not otherwise have done so because of her agreement with Wikan not to forward any communications that would violate the protective order.
The trial judge denied the motion for a new trial, finding that the new evidence was not relevant. We agree with the trial judge.
Wikan's claim that the sentencing judge abused his discretion by placing Wikan under supervised probation instead of unsupervised probation
For the crime of violating the domestic violence protective order, the district court sentenced Wikan to 360 days' imprisonment with 300 days suspended (i.e., 60 days to serve). The court placed Wikan on probation for four years — the first two of these years supervised by the Department of Corrections.
On appeal, Wikan argues that the sentencing judge abused his discretion by ordering the Department of Corrections to actively supervise the first two years of Wikan's probation.
We agree with Wikan that it is unusual for an Alaska court to impose supervised probation in a misdemeanor case. Indeed, we are not even sure that the court has the authority to order the Department of Corrections to do this. The pertinent statute, AS 33.05.020(a), declares that the Department "shall" supervise felony probationers and "may" supervise misdemeanor probationers.
But Wikan does not assert that the district court completely lacked the authority to place him on supervised probation. Rather, Wikan asserts that the district court abused its discretion when the court exercised its authority to place him on supervised probation. Accordingly, we will assume for purposes of this appeal that the district court had the authority to place Wikan on supervised probation for a misdemeanor offense. And we conclude that there was ample justification for the court's decision.
Wikan failed to appear for his originally scheduled sentencing hearing, and the court issued a warrant for his arrest. Later that day (July 16, 2013), the court was able to reach Wikan by telephone, and Wikan agreed to surrender himself to the Fairbanks Correctional Center. But instead of doing that, Wikan fled the state. It turned out that, following the jury verdict, Wikan had packed up his belongings, sold his car, and bought an airplane ticket.
Given Wikan's history of deception and disregard of the law, the sentencing judge concluded that supervised probation was needed. The judge also declared that supervised probation would "enhance [Pascha Mann's] safety", by making sure that someone was monitoring Wikan's whereabouts and activities on a regular basis.
Given this record, the sentencing judge's decision was not clearly mistaken.
Conclusion
The judgement of the district court is AFFIRMED.