Opinion
Court of Appeals No. A-11332 No. 6239
09-16-2015
KENNETH WAYNE WILSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Donald Soderstrom, 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 authority for any proposition of law. Trial Court No. 3PA-11-3017 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge. Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
The State charged Kenneth Wayne Wilson with impersonating a public servant in the first degree for pretending to be a police officer and purporting to exercise the authority of a police officer. Over Wilson's objection, the superior court allowed the State to present evidence that Wilson impersonated a police officer on two prior occasions. The jury found Wilson guilty.
AS 11.56.827.
On appeal, Wilson contends that the trial court erred when it admitted evidence of his prior misconduct. He also argues that the court gave the jury erroneous instructions. We conclude that the trial court did not abuse its discretion when it admitted evidence of Wilson's prior impersonations of a police officer, and that the trial court's instructions to the jury were not erroneous. We therefore affirm Wilson's conviction.
Facts and proceedings
Michael Johns found a site on the internet indicating that Wilson was operating a "fugitive recovery" agency. Johns met Wilson at his apartment and Wilson began teaching him about the fugitive recovery and bail bond business. On November 13, 2011, Wilson and Johns were sitting in Wilson's Ford Explorer in the parking lot of a Wasilla-area gas station, in the dark, conducting surveillance of a person they suspected had committed a theft.
Wilson's Explorer had an antenna on its roof, two amber lights in the middle of its rear window, and clear flashing lights in the headlight assembly. Wilson was wearing a blue hat that displayed the letters "BEA" and a bulletproof vest. Wilson had earlier told Johns that "BEA" was an acronym for "bail enforcement agent."
Johns and Wilson saw what they believed to be women engaged in a drug transaction at the gas station. Johns testified that Wilson activated the Explorer's clear flashing lights and drove across the parking lot toward the women at approximately thirty miles per hour. Wilson stopped his vehicle directly in front of the women's car.
Wilson told Johns that he was going to ask the women a question. Instead, the woman driving put the car in reverse, drove around the parking lot, got behind Wilson's vehicle, and essentially chased Wilson until he was able to elude them.
An Alaska state trooper investigated the incident and contacted Wilson. The trooper examined Wilson's vehicle and noted the amber lights in the rear window. Wilson admitted to the trooper that he had activated these lights in an attempt to contact the women at the gas station.
The State charged Wilson with impersonating a public servant in the first degree for pretending to be a peace officer and purporting to exercise the authority of a peace officer in relation to another person. Prior to trial, the State filed a motion to introduce evidence of Wilson's conduct in 2001 and 2004, which had resulted in convictions for impersonating a public servant, and evidence of an incident that happened two days before the events at the gas station. We summarize these events here.
In 2001, a man reported to police that he was at a park in Wasilla when a man, later identified as Wilson, approached him and his family. Wilson was carrying a handheld radio and had a pair of handcuffs on his belt. Wilson identified himself as a police officer and confronted the man about having a weapon in his vehicle. Wilson was ultimately convicted of impersonating a public servant.
In 2004, Wilson was driving a car with orange lights attached to the front and top of the car. Wilson followed another vehicle and activated the lights. The driver of the other vehicle stopped and Wilson asked him to produce his license and registration. When the driver asked Wilson if he was a police officer, Wilson responded that he was an officer and was part of a "special department." The driver gave Wilson his license and registration and Wilson took them back to his car. When Wilson returned, he told the driver that he did not want to "catch [him] out again." The driver contacted the state troopers, and Wilson was again convicted of impersonating a public servant.
On November 11, 2011 — two days before the gas station incident — an off-duty Anchorage police officer contacted the state troopers about a possible stolen snow machine he had seen in the Wasilla area. While he was waiting for a trooper to arrive, the officer saw a Ford Explorer with a radio antenna on its roof drive past him. The vehicle pulled behind the officer and displayed flashing lights. A man, later identified as Wilson, approached the officer wearing a police-style tactical vest.
The officer, believing that Wilson was a state trooper, announced that he was an off-duty police officer and was carrying a gun. According to the officer, this revelation "caught [Wilson] off guard." Wilson "stammered a little bit," told the officer that he was a bail agent, and drove away.
The State asked the court to admit evidence of this earlier conduct under Evidence Rule 404(b)(1) to establish Wilson's "method of operation, and plan, motive, opportunity, intent, knowledge, and absence of mistake." Wilson opposed the State's request.
Superior Court Judge Kari Kristiansen did not allow the State to introduce evidence of the 2001 incident at the park, concluding that it was not "sufficiently similar" to the incident in this case and would be confusing to the jury. The judge did, however, admit evidence of the 2004 and 2011 incidents, finding that they were "sufficiently similar in terms of dealing with the vehicle and the lights and offered for a non-propensity purpose." The court stated in a written order that the State could offer evidence of the 2004 and 2011 incidents because the evidence was "probative of [Wilson's] motive, intent, preparation, plan, knowledge, identity, and absence of mistake."
The jury convicted Wilson, and he appeals.
Why we uphold the superior court's order admitting evidence of Wilson's prior conduct
Evidence Rule 404(b)(1) excludes "[e]vidence of other crimes, wrongs, or acts" when the "sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith." However, the rule provides that evidence of other acts 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."
The party who seeks to admit evidence of a person's "other crimes, wrongs, or acts" under Rule 404(b)(1) must show that the evidence is relevant for a purpose other than to prove the person's character. This rule "codifies the common-law doctrine forbidding the admission of 'propensity' evidence."
Bingaman v. State, 76 P.3d 398, 411 (Alaska App. 2003).
Id. at 403.
Even if evidence is relevant and admissible under Evidence Rule 404(b)(1), it is still subject to exclusion under Evidence Rule 403. Rule 403 authorizes a trial judge to exclude relevant evidence "if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Id. at 413.
Wilson argues that the evidence of his earlier impersonations of a police officer was not relevant for any non-propensity purpose, that the evidence was unfairly prejudicial, and that it should have been excluded. We review a trial court's decision to admit evidence of prior misconduct for an abuse of discretion.
Morrell v. State, 216 P.3d 574, 578 (Alaska App. 2009).
To convict Wilson of impersonating a public servant in the first degree, the State was required to prove beyond a reasonable doubt that Wilson pretended to be a police officer and "purport[ed] to exercise the authority of a peace officer in relation to another person."
AS 11.56.827(a).
Wilson acknowledged at trial that at the time of the incident in this case he possessed guns, a bulletproof vest, and a badge that stated "fugitive recovery agent." He also did not dispute that his vehicle was equipped with amber lights and that he flashed these lights when he approached the women at the gas station. He argued, however, that these items were not illegal to possess, and that his activity was not illegal.
Wilson also conceded that in 2004 he illegally impersonated a police officer when he took the license of a driver and told the driver that he was an undercover police officer. But Wilson contended that he had learned from the 2004 incident and that, when he attempted to contact the women at the gas station, he was careful not to pretend to be a police officer.
As already noted, under Evidence Rule 404(b)(1) evidence of prior acts is admissible as proof of a person's knowledge and intent. Wilson's prior acts of impersonating a police officer were relevant to establish that he had previously knowingly adopted the appearance and behavior of a police officer for the purpose of causing others to believe he really was a police officer. This evidence made it more likely that Wilson intended to cause the women at the gas station to believe he was a police officer when he drove toward them at high speed with flashing amber lights and blocked their vehicle so that they would stop and accede to his false show of authority.
We therefore agree with the trial court that this evidence was admissible under Evidence Rule 404(b)(1). The remaining question is whether the trial judge should have excluded or limited this evidence under Evidence Rule 403.
Wilson argues that the trial judge never expressly engaged in the analysis required by Evidence Rule 403, balancing the probative force of the evidence against its potential for unfair prejudice. But the record shows that the judge did engage in the required analysis. We note, in particular, that the State offered evidence of three instances of Wilson's past conduct, but the judge allowed the State to introduce evidence of only two of those instances, ruling that the third instance was not probative enough to survive a Rule 403 analysis.
The trial judge also instructed the jury that this evidence could not be used as evidence that Wilson was a person of bad character, or that he had a tendency to commit crimes.
We conclude that the trial judge did not abuse her discretion when she allowed the State to introduce the challenged evidence of Wilson's prior acts.
Why we conclude that the trial court's jury instructions were not erroneous
Wilson argues that two of the trial court's instructions to the jury were erroneous. First, he argues that the instruction limiting how the jury could consider Wilson's prior acts of impersonating a police officer was inadequate and given at the wrong time during the trial. Second, he argues that the instruction on the culpable mental state that applied to the crime of impersonating an officer was incorrect. Wilson did not object to these jury instructions in the trial court. Thus, to prevail on appeal, he must show that the trial court committed plain error.
The limiting instruction
At the close of trial, the court crafted an instruction to the jury regarding how it could and could not use the evidence from Wilson's prior acts of impersonating an officer. The instruction told the jury that it could consider Wilson's prior acts only to the extent that they were relevant to his motive, intent, preparation, plan, knowledge, identity, or absence of mistake; it could not consider the evidence as proof that Wilson was a person of bad character or had a tendency to commit crimes. Wilson did not object to the instruction.
On appeal, Wilson asserts that the trial court failed to "identify or narrow down a specific acceptable purpose for [the jury] to consider the [prior bad act] evidence" and that there was a "strong likelihood that the jury considered the evidence for propensity purposes." But in the trial court, Wilson did not argue that the jury should be instructed in a more specific manner. We conclude that the trial court's instruction did not constitute plain error.
The trial court gave the jury this limiting instruction at the end of the trial, along with the other jury instructions. Wilson argues that the court should have given the limiting instruction at the time the State introduced evidence of the prior incidents. Again, Wilson did not request the trial court to take this action, and we find no plain error.
Wilson's challenge to the jury instruction defining the elements of the crime
A person who impersonates a public servant and purports to exercise the authority of a public servant in relation to another person is guilty of the misdemeanor offense of second-degree impersonation of a public servant. That offense is aggravated to the first degree, a class C felony, if the person impersonates a police officer.
AS 11.56.830.
AS 11.56.827.
While the court and the parties were discussing the jury instructions in Wilson's case, the trial judge (acting sua sponte) noticed that the instruction defining the elements of impersonating a public servant in the first degree did not specify the culpable mental state that applied to "pretend[ing] to be a peace officer" and "purport[ing] to exercise the authority of a peace officer in relation to another person." The judge suggested that the culpable mental state "knowingly" be inserted into the instruction, and Wilson's attorney agreed to the judge's proposal.
On appeal, Wilson contends that "knowingly" was the wrong culpable mental state. He argues that the offense of first-degree impersonation consists of intentionally pretending to be a police officer, and that the instruction should have used the word "intentionally" instead of "knowingly."
Wilson's argument is based on a misunderstanding of how the words "knowingly" and "intentionally" are used in the Alaska Criminal Code. We explained these two culpable mental states, and how they are defined and used in the Criminal Code, in Neitzel v. State, and again in State v. Simpson.
655 P.2d 325, 328-29 (Alaska App. 1982).
53 P.3d 165, 167 (Alaska App. 2002).
In everyday English, we often speak of a person "intentionally" engaging in conduct — by which we mean that the person engaged in the conduct purposely, as opposed to accidentally or unwittingly. But our Criminal Code does not use the word "intentionally" in this way.
As defined in AS 11.81.900(a)(1), the culpable mental state "intentionally" does not describe conduct; it refers only to a person's conscious desire to achieve a particular result through conduct.
The Criminal Code uses the word "knowingly" to describe purposeful conduct. In fact, of the four culpable mental states defined in AS 11.81.900(a) ("intentionally," "knowingly," "recklessly," and "with criminal negligence"), "knowingly" is the only one that applies to conduct.
Neitzel, 655 P.2d at 326, 333.
Neitzel involved a statute in which the legislature itself inadvertently misused the word "intentionally." We concluded that the statutory phrase "intentionally performs an act" really was intended to mean "knowingly performs an act."
Id. at 333 n.2.
Returning to the present case, we agree with Wilson that a defendant does not commit the crime of first-degree impersonation of a public servant unless the defendant purposely pretends to be a police officer. (Indeed, purposefulness is a crucial element of the meaning of the word "pretend.") Likewise, this offense requires proof that the defendant purposely purported to exercise the authority of a peace officer over another person.
But under the terminology of our Criminal Code, "knowingly" is the culpable mental state that describes this requirement of purposefulness. Wilson is wrong when he asserts that the jury instruction should have used the word "intentionally."
(We note that the first-degree impersonation statute does not require proof of a result. Here, for instance, Wilson committed the offense by pretending to be a police officer and purporting to exercise police authority over the women at the gas station — even though Wilson's actions did not actually fool the women into remaining in their car and allowing Wilson to approach them.)
Wilson's claim regarding the sufficiency of the evidence
When a criminal conviction is reversed because the government's evidence was legally insufficient to support the conviction, the double jeopardy clause prohibits the State from retrying the defendant. Wilson asserts that the evidence presented at his trial was legally insufficient. But Wilson's argument is simply an expansion of his argument that the trial court erred when it allowed the State to introduce evidence of his prior acts of impersonating a police officer.
Howell v. State, 115 P.3d 587, 592 (Alaska App. 2005); see also Burks v. United States, 437 U.S. 1, 11 (1978).
More specifically, Wilson argues that the evidence of his prior bad acts should not have been admitted and that, without this evidence, the remaining evidence at his trial was legally insufficient to support his conviction.
Wilson's argument rests on a faulty premise. In Langevin v. State, we explained that if a defendant successfully argues on appeal that the trial judge erroneously admitted evidence at trial, the defendant cannot then argue that the remaining evidence presented by the State was insufficient to withstand a motion for judgment of acquittal. Instead, when an appellate court considers the defendant's claim that the evidence was insufficient to support the conviction, "the sufficiency of the evidence is assessed in light of all the evidence presented at the defendant's trial — even the evidence that was wrongly admitted."
258 P.3d 866, 873-74 (Alaska App. 2011).
Id. at 874 (emphasis in original) (citation omitted). --------
Thus, even if we had concluded that the superior court erred by admitting evidence of Wilson's prior acts of impersonating a police officer, and even if we thought that the remaining evidence was insufficient to support Wilson's conviction, there would still be no double jeopardy bar to a retrial. We would reverse Wilson's conviction, but the State would be permitted to retry him.
However, as we explained earlier in this decision, the evidence of Wilson's prior acts was properly admitted.
Conclusion
The judgment of the superior court is AFFIRMED.