MANNHEIMER, Judge.
Antwan McRae appeals his convictions for three counts of controlled substance misconduct. The issue on appeal is whether the trial court committed error by allowing the government's informant, Douglas Davis, to testify that he had purchased cocaine from McRae on prior occasions.
One count under AS 11.71.010(a)(2) and two counts under AS 11.71.030(a)(1).
This issue arose during the defense attorney's cross-examination of Davis. The defense strategy at trial was to cast doubt on the veracity of Davis's testimony that he had purchased cocaine from McRae. One facet of this strategy involved impeaching Davis concerning a list of potential drug dealers that Davis had given to the police.
Davis testified (on direct examination) that when he started working for the police, he gave his supervising officer a list of people whom he thought he would be able to buy drugs from. During cross-examination, the defense attorney asked Davis whether this list included McRae's name (either McRae's formal name, or his street name of "Legs"). Davis conceded that the list did not include McRae's name. The defense attorney then asked Davis if, on the day in question, Davis had in fact intended to buy cocaine from another man named "Ali":
Defense Attorney: You went in [to the store] to buy from Ali, and you said my client was there. . . .
Davis: No, that's not accurate. I said I went in there to buy from Legs [
i.e., McRae].
Defense Attorney: But you didn't know anything about Legs at that point.
Davis: . . . Yes, I did. I already purchased from him before. Yes, I have.
Right after Davis gave this testimony, McRae's attorney moved to strike Davis's answer — prompting a conference in the anteroom. The prosecutor opposed the motion, arguing that the defense attorney had asked the question, and Davis had made a fair response. The two attorneys proceeded to argue back and forth about whether Davis's answer was a fair response to the defense attorney's question.
Toward the end of this discussion, the trial judge offered to give the jury a curative instruction, and the judge asked the defense attorney to propose language for this instruction. In response, the defense attorney told the judge, "I don't know. You're the judge. You're supposed to know what to say." The judge then commented that, perhaps, a curative instruction might not be a good idea, since "it just highlights [the witness's answer] more".
Finally, the trial judge suggested to the parties that he should defer any final rulings on these matters until the next recess, so that the trial could continue. The judge then asked the defense attorney, "Do you want an objection?" The defense attorney answered, "No, thank you."
The anteroom conference then ended, and the trial continued. The defense attorney never renewed his motion to strike Davis's answer, nor did the defense attorney ever ask the trial judge to give the offered curative instruction.
Now, on appeal, McRae argues that Davis's answer (that he had purchased drugs from McRae before) was inadmissible character evidence under Alaska Evidence Rule 404(b), and that the admission of this evidence requires reversal of McRae's convictions.
First, we believe that this claim is not preserved for appeal — because McRae's trial attorney abandoned his motion to strike this testimony without demanding a ruling from the trial judge. See Sengupta v. University of Alaska, 139 P.3d 572, 581 (Alaska 2006); Stavenjord v. State, 66 P.3d 762, 767 (Alaska App. 2003).
Second, even if this issue had been properly preserved, we disagree with McRae's assertion that the challenged evidence was barred by Evidence Rule 404(b)(1). Davis's answer was a fair response to the defense attorney's question — and a fair rejoinder to the defense attorney's implication that Davis was not telling the truth when he testified that he entered the store with the intention of buying cocaine from McRae (as opposed to buying cocaine from the other man, Ali).
Evidence Rule 404(b)(1) did not bar the information about Davis's prior dealings with McRae because this evidence was not introduced for the purpose of proving McRae's character ( i.e., showing that McRae characteristically sold cocaine). Rather, it was introduced for the purpose of establishing Davis's past relationship with McRae — a fact that was pertinent to the likelihood that McRae would sell drugs to Davis, and thus pertinent to the jury's assessment of Davis's credibility as a witness.
McRae raises an additional argument on appeal: he contends that the trial judge committed error by allowing the prosecutor to ask Davis (on redirect examination) whether Davis had previously purchased cocaine at that same location. Davis answered that he had "been to that . . . spot before, and [he] obtained cocaine [there] before."
The State argues that Davis's answer was relevant to the same issue that we have been discussing: the question of why, even though McRae's name was not on Davis's list of drug dealers, Davis believed that he would be able to purchase cocaine from McRae. For the reasons explained above, we agree that Davis's answer was relevant to establishing Davis's past relationship with McRae.
Moreover, even if we assumed (for purposes of argument) that the trial judge committed error by allowing the prosecutor to elicit this testimony, that error would be harmless because (as we have described) McRae's attorney elicited a more damaging version of this same testimony during his cross-examination of Davis.
The judgement of the superior court is AFFIRMED.