Bright v. State

HANLEY

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.

Appeal from the District Court, Third Judicial District, Palmer, John Wolfe, Judge.

Appearances: Laurence Blakely (briefing) and Allison Mendel (oral argument), Mendel & Associates, Inc., Anchorage, for the Appellant. Eric A. Senta, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.

Judge HANLEY.

During a domestic argument, Reginald N. Bright raised his hand to slap his fifteen-year-old daughter and he pushed his wife down onto a bed. Based on this incident, a jury convicted Bright of two counts of assault in the fourth degree for recklessly placing his wife and daughter in fear of imminent physical injury.

At Bright's trial, the district court admitted evidence that, beginning some five or six years before the charged offenses, on three occasions Bright used a belt to punish his children. The court ruled that this prior conduct was relevant for two purposes: to establish Bright's character for violence and to establish that Bright's conduct placed the victims in fear.

In this appeal, Bright challenges one of these grounds for admission of the evidence: he argues that the prior acts were too dissimilar to the charged offenses to be relevant to prove his character to commit the acts charged in this case. He also argues that the evidence should have been excluded as more prejudicial than probative because his prior conduct was more serious than the charged offenses, and because testimony about the prior acts was likely to inflame the jury.

We do not resolve whether the evidence was properly admitted as proof of Bright's character for domestic violence because we conclude the evidence was properly admitted to establish that Bright's conduct placed the victims in fear of imminent physical injury.

Bright also argues that the State did not give him sufficient notice of the specific prior acts it intended to introduce, and that the district court should have granted him a continuance to prepare his defense to the State's evidence. For the reasons explained below, we find no abuse of discretion.

We affirm the decisions of the district court.

Facts and proceedings

On April 30, 2011, Bright was home with his wife and three of his children getting ready for choir practice. One of his daughters, Kahlae, who was fifteen years old at the time, told her father she did not want to sing in the choir. Kahlae slammed a door and then went to her bedroom and began crying.

After Kahlae slammed the door, Bright said "hell no," followed Kahlae, and told her to give him her cell phone. Kahlae did not want to relinquish her phone; she yelled at her father, "mouth[ed] off," and hit another door with her hand. Bright raised his hand to slap Kahlae but Kahlae's sister, Rizje, grabbed his arm to stop him, and Kahlae jumped onto her bed to get away from Bright. By that time, Bright's wife, Lani Gallear, had put herself between Bright and Kahlae. Bright knocked Gallear down onto the bed, breaking one of the slats that held up the mattress and causing the bed to collapse. Bright returned downstairs, and Kahlae locked herself in the bathroom.

When Alaska State Trooper Joshua Varys responded, he observed that Gallear and Kahlae were shaking and appeared to be frightened and upset. Bright admitted to Trooper Varys that he had pushed Gallear and almost slapped Kahlae.

The State charged Bright with two counts of fourth-degree assault for placing Gallear and Kahlae in fear of imminent physical injury by words or other conduct. Prior to trial, the State asked the court to admit evidence of three prior incidents in which Bright used belts to punish his children after they misbehaved. The State argued that the evidence was admissible under Alaska Evidence Rule 404(b)(4) to establish Bright's "character trait ... [for] domestic violence," and under Rule 404(b)(1) to show why Bright's conduct placed Kahlae in fear.

District Court Judge John Wolfe found the evidence of Bright's prior acts was "probative [of] ... Mr. Bright's method of addressing child issues" and, to the extent that the conduct exceeded appropriate parental discipline, his "character for violence." The judge concluded the evidence was also relevant to establish that Bright's conduct placed Kahlae and Gallear in fear of imminent physical injury. The judge therefore granted the State's request to admit the evidence.

Bright's main defense at trial, with respect to Kahlae, was that his conduct was justified as reasonable and appropriate parental discipline of a child. With respect to the count concerning Gallear, Bright argued there was no evidence that his conduct placed Gallear in fear. The jury rejected these defenses and convicted Bright of both charges.

Bright's prior acts were relevant to establish the victims' fear of Bright

Under Alaska Evidence Rule 404(b)(1), evidence of a defendant's other acts is normally not admissible to prove the defendant's character for committing such acts. But the rule allows evidence of other acts to be admitted for non-propensity purposes. Thus, in previous assault cases, we have upheld the admission of a defendant's prior acts under Rule 404(b)(1) to show why the victim might fear the defendant or submit to his will.

In its offer of proof before trial, the State asserted that on three prior occasions Bright had used a belt to discipline his children when they misbehaved. The State argued that Bright's use of a belt to punish his children for relatively minor infractions was "astronomically beyond the realm of discipline." The State argued the evidence of these prior acts was therefore relevant to establish that Bright's daughter Kahlae feared imminent physical injury when Bright raised his hand to slap her.

Bright did not contest that the evidence was relevant to prove the victims' fear, but instead he urged the court to exclude the evidence under Evidence Rule 403 because its relevance was outweighed by its potential for undue prejudice.

After hearing these arguments, Judge Wolfe concluded the evidence of Bright's prior acts was relevant to prove an element of the charged assaults — that Bright, by his words or other conduct, placed his wife and daughter in fear of imminent physical injury. The judge reasoned that given "the past relationship of the parties, any violence such as this would have had to have been factored into their calculus in terms of what they thought might happen because of Mr. Bright's behavior."

As Judge Wolfe predicted, both Gallear and Kahlae testified at trial that Bright's prior acts were in their minds during the charged assaults and contributed to their fear. We conclude Judge Wolfe properly ruled, based on the State's offer of proof, that this evidence was relevant under Rule 404(b)(1) to establish the victims' fear of imminent physical injury during the incident in this case.

Because the evidence was relevant for this non-character purpose, we need not address Bright's claim that the evidence should not have been admitted under Evidence Rule 404(b)(4) as evidence of Bright's character for domestic violence.

The district court did not abuse its discretion by refusing to exclude the evidence as more prejudicial than probative under Evidence Rule 403

Bright renews his claim that, even if the evidence of his prior acts was relevant, the district court should have excluded the evidence under Evidence Rule 403 because it was more prejudicial than probative. He points out that his prior conduct was more egregious than the conduct charged in this case and that the evidence was introduced through "emotional witness testimony" instead of, for instance, by stipulation.

Judge Wolfe acknowledged that the evidence that Bright used a belt to punish his children had the potential to inflame the passions of the jury. But the judge ultimately concluded that the evidence was not so inflammatory that the jury was likely to decide the case on improper grounds. The judge instructed the jury that evidence of other bad acts is never sufficient to justify a conviction; that it could not use the evidence to find that Bright was a bad person who deserved to be punished; and that the State had to prove beyond a reasonable doubt that Bright committed the crimes charged. Bright has not shown the judge's reasoning was faulty or that the judge abused his discretion by admitting the evidence.

We note that Bright never offered to stipulate to these facts, nor did he suggest some other means to lessen the prejudice of this evidence; nor has he argued the State had less inflammatory evidence available to establish the victims' fear. In addition, the conduct charged in this case was not the type that would invariably place the victims in fear of injury, such that evidence of the prior acts was unnecessary to prove the State's case.

Bright also complains that the manner in which the prior acts evidence was actually presented and argued at his trial unfairly prejudiced him. He points out that the State's witnesses testified about incidents that fell outside the scope of the court's order and that the prosecutor made improper argument based on the evidence. But the only decision Bright challenges in this appeal is the judge's initial decision to admit the prior acts evidence. Judge Wolfe could not have known when he made this ruling that the State would make improper argument or that witnesses would testify about incidents outside the scope of the court's order. If Bright believed the State exceeded the proper use of this evidence or that witnesses exceeded the bounds of the court's ruling, it was his burden to object and request curative action.

Bright failed to object at trial to much of the testimony he now identifies as objectionable. And when he did object, the court sustained the objections and took remedial action. For instance, the judge excluded Bright's son's testimony about the prior acts based on Bright's argument that the testimony would be cumulative and would vilify him. The court also took steps to limit the witnesses' testimony to answering the questions asked. Bright has not argued that these remedies were unreasonable or insufficient to meet his objections. He therefore has not established error.

The trial court did not abuse its discretion when it denied Bright's request for a continuance

Bright next argues that the district court erred when it denied his request to continue the trial so he could prepare a defense to the State's evidence of his prior acts.

Bright was aware more than three weeks before trial that the State would seek to introduce evidence of his prior acts of domestic violence. Approximately six days before trial, Bright received police reports apparently documenting this prior violence. However, it was not until the first day of trial that the prosecutor identified the specific incidents he planned to introduce.

Bright's attorney objected, claiming she was "taken by surprise" by the State's evidence. She asked for a continuance to consult with her client and to prepare her defense to this evidence. The attorney asserted the police reports she had received before trial were lengthy and that the State had not adequately identified the specific acts it intended to introduce. Judge Wolfe denied the request for a continuance, but he said Bright's attorney could renew the request after the State presented its case.

Bright's daughters, Rizje and Kahlae, testified on the first day of trial (a Wednesday), and Bright's attorney completed her cross-examination on that day. Trial did not reconvene until five days later, on the following Monday. Gallear then testified about the incidents, and Bright's attorney chose to cross-examine her about one of them.

It thus appears that, six days before trial, Bright's attorney had police reports documenting the prior incidents that were ultimately admitted at trial. While the State apparently did not identify the specific incidents it intended to introduce until the morning of trial, Bright's attorney had enough information to consult with her client and to conduct some investigation. Also, after Kahlae and Rizje testified, trial recessed for five days. This gave Bright's attorney additional time to investigate the prior acts before Gallear testified. The attorney did not ask for more time to prepare for cross-examination of Gallear; nor did the attorney ask the court for permission to continue her cross-examination of Kahlae and Rizje, or to call them as witnesses.

A trial court's refusal to grant a continuance will not be disturbed on appeal unless there has been an abuse of discretion. For a conviction to be reversed on this ground, "it must appear that the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights." Given the facts of this case, we conclude Judge Wolfe did not abuse his discretion when he denied the request for a continuance.

Conclusion

We AFFIRM the decisions of the district court.