Brown v. Municipality of Anchorage (5/3/96) ap-1468
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THE COURT OF APPEALS
OF THE STATE OF ALASKA
LAWRENCE W. BROWN, )
) Court of Appeals No. A-5400
Appellant, ) Trial Court No. 3AN-M93-
8519CR
)
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1468 - May 3, 1996]
________________________________)
Appeal from the District Court, Third
Judicial District, Anchorage, Natalie K.
Finn, Judge.
Appearances: Michael B. Logue, Gorton &
Associates, Anchorage, for Appellant. Carmen
E. ClarkWeeks, Deputy Municipal Prosecutor,
Anchorage, for Appellee.
Before: Bryner, Chief Judge, Mannheimer,
Judge, and Andrews, Superior Court Judge.1
[Coats, Judge, not participating.]
BRYNER, Chief Judge.
Following a jury trial presided over by District Court
Judge Natalie K. Finn, Lawrence W. Brown was convicted of one
count of cruelty to animals, Anchorage Municipal Code (AMC)
' 17.10.060, and acquitted of one count of unlawfully discharging
a firearm, AMC ' 08.05.240(A). Brown appeals, contending that
the trial court erred in allowing the jury to hear evidence of
prior misconduct, in failing to give Brown's proposed jury
instructions on self-defense, and in denying his post-trial
motion to dismiss the cruelty to animals conviction on the ground
that the jury's verdict of conviction was inconsistent with its
verdict of acquittal on the charge of unlawfully discharging a
firearm. We affirm.
One evening in October 1993, Brown went out for a walk
with his wife and daughter through his family's neighborhood in
Anchorage; Brown carried a gun at his side in a holster for
protection against dogs. During the walk, the Brown family
encountered an unattended dog, a German Shepherd. Brown
approached and fired a single shot into the dog's head. The
bullet entered the skull from the front, almost between the eyes,
killing the dog.
As a result of this incident, the Municipality of
Anchorage charged Brown with one count of cruelty to animals and
one count of unlawfully discharging a firearm within the
municipality. The prosecution's evidence at trial tended to show
that the shooting was unprovoked. The dog's owner testified that
her dog was old, mild, and not excitable. A motorist passing
through the neighborhood during the incident testified that he
saw Brown approach the dog, which did not seem to be barking,
growling, or threatening. After driving by, the motorist heard a
gunshot and saw Brown, gun in hand, standing over the dog's body.
Another witness testified that she saw Brown cross the road
(leaving his wife and child behind) and approach a dog, which was
wagging its tail and did not appear to be barking or growling.
According to the witness, Brown patted his leg as he got near the
dog, as if gesturing to greet or pet it. Brown then put his hand
on the back of the dog's head. At this point, the witness looked
away. A moment later, she heard the gunshot, turned, and saw
Brown dragging the dog's body up against a fence. After that,
Brown and his family walked away.
Brown claimed self-defense. Brown and his wife both
testified that a large dog came toward them from out of the
darkness, causing them to become concerned for their safety.
Brown first attempted to be friendly to the dog, calling to it
and patting his leg, but it responded by crouching; he then
gestured, trying to scare the dog away, but it suddenly lunged.
Brown unholstered his gun and shot the dog in order to protect
himself and his family.
Prior to trial, Brown moved for a protective order to
preclude the prosecution from presenting evidence of a recent
incident in which Brown had shot and killed another dog. The
previous incident, which occurred less than ten months before the
shooting for which Brown was being tried, began when two loose
dogs attacked Brown's wife as she walked past a neighbor's
driveway. One of the dogs bit and injured her thigh. Brown's
wife escaped the animals and immediately reported the attack to
Brown. Brown told her to call the police; as she did so, he
armed himself with a rifle and went to his neighbor's house to
investigate. Upon arriving there, he shot and killed one of the
dogs. Brown subsequently reported that the dog had charged him.
The shooting was investigated by the police, and no charges were
filed. In seeking to exclude evidence of this incident, Brown
argued that it was propensity evidence whose admission was barred
by Alaska Rule of Evidence 404(b).
After hearing an offer of proof concerning the prior
shooting, Judge Finn provisionally granted Brown's motion for a
protective order. The judge ruled that this evidence would be
excluded from the prosecution's case-in-chief, but that the
prosecution could later request its admission if the prior
incident became relevant to rebut any specific defense Brown
might raise. After the prosecution rested its case-in-chief,
Brown called his wife as a defense witness; when her testimony on
direct examination made it clear that Brown would claim self-
defense, the prosecution requested permission to cross-examine
Brown's wife about the prior incident. Over Brown's objection,
Judge Finn granted the request, ruling that evidence of the prior
shooting was relevant to establish motive, intent, and lack of
mistake or accident.
On appeal, Brown contends that this ruling was error.
We disagree. Alaska Rule of Evidence 404(b) provides, in
relevant part:
Evidence of other crimes, wrongs, or
acts is not admissible if 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. It
is, however, admissible for other purposes,
including, but not limited to, proof of
motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake or accident.
By its own terms, this rule bars the admission of
evidence of other similar conduct only when the "sole purpose" of
the evidence is to prove propensity. In the present case,
evidence of the prior shooting incident was not offered as
character evidence to prove that Brown had probably engaged in
the conduct with which he was charged. In other words, the
evidence was not offered to show that Brown had previously shot a
dog and therefore probably shot the dog that he was charged with
killing in the present case. In fact, there was no dispute at
trial as to whether Brown committed the act with which he was
charged: Brown readily acknowledged that he had shot the dog.
The issues contested in this case centered not on what
Brown had done but on why he had done it: whether Brown actually
believed it necessary to shoot the dog for protection of himself
and his family and, if so, whether that belief was reasonable.
Brown's defense plainly asserted his subjective belief that his
conduct was necessary; it also asserted the reasonableness of his
purported conclusion that killing the dog was necessary.
As correctly recognized by Judge Finn, evidence of the
prior shooting was highly probative of Brown's state of mind, or
motive: to show that Brown had a strong reason to dislike dogs
and therefore might have acted out of animosity, not fear. The
evidence was equally probative on the issue of intent: to show
the implausibility of Brown's claim that the dog lunged at him
and to establish that his fears, if they existed at all, were
unreasonable. See Adkinson v. State, 611 P.2d 528 (Alaska 1980);
see also Quave v. Bardwell, 449 So.2d 81 (La. App. 1984); Rushin
v. State, 267 S.E.2d 473 (Ga. App. 1980). See generally Edward
J. Imwinkelried, Uncharged Misconduct Evidence, ' 5:04 at 8
(1984; 1995 rev.); 22 Charles A. Wright & Kenneth W. Graham,
Federal Practice and Procedure, ' 5242 at 487-88 (1978).
Judge Finn did not abuse her discretion in admitting
evidence of the prior incident.
Brown next contends that Judge Finn erred in failing to
give his proposed instructions on self-defense. Prior to final
arguments, Brown submitted a packet of standard self-defense
instructions and proposed that they be given to the jury as to
both of the charges in the case. These proposed instructions
required the municipality to prove beyond a reasonable doubt that
Brown had not "reasonably believe[d]" that firing the gun and
shooting the dog were necessary to prevent death or physical
injury.2 The prosecution objected, arguing that Brown should be
required to prove that his conduct was justified and that the
prosecution had no duty to disprove his defense.
In support of this argument, the prosecution pointed
out that Anchorage's cruelty to animals ordinance expressly
provides for an exception that applies when killing an animal is
necessary for self-defense. Under AMC 17.10.060(A), a person may
not "intentionally or with criminal negligence kill . . . an
animal;" however, subsection (B)(2) of the ordinance specifies
that "[s]ubsection A of this section does not apply to[] killing
or injuring an animal where necessary to protect a human being .
. . from death or bodily injury." Citing Trout v. State, 866
P.2d 1323 (Alaska App. 1994), the prosecution argued that when a
statute defines a crime but creates an exception to that offense,
the defendant, rather than the prosecution, bears the burden of
proof as to the existence of the exception.3 The prosecution
thus urged the court to hold, as to the exception stated in
subsection (B)(2) of the cruelty to animals ordinance, that Brown
should be required to bear the burden of proof by at least a
preponderance of evidence, and perhaps by clear and convincing
evidence.
As to the offense of unlawfully discharging a firearm
within the municipality, the prosecution pointed out that the
municipal ordinance created no specific exception. The
prosecution argued that, under these circumstances, if Brown was
entitled to any defense, the defense should be governed by state
law, which specifies that the common-law defense of necessity
should apply in the absence of any specific statutory exceptions
or defenses dealing with necessity. AS 11.81.320(a)(1). To
bolster its position that necessity, rather than self-defense,
should apply, the prosecution noted that the definition of self-
defense contained in Alaska's revised criminal code does not
extend to the use of force against animals, instead applying only
to force used by "a person" against "another person." See AS
11.81.330(a).
In arguing that Brown's charge of unlawfully
discharging a firearm should be governed by the defense of
necessity, rather than the defense of self-defense, the only
distinction the prosecution emphasized was the distinction in the
applicable burden of proof. The prosecution pointed out that,
under state law, necessity is an affirmative defense, which the
defendant must prove by a preponderance of the evidence. See AS
11.81.320(b) and AS 11.81.900(b)(1)(B). In contrast, self-
defense is a defense, which the prosecution must disprove beyond
a reasonable doubt upon the presentation of some evidence placing
the defense in issue. See AS 11.81.300, AS 11.81.330, and AS
11.81.900(b)(15)(B). The prosecution repeatedly asserted that
Brown should be required to bear the burden of proving that it
was necessary for him to fire his gun in self-defense.
In reply to the prosecution's arguments, Brown insisted
that the municipality's cruelty to animals ordinance should be
construed to embody the traditional right of self-defense. In
support of his contention, Brown noted the similarity between the
language of the state's self-defense statutes -- which allow a
person to use deadly force when the person "reasonably believes"
the force to be "necessary for self defense against death [or]
serious physical injury," AS 11.81.335(a)(2) -- and the language
of the statutory exception in subsection (B)(2) of the
municipality's cruelty to animals ordinance -- which authorizes
"killing or injuring an animal where necessary to protect a human
being or domesticated animal from death or bodily injury." AMC
17.10.060 (B)(2). Brown also noted that it would be anomalous to
allow a person greater latitude to use deadly force against
another person than against a dog.
Brown thus characterized the necessity exception, as
set forth in subsection (B)(2) of the municipal cruelty to
animals ordinance, to be the equivalent of a self-defense
guarantee. Brown argued that, for this reason, the prosecution
should be required to shoulder the burden of disproving the
exception beyond a reasonable doubt. Brown further argued that,
because both of his charges were based on the same conduct, the
same right of self-defense -- and the same burden of proof --
should extend to the offense of unlawfully discharging a firearm,
even though the municipal code created no express exceptions to
that offense.
Judge Finn initially ruled in favor of Brown on one
charge and in favor of the municipality on the other. As to the
cruelty to animals charge, the judge agreed with Brown that the
exception set forth in AMC 17.10.060(B)(2) was essentially meant
to give Brown the traditional right to self-defense. Because
this defense was expressly provided for in the cruelty to
animals ordinance, Judge Finn found no need to rely on the state
necessity statute, which applies only if no "other statute
defining the offense provides exemptions or defenses dealing with
the justification of necessity," AS 11.81.320(a)(1). Thus, as to
the cruelty to animals charge, Judge Finn declared that the
prosecution would be required to disprove subsection (B)(2)'s
exception beyond a reasonable doubt.
To implement this decision, Judge Finn drafted an
instruction treating the exception as an essential element of the
offense of cruelty to animals -- an element whose non-existence
the prosecution was required to prove:
The essential elements of the
offense alleged in the complaint are as
follows:
First, that the event in question
occurred at or near the time and place
charged in the complaint;
Second, that the defendant did
intentionally or with criminal negligence;
Third, kill or abandon an animal;
and
Fourth, that killing an animal was
not necessary to protect a human being from
death or bodily injury.
If you find from your consideration
of all the evidence that each of these
propositions has been proved beyond a
reasonable doubt, then you shall find the
defendant guilty.
If, on the other hand, you find
from your consideration of all the evidence
that any of these propositions has not been
proved beyond a reasonable doubt, then you
shall find the defendant not guilty.
As to the charge of unlawfully discharging a firearm,
however, Judge Finn initially reached a contrary result. Relying
on the municipal code's failure to specify any defense or
exception for this offense, the judge reasoned that Brown's right
of self-defense should be governed by the state necessity
statute, which created an affirmative defense that required Brown
to bear the burden of proof by a preponderance of the evidence.
Judge Finn declared her intention to prepare a jury instruction
to this effect.
Following a recess in proceedings, however, the judge
informed the parties that she had changed her mind. Judge Finn
announced that giving the jury disparate instructions on the two
charges would be unduly confusing. Concluding that "self-defense
is self-defense," and finding that self-defense is not an
affirmative defense, the judge stated that she had elected to
make the instructions consistent as to both offenses and to
require the prosecution to disprove self-defense beyond a
reasonable doubt as to both charges. Since express statutory
language comparable to that written into the cruelty to animals
ordinance's necessity exception did not exist as to the
discharging a firearm charge, the judge drafted an instruction
for that offense advising the jury that "a person may discharge a
firearm when and to the extent that the person reasonably
believes the discharge of a firearm is necessary to defend him or
herself or another person from death or physical injury." The
instruction told the jury to acquit Brown "[u]nless the
Municipality has proven beyond a reasonable doubt that the
defendant did not discharge a firearm in self-defense[.]"
The prosecution objected to the trial court's rulings
as to both offenses and unsuccessfully sought interlocutory
review by this court. In contrast, Brown voiced no objection at
all to the court's instruction on the essential elements of the
offense of cruelty to animals, which incorporated the necessity
exception. As to the instruction dealing with discharging a
firearm, Brown did note "an objection for the record,"
cryptically stating that he "should object to the form as opposed
to the form submitted to the court" in his own proposed
instructions. Brown separately objected to the trial court's
refusal to instruct the jury on the municipal code's definition
of what constitutes an "attack" by a dog -- a definition Brown
thought necessary to assist the jury in assessing the
reasonableness of his conduct.
During final argument, Brown argued his theory of self-
defense as to both charges, insisting that he had been reasonable
in believing it necessary to kill the dog in order to protect
himself and his family. In response, the municipality urged the
jury to find that Brown had been the aggressor, that reasonable
alternatives to killing the dog had been available, and that,
therefore, "the dog's death was not necessary[,]" even "if
[Brown] had some idea of defending himself."
Having been acquitted of unlawfully discharging a
firearm and convicted of cruelty to animals, Brown now complains
that his proposed self-defense instructions should have been
incorporated into the instructions that the trial court gave in
connection with the cruelty to animals charge. Brown suggests
that the failure to instruct on self-defense as to the cruelty to
animals charge resulted in the disparate verdicts acquitting him
of unlawfully discharging a firearm but convicting him of cruelty
to animals.
As our explanation above makes clear, however, Brown
never objected to the trial court's instruction on the essential
elements of cruelty to animals; this instruction incorporated the
necessity defense that he asserted below. And at no time after
Judge Finn decided to incorporate subsection (B)(2)'s necessity
exception into the jury instruction dealing with the essential
elements of cruelty to animals did Brown request any supplemental
instruction on self-defense as to that charge. Brown is thus
entitled to relief only upon a showing of plain error.
Although the literal wording of the cruelty to animals
instruction might be interpreted to make Brown's self-defense
claim contingent on the existence of an actual need for self-
defense rather than on his reasonable belief that self-defense
was necessary, we find no plain error under the circumstances
presented here. The trial court and the parties alike construed
the instructions given below to afford Brown essentially the same
self-defense claim as to both of the charges against him. Brown
fully argued the same theory of self-defense as to both charges,
specifically asserting that he could not be convicted of either
charge if the jury concluded that he had reasonably believed it
necessary to kill the dog in order to defend himself or his
family from physical injury.4 In rebuttal, the prosecution did
not assert that Brown was subject to differing standards of self-
defense as to the two different charges; instead, it essentially
argued that even if Brown subjectively believed it necessary to
kill in self-defense, his belief was unreasonable, since numerous
reasonable alternatives were available to him. Finally, as will
become clear in our discussion below of Brown's inconsistent
verdict claim, we find no indication that the disparate jury
verdicts reflect confusion over the scope of Brown's right to
defend himself or his family from danger.
In short, assuming Brown was entitled to self-defense
instructions as to his charges,5 the instructions actually given
below adequately informed the jury of the defense. In light of
Brown's failure to make any specific request to revise or
supplement the instruction dealing with the essential elements of
the offense of cruelty to animals, we find no abuse of discretion
in the trial court's failure to give Brown's proposed self-
defense instructions as to that charge. Stoneking v. State, 800
P.2d 949, 950 (Alaska App. 1990).
` Brown separately contends that the trial court erred in
failing to instruct the jury on the definition of what
constitutes an "attack" by a dog. See AMC 17.05.010. Although
Brown argues that the definition was essential to enable the jury
to evaluate his claim of self-defense, he does not specify why.
Neither of the charges against Brown made any direct use of or
indirect reference to a dog "attack." Nor is it clear how the
municipal definition would have been of material benefit to the
jury in evaluating whether Brown reasonably believed it necessary
to defend himself or his family under the specific circumstances
of the present case. Finally, although Judge Finn declined to
include the municipal definition of "attack" in the jury
instructions, the judge expressly told Brown, "you can argue it
if you want[.]" We find no abuse of discretion. Stoneking, 800
P.2d at 950.
Brown lastly contends that Judge Finn erred in denying
his motion to dismiss the cruelty to animals conviction on the
ground that the jury's verdict convicting Brown of that offense
was inconsistent with its verdict acquitting him of unlawfully
discharging a firearm. Brown argues that, since the two charges
were based on the same conduct and were subject to the same right
of self-defense, his conviction for cruelty to animals cannot
logically be reconciled with his acquittal of unlawfully
discharging a firearm.
The law governing inconsistent jury verdicts is well
settled. When a defendant is tried for two crimes and is
convicted of one but acquitted of the other, the conviction must
be reversed if the jury's verdicts are logically inconsistent
with each other. DeSacia v. State, 469 P.2d 369, 378 (Alaska
1970). However, unless verdicts are "irreconcilably in
conflict," meaning "necessarily or strictly inconsistent," they
must be upheld. Davenport v. State, 543 P.2d 1204, 1207 (Alaska
1975); DeSacia, 469 P.2d at 373, 378. Verdicts challenged for
inconsistency must be evaluated in light of the instructions the
jury received. Hansen v. State, 845 P.2d 449, 456-57 (Alaska
App. 1993).
Brown's verdicts are not logically inconsistent. Under
the instructions given below, in order to convict on the charge
of unlawfully discharging a firearm, the jury was required to
find beyond a reasonable doubt that Brown could not reasonably
have believed it necessary to fire his gun in defense of himself
or his family. By contrast, to convict on the charge of cruelty
to animals, the jury was required to find beyond a reasonable
doubt that Brown could not reasonably have believed it necessary
to kill the dog in defense of himself or his family. As Judge
Finn correctly recognized in denying Brown's motion to dismiss
the cruelty to animals charge, there would have been nothing
logically inconsistent in the jury concluding that although Brown
could reasonably have believed it necessary to fire a warning
shot or to fire a shot aimed at injuring the dog, he could not
reasonably have believed it necessary to kill the animal. The
logical consistency of this result seems particularly apparent
given the extensive testimony presented at trial concerning
Brown's expertise with firearms and his experience in dealing
with dangerous animals -- evidence strongly suggesting that Brown
should have been well aware of his ability to protect himself and
his family by means less drastic than a shot between the dog's
eyes.
As Judge Finn also correctly recognized, the circum
stances surrounding the return of Brown's verdicts seem to
indicate that this was precisely what the jury decided. The
relevant circumstances involve a note that the jury sent to the
court inquiring about a discrepancy between jury instructions
number 7 and number 8. A brief explanation is necessary to place
the jury's inquiry in context.
As we have already mentioned in this decision, the
language of the municipality's cruelty to animals ordinance
carves out an exception that allows "killing or injuring an
animal where necessary to protect a human being . . . from death
or bodily injury." AMC 17.10.060(B)(2)(emphasis added). This
language, including the words "or injuring," was given verbatim
to Brown's jury in instruction number 7, which simply set out
relevant text from the cruelty to animals ordinance. The next
jury instruction, number 8, described the essential elements of
the offense of cruelty to animals. As we have also previously
pointed out, this instruction incorporated subsection (B)(2)'s
necessity exception as the fourth element of the offense,
informing the jury that, to establish Brown's guilt, the
prosecution bore the burden of disproving the exception: "Fourth,
that killing an animal was not necessary to protect a human being
from death or bodily injury." As can be seen, this instruction
restated more or less verbatim the language of subsection (B)(2).
But because Brown had been charged with killing, not injuring, a
dog, the instruction's reference to "killing an animal" omitted
the words "or injuring" from subsection (B)(2)'s reference to
"killing or injuring an animal." The words omitted from
instruction number 8 had been included in instruction number 7.
During the course of its deliberations, Brown's jury
noticed the difference between instructions 7 and 8, and the jury
sent a note to the court seeking clarification. The note asked
if the word "injuring" had been deliberately omitted from the
elements of the offense instruction. In response, with Brown's
approval, the court advised the jury that "injury is not an issue
in this case," and that "you can delete 'or injuring' from your
consideration of MOA Code of Ordinance Sec. 17.10.060[], as it
was included in that instruction in error."
The trial court's clarifying instruction in effect
informed the jury that, as to the cruelty to animals charge, the
claim of self-defense in Brown's case centered on the question of
whether Brown reasonably believed that he needed to kill, not
injure, the dog. Within ten minutes of receiving this clarifi
cation, the jury returned its verdicts, convicting Brown of
cruelty to animals but acquitting him of unlawfully discharging a
firearm.
We agree with Judge Finn that the jury's focus on the
omission of the word "injury" from instruction number 8, and its
return of a verdict within minutes of being assured that this
omission was intended and appropriate, strongly suggest that the
decision to convict Brown of cruelty to animals while acquitting
him of unlawfully discharging a firearm rested on rational
ground: the jury's conclusion that firing a shot to frighten or
injure the dog might have been reasonable but that shooting to
kill plainly was not. Under these circumstances, Judge Finn did
not err in declining the find Brown's verdicts inconsistent.
Having found no error, we AFFIRM Brown's conviction.
_______________________________
*Sitting by assignment made pursuant to article IV, section 16 of the
Alaska Constitution.
1. Brown based his proposed instructions on AS 11.81.335, which provides
in part:
(a) Except as provided in (b) of this section, a person may use
deadly force upon another person when and to the extent
(1) the use of nondeadly force is justified under AS 11.81.330;
and
(2) the person reasonably believes the use of deadly force is
necessary for self defense against death [or] serious physical
injury . . . .
2. Both below and on appeal, the municipality has mistakenly relied on
Trout for the proposition that the defendant bears the burden of proving,
by at least a preponderance of the evidence, the existence of a statutory
exception to a crime. In Trout, we held that a statutory exception to a
crime ordinarily need not be treated as an element of an offense and thus
need not be negated unless the defense presents some evidence to place the
defense in issue. However, we expressly declined to determine who should
bear the burden of proving or disproving the exception after some evidence
had been presented to place it in issue; we likewise declined to determine
the quantum of proof that would apply. In the context of the present case,
Trout at most establishes that Brown was required to produce some evidence
of self-defense or necessity before he was entitled to an instruction on
either defense.
3. As Brown himself asserted in his post-trial motion to set aside the
cruelty to animals conviction based on inconsistent verdicts, "[i]t was
clear that the court's intent was that the self-defense standard be the
same on each charge."
4. As previously mentioned, see footnote 2 above, our decision in Trout
v. State expressly reserved the questions of whether and to what extent
statutory exceptions to a crime should be deemed to shift the burden of
proof from the state to the accused. Our disposition in this case makes it
unnecessary to address this issue; we express no opinion on it.
