NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are requested to bring
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LARRY G. CLARK, )
) Court of Appeals No. A-6346
Appellant, ) Trial Court No. 4FA-S95-3045CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1572 - January 30, 1998]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Ralph R. Beistline, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. James L. Hanley, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
STEWART, Judge.
Larry G. Clark was convicted of two counts of attempted
kidnapping, AS 11.41.300(a)(1)(C) and AS 11.31.100(a), two counts
of attempted sexual abuse of a minor in the second degree, AS
11.41.436(a)(2) and AS 11.31.100(a), one count of assault in the
first degree, AS 11.41.200(a)(1), one count of failure to render
assistance, AS 28.35.060(a) & (c), and one count of driving while
intoxicated, AS 28.35.030(a)(1) & (2). Clark received a composite
sentence of eleven years and thirty-two days to serve. Clark
appeals his conviction and part of his sentence on various grounds.
On September 14, 1995, A.G. and S.G., sisters who were
thirteen and eleven years old respectively, were walking home from
school along Lathrop Street in Fairbanks. Clark waved to them as
he drove by in his truck. A.G. thought Clark was a friend of her
father's and waved back. Clark drove around the block and pulled
over to the curb as the girls approached. When Clark was a little
more than an arms-length away from the girls, he motioned for them
to get in his truck saying, "Come on, jump in the truck."
The girls did not stop. Clark backed up his truck, to
keep pace with the girls, and again solicited them to get in the
truck. A.G. and S.G. became frightened and ran for home. Clark did
an immediate U-turn and pursued them.
The girls ran between houses in the neighborhood. They
arrived at their home moments before Clark pulled up in front of
their house.
Both girls were in tears and out of breath when they were
met by their father, B.G., at the front door. He noticed Clark's
truck by the sidewalk. Clark drove away while A.G. and S.G.
described Clark's actions to their father.
Two other drivers in the area were concerned with Clark's
actions because the girls appeared to have been frightened by him.
Mary Loesche called 911 and provided the police with a description
of Clark's vehicle and its registration number. Joseph Washington,
who saw the girls running from Clark's truck, went to the girls'
house and assisted B.G. in his efforts to locate Clark's truck.
B.G., who had a hunting rifle with him, found Clark
sitting in his truck at a nearby apartment complex. B.G. attempted
to detain Clark, at one point retrieving his rifle from his vehicle,
while one of his daughters called the police. However, Clark fled
in his truck. B.G.'s attempted pursuit was unsuccessful.
Clark returned to the area and fled again when he saw B.G.
and Washington in their vehicles. Clark drove away at very high
speeds, followed by B.G. Clark eventually crashed into the side of
a taxi when he ran a stop sign.
The taxi driver, Larry Metts, was severely injured with
fractured ribs and respiratory problems associated with the trauma,
and briefly lost consciousness. Clark did not remain at the scene
of the accident.
Officer Ron Bowers, who was responding to the call for
help from one of the girls and heard the report on his radio of the
hit and run accident, saw Clark driving in his damaged pickup and
stopped him. Clark was intoxicated. Clark was arrested.
The Trial Testimony of P.P., D.R., and R.C.
At trial, Judge Ralph R. Beistline allowed the testimony
of three women, P.P., D.R., and R.C., as relevant evidence on the
issue of Clark's intent.
According to P.P.'s testimony, she met Clark at a lounge,
the Lamplighter, in Sequim, Washington, on the afternoon of January
1, 1989. At Clark's suggestion, they left in Clark's truck. They
stopped in the parking lot of a nearby marina where they both
ingested cocaine and Clark drank beer. They went to another bar
where they each drank more. After leaving the bar, Clark drove to
a remote area. He snorted more cocaine and forced P.P. to snort
more as well. Clark coerced her to remove her shirt and bra. He
forcibly removed the rest of her clothing. He continued to snort
cocaine throughout the assault. He attempted intercourse a number
of times, but could not achieve an erection. Clark penetrated P.P.
with a dildo, both vaginally and anally. He inserted two one
hundred dollar bills into her vagina. The bills were removed later
by an emergency room physician. Clark was convicted of misdemeanor
assault in the criminal case that arose from his actions with P.P.
According to D.R.'s testimony, she met Clark at the Surf
and Sand, a bar on the Washington coast, on the afternoon of
September 17, 1989. Clark was persistent in his efforts to engage
her attention, but he left alone after the bartender stopped serving
him and forced him to leave. D.R. left about an hour later and was
confronted by Clark near her car. She declined his offer to go for
a walk on the beach. Clark threw her to the ground and got on top
of her. They struggled in the sand until D.R. was able to stun
Clark with a punch to the nose and escape. Clark was convicted of
misdemeanor assault for his actions toward D.R.
R.C., who worked in a bar in Ketchikan that Clark
frequented, walked by Clark on a street after the bar closed on
November 12, 1990. Clark followed her to where she was waiting for
a cab, grabbed her left breast and told her that he would knock her
to the ground and "kick the shit out of [her]" if she tried to run.
R.C. managed to signal to a police officer who was driving by as the
struggle began. The officer pulled over. Clark fled. Clark was
convicted of fourth-degree assault for his actions toward R.C.
Clark argues on appeal that the superior court's decision
to admit the testimony of P.P., D.R., and R.C. under Alaska Rule of
Evidence 404(b)(1) as relevant evidence of Clark's intent was an
abuse of discretion. See Hawley v. State, 614 P.2d 1349, 1361
(Alaska 1980).
A.R.E. 404(b)(1) requires that evidence of prior bad acts
have relevance to an issue other than the defendant's propensity to
engage in similar misconduct. Even if the evidence is relevant for
a purpose other than propensity, such evidence remains subject to
exclusion under A.R.E. 403 if its potential for prejudice outweighs
its legitimate probative value. See Jordan v. State, 895 P.2d 994,
999 (Alaska App. 1995).
The evidence from those three incidents, admitted as
evidence of Clark's intent, established that Clark had the character
or propensity to engage in physically and sexually assaultive
behavior that is both violent and aggressive with no consideration
for the victim's consent.
"The theory upon which evidence of other crimes is
admissible on [the issue of intent] under Rule 404(b) is that its
use on the mental element of the offense does not require an
inference as to the character of the accused or as to his conduct."
22 C. Wright & K. Graham, Federal Practice and Procedure sec. 5242,
at
487-88 (1978) (hereinafter Wright & Graham). See generally,
Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99
L.Ed.2d 771 (1988). Intent is one of the bases for admissibility
expressly listed in A.R.E. 404(b) and is thus clearly recognized
under Alaska law. Because the admission of evidence of other
misconduct on the issue of intent could permit the admission of
evidence so broadly that the basic limitations of the rule would be
negated, two limitations are commonly imposed. First, intent must
be seriously disputed. See Freeman v. State, 486 P.2d 967, 977
(Alaska 1971). Second, the evidence of other misconduct must be
similar to the act of misconduct with which the accused is charged.
See Wright & Graham, sec. 5242, at 490-92; Adkinson v. State, 611
P.2d
528, 532 (Alaska 1980) cert. denied, 449 U.S. 876 (1980);
Oksoktaruk v. State, 611 P.2d 521, 524 (Alaska 1980).
With respect to the evidence of Clark's three earlier
sexual assaults on women, the ultimate question is whether Clark's
earlier assaultive behavior merely manifested Clark's proclivity to
sexually assault women, or whether those prior assaults occurred
under circumstances similar enough to the present case to allow the
jury to draw a reasonable inference of Clark's intent when he
approached and followed A.G. and S.G.
We recently addressed this same issue in Smithart v.
State, 946 P.2d 1264 (Alaska App. 1997). In Smithart, we noted that
Evidence Rule 404(b)(1) bars evidence of the defendant's other
wrongful acts
if the only relevance of those other wrongful
acts is to show that the defendant is a person who, by nature,
engages in such wrongful acts, and if there is no connection between
those [other] acts and the episode being litigated other than the
assumption that people of a certain character would act the same way
on both occasions.
Smithart, 946 P.2d at 1271 (footnote omitted). In Smithart, we
concluded that the State's evidence of other acts was not barred by
Evidence Rule 404(b)(1) because the State showed that those acts had
a case-specific relevance to the issues being litigated at trial.
However, in Clark's case, we conclude that the State failed to
demonstrate such relevance.
Viewed in the light most favorable to the State, the
disputed evidence showed that Clark had a proclivity to approach and
sexually assault women when he was intoxicated by drugs or alcohol.
However, if the evidence was offered for this purpose, it would be
barred by Rule 404(b)(1). The question, then, is whether the
evidence had some other, more case-specific relevance. Examining
the facts of this case and the facts of the prior incidents, we
conclude that the State failed to demonstrate any other ground of
relevance.
In one of the three prior incidents, Clark was on a date
with his victim a substantially different circumstance from the
present case. In the other two incidents, Clark's behavior was
somewhat closer to his behavior in the present case: he apparently
chose a victim, waited outside a bar or restaurant for the woman to
leave, and then approached and attacked her. However, each of these
prior episodes involved adult women victims dissimilar to the
young teenagers in the present case. The only clear ground of
relevance that emerges from the three prior incidents is Clark's
proclivity to sexually assault women. Offered for this purpose, the
evidence was barred by Evidence Rule 404(b)(1). See Velez v. State,
762 P.2d 1297, 1304 (Alaska App. 1988):
[T]he state cannot offer evidence that [the
defendant] . . . had a disposition to force his affections on
unwilling women, and then [ask the trier of fact to] infer from that
disposition that [the defendant] forced his affections on [the
victim in the present case]. Despite its relevance, this evidence
is absolutely precluded [by Evidence Rule 404(b)(1)].
(In response to Velez and similar decisions construing the
language of current Rule 404(b)(1), the legislature amended Evidence
Rule 404(b) by adding subsections (b)(2) and (b)(3). These
provisions authorize the introduction of evidence concerning the
defendant's other wrongful acts even though that evidence would
otherwise be barred by Rule 404(b)(1). However, the State does not
argue that the evidence in Clark's case was admissible under either
of these subsections.)
We conclude that the testimony of P.P., D.R., and R.C. was
erroneously admitted. We further conclude that the admission of
this evidence was not harmless error. See Love v. State, 457 P.2d
622, 629-31 (Alaska 1969). Thus, Clark's convictions for attempted
kidnapping and attempted sexual assault must be reversed.
Motion to Dismiss Indictment
Clark moved to dismiss counts I-IV of the indictment in
the trial court, the attempted kidnapping and the attempted sexual
abuse of A.G. and S.G. Clark argued that the testimony of P.P. and
D.R. that was presented to the grand jury was inadmissible evidence
of prior bad acts. P.P. and D.R. had each testified that Clark had
sexually assaulted them in separate incidents in Washington in 1989.
The State argued, and the trial court agreed, that the evidence of
Clark's prior bad acts was admissible as evidence of Clark's intent.
Clark renews this argument on appeal.
The decision to grant or deny a motion to dismiss an
indictment is committed to the trial judge's discretion and will not
be overturned absent an abuse of discretion. See Sheldon v. State,
796 P.2d 831, 834 (Alaska App. 1990). However, the presentation of
inadmissible evidence to a grand jury will warrant dismissal of an
indictment only if the remaining evidence would be insufficient or
if "the probative force of that admissible evidence was so weak and
the unfair prejudice engendered by the improper evidence was so
strong that it appears likely that the improper evidence was the
decisive factor in the grand jury's decision to indict." Stern v.
State, 827 P.2d 442, 445-46 (Alaska App. 1992) (citations omitted).
We ruled above that the testimony of P.P and D.R should
not have been admitted at Clark's trial. Therefore, the testimony
should not have been admitted at grand jury. In our view, the
probative force of the remaining evidence was sufficient to support
the indictment, but did not present a strong case. However, the
inadmissible evidence from P.P. and D.R. established that Clark was
a dangerous offender with a proclivity to sexually assault women.
Therefore, we conclude that the evidence from P.P. and D.R. was
likely the "decisive factor in the grand jury's decision to indict"
on the attempted kidnapping and the attempted sexual abuse counts.
Stern, 827 P.2d at 446.
However, the testimony of P.P. and D.R. at grand jury,
though inadmissible, was solely relevant to the attempted kidnapping
and attempted sexual abuse charges. The evidence supporting the
remaining counts in the indictment was strong. Based on our review
of the grand jury proceedings, we conclude that there was no
reasonable possibility that the inadmissible evidence from P.P. and
D.R. was the decisive factor in the grand jury's decision to indict
Clark on the remaining counts of the indictment. Accordingly, the
trial court should have dismissed counts I-IV of the indictment, but
the other counts survive.
Judgment of Acquittal
Clark maintains that the trial court erred by denying his
motion for judgments of acquittal on the attempted kidnapping
charges and the attempted sexual abuse charges. On appeal, he
argues that the evidence did not establish a "substantial step"
toward the commission of those offenses. (At trial, Clark's
attorney argued that the evidence was insufficient to show an intent
to restrain or abduct the minors. He does not renew this claim.)
To decide a motion for judgment of acquittal based on
insufficiency of evidence, we must consider the evidence presented
at trial and all of the inferences arising therefrom in the light
most favorable to the State. Viewing the evidence in this manner,
we must determine whether a fair-minded juror exercising reasonable
judgment could conclude that the State met its burden of proving
guilt beyond a reasonable doubt. See Dorman v. State, 622 P.2d 448,
453 (Alaska 1981); Deal v. State, 657 P.2d 404, 405 (Alaska App.
1983).
We conclude from our review of the record that fair-minded
people could conclude that Clark had committed a substantial step
toward kidnapping and sexually abusing the girls. Clark made
contact with the girls, tried to entice them into his vehicle, and
continued to pursue them, practically to their doorstep, when they
fled. Clark's conduct and its impact on the girls was so disturbing
that two separate observers mentioned above, Loesche and Washington,
were motivated to take action. In the absence of any other
explanation for Clark's behavior, it would be reasonable to conclude
that Clark was trying to abduct the girls for sexual purposes.
The Neubauer Testimony
The trial court also admitted the testimony of Jon
Neubauer. Clark maintains that Neubauer's testimony was erroneously
admitted.
Clark had claimed necessity as an affirmative defense to
the charges of first-degree assault, leaving the scene, and third-
degree assault, counts V-VII. The rationale behind the defense
followed that Clark's acts were the products of fear of B.G., who
was screaming at him and wielding a rifle. In order to rebut the
claim of necessity, the State introduced Neubauer's testimony about
a 1991 incident in which he had confronted Clark with a rifle when
he found Clark hiding in his furnace room early one morning. In
that incident, Clark struggled with Neubauer, despite his weapon,
until police arrived. The State argued for the admissibility of
this evidence under Evidence Rule 404(b)(1).
The evidence was offered to prove Clark's state of mind
when he fled the apartment complex. The issue was whether (as the
State claimed) Clark fled because he knew that B.G. was about to
arrest him for a serious felony, or (as the defense claimed) Clark
fled because he feared that B.G. was about to unlawfully assault him
with a firearm.
The State claimed that Clark's struggle with Neubauer
showed that Clark was not afraid of people with firearms thus
purportedly casting doubt on Clark's assertion that he fled because
he feared he would be harmed by B.G. However, Clark points to a
compelling distinction between the Neubauer incident and the present
case. In the earlier incident, Clark was cornered in the furnace
room and could not escape without a struggle, while in the present
case he was able to drive away. Given this difference in the two
situations, Clark's behavior with Neubauer seems to have only
marginal relevance to interpreting Clark's flight in the present
case.
On the other hand, Neubauer's testimony did not have great
potential for prejudice. Taken in the light most damaging to Clark,
Neubauer's testimony showed that, four years before the incident in
the present case, an intoxicated Clark had trespassed in Neubauer's
house and, when confronted, had struggled with Neubauer in an effort
to escape. Just as evidence of this incident had little relevance
to proving Clark's state of mind in the present case, it also
presented little danger of unfair prejudice. The Neubauer incident
was quite dissimilar to the present case, and Clark's wrongful act
at that time (trespass) was considerably different from, and
considerably less serious than, the crimes for which Clark was being
tried in the present case. We conclude that there was little or no
chance that the jurors would be tempted to convict Clark of the
serious felonies charged against him in the present case based on
an emotional response to his 1991 trespass at Neubauer's home.
In addition, the trial court gave the jury a limiting
instruction prior to Neubauer's testimony. Judge Beistline
instructed the jury that the testimony was being presented to show
Clark's state of mind when he was confronted with the rifle, and was
not to be considered or discussed by the jury for any other purpose.
We presume that the jury followed this instruction. See McDonald
v. State, 872 P.2d 627, 655 (Alaska App. 1994).
Given the strict limitations that Judge Beistline placed
upon the scope of the evidence in the form of a limiting instruction
that was given to the jury prior to the introduction of the
evidence, the admission of Neubauer's testimony was not an abuse of
the trial court's discretion.
Jury Instructions on Necessity
Clark contends that the trial court erred by failing to
instruct the jury about the interplay between the necessity
instruction and the citizen's arrest instruction, and that as a
result the jury verdicts for first-degree assault and failure to
remain at the scene of an injury accident were premised on a
misunderstanding of the law. Because no objection was made at
trial, we review this issue for plain error. See S.R.D. v. State,
820 P.2d 1088, 1095 (Alaska App. 1991).
The jury was instructed on the defense of necessity as to
the first-degree assault, failure to remain at the scene of an
injury accident, and third-degree assault charges. The jury was
instructed that Clark had to prove that the act charged was done to
prevent a significant evil, defined as "harm caused by the unlawful
act of another." As the brandishing of a weapon in the manner that
B.G. did met the definition of third-degree assault, AS
11.41.220(a)(1)(A), it was an unlawful act unless it was justified.
The potential justification in this case was that B.G. believed that
Clark had attempted to commit a serious felony and he was trying to
apprehend Clark.
For "citizen's arrest," the jury was instructed that
a private person may lawfully use deadly force
in these circumstances only when and to the extent the private
person reasonably believes the use of deadly force is necessary to
make an arrest or terminate the escape or attempted escape from
custody of a person who the private person reasonably believes has
committed a felony which involved the use of force against a person.
Clark argues that because the jury was not instructed that it was
to consider whether he understood the situation to be a citizen's
arrest or an unlawful act by B.G., the jury would have had
difficulty finding support for his necessity defense.
However, Clark neglects to mention that the court did
instruct on this point. The jury was instructed that if the
defendant "reasonably believed that he must act to prevent a
significant evil, and also believed that there was no adequate
alternative to violating the law, then he had satisfied [the
elements of the necessity defense] even if his belief was mistaken,
unless the mistake was due solely to voluntary intoxication."
To prove the asserted defense of necessity under the facts
of this case, Clark was obliged to show (at a minimum) that he drove
away from the apartment complex to avoid an unlawful assault. That
is, Clark would have to prove that he fled because (1) he reasonably
feared that B.G. was going to threaten or harm him with a firearm,
and (2) he reasonably believed that B.G.'s threatened use of the
firearm was unlawful. The State asserted that, to the extent that
B.G. threatened Clark with the use of force, there was nothing
unlawful in B.G.'s actions. That is, the State argued that B.G. was
authorized to use force (or threaten the use of force) against Clark
because B.G. had probable cause to believe that Clark was a fleeing
felon.
Clark argues that these competing theories potentially
raised a legal difficulty that was not cleared up in the jury
instructions. Clark contends that it was possible for the jury to
conclude that B.G. was authorized to use force against Clark
(because B.G. had probable cause to believe that Clark was a fleeing
felon), but at the same time conclude that Clark's actions were
justified by necessity. The jury could reach this conclusion if
they believed that Clark was, in fact, innocent of wrongdoing and
that Clark reasonably believed that B.G. was about to assault him
without justification.
In other words, because the legality of B.G.'s actions and
the legality of Clark's actions both hinged on their reasonable
beliefs about the circumstances, and because a person's belief can
be mistaken and still be reasonable, it was theoretically possible
that B.G. reasonably (but mistakenly) believed that he was
authorized to use force against Clark, but Clark nevertheless
reasonably believed that he was authorized to escape an impending
assault with a firearm.
In the trial court, Clark did not ask for a clarification
of this point. He must therefore show that this deficiency or
ambiguity in the jury instructions "obviously create[d] a high
likelihood that the jury [would] follow an erroneous theory[,]
resulting in a miscarriage of justice." Nelson v. State, 927 P.2d
331, 334 (Alaska App. 1996) (citation omitted). We conclude that
Clark has failed to show plain error. Although Clark has pointed
out a theoretical difficulty in the jury instructions, the
difficulty remained purely theoretical under the facts of Clark's
case.
Given the jury's decision to convict Clark of attempted
kidnapping and attempted sexual abuse of a minor, the potential
problem in the jury instructions would not have made any difference
to the resolution of Clark's case unless the jury concluded (1) that
even though Clark was guilty of attempted kidnapping and attempted
sexual abuse of a minor, (2) Clark reasonably believed himself to
be innocent of wrongdoing, and (3) Clark also reasonably believed
that B.G. had no justification for trying to stop Clark from leaving
or for approaching him with a firearm. This possibility was remote
enough that Clark's trial attorney failed to perceive it. We
conclude that there was essentially no possibility that the jury was
misled by the jury instructions on this issue.
DNA Blood Sample
Following entry of judgment, Clark was notified by the
Department of Corrections that DNA testing was mandatory. See AS
44.41.035. By motion before the trial court, Clark attempted to
prohibit the Department from obtaining a blood sample. The court
denied his motion.
Clark maintains on appeal that the trial court did not
have authority to order a blood sample to be taken from Clark for
DNA testing. However, the court did not issue an order for DNA
testing, but merely denied Clark's motion. The Department's power
to demand DNA testing arises from statute and is a result of Clark's
conviction. Clark's attack on the statute is properly the subject
of a direct challenge in a separate proceeding, not as ancillary to
this case. The superior court's denial of Clark's post-judgment
motion was not error.
Interest on Restitution Payments
Clark objects on appeal to the order of interest on his
restitution payments for damages arising from the vehicular assault
conviction. However, Clark did not object to interest in the trial
court. Therefore, we review for plain error. See Potts v. State,
712 P.2d 385, 390 (Alaska App. 1985).
Interest on restitution payments is permitted. See Dorris
v. State, 656 P.2d 578, 584 (Alaska App. 1982). In addition, the
legal rate of interest on a judgment is set by statute. See AS
09.30.070(a). As provided in AS 12.55.051(d), a restitution order
is enforceable as a civil judgment under AS 09.35. Clark's
objection to the superior court's order regarding interest is
without merit.
Conclusion
Clark's convictions for attempted sexual abuse of a minor
and attempted kidnapping are REVERSED. If the State elects to retry
Clark on these charges, it must secure a new indictment. Clark's
convictions for first-degree assault, failure to remain at the scene
of an injury accident, and driving while intoxicated are AFFIRMED.
