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State v. Bingaman (10/22/99) ap-1651
State v. Bingaman (10/22/99) ap-1651
NOTICE:
The text of this opinion can be corrected before the opinion is published
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STATE OF ALASKA, )
)
Court of Appeals No. A-7107
Petitioner, )
Trial Court No. 3KN-S97-1440CR
)
v. )
O P I N I O N
)
KENNETH L. BINGAMAN, )
)
Respondent. )
[No. 1651 - October 22, 1999]
)
Appeal from the Superior Court, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Petitioner. Peter F. Mysing, Kenai, for Respondent.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
COATS, Chief Judge.
Alaska Rule of Evidence 404(b)(4) provides that "[i]n a prosecution
for a
crime involving domestic violence . . . evidence of other crimes involving
domestic
violence by the defendant against the same or another person . . . is admissible."1
This
petition presents the question of whether the admission of "evidence of
other crimes
involving domestic violence" requires proof of a conviction under this
rule. The trial
judge ruled that only incidents of domestic violence where the defendant
had actually
been convicted of a crime were admissible. We conclude that the trial
judge erred and
hold that Rule 404(b)(4) "evidence of other crimes involving domestic violence
by the
defendant" does not require proof of a conviction to be admissible.
Kenneth L. Bingaman was charged with three counts of sexual abuse of a
minor in the second degree,2 a class B felony, for conduct spanning
more than a year and
involving S.H., the daughter of his live-in girlfriend. A grand jury
also charged Bingaman
with one count of assault in the third degree,3 a class C felony for conduct
involving K.H.,
S.H.'s mother. At trial, the state gave notice of its intent to introduce
evidence pursuant
to Rule 404(b)(4) of several prior incidents of assault involving Bingaman
and several
members of the victims' household.
Bingaman filed for a protective order to exclude this evidence. Superior
Court Judge Harold Brown granted the protective order, ruling that before
he could admit
evidence of other crimes under Rule 404(b)(4), the state had to prove that
Bingaman had
been convicted of a crime for the incident. Judge Brown also ruled
that evidence of some
of the incidents which the state sought to admit was more prejudicial than
probative, and
was therefore inadmissible under Rule 403. The state brought a petition
for review, which
this court granted.
Whether "other crimes involving domestic violence" requires a conviction
is a question of law which this court is to review independently.4
"We are to adopt the
rule of law that is most persuasive in light of precedent, reason, and
policy."5
Alaska Rule of Evidence 404(b) describes circumstances when evidence of
prior bad acts is admissible. The rule starts out with a prohibition.
Rule 404(b)(1) states
that evidence of a person's other wrongful 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." But the rule provides that such evidence
is admissible if
it is relevant for any other purpose. Other sections of 404(b) describe
other circumstances
where prior bad acts are admissible. Rule 404(b)(2) provides that
"in a prosecution for
a crime involving a physical or sexual assault or abuse of a minor, evidence
of other acts
by the defendant toward the same or another child is admissible."
Rule 404(b)(3)
provides that in a prosecution for sexual assault or attempted sexual assault,
evidence of
other sexual assaults or attempted sexual assaults by the defendant is
admissible if the
defendant relies on a defense of consent. Furthermore, Rule 404(b)(3)
provides that in
a prosecution for an attempt to commit a sexual assault, evidence of other
sexual assaults
or attempted sexual assaults is admissible if committed by the defendant.
Under all of
these sections of Rule 404(b), this court and the supreme court
have not required proof
that the prior bad act resulted in a criminal conviction in order to admit
evidence of a
relevant prior bad act.6
Bingaman attempts to distinguish these prior holdings
by pointing to the broader language of the other subsections of Rule 404.
For instance,
Rule 404(b)(1) refers to "other crimes, wrongs, or acts." Bingaman
points out that
subsection 404(b)(4) refers to evidence of other "crimes" involving domestic
violence.
Bingaman argues that this language indicates that the legislature
wanted to limit the prior
acts of domestic violence to only include convictions. We disagree.
Had the legislature
referred to evidence of other "acts" involving domestic violence, this
language could have
included prior acts of domestic violence which might not be chargeable
as a crime. By
limiting the prior acts of domestic violence to crimes, the legislature
limited the domestic
violence which would be admissible to certain specified crimes.7
Had the legislature
wished to limit the admissibility of prior incidents of domestic violence
to convictions,
it appears that it would have been easy for them to say that directly.
For instance, Alaska
Rule of Evidence 609 provides that a witness may be impeached by evidence
of a prior
conviction for a crime involving dishonesty or false statement. It
appears that the
legislature concluded that prior serious incidents of domestic violence
by a defendant,
which could be chargeable as a crime, could be probative in a prosecution
for a crime
involving domestic violence.
The dictionary defines a crime as "an act committed in violation of a law
prohibiting it, or omitted in violation of a law ordering it."8 The
revised criminal code
defines "crime" as "an offense for which a sentence of imprisonment is
authorized."9
Both of these definitions merely require an act for which punishment is
authorized. They
do not require a criminal conviction. Furthermore, as the state points
out, the legislature
appears to consistently use the phrase "crimes involving domestic violence,"
defined in
AS 18.66.990(3), in a context which indicates that the legislature is referring
to a criminal
act, not a criminal conviction. For instance, AS 12.25.030(b)(2)(A)
authorizes an officer
to arrest without a warrant a person who the officer believes has "committed
a crime
involving domestic violence." The statute is clearly authorizing
the officer to arrest a
person who has committed a criminal act rather than a person who has already
been
convicted of a "crime involving domestic violence." Furthermore,
AS 18.66.100(a)
provides that "a person who is or has been a victim of a crime involving
domestic
violence" may obtain a protective order in court. Clearly the statute
is designed to protect
a person who has been the victim of a criminal act. The procedure
is designed to protect
victims of domestic violence expeditiously, before there has been time
to obtain a
criminal conviction.
We conclude that prior case law interpreting other sections of Rule
404(b),
the language of Rule 404(b)(4), and the legislature's prior use of the
phrase "crime
involving domestic violence" all point to the conclusion that the legislature
intended to
authorize the courts to admit evidence of relevant prior acts by defendants
which
constitute "crimes involving domestic violence," as defined in AS 18.66.990(3).
Bingaman contends that the interpretation of the rule which we have
accepted would violate his due process rights by sanctioning the admission
of evidence
of questionable relevance. He argues that admission of this evidence
would undermine
his right to a fair trial. Bingaman's claim is premature. Although
evidence may be
relevant under Rule 404(b), a trial judge is always under the duty to exclude
evidence
under Rule 403 if its "probative value is outweighed by the danger
of unfair prejudice."10
In his pretrial rulings, Judge Brown has already ruled that several
incidents which the
state wished to admit in Bingaman's trial would be inadmissible under
Rule 403. Our
decision is limited to the legal conclusion that the phrase "evidence of
other crimes
involving domestic violence by the defendant" in Rule 404(b)(4) is not
limited to evidence
of the defendant's prior convictions. Exactly what evidence will
be admissible in
Bingaman's trial is a decision which is reserved for the trial court, reviewable
by us only
on appeal for an abuse of discretion. We accordingly conclude that
Bingaman's due
process argument is not ripe for decision.
Footnotes:
1 The full text of Alaska Rule of Evidence
404(b)(4) provides:
In a prosecution for a crime involving domestic violence or of interfering
with a report of a crime
involving domestic violence, evidence of other crimes involving domestic
violence by the
defendant against the same or another person or of interfering with a report
of a crime involving
domestic violence is admissible. In this paragraph, "domestic violence"
and "crime involving
domestic violence" have the meanings given in AS 18.66.990.
Alaska Statute 18.66.990(3) provides:
"[D]omestic violence" and "crime involving domestic violence" mean one
or more of the
following offenses or a law or ordinance of another jurisdiction having
elements similar to these
offenses, or an attempt to commit the offense, by a household member against
another household
member:
(A) a crime against the person under AS 11.41;
(B) burglary under AS 11.46.300-11.46.310;
(C) criminal trespass under AS 11.46.320-11.46.330;
(D) arson or criminally negligent burning under AS 11.46.400-11.46.430;
(E) criminal mischief under AS 11.46.480-11.46.486;
(F) terroristic threatening under AS 11.56.810;
(G) violating a domestic violence order under AS 11.56.740; or
(H) harassment under AS 11.61.120(a)(2)-(4)[.]
2 AS 11.41.436 (a)(5)(A).
3 AS 11.41.220 (a)(1)(A).
4 Jaso v. McCarthy, 923 P.2d
795, 801 (Alaska 1996).
5 State v. Breeze, 873 P.2d 627,
631-32 (Alaska App. 1994).
6 Frink v. State, 597 P.2d 154 (Alaska
1979) (interpreting 404(b)(1)); Smithart v. State,
946 P.2d 1264 (Alaska App. 1997) (interpreting 404(b)(1) and 404(b)(2));
Russell v. State, 934
P.2d 1335 (Alaska App. 1997) (interpreting 404(b)(3)). These prior
decisions suggest that the
various subsections of 404(b) should be read in pari materia with one another.
2B NORMAN J.
SINGER, SUTHERLAND STATUTORY CONSTRUCTION §51.02, at 121-22
(5th ed. 1992).
7 See AS 18.66.990(3).
8 WEBSTER'S NEW WORLD DICTIONARY OF
THE AMERICAN LANGUAGE (2d ed. 1980).
9 AS 11.81.900(b)(9).
10 A.R.E. 403.
