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Bingaman v. State (8/22/2003) ap-1895
Bingaman v. State (8/22/2003) ap-1895
NOTICE
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are encouraged to bring typographical or other formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KENNETH L. BINGAMAN, )
) Court of Appeals No.
A-8209
Appellant, )
Trial Court No. 3KN-97-1440 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1895 August 22, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Harold M. Brown, Judge.
Appearances: James H. McComas, Anchorage,
for Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Alaska Evidence Rule 404(b)(4) states that, in a
prosecution for a crime involving domestic violence, evidence of
[the defendants] other crimes involving domestic violence ...
against the same [person] or another person ... is admissible.
This appeal requires us to clarify the meaning of Evidence Rule
404(b)(4) and to explain the relationship between this rule and
Evidence Rules 402 and 403 the rules that require the exclusion
of irrelevant evidence, and that authorize a trial judge to
exclude even relevant evidence if the probative value of this
evidence is outweighed by the likelihood that it will mislead the
jury or induce the jury to decide the case on improper grounds.
We conclude that the effect of Rule 404(b)(4) is to
exempt evidence of a defendants other crimes of domestic violence
from the normal bar on character evidence (propensity evidence)
codified in Evidence Rule 404(b)(1). In other words, Rule
404(b)(4) authorizes a court to admit evidence of a defendants
other crimes involving domestic violence even though the only
relevance of this evidence is to prove that the defendant
characteristically engages in similar acts of domestic violence,
thus making it more likely that the defendant committed the act
of domestic violence alleged in the current litigation.
However, the fact that evidence of other crimes of
domestic violence is admissible under Rule 404(b)(4) does not
necessarily mean that this evidence should be admitted. Rule
404(b)(4) does not require the admission of this evidence; the
rule merely exempts this evidence from the normal prohibition
against propensity evidence.
In deciding whether the evidence should be admitted, a
trial judge remains obliged to enforce Evidence Rule 402, which
bars the admission of irrelevant evidence. In addition, Evidence
Rule 403 continues to apply to this evidence. Thus, even if the
evidence is relevant, a trial judge is authorized to exclude the
evidence if its probative value is outweighed by its potential
for confusing the issues, misleading the jury, or engendering
unfair prejudice in particular, the potential that this evidence
will induce the jury to decide the case on improper grounds.
The defendant in this case, Kenneth L. Bingaman was
charged with assaulting his live-in companion, K.H., and sexually
abusing K.H.s teenage daughter, S.H.. Under the rubric of
Evidence Rule 404(b)(4), Bingamans trial judge allowed the State
to present evidence of some sixty prior instances of Bingamans
misconduct. Some of these prior acts involved K.H., some
involved her children, and some involved other women with whom
Bingaman had had romantic relationships during the preceding
twenty years.
Not once did the trial judge exclude offered evidence
of a prior bad act, even though some of these acts had little or
nothing to do with the offenses charged against Bingaman (assault
and sexual abuse of a minor). As a result, only twenty percent
of the testimony presented at Bingamans trial dealt with the acts
for which Bingaman was charged. The remaining eighty percent of
the testimony dealt with other acts or occurrences.
From all of this, we conclude that the trial judge
violated Evidence Rule 402 and abused his discretion under
Evidence Rule 403. Bingaman is therefore entitled to a new
trial.
Underlying facts
Kenneth L. Bingaman was charged with third-
degree assault under AS 11.41.220(a)(1)(A) for
threatening to kill his girlfriend, K.H., and with
three counts of second-degree sexual abuse of a minor
under AS 11.41.436(a)(5)(A) for fondling the breasts of
his girlfriends teenage daughter, S.H.. Both of these
offenses qualify as crimes involving domestic violence
for purposes of Evidence Rule 404(b)(4).
(Evidence Rule 404(b)(4) expressly adopts the
definition of crime involving domestic violence
contained in AS 18.66.990.1 Under AS 18.66.990(3)(A),
any crime against a person codified in AS 11.41
qualifies as a crime involving domestic violence if
that crime was committed by one household member
against another. Both of the charges against Bingaman
third-degree assault and second-degree sexual abuse of
a minor are codified in AS 11.41. And, under AS
18.66.990(5)(B), the term household member includes
adults or minors who live together. Bingaman lived
with K.H. and her children at the time of the alleged
offenses. Thus, Bingaman was charged with crimes
involving domestic violence within the meaning of
AS 18.66.990 and Evidence Rule 404(b)(4).)
Because Bingaman was being tried for crimes
involving domestic violence, the State proposed to
introduce evidence of Bingamans other crimes of
domestic violence pursuant to Evidence Rule 404(b)(4).
Initially, the prosecutor notified the court and the
defense attorney that the State intended to introduce
evidence of eight different acts committed by Bingaman,
each one constituting an act of domestic violence as
defined in AS 18.66.990.
These eight acts included one prior act of
violence against K.H. (the named victim in the third-
degree assault charge), and one occasion when Bingaman
purportedly violated a domestic violence restraining
order related to the present case, by having a friend
contact K.H. and ask her to drop the pending assault
and sexual abuse charges. The other six incidents
involved physical assaults by Bingaman upon K.H. and
two of her children.
Superior Court Judge Harold M. Brown
initially indicated that the bulk of the States offered
evidence would probably be excluded under Evidence Rule
403 because it was more prejudicial than probative.
Undeterred, the prosecutor supplemented the States
initial offer of proof with dozens of uncharged bad
acts, each one ostensibly falling within the category
of domestic violence. Some of these were prior
assaults and acts of intimidation or degradation
committed against K.H. as early as 1993. Some were
prior assaults and acts of intimidation or degradation
committed against K.H.s children, again as early as
1993. And some were assaults and acts of intimidation
or degradation allegedly committed by Bingaman against
five other women with whom he had previously had
romantic relationships between 1982 and 1993 (i.e., as
much as twenty years in the past).
Ultimately, Judge Brown issued a written pre-
trial ruling in which he concluded that all of the
States evidence was presumptively admissible under
Evidence Rule 404(b)(4) although he indicated that he
would proceed with caution at trial to make sure that
none of the testimony was inordinately inflammatory.
As things turned out, none of the States
evidence was excluded. All of the incidents described
in the States two offers of proof plus others were
admitted at Bingamans trial.
The prosecutor outlined much of this evidence
in his opening statement to the jury, and he openly
encouraged the jurors to view Bingaman as a man who had
abused one woman after another. The prosecutor
concluded his opening statement with the assertion:
The [States] evidence will show that, over [a] period
of twenty-plus years, the defendant has emotionally,
psychologically, and physically abused ... three women:
[K.H., D.S., and C.B.]. (K.H. was the alleged assault
victim in this case, while D.S. and C.B. were women
from Bingamans past.)
As promised, the prosecutor presented
testimony that depicted Bingaman as a man who
habitually abused the women in his life, controlling
them with violence and threats of violence, as well as
cocaine. Although Bingaman was charged with three
counts of sexual abuse of a teenage girl, very little
of the States evidence pertained to these charges.
Instead, the States case focused primarily on Bingamans
prior assaultive conduct and his propensity to engage
in acts of violence and intimidation against the women
who were his romantic partners.
Two of these women testified that Bingaman
had forced them to earn money for him by working as
strippers at the Great Alaskan Bush Company. One of
these women testified that Bingaman had forced her to
undergo breast augmentation so she could make more
money. K.H. also testified that she had had surgery to
augment her breasts while she was living with Bingaman,
but she never danced in a strip club because she was
too old.
Bingaman took the stand in his own defense.
He flatly denied any wrongdoing. He claimed that K.H.
was falsely accusing him so that she could regain
possession of her house, which she had sold to him.
To undermine the credibility of the various
women who appeared as government witnesses, Bingamans
attorney introduced dozens of cards and letters the
women had written to Bingaman, each expressing their
love and appreciation for his companionship. Bingamans
attorney also introduced dozens of photographs
depicting Bingaman and a smiling, happy K.H. and
children. In addition, Bingamans attorney introduced
evidence suggesting that K.H. had drained her childrens
trust accounts to fund her cocaine habit, and that she
was now trying to blame her actions on Bingaman.
During rebuttal, the State presented an
expert witness on domestic violence to explain the
cycle of violence, to explain why a battered woman
might send love notes and cards to her abuser, and to
explain that some men batter women based on their need
for control.
Later, during closing argument, the
prosecutor highlighted each of the other bad acts
portrayed by the States evidence. He argued, in
essence, that Bingaman was the type of man who battered
women to control them. The prosecutor also argued that
Bingamans fascination with female breasts (as evidenced
by the fact that two of the three women he dated
obtained breast augmentation during their relationships
with him) made it more likely that S.H. was telling the
truth when she testified that Bingaman fondled her.
The jury convicted Bingaman of all four
counts (one count of third-degree assault, and three
counts of second-degree sexual abuse of a minor).
The legislative history of Evidence Rule 404(b)(4)
Alaska Evidence Rule 404(b) originally had
but one provision the provision that is now Rule
404(b)(1).
Evidence Rule 404(b)(1) codifies the common-
law doctrine forbidding the admission of propensity
evidence. In this context, the phrase propensity
evidence is legal shorthand; it means: evidence of a
persons other bad acts whose sole relevance is to prove
the persons character, so that the persons character
can then be used as circumstantial evidence that the
person acted true to character during the episode being
litigated.2
a. Evidence Rule 404(b)(4)s predecessors: Rules
404(b)(2) and (b)(3)
In 1988, the Alaska Legislature amended Rule
404(b) by adding subsection (b)(2) and re-numbering the
original provision as 404(b)(1).3 The new Rule
404(b)(2) was intended to make it easier for the
government to introduce evidence of a defendants other
acts when the defendant was prosecuted for sexual or
physical abuse of a minor.4
The 1988 House Judiciary Committee files
concerning Evidence Rule 404(b)(2) are voluminous.
(They fill nearly four microfiche cards.5) Most of
this information focuses on the high recidivism rates
among sex offenders and the difficulties of prosecuting
cases involving child victims. One can infer from
these files that the legislature believed that there
was a particularized need to abrogate the normal
prohibition against propensity evidence in prosecutions
for abuse of children.
Under Evidence Rule 404(b)(2), the government
must establish the relevance of the defendants other
bad act by proving (i) that the defendants act
occurred within the preceding ten years, (ii) that it
involved conduct similar to the offense charged, and
(iii) that it was committed upon a person similar to
the victim of the present offense. If these
foundational criteria are established, Rule 404(b)(2)
authorizes admission of the evidence even though this
evidence would be barred by Rule 404(b)(1) that is,
even though the sole relevance of the evidence is to
establish the defendants character, so that the
defendants character can be used as circumstantial
evidence that the defendant committed the act of abuse
alleged in the current case.6
Six years later, in 1994, the legislature
again amended Rule 404(b), this time adding subsection
(b)(3).7 Evidence Rule 404(b)(3) applies to
prosecutions for sexual assault and attempted sexual
assault. Again, the legislatures intent was to expand
the use of other crimes evidence.8
As we acknowledged in Wardlow v. State, the
legislature enacted Evidence Rule 404(b)(3)
in direct response to decisions of this court
that limited the States ability to introduce
evidence of a defendants prior sexual crimes
when, in a prosecution for sexual assault or
attempted sexual assault, the defendant
asserted that the sexual activity was
consensual. In particular, the legislature
was reacting to this courts construction of
Evidence Rule 404(b)(1) our decision [in
Velez v. State9] that Rule 404(b)(1) barred
the State from introducing evidence of a
defendants other sexual assaults if that
evidence was offered solely to prove the
defendants proclivity to sexually assault
women.
Wardlow, 2 P.3d 1238, 1246 (Alaska App. 2000)
(footnotes omitted).
In prosecutions for sexual assault,
Rule 404(b)(3) authorizes the admission of
evidence of the defendants other sexual
assaults or attempted sexual assaults,
whether against the same person or another,
if the defendant relies on a defense of
consent. And in prosecutions for attempted
sexual assault, Rule 404(b)(3) authorizes the
admission of this evidence regardless of
whether the defendant relies on a defense of
consent.
In Clark v. State, 953 P.2d 159,
163 (Alaska App. 1998), we concluded that
Rule 404(b)(3) has the same evidentiary
effect as Rule 404(b)(2): that is, Rule
404(b)(3) exempts the specified evidence from
Rule 404(b)(1)s prohibition against
propensity evidence. Our construction of
Rule 404(b)(3) was later endorsed by our
supreme court in Hess v. State, 20 P.3d 1121
(Alaska 2001):
[I]n 1994 the Alaska legislature
expanded the admissibility of other-acts
evidence in sexual assault prosecutions by
amending Alaska Evidence Rule 404. Alaska
Evidence Rule 404(b)(3) now permits the
prosecution to offer evidence of other sexual
assaults or attempted sexual assaults if the
defendant raises the defense of consent ... .
[The United States] Congress in 1994
[likewise] amended the federal rule regarding
admissibility of prior sexual assaults;
[Federal Evidence Rule 413] now allows
evidence of similar offenses for its bearing
on any matter to which it is relevant. As a
general rule, evidence that a defendant
committed a prior act is inadmissible for the
purpose of proving the defendants propensity
to commit the act currently charged. The
amended federal rule has been interpreted to
be an exception to that general rule. We
adopt that interpretation for Alaskas
corresponding evidence rule [i.e., Evidence
Rule 404(b)(3)].
Hess, 20 P.3d at 1124 (footnotes omitted).
b. Evidence Rule 404(b)(4)
This brings us to the evidence rule at issue
in Bingamans case: Rule 404(b)(4). Subsection (b)(4)
is the most recent legislative addition to Rule 404(b);
it was enacted in 1997.10
As we have already discussed, the legislative
history supporting Evidence Rules 404(b)(2) and (b)(3)
demonstrates the legislatures active consideration of
the need to relax Rule 404(b)(1) in cases involving the
abuse of children and in cases involving sexual
assaults. In contrast, the legislative history of Rule
404(b)(4) is scanty. Evidence Rules 404(b)(2) and
404(b)(3) were major components of their respective
bills, and they received a corresponding degree of
attention from the legislative committees that
considered them. Evidence Rule 404(b)(4), on the other
hand, was tacked onto a victims rights bill by the
House Finance Committee with very little discussion.11
Chief Assistant Attorney General Dean
Guaneli, representing the Department of Law, explained
to the House Finance Committee that the Department of
Law was proposing the amendment to Evidence Rule 404(b)
so that the law might reflect[] that domestic violence
is the type of thing that happens over and over again,
and tends to escalate in violence.12 The proposed
change to Rule 404(b) was intended to clarify that
evidence of a pattern of physical abuse ... on previous
occasions could be admissible.13
Mr. Guaneli acknowledged that a defendant
must be convicted for the conduct that occurred [in]
that particular instance rather than for conduct on
other occasions.14 And he further acknowledged that,
under the then-current evidence rules i.e., under
Evidence Rule 404(b)(1) evidence of a defendants other
acts of domestic violence could be admitted for the
purpose of explaining or providing a context for what
happened during the episode for which the defendant was
being tried.15 However, Mr. Guaneli declared that
different judges [were applying] the rule in different
ways, and he contended that some judges were
interpreting the current law too strictly against the
admission of such evidence.16 With little further
discussion of this point, the House Finance Committee
adopted the Department of Laws proposed amendment to
Evidence Rule 404(b).17
Two months later, when House Bill 9 was taken
up by the Senate Judiciary Committee, Assistant
Attorney General Anne Carpeneti spoke to the Committee
about the proposed amendment to Evidence Rule 404(b).
Ms. Carpeneti offered another explanation for the
proposed change in the law: she stated that the
Department was seeking a modification of Rule 404(b)
because frequently, domestic violence cases are
prosecuted without a witness to the offense [because]
the victim may have recanted or [may be refusing] to
cooperate out of fear. In such instances, Ms.
Carpeneti told the Committee, the case must be
prosecuted with only the testimony of the police
officers who were dispatched to the scene.18 In
response to questioning about the permissible use of
prior-act evidence and the contemplated scope of the
new rule, Ms. Carpeneti explained that the State would
[still] have to make a preliminary showing to the court
that the information was ... relevant; the evidence
could not automatically be introduced.19
Other than these brief discussions in the
House Finance Committee and the Senate Judiciary
Committee, the legislative minutes and files contain no
information regarding the intended purpose or scope of
Rule 404(b)(4), nor any other information regarding the
perceived need for this rule.
And yet Evidence Rule 404(b)(4) is the most
far-reaching of the legislative amendments to Rule
404(b). Compared to its sibling provisions (Rules
404(b)(2) and (b)(3)), Rule 404(b)(4) applies to a much
broader range of evidence.
Evidence Rule 404(b)(4) states:
In a prosecution for a crime involving
domestic violence or [for] 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.
Obviously, this rule goes far
beyond the justifications that were offered
by the Department of Law. As explained
above, a Department representative told the
House Finance Committee that the amendment
was needed to ensure that judges would not
interpret Rule 404(b)(1) so strictly as to
exclude evidence of a pattern of physical
abuse. And a second Department
representative told the Senate Judiciary
Committee that evidence of a defendants other
crimes of domestic violence was needed in
cases where the purported victim of domestic
violence either recants their accusation or
refuses to testify at trial.
But Rule 404(b)(4) is not limited
to evidence of a defendants pattern of
recurring or escalating physical abuse.
Rather, as explained below, Rule 404(b)(4)
adopts such an expansive definition of
domestic violence that it authorizes a court
to admit evidence of acts that have little or
no relevance to establishing a pattern of
physical abuse. Nor is Rule 404(b)(4)
limited to instances in which the purported
victim of domestic violence does not testify
in support of the governments case. Rather,
the rule applies to all prosecutions for
crimes of domestic violence.
It is the second sentence of Rule
404(b)(4) that gives the rule a uniquely
expansive reach. This second sentence
declares that domestic violence and crime
involving domestic violence are to be given
the meanings ascribed to them in
AS 18.66.990. By defining these terms in
this way, Rule 404(b)(4) authorizes the
admission of evidence concerning acts that
have little or nothing to do with the issues
that normally would be litigated at a trial
for domestic assault.
Domestic violence is normally
understood to mean an assault committed by
one domestic partner against another. But as
we explained in Carpentino v. State, 42 P.3d
1137 (Alaska App. 2002) (opinion on
rehearing) (hereafter Carpentino II),
AS 18.66.990 defines the phrase domestic
violence in a special and wide-ranging way,
quite divorced from its everyday meaning.
According to AS 18.66.990(3), the
term domestic violence includes any of the
following crimes (and attempts to commit any
of the following crimes) when committed by
one household member against another:
(A) [any] 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 11.46.475
11.46.486;
(F) terroristic threatening under AS
11.56.807 or AS 11.56.810;
(G) violating a domestic violence
[restraining] order under AS 11.56.740; or
(H) harassment under AS
11.61.120(a)(2)-(4)[.]
This list of crimes obviously
encompasses a broader range of conduct than
physical assault upon a spouse or live-in
companion. But this list is only half of the
reason why Rule 404(b)(4)s definition of
domestic violence is so sweeping. The other
contributing factor is the legislatures
definition of household member.
AS 18.66.990(3) defines domestic
violence as any of the above-listed crimes
when the crime is committed by one household
member against another. One might assume
that this phrase refers to crimes in which
the perpetrator and the victim share the same
household. But the legislature has defined
household member much more broadly. Under AS
18.66.990(5), the term household member
includes:
(A) adults or minors who are current or
former spouses;
(B) adults or minors who live together
or who have lived together;
(C) adults or minors who are dating or
who have dated;
(D) adults or minors who are engaged in
or who have engaged in a sexual relationship;
(E) adults or minors who are related to
each other up to the fourth degree of
consanguinity, whether of the whole or half
blood or by adoption, computed under the
rules of civil law;
(F) adults or minors who are related or
formerly related by marriage;
(G) persons who have a child of [their]
relationship; and
(H) minor children of a person in a
relationship that is described in
[subparagraphs] (A)-(G)[.]
As we noted in Carpentino II, when
the statutory definition of domestic violence
is combined with the statutory definition of
household member, the results are quite a bit
different from the everyday meaning of
domestic violence against a household member:
The apparently expansive scope of crime
involving domestic violence leads to some
strange results.
For example, if an elderly uncle comes
to visit his favorite nephew and, while
lighting his pipe, recklessly scorches a
table cloth or a chair, the old man has
seemingly just committed an act of domestic
violence as defined in AS 18.66.990(3). That
is, the uncle has committed the listed
offense of criminally negligent burning under
AS 11.46.430 (negligently damaging the
property of another by fire), and the victim
is related to the perpetrator within the
fourth degree of consanguinity thus
qualifying them as household members under AS
18.66.990(5)(E).
Similarly, if a group of former college
roommates decide to hold a twenty-year
reunion at one of their homes, and if one of
the visiting former roommates gets drunk and
recklessly jams his friends CD player while
trying to insert a CD into it, this roommate
has seemingly just committed an act of
domestic violence. The intoxicated roommate
has committed the listed offense of
fourth-degree criminal mischief under AS
11.46.486(a)(1) (tampering with the property
of another with reckless disregard for the
risk of harm or loss), and all of the former
college roommates are household members under
AS 18.66.990(5)(B).
Carpentino II, 42 P.3d at 1141.
Thus, the definition of domestic
violence codified in AS 18.66.990 yields some
odd results. And these odd results have
significant consequences for Alaskas law of
evidence, because Evidence Rule 404(b)(4)
incorporates this wide-ranging statutory
definition of domestic violence. Because of
this (as we explain in the next section of
this opinion), Rule 404(b)(4) stands apart
from its siblings, Rules 404(b)(2) and
(b)(3).
Our construction of Evidence Rule 404(b)(4)
We conclude that Rule 404(b)(4) like its
sibling provisions, Rules 404(b)(2) and (b)(3) was
intended to exempt certain evidence from Rule
404(b)(1)s prohibition against propensity evidence. In
prosecutions for crimes involving domestic violence,
Rule 404(b)(4) authorizes the court to admit evidence
of the defendants other acts of domestic violence even
though the sole relevance of those acts is to show that
the defendant characteristically commits such acts, so
that the defendants character can be taken as
circumstantial evidence that the defendant acted true
to character during the episode being litigated.
The relationship between Evidence Rule 402 and Evidence
Rule 404
Evidence Rule 402 codifies two governing
principles on which all the other rules of evidence are
built. The first governing principle is that relevant
evidence is presumptively admissible i.e., it is
admissible unless some other provision of law limits or
bars the evidence.20 The second governing principle is
that irrelevant evidence is not admissible.21
a.Rule 402 itself does not bar character evidence,
because character evidence can be relevant
Evidence of a persons character is often
relevant. People make decisions every day based on
their assessments of whether some person is
characteristically truthful or untruthful, whether some
person is easy-going or fractious and aggressive,
whether some person can be trusted with money, etc..
Thus, under Evidence Rule 402, evidence of a persons
relevant character trait is potentially admissible
unless some other provision of law limits or bars this
evidence.
The concept that character evidence can be
relevant is openly acknowledged in Evidence Rule
404(a). Although Rule 404(a) declares that character
evidence is generally barred, the rule expressly
authorizes the use of character evidence for several
purposes.
This same principle is also acknowledged in
court decisions dealing with propensity evidence
evidence of a persons other bad acts when offered to
prove that the person characteristically engages in
such acts. The United States Supreme Court recognized
the relevance of propensity evidence in Michelson v.
United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168
(1948):
[Evidence of a defendants bad character]
might logically be persuasive that he is by
propensity a probable perpetrator of the
crime. The inquiry [into character] is not
rejected because character is irrelevant; on
the contrary, it is said to weigh too much
with the jury and to so [persuade] them ...
to prejudge one with a bad general record and
deny him a fair opportunity to defend
[himself] against [the] particular charge.
Michelson, 335 U.S. at 475-76, 69 S.Ct. at
218. See also Wigmore on Evidence (Tillers
revn 1983), 54.1, Vol. 1A, pp. 1150-56.
This view of the matter is shared
by the appellate courts of this state. In
Freeman v. State, 486 P.2d 967, 972 (Alaska
1971), the Alaska Supreme Court declared that
it is commonly acknowledged that a persons
character will frequently be relevant to the
issue of his conduct on a particular
occasion, [although] character evidence is
normally inadmissible for this purpose. And
in Allen v. State, 945 P.2d 1233, 1238
(Alaska App. 1997), this Court explained that
the traditional prohibition against
propensity evidence
was based, not on the theory that the
defendants character lacked relevance, but
rather on the policy consideration that a
jury might be tempted to relax the
governments normal burden of proof if they
were convinced that the defendant was a bad
person[.]
See also our decision in Velez v.
State,22 which involved a defendant accused
of date rape (i.e., accused of inviting a
woman out, then using threatening words
and/or behavior to coerce her into having sex
with him). At trial, the State offered
testimony from two other women that Velez had
engaged in similarly coercive behavior when
they dated him.23 This Court held that this
evidence should have been rejected because
the probative value of the evidence
implicitly rested on the inference that Velez
had a propensity to sexually assault his
dating partners:
Velezs activities with other women were
marginally relevant to show how he conducted
himself with each of his victims, ... but
this is pure propensity evidence, absolutely
forbidden by Evidence Rule 404(b). Thus, the
state cannot offer evidence that Velez
coerced [other women] to support an inference
that he had a disposition to force his
affections on unwilling women, and then [ask
the jury to] infer from that disposition that
he forced his affections on [the victim named
in the indictment]. Despite its relevance,
this evidence is absolutely precluded [by
Evidence Rule 404(b)].
Velez, 762 P.2d at 1303-04 (emphasis added).
The Alaska Supreme Court recently
expressed this same view of propensity
evidence in Hess v. State, 20 P.3d 1121
(Alaska 2001). Speaking of evidence that the
defendant had engaged in prior acts of sexual
assault, the supreme court said:
Most jurisdictions, including Alaska
before the legislature enacted Rule
404(b)(3), ... considered propensity evidence
to be so prejudicial that they exclude[d] it
by rule. ... [P]rior acts of sexual assault
were considered so prejudicial ... that they
were previously absolutely precluded as
evidence of a defendants reckless disregard
[of the victims lack of consent], despite
their undoubted relevance.
Hess, 20 P.3d at 1128 (emphasis added).
Thus, even though many provisions
of the evidence rules exclude character
evidence, this is not done because of a
supposed irrelevance of character evidence.
Rather, it is done because of the risk that
character evidence will mislead the jury or
prompt the jury to decide the case on
improper grounds.
b. The distinction between relevant and irrelevant
character evidence
Although Rule 402 states that relevant
evidence is presumptively admissible, the rule
also states that irrelevant evidence is not
admissible. These two principles govern any
attempt to introduce character evidence under the
various provisions of Evidence Rule 404. That is,
relevant character evidence may be admissible, but
irrelevant character evidence is never admissible.
How does one determine whether character
evidence is relevant or irrelevant? Alaska
Evidence Rule 401 defines relevant evidence as
evidence that has some tendency to make the
existence of a material fact either more or less
likely. When assessing whether evidence of a
defendants character trait is relevant in a
criminal trial, one must identify and examine the
purported basis for inferring that this character
trait does indeed make it more or less likely that
the defendant committed the act or had the
culpable mental state at issue in the litigation.
For instance, evidence of a persons past
wrongdoing could conceivably be offered to establish
that the person has a general criminal propensity a
general willingness to break the law. Under this
theory, a persons willingness to violate societal rules
in the past would be offered to prove that it is more
likely that the person violated societal rules during
the episode being litigated. Thus, a persons
willingness to embezzle money might be offered to prove
that the person is more likely a rapist, or a persons
willingness to violate pollution regulations might be
offered to prove that they drove recklessly or that
they assaulted a neighbor.
We doubt whether such a general criminal
propensity is relevant at all. It rests on the
assertion that a persons willingness to break one sort
of law makes it more likely that they are willing to
break any law. This assertion is not self-evident; in
fact, common experience tends to disprove it. Thus,
evidence of a persons character offered for the purpose
of establishing the persons general criminal propensity
would seemingly be irrelevant.
A different theory of relevance could be
argued if the persons past wrongdoing involved a
violation of the same type of criminal statute as the
alleged current offense. For instance, Evidence Rule
404(b)(3) states that when a defendant is charged with
attempted sexual assault, evidence of the defendants
other acts of sexual assault can be offered to prove
that the defendant more likely committed the current
crime. The underlying assertion of relevance is that a
persons willingness to commit sexual assault on other
occasions tends to establish that they are more likely
to have attempted to commit sexual assault on the
current occasion.
On its face, this assertion of relevance is
stronger than the assertion of general criminal
propensity. Even so, an assertion of propensity to
commit sexual assault must be examined carefully. The
Alaska statutes defining sexual assault encompass many
forms of conduct from drunkenly groping a co-workers
breast at an office party, to date rape, to sexually
assaulting a stranger on a running path. It might not
be true that a defendant who is willing to engage in
one of these forms of sexual assault is thereby more
likely to have engaged in some other different type of
attempted sexual assault. And if this assertion is not
true, then the offered character evidence would not be
relevant.
Character evidence has the greatest potential
relevance when the defendants past wrongdoing involves
the same type of situational behavior as the current
charge. For example, a person may have repeatedly run
red lights, or repeatedly shoplifted, or repeatedly
sexually abused pre-pubescent boys. Such circumstances
give rise to a stronger underlying assertion that the
defendants other acts are predictive of what the
defendant did on the occasion being litigated. Thus,
this type of character evidence could be relevant even
though it might be barred by another evidence rule.
c.The problem of relevance as it relates to the
various provisions of Evidence Rule 404.
As explained, Evidence Rule 402 states that
irrelevant evidence is not admissible. We conclude
that this principle limits the admission of the various
sorts of character evidence governed by Evidence Rules
404(a) and 404(b).
Up until now, the relationship between Rule
402 and 404(a) has remained implicit probably because
the requirement of relevance is expressly set forth in
Evidence Rule 404(a). The three numbered paragraphs of
Rule 404(a) list several situations in which character
evidence can be admitted to prove that a person acted
true to character. But each paragraph requires the
proponent of the evidence to show that the character
trait under discussion is relevant to the decision of
the case.
(Subsection (a)(1) of Evidence Rule 404
requires that the evidence pertain to a relevant trait
of character. Subsection (a)(2) requires this same
showing of relevance. The one provision of Rule
404(a)(2) that does not expressly use the word
relevance is the provision that allows evidence of a
victims character for peacefulness to rebut evidence
that the victim was the first aggressor a situation in
which the character evidence is plainly relevant.
Finally, subsection (a)(3) authorizes the admission of
character evidence under Evidence Rules 607, 608, and
609 in other words, evidence pertaining to a witnesss
character for truthfulness or untruthfulness. Again,
this evidence is plainly relevant.)
We now turn to Evidence Rule 404(b). The
original version of Rule 404(b) what is now Rule
404(b)(1) does not mention relevance, but only because
there is no need to mention it. Unlike Rules
404(a)(1), (a)(2), and (a)(3), Evidence Rule 404(b)(1)
does not create an exception to Rule 404(a)s general
principle that character evidence is not admissible to
prove that a person acted true to character. Indeed,
Rule 404(b)(1) restates this principle. Under Rule
404(b)(1), the proponent of other crimes evidence must
show that the evidence is relevant for some reason
other than to prove character. Thus, there is no
reason for Rule 404(b)(1) to distinguish between
relevant and irrelevant character evidence for the
rule does not authorize the admission of any character
evidence.
There was no need to actively examine the
relationship between Evidence Rules 402 and 404(b)
until the legislature amended Evidence Rule 404(b) by
enacting Rules 404(b)(2), (b)(3), and (b)(4). As we
explained earlier in this opinion, the legislature
enacted these three rules for the purpose of exempting
certain types of evidence from the ban on character
evidence found in Rule 404(b)(1).
Evidence Rules 404(b)(2), (b)(3), and (b)(4)
authorize the admission of character evidence. But
none of these three rules expressly requires that the
character evidence be relevant. The question therefore
presents itself: Does Rule 402 govern the admission of
evidence under Rules 404(b)(2), (b)(3), and (b)(4)?
The answer is yes.
The basic principles codified in Evidence
Rule 402 the principles that relevant evidence is
presumptively admissible, and that irrelevant evidence
is not admissible provide the foundation for every
other provision of the evidence rules. In the Federal
Rules of Evidence Manual by Saltzburg, Martin, and
Capra, the authors emphasize this point with respect to
the corresponding federal rule:
Federal Rule of Evidence 402 is one of
the most important and yet least invoked of
the Evidence Rules. Rule 401 sets the
definition of relevant evidence, but that
Rule itself provides no authority for
admitting evidence. Rule 403, the most
invoked Evidence Rule, gives the Trial Court
the discretion to exclude evidence if its
probative value is ... outweighed by the risk
of prejudice, confusion of the jury, or
delay. But like Rule 401, Rule 403 is not a
positive [directive] for the admission of
evidence. Rather, it is Rule 402 that
provides the authority for admitting every
piece of evidence that is ever admitted in a
Federal Court.
Stephen A. Saltzburg, Michael M. Martin, and
Daniel J. Capra, Federal Rules of Evidence
Manual (8th ed. 2002), Vol. 1, p. 402-2.
This point is forcefully stated in
the Advisory Committees Note to Federal
Evidence Rule 402:
The provisions [of Evidence Rule 402]
that all relevant evidence is admissible,
with certain exceptions, and that evidence
which is not relevant is not admissible are a
presupposition [of] the very conception of a
rational system of evidence. [James Bradley]
Thayer, [A] Preliminary Treatise on Evidence
[at the Common Law, p.] 264 (1898). [These
principles] constitute the foundation upon
which the structure of admission and
exclusion rests.
(quoted in Federal Rules of Evidence Manual,
Vol. 1, p. 402-11.)
Thus, the two foundational
principles of Evidence Rule 402 govern the
various types of character evidence addressed
in Evidence Rules 404(b)(2), (b)(3), and
(b)(4). Relevant character evidence is
potentially admissible under these three
rules, but irrelevant character evidence is
not admissible at all. With this in mind, we
return to our analysis of Rules 404(b)(2),
(b)(3), and (b)(4).
Evidence Rule 404(b)(2) does not
expressly mention relevance, but its three
foundational requirements are seemingly
designed to ensure the relevance of any
character evidence admitted under the rule.
Rule 404(b)(2) requires the government to
show that the defendants other act occurred
within the preceding ten years, that it
involved misconduct similar to the offense
currently charged, and that it involved
either the same victim or a similar victim.
In other words, Rule 404(b)(2) requires a
showing that the character evidence offered
against the defendant involves the same sort
of situational behavior that is at issue in
the current charge.
Rule 404(b)(3) does not contain
this same type of limitation. The rule
allows the government to offer evidence of a
defendants other sexual assaults if the
defendants culpable mental state is at issue
in one of two specified ways (i.e., if the
defendant is charged with a completed sexual
assault and relies on a defense of consent,
or if the defendant is charged with an
attempted sexual assault). The fact that
Rule 404(b)(3) is limited to acts of sexual
assault is some guarantee that the evidence
of the defendants past acts will be relevant.
However, as we have already discussed, it is
possible that a defendants past acts of
sexual assault could involve situations so
different from the current charge that these
acts have little or no relevance to the
current charge. And if the past acts have no
relevance, they will be inadmissible.
But the problem of relevance or,
more precisely, the problem of lack of
relevance is most squarely presented by Rule
404(b)(4). Evidence Rule 404(b)(4)
incorporates the expansive definition of
domestic violence codified in AS 18.66.990.
Because of this, there is little guarantee
that evidence offered under Rule 404(b)(4)
will be relevant to the charges being
litigated.
For instance, a person who causes a
traffic accident through criminal negligence
and, by chance, happens to injure the child
of a former high school sweetheart has
committed a crime involving domestic violence
as defined in AS 18.66.990.24 Likewise, a
person who engages in consensual sexual
intercourse with an adult relative specified
in the incest statute has committed a crime
involving domestic violence as defined in
AS 18.66.990.25 Evidence Rule 404(b)(4)
states that evidence of the traffic accident
(i.e., evidence of the defendants negligent
driving) and evidence of the defendants act
of incest are both admissible if the
defendant is prosecuted for beating their
spouse. Yet the defendants negligent driving
and the defendants act of incest have no
discernible relevance to the assault charge.
The Department of Law appears to
have recognized this problem when they
proposed Rule 404(b)(4) to the legislature.
As we explained earlier in this opinion, when
the Senate Judiciary Committee asked about
the contemplated scope of the new rule, the
Department of Laws representative replied
that evidence of the defendants other acts of
domestic violence could not automatically be
introduced. Rather, the State would [still]
have to make a preliminary showing to the
court that the information was ...
relevant.26
But even if the legislative history
did not contain this clarifying comment, we
would still hold that Evidence Rule 402
governs all evidence offered under Evidence
Rule 404(b)(4). Rule 404(b)(4) authorizes
the admission of evidence concerning a
defendants other acts of domestic violence
(as defined in AS 18.66.990) for the purpose
of proving the defendants character. But
Rule 402 limits the scope of Rule 404(b)(4),
forbidding the introduction of this character
evidence unless (1) the trait of character
under discussion is relevant to the current
charge against the defendant, and (2) the
defendants other acts are in fact relevant to
establishing this trait of character.
Thus, if a man is prosecuted for
beating his wife, evidence of other assaults
on his wife or other girlfriends might be
admissible under Evidence Rule 404(b)(4)
because these other assaults arguably tend to
prove a relevant trait of the defendants
character. But evidence of the mans reckless
driving or incest would be excluded by
Evidence Rule 402 (even though these acts
might qualify as crimes involving domestic
violence under AS 18.66.990), because these
acts are not relevant to any pertinent
character trait of the defendant.
(This is not to say that a
defendants acts of reckless driving or incest
could never be relevant in a domestic assault
prosecution. For example, the States
evidence might show that the defendant
assaulted his wife during an argument that
began when she discovered his act of incest
or complained of his reckless driving. But
in such circumstances, the evidence would not
be offered under Rule 404(b)(4) to prove a
trait of the defendants character. Rather,
the evidence would be offered under Evidence
Rule 404(b)(1) because it would have
relevance aside from proving character.)
The relationship between Evidence Rule 403 and Evidence
Rule 404(b)(4)
Now that we have clarified that Evidence Rule
404(b)(4) does not authorize the admission of
irrelevant evidence, we next examine a trial
judges duties under Evidence Rule 403 when the
State offers relevant evidence of the defendants
past acts of domestic violence under Rule
404(b)(4).
Even when evidence of a defendants other acts
of domestic violence is relevant and admissible
under Rule 404(b)(4), Evidence Rule 403 authorizes
a trial judge to exclude the evidence if the
probative value of the evidence is outweighed by
the danger that it will engender unfair prejudice,
confuse the issues, or mislead the jury.27
When the Department of Law asked the
legislature to enact Evidence Rule 404(b)(4), it
justified its request by asserting that a new rule
was needed to deal with the problem that
prosecutors face when the alleged victim of
domestic violence either recants or refuses to
testify. In such situations, evidence of the
defendants other acts of domestic violence toward
the victim or other members of the family could be
important to explain the victims recantation or
the victims reluctance to provide testimony
against the defendant.
However, it is not clear why a new rule of
evidence was needed to deal with this problem. In such
situations, evidence of the defendants other threats
and acts of violence toward the victim and other family
members would seemingly be admissible under Evidence
Rule 404(b)(1) because, in these circumstances, the
evidence would have a case-specific relevance aside
from its tendency to prove something about the
defendants character.
See, for instance, our decision in Russell v.
State, 934 P.2d 1335 (Alaska App. 1997), a case in
which the defendant was charged with raping his
estranged wife. We held that evidence of the
defendants prior acts of violence toward his wife was
admissible under Evidence Rule 404(b)(1) to explain why
she agreed to accompany the defendant to a hotel and
did not forcibly resist his assault. Such evidence is
relevant to explain why one person might fear another
person or might submit to another persons will. Id. at
1341.
Be that as it may, the legislature enacted a
rule that is considerably broader than this offered
justification. As we explained earlier in this
opinion, Rule 404(b)(4) is not limited to instances in
which the purported victim of domestic violence does
not testify in support of the governments case;
instead, the rule applies to all prosecutions for
crimes of domestic violence. Moreover, the admission
of other acts evidence under Rule 404(b)(4) is not
limited to establishing a pattern of physical abuse
committed against the same victim or members of the
victims family, or against similar victims. Instead,
Rule 404(b)(4) authorizes evidence of any act of
domestic violence committed against any victim.
Finally, by incorporating the definition of domestic
violence found in AS 18.66.990, Rule 404(b)(4)
authorizes the admission of evidence concerning acts
that may have little relevance to the issues being
litigated.
All of these factors demonstrate how
important it is for trial judges to carefully apply
Evidence Rule 403 when the State offers evidence of a
defendants other acts of domestic violence under
Evidence Rule 404(b)(4).
Bingaman suggests that, after our decision in
Wardlow v. State, 2 P.3d 1238 (Alaska App. 2000),
Evidence Rule 403 has become a hollow protection that
a trial judge can no longer do anything of substance to
protect a defendant from the unfair prejudice of other
crimes evidence.
In Wardlow, we addressed the relationship
between Rule 403 and Rule 404(b)(4)s sibling provision,
Rule 404(b)(3) (the subsection dealing with sexual
assault). We explained that, because the legislature
has amended Rule 404(b) to allow the introduction of
character evidence in particular circumstances, it is
no longer improper for the jury to use evidence of a
defendants other acts as circumstantial evidence that
the defendant is more likely guilty of the act
currently charged:
When evidence of other sexual assaults and
attempted sexual assaults is admissible under
Rule 404(b)(3), and when the probative value
of this evidence is weighed against its
potential for unfair prejudice, the trial
judges assessment of unfair prejudice no
longer includes the fact that the evidence
tends to prove the defendants propensity to
engage in sexual assault. ... [T]he
legislature enacted Rule 404(b)(3) precisely
because it wanted evidence of other assaults
to be admissible to prove a defendants
assaultive propensity. This legislative
purpose would be defeated if Rule 403 were
interpreted to make the other crimes evidence
unfairly prejudicial just because the
evidence was relevant in the way the
legislature intended.
Wardlow, 2 P.3d at 1247.
A few months later, in Fuzzard v.
State, 13 P.3d 1163, 1166-67 (Alaska App.
2000), we held that this same analysis
applied to Rule 404(b)(4).
In other words, Evidence Rules
404(b)(2), (b)(3), and (b)(4) were enacted to
allow the State to introduce evidence of a
defendants other acts in order to demonstrate
that the defendant has a particular character
trait, and then to use this character trait
as circumstantial evidence that the defendant
acted true to character during the episode
being litigated. It would defeat the
legislatures objective if this evidentiary
purpose were declared improper under Evidence
Rule 403. Accordingly, when evidence of a
defendants other acts is relevant and
admissible under one of these three
subsections of Rule 404(b), the trial judge
is not authorized to exclude the evidence
under Rule 403 merely because the jury may
use the defendants other acts as
circumstantial evidence that the defendant
more likely committed the same kind of act
during the episode being litigated.
Nevertheless, Evidence Rule 403
remains an important protection against the
misuse of this evidence. The trial judge
must still ensure that the defendant is tried
for the crime currently charged not for the
things that the defendant might have done on
other occasions, and not for the kind of
person that the defendant might be.
If the jury votes to convict the
defendant, they must do so because the
government has proved the current charge
beyond a reasonable doubt. Despite the
legislatures expansion of the role of
character evidence, it remains improper for
the jury to convict a defendant because the
jurors conclude that, regardless of whether
the defendant is guilty of the crime
currently charged, the defendant deserves to
be punished for acts done on other occasions.
Similarly, it remains improper for the jury
to convict the defendant because the jurors
conclude that, regardless of whether the
defendant is guilty of the crime currently
charged, the defendant has done similar
things in the past and thus the defendant
should be imprisoned to prevent more such
crimes in the future.
It also remains improper for the
jury to conclude that, because the defendant
is dangerous, wicked, or despicable, the
defendant is not entitled to the normal
protections of the law. And finally, it is
improper for the jurors to act like the
villagers in Aesops fable, The Boy Who Cried
Wolf: that is, it is improper for the jurors
to conclude that, because the defendant has
done similar things before, there is no need
to spend much time investigating the current
allegation and no need to hold the
government to its normal burden of proving
the present allegation beyond a reasonable
doubt.
Depending on the circumstances, the
defendants other bad acts may be relevant
circumstantial evidence that the defendant
committed the act currently charged against
him. But the law continues to insist that
the jurys decision be based on whether the
government has indeed proved the currently
charged crime beyond a reasonable doubt.
Evidence Rules 404(b)(2), (b)(3),
and (b)(4) allow the State to offer evidence
of the defendants other acts for a limited
purpose: as circumstantial evidence of the
defendants likely conduct during the episode
being litigated. If the trial judge
concludes that the jury probably can not
confine its consideration of the other acts
evidence to that limited purpose, or if the
judge concludes that the other-acts evidence
will prejudice the fairness of the trial for
any other reason listed in Evidence Rule 403,
the trial judge has the authority to exclude
the evidence.
Here, then, are the factors that a
trial judge must consider when deciding
whether evidence of a defendants other acts
can be admitted under Evidence Rule
404(b)(4):28
1. How strong is the governments
evidence that the defendant actually
committed the other acts?
2. What character trait do the
other acts tend to prove?
3. Is this character trait
relevant to any material issue in the case?
How relevant? And how strongly do the
defendants other acts tend to prove this
trait?
In answering these questions, a
trial judge should analyze whether the
defendants other acts demonstrate the same
type of situational behavior as the crime
currently charged. As we discussed earlier
in this opinion, evidence of another act of
domestic violence offered under Rule
404(b)(4) will generally have a probative
force proportional to the similarity between
this other act and the act that the defendant
is currently charged with committing.
Further, the trial judge should take into
account the recency or remoteness of the
other act. On this point, see the supreme
courts decision in Freeman v. State, 486 P.2d
967, 978-79 (Alaska 1971) (holding that it
was error to admit proof of the defendants
prior sex offense, in part because the prior
offense was committed almost twenty years
before, when the defendant was a teenager,
and because the prior offense involved quite
different facts an eighteen-year-old boy
making improper sexual advances to a fourteen-
year-old girl in a car).
4. Assuming that the offered
character evidence is relevant to a material
issue, how seriously disputed is this
material issue? Does the government need to
offer more evidence on this issue? And is
there less prejudicial evidence that could be
offered on this point? In other words, how
great is the governments need to offer
evidence of the defendants other acts? Or,
if evidence of one or more other acts has
already been admitted, how great is the
governments need to offer additional evidence
of the defendants other acts?
5. How likely is it that
litigation of the defendants other acts will
require an inordinate amount of time?
6. And finally, how likely is it
that evidence of the defendants other acts
will lead the jury to decide the case on
improper grounds, or will distract the jury
from the main issues in the case?
Because Evidence Rules 402 and 403 limit the admission
of evidence under Evidence Rule 404(b)(4), Rule
404(b)(4) does not deny a defendant due process of law
In prior cases, we have held that the
introduction of character evidence against a criminal
defendant does not, of itself, deprive the defendant of
due process of law. In Allen v. State, 945 P.2d 1233,
1238-39 (Alaska App. 1997), we rejected a due process
challenge to Alaska Evidence Rule 404(a)(2), which
authorizes the admission of reputation and opinion
evidence concerning a defendants character for
violence. In Wardlow v. State, 2 P.3d 1238, 1248
(Alaska App. 2000), and McGill v. State, 18 P.3d 77, 81
(Alaska App. 2001), we rejected due process challenges
to Alaska Evidence Rule 404(b)(3), which authorizes the
admission of evidence of a defendants prior acts of
sexual assault for the purpose of proving the
defendants character. And in Fuzzard v. State, 13 P.3d
1163, 1166-67 (Alaska App. 2000), we rejected a similar
due process challenge to Alaska Evidence Rule
404(b)(4).
In Allen, Wardlow, and Fuzzard, we relied in
large measure on the fact that Evidence Rule 403 is
available to forestall the misuse of the rules that
authorize the admission of character evidence.29 It is
true that Evidence Rule 404(b)(4), as written,
seemingly allows the State to introduce evidence that
has no purpose (or little purpose) other than to incite
the jury against the defendant evidence that is likely
to distract the jurors from their duty to decide the
defendants guilt according to law. However, as we have
explained here, Evidence Rules 402 and 403 limit the
scope of Evidence Rule 404(b)(4). We are convinced
that if Evidence Rules 402 and 403 are applied
correctly, the evidence admitted under Rule 404(b)(4)
will not deprive a defendant of the due process of law
guaranteed by the constitution.
We therefore re-affirm our rulings in Allen,
Wardlow, and Fuzzard our conclusion that the various
provisions of Evidence Rule 404 which authorize the
admission of character evidence against a defendant do
not violate the due process clause.
Additional comments on a trial judges duty under
Evidence Rule 403
As we have explained, character evidence can
be relevant. Moreover, it is not fundamentally unfair
to use character evidence for the limited purpose of
circumstantially suggesting the likelihood that the
defendant acted true to character during the episode
being litigated. However, whenever character evidence
is introduced for this purpose, there is a risk that it
will engender the types of unfair prejudice that we
have discussed in this opinion.
This danger may perhaps be low when the
character evidence consists merely of reputation or
opinion testimony, but it is substantial when the
character evidence consists of testimony concerning
specific bad acts. As the Commentary to Alaska
Evidence Rule 405(b) explains:
Of the three methods of proving
character ... , evidence of specific
instances of conduct is the most convincing
[and, at] the same time[,] it poses the
greatest capacity to arouse prejudice, to
confuse, to surprise, and to consume time.
Commentary to Evidence Rule 405(b), first
paragraph.
Because of the danger posed by
proving a defendants character through
evidence of specific acts, we conclude that
whenever the government offers evidence of a
defendants other bad acts under Evidence
Rules 404(b)(2), (b)(3), or (b)(4), trial
judges must conduct a balancing under
Evidence Rule 403 and must explain their
decision on the record.
In addition, when the trial judge
decides to allow the State to introduce
evidence under Rules 404(b)(2), (b)(3), or
(b)(4), the judge must instruct the jury that
evidence of the defendants other acts is
never sufficient, standing alone, to justify
the defendants conviction. The jury must
understand that it is the governments burden
to prove beyond a reasonable doubt that the
defendant committed the crime currently
charged and that this can not be done simply
by showing that the defendant has committed
similar acts in the past.30
Conclusion: Analysis of the evidence presented at
Bingamans trial under the rules we have announced
here
As explained toward the beginning of this
opinion, the State introduced evidence of
approximately 68 bad acts committed by Bingaman
(other than the four crimes currently charged
against him).
We acknowledge that many of the other bad
acts revealed by the States evidence were potentially
admissible under Evidence Rule 404(b)(1) to explain the
relationship between Bingaman and K.H. and her children
to explain why K.H. and her children were afraid to
report or otherwise respond to Bingamans violence and
abuse until K.H. ended her relationship with Bingaman
and she and her children stopped sharing a residence
with him. In addition, to the extent that Bingamans
other acts were similar to the ones with which Bingaman
was charged in the present case, they were relevant to
show that he characteristically engages in such acts
thus making it more likely that he acted true to
character during the episodes being litigated.
But Bingamans trial judge failed in his role
as gate keeper under Evidence Rule 403. The trial
judge failed to exclude evidence of a single bad act
offered by the State, even though many of these acts
had little or nothing to do with K.H. or her children,
and had little or nothing to do with the allegations
that Bingaman had physically assaulted K.H. or had
sexually abused K.H.s daughter. The evidence of
Bingamans dozens of other bad acts overtook and
overwhelmed the States proof concerning the four crimes
charged in the indictment. By inaction, the trial
judge failed to properly exercise the discretion
required by Evidence Rule 403.
For these reasons, the judgement of the
superior court is REVERSED.
(Given our decision that Bingaman is entitled
to a new trial, we need not address the other issues
raised by Bingaman in this appeal.)
_______________________________
1 Evidence Rule 404(b)(4) states, In this [rule], domestic
violence and crime involving domestic violence have the
meanings given in AS 18.66.990.
2 See Smithart v. State, 946 P.2d 1264, 1270-71 (Alaska App.
1997), reversed on other grounds, 988 P.2d 583 (Alaska
1999). See also Beaudoin v. State, 57 P.3d 703, 707-08
(Alaska App. 2002) (summarizing the discussion in Smithart).
3 SLA 1988, ch. 66, 8-9.
4 See the House Judiciary Committees Letter of Intent
accompanying SLA 1988, ch. 66, 9. This Letter of Intent is
found in the 1988 House Journal, p. 2332.
5 See 1988 House Judiciary Committee files, microfiche
numbers 4689-93.
6 See Smithart, 946 P.2d at 1270. See also Hess v. State,
20 P.3d 1121, 1124 (Alaska 2001), which construes the
sibling provision, Evidence Rule 404(b)(3). Hess is
described in more detail in the main text, infra.
7 See SLA 1994, ch. 116, 2.
8 See SLA 1994, ch. 116, 1 (Findings and Purpose): [I]n
sexual assault and attempted sexual assault cases in which
the defendant claims that the victim voluntarily consented
to the sexual activity, further amendment [of Evidence Rule
404(b)] is necessary to permit the prosecution to rebut this
claim by introducing evidence of other sexual assaults or
attempted sexual assaults by the defendant.
9 762 P.2d 1297, 1304 (Alaska App. 1988).
10 See SLA 1997, ch. 63, 22.
11 The bill at issue was 1997 HB 9, which was eventually
enacted as SLA 1997, ch. 63. According to 1 of this
session law, its primary purpose was to clarify that Alaska
Evidence Rule 615 the rule that authorizes the exclusion of
witnesses from the courtroom until they have testified can
not be used to deprive a crime victim of their
constitutional right to be present at all criminal and
juvenile delinquency proceedings.
12 Id.
13 Id.
14 1997 House Finance Committee Minutes (February 18th),
Tape HFC 97-31, Side 1.
15 Id.
16 Id., Tape HFC 97-31, Side 2.
17 See CSHB 9 (Fin), 18 (as originally offered by the
Committee on February 19, 1997), later 19 (the Committees
amended version offered on March 7, 1997).
18 1997 Senate Judiciary Committee Minutes (April 9th),
Tape 97-26, Log No. 105.
19 Id., Log No. 245.
20 The first sentence of Evidence Rule 402 reads: All
relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States or of this
state, by enactments of the Alaska Legislature, by these
[evidence] rules, or by other rules adopted by the Alaska
Supreme Court.
21 The concluding sentence of Evidence Rule 402 reads:
Evidence which is not relevant is not admissible.
22762 P.2d 1297 (Alaska App. 1988).
23Id. at 1298-99.
24A person who causes physical injury to another by means
of a dangerous instrument, acting with criminal
negligence, is guilty of fourth-degree assault under
AS 11.41.230(a)(2). Because this offense is a crime
against the person codified in AS 11.41, it
constitutes an act of domestic violence as defined in
AS 18.66.990(3)(A). And under AS 18.66.990(5)(C) and
(H) (in combination), the motorist and the child of the
motorists former sweetheart are household members.
25Incest, defined in AS 11.41.450(a), consists of engaging
in consensual sexual penetration with (1) an ancestor
or descendant, (2) a sibling, or (3) an aunt, uncle,
niece, or nephew by blood. Because incest is a crime
against the person codified in AS 11.41, it constitutes
an act of domestic violence as defined in AS
18.66.990(3)(A). And because all of the people
specified in the incest statute are related within the
fourth-degree of consanguinity, they are household
members under AS 18.66.990(5)(E).
261997 Senate Judiciary Committee Minutes (April 9th), Tape
97-26, Log No. 245.
27Evidence Rule 403 states: Although relevant, evidence
may be excluded if its probative value is outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.
28We have taken many of these factors from the Tenth
Circuits decision in United States v. Enjady, 134 F.3d
1427, 1433 (10th Cir. 1998).
29 Allen, 945 P.2d at 1239; Wardlow, 2 P.3d at 1248;
Fuzzard, 13 P.3d at 1166-67.
30See United States v. McHorse, 179 F.3d 889 (10th Cir.
1999), a case dealing with Federal Evidence Rule
414(a). The Tenth Circuit approvingly noted that [o]n
more than one occasion the trial judge instruct[ed] the
jury that evidence of uncharged acts of sexual abuse
were not sufficient to prove the defendant guilty of
the crimes charged in the indictment and [that the
defendant] was not on trial for any act, conduct, or
offense not charged in the indictment. Id. at 896-97.
