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Riggins v. State (11/26/2004) ap-1959
Riggins v. State (11/26/2004) ap-1959
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DAMYAN RIGGINS, )
) Court of Appeals No. A-
8701
Appellant, ) Trial
Court No. 3KN-03-620 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. ) [No.
1959 - November 26, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Harold M. Brown, Judge.
Appearances: Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. John A.
Scukanec, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
The State charged Damyan Riggins with assault in the
second degree, a class B felony, for striking his girlfriend
Melinda Berkeen in the face with a dangerous instrument a
telephone.1 At trial, Riggins admitted hitting Berkeen with his
fist, but denied that he had hit her with the telephone.
Rigginss defense, therefore, was that he had committed a
misdemeanor assault, not an assault with a dangerous instrument,
which is a felony. At Rigginss trial, the State admitted
evidence that Riggins had committed prior assaults on Berkeen.
The State also admitted evidence that Riggins had previously
committed several assaults on a prior girlfriend, and, on two
other occasions, had been convicted of assaults on prior
girlfriends. Riggins argues on appeal that the trial judge erred
in admitting this evidence over his objection. We conclude that
the trial judge did not err in admitting evidence of Rigginss
prior assaults on Berkeen. But we conclude that the trial judge
abused his discretion in admitting evidence of Rigginss other
prior domestic assaults.
Factual background
Riggins assaulted his girlfriend, Melinda Berkeen, on
March 31, 2003. Apparently Riggins and Berkeen were alone at the
time of the assault. Frank Wolaver went to Berkeens residence
shortly after he received a telephone call from Berkeens uncle.
The uncle asked Wolaver to check on Berkeen. When Wolaver
arrived at Berkeens residence less than five minutes later, he
saw that Berkeen had been beat up. Wolaver testified that
Berkeens left eye was completely closed. Berkeen told Wolaver
that Riggins had repeatedly hit her in the face with a telephone.
Neighbor Elaine Carpenter testified that she received a
telephone call from Wolaver and arrived at Berkeens residence
approximately five minutes after the telephone call. Carpenter
testified that Berkeens left eye was swollen shut. She stated
that Berkeen was very distressed and fearful that Riggins was
going to return. Berkeen told Carpenter that Riggins had
repeatedly hit her with the telephone. Berkeen made similar
statements to a paramedic who treated her at her residence, and a
state trooper who talked to her at the hospital. Berkeen also
told two doctors and a nurse at the hospital that she had been
hit with a telephone.
Later, at grand jury proceedings, Berkeen testified
that Riggins had repeatedly hit her with a telephone. The grand
jury indicted Riggins for assault in the second degree.
At trial, Berkeen testified that Riggins had hit her
with his hand, not the telephone. She explained her grand jury
testimony by saying that she had been intoxicated when she
appeared before the grand jury. She admitted that she had told
numerous people that Riggins had assaulted her with the
telephone. But she insisted that Riggins had only hit her with
his hand. For his part, Riggins asserted that he was only guilty
of a misdemeanor of assault in the fourth degree. He admitted
hitting Berkeen with his fist, but denied hitting her with the
telephone. The jury convicted Riggins of assault in the second
degree, finding that he had hit Berkeen with the telephone.
Riggins now appeals his conviction.
Judge Brown did not err in admitting evidence
of Rigginss prior assaults on Berkeen
Judge Brown allowed the State, over Rigginss objection,
to admit evidence of Rigginss two prior domestic assaults on
Berkeen. Specifically, the State sought to admit evidence that
Riggins hit, kicked, and bit Berkeen on February 8, 2003. The
State also sought to admit evidence that, a week later, Riggins
threatened to kill Berkeen. Riggins had been convicted of assault
in the fourth degree for the February 8 incident. And he had
just been released from jail a few days prior to the present
assault on Berkeen.
Judge Brown ruled that this evidence was admissible
under Alaska Rule of Evidence 404(b)(4) as a prior crime of
domestic violence. He also ruled that the probative value of the
evidence outweighed the danger of unfair prejudice to Riggins.
Berkeen testified at trial consistently with the States offer of
proof.
Alaska Evidence Rule 404(b)(4) allows the State to
introduce evidence of a defendants prior crimes of domestic
violence in a prosecution for a crime of domestic violence.2 We
extensively analyzed Evidence Rule 404(b)(4) recently in Bingaman
v. State,3 a case which was decided just after Rigginss trial.
In Bingaman, we pointed out that:
[i]n 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.[4]
We held that, to be admissible, the evidence had to be relevant
to the case and that the probative value of the evidence had to
outweigh the danger of unfair prejudice.5 We stated that
[c]haracter evidence has the greatest potential relevance when
the defendants past wrongdoing involves the same type of
situational behavior as the current charge.6
We also pointed out that, even if the court determines
that the evidence of prior domestic violence is relevant, the
court still must determine, under Evidence Rule 403, whether the
probative value of the evidence is outweighed by the danger of
unfair prejudice.7 There is an inherent danger created by
proving the defendants character by evidence that he had
committed specific bad acts. A court needs to consider the
danger that a jury might convict a defendant based on placing too
much weight on his prior convictions. And we stated that trial
judges have a duty to explain their decision on the record.8 We
also explained that 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.9 We set out certain factors for courts to consider in
weighing whether evidence of a defendants prior acts of domestic
violence could be admitted under Evidence Rule 404(b)(4):
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? . . .
. . .
4. Assuming that the offered character
evidence is relevant to a material
issue, how seriously disputed is this
material issue? . . .
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?[10]
When we apply these rules to Berkeens testimony about
Rigginss prior assaults on her, we conclude that Judge Brown did
not abuse his discretion in admitting this evidence. The
governments evidence that Riggins committed the prior assaults
was strong. Riggins had been convicted as a result of one of the
prior assaults and Berkeen, who did not appear to be hostile to
Riggins, testified about the prior assaults at trial.
The prior assaults were relevant to issues in the
trial. The prior assaults showed Rigginss character for using
violence against Berkeen and provided a motive for Berkeen to
change her testimony to testify favorably for Riggins at trial.
Given her history with Riggins, Berkeen might well have been
afraid of him. Furthermore, the prior incidents provide a motive
for Riggins to assault Berkeen. He had just been released from
jail a few days before, where he had been held on a conviction
for previously assaulting her. The evidence was relevant to show
that Riggins might well have been angry with Berkeen because he
had been convicted and jailed because of this prior incident.
Admission of the evidence did not require a great amount of time
and it was unlikely that the evidence would cause the jury to
decide the case on improper grounds. Rigginss relationship with
Berkeen was a central issue in the case.
We agree with the State that the evidence of Rigginss
prior domestic assaults on Berkeen would also have been
admissible under Evidence Rule 404(b)(1). Evidence Rule
404(b)(1) provides that evidence of other crimes or other bad
acts is not admissible to show a persons character to commit a
similar act. But the rule provides that evidence of other crimes
or bad acts is admissible for other purposes, including, but not
limited to, proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. In
the present case, the evidence of Rigginss prior assaults on
Berkeen was admissible for other purposes: to show his possible
motive for assaulting Berkeen and to show her possible motive to
testify favorably to him. We accordingly conclude that Judge
Brown did not abuse his discretion in admitting the evidence of
Rigginss prior assaults of Berkeen.
Judge Brown erred in admitting evidence of
Rigginss prior assaults on a former
girlfriend
Prior to trial the State also moved to admit evidence
that Riggins had assaulted a former girlfriend, Amanda Tressler,
on three occasions. The State sought to admit evidence that, in
late 2001, during an argument, Riggins had thrown a chair toward
Tressler. Furthermore, on February 3, 2003, Riggins had
threatened Tressler and a few days later had gone to the place
where Tressler worked and threatened to drag her down a flight of
stairs. Riggins objected to the evidence on the ground that the
incidents were not similar to Rigginss current charges and
therefore the relevance of this evidence was outweighed by the
danger of unfair prejudice. Judge Brown ruled that the evidence
was admissible under Alaska Evidence Rule 404(b)(4) and concluded
that the probative value of the evidence outweighed the danger of
unfair prejudice. Tressler testified consistently with the
States offer of proof.
Applying the Bingaman analysis, which we set out
earlier in this decision, we conclude that Judge Brown abused his
discretion in admitting the testimony of Amanda Tressler. It is
true that the evidence that Riggins assaulted Tressler was
strong. Tressler testified at trial and Riggins does not appear
to have seriously contested that these incidents occurred.
Furthermore, the States presentation of the evidence did not
require an inordinate amount of time. But the evidence of
Rigginss assaults on Tressler had minimal relevance. The
evidence of Rigginss assaults on Tressler did tend to prove
Rigginss character to become very angry in domestic situations
and to threaten violence. But the State had available much more
relevant evidence to establish this character trait: Rigginss
prior assaults on Berkeen. In the case at trial, Riggins
admitted that he had assaulted Berkeen; the central question in
the trial was whether Riggins had assaulted her with the
telephone. The evidence of Rigginss prior assaults on Tressler
did not shed any light on this issue. The incident where Riggins
threw the chair toward Tressler, as presented by the State prior
to trial, did sound like it could possibly be relevant. If
Riggins had actually attempted to strike Tressler with the chair
the State might have plausibly argued that the incident
demonstrated Rigginss willingness to use a dangerous instrument
during a domestic dispute. But Tresslers testimony at trial was
that she did not think that Riggins intended to hit her with the
chair. According to Tressler, she and Riggins were living
together in a small apartment when they got into an argument.
During the argument, Riggins picked up the chair and threw it.
Tressler testified that the chair came toward her and she dodged
out of the way. Tressler testified that she believed that
Riggins was just throwing the chair because he was angry and that
he did not intend to throw the chair at her or intend to hit her.
Under these circumstances, this incident was of questionable
relevance to show Rigginss inclination to use a dangerous
instrument in a domestic violence assault.
The relevance of admitting Rigginss prior assaults on
Tressler was therefore of minimal relevance. On the other hand,
the danger of unfair prejudice from admitting the evidence of
these assaults was great. The jury had already heard evidence of
Rigginss prior history of assaults on Berkeen. And the jury knew
that Riggins admitted that he had assaulted Berkeen in the case
before them. The admission of Rigginss history of prior assaults
on Tressler raised the danger that the jury might be prejudiced
against Riggins because of his history of prior domestic
assaults. We accordingly conclude that Judge Brown abused his
discretion in admitting the evidence of Rigginss prior assaults
on Tressler.
Admission of evidence of Rigginss other prior
convictions for domestic assault
When cross-examining Riggins, the prosecutor asked
Riggins what other girlfriends he had assaulted (besides Berkeen
and Tressler). Riggins admitted that he had previously assaulted
Stacey Holmes and Merriam Allevio. The prosecutor then asked
Judge Brown to excuse the jury so that he could apply to the
court to admit the evidence of these prior incidents. Out of the
presence of the jury the prosecutor represented that in May of
1999 Riggins was convicted of assault in the fourth degree for
assaulting Allevio. He represented, from the police report, that
during the incident Riggins had become very angry and pulled the
telephone out of the wall. According to the police report,
Riggins had a knife in his hand during the incident. The
prosecutor also represented that Riggins had been convicted of
assault in the fourth degree for an incident involving Stacey
Holmes in September of 1997. From the police report, the
prosecutor represented that in this incident Riggins had gotten
into an argument and threw Holmess stereo against the living room
wall, breaking it. He then took the telephone away from her and
broke it while she was trying to call the police for help. He
then knocked her down, and kicked her several times. The
prosecutor indicated that he had not talked to Allevio or Holmes
or to the police officers who had investigated these incidents.
Riggins objected on the ground that the facts, as related by the
prosecutor, seemed more consistent with a felony assault, rather
than the misdemeanor assaults for which Riggins was convicted.
He suggested that the police reports of the incidents were
therefore probably inaccurate. Judge Brown concluded that he
would allow the prosecutor to ask Riggins about the names of the
people he assaulted and the fact that he had been convicted. But
Judge Brown concluded that he would not allow the prosecutor to
go into the details of the incidents. On resuming his cross-
examination of Riggins, the prosecutor established the fact that
Riggins had been convicted of assaulting Allevio and Holmes.
Riggins argues that Judge Brown erred in admitting this
evidence. As the State points out, it appears that Riggins did
not make a proper objection to the admission of this evidence.
But it is also true that the prosecutor violated the Alaska Rules
of Evidence by asking Riggins about these prior assaults without
making a prior application to the court.11 In any event, we
conclude that we do not need to consider whether we should review
the admission of these incidents under a plain error standard.
We have previously concluded that admission of the evidence that
Riggins committed prior domestic assaults on Amanda Tressler was
error. The State does argue that admission of these prior
domestic assaults did not appreciably affect the jurys verdict
and therefore, even if the trial court erred in admitting this
evidence, that admission of these incidents was harmless. We
disagree. Our review of the record convinces us that admission
of Rigginss history of prior incidents of domestic violence
created a substantial risk that the jury would be prejudiced
against Riggins because of his prior record. Under these
circumstances, we cannot find that the erroneous admission of
this evidence was harmless error.
Conclusion
We conclude that Judge Brown erred in admitting
evidence of Rigginss prior assaults on Amanda Tressler. We
cannot find that admission of this evidence constituted harmless
error. We therefore reverse Rigginss conviction.
REVERSED.
_______________________________
1 AS 11.41.210(a)(1).
2 Alaska Evidence Rule 404(b)(4) states:
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.
3 76 P.3d 398 (Alaska App. 2003).
4 Id. at 408.
5 Id. at 409-10.
6 Id. at 410.
7 Id. at 414-16; A.R.E. 403.
8 Bingaman, 76 P.3d at 416.
9 Id. at 417 (footnote omitted).
10 Id. at 415-16.
11 See David v. State, 28 P.3d 309, 312 (Alaska App.
2001); McBeth v. State, 652 P.2d 120, 125 n.7 (Alaska App. 1982).
