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Kenison v. State (02/11/2005) ap-1970
Kenison v. State (02/11/2005) ap-1970
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
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOEL MORRIS KENISON, )
) Court of Appeals No.
A-8567
Appellant, )
Trial Court No. 3AN-01-9958 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1970 February 11, 2005]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: Rex Lamont Butler, Anchorage,
for the Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Joel Morris Kenison appeals his conviction for first-
degree stalking.1 He contends that the State presented
insufficient evidence to the grand jury to support his
indictment. Kenison further contends that his trial judge
committed error by allowing the State to introduce evidence of
various instances of Kenisons past conduct toward the victim, his
estranged wife. Kenison also argues that the trial judge should
not have allowed the State to amend the indictment at the close
of the trial, altering the dates of the stalking to conform to
the evidence presented at trial. In addition, Kenison argues
that the trial judge should have declared a mistrial based on
statements made by the prosecutor during the governments
summation to the jury. Finally, Kenison asserts that the trial
judge should have given the jury a special instruction on the
meaning of the term fear.
For the reasons explained here, we reject each of
Kenisons assertions of error, and we accordingly affirm his
conviction.
Underlying facts
Joel and Mary Ann Kenison married in 1989.
They separated in August 1998, and they formally
divorced two years later.
Following the couples separation in August
1998, Joel Kenison repeatedly sought a reconciliation
with his estranged wife. Kenison also began to harass
and threaten Mary Ann, focusing particularly on her
relationships with other men. Mary Ann obtained
several protective orders (at various times) against
Kenison. But despite these protective orders, Kenisons
harassing and threatening behavior did not cease; it
continued until Kenisons arrest in December 2001.
(a) The couples separation, and the events leading
up to the first protective order (November
1998)
Mary Ann testified that the Kenisons marriage
had been in trouble for several years when she finally
moved out of the marital home in August 1998. Mary Ann
stated that she did not inform Kenison of her new
address because she was afraid of him.
Immediately after the separation, Kenison
made repeated attempts to reconcile with Mary Ann, but
she remained adamant in her desire to separate from
him. During this period, Kenison made many telephone
calls to Mary Ann. Kenison sometimes placed these
calls at all hours of the day; Mary Ann testified that,
at times, her phone continued to ring after midnight.
In these calls, Kenison repeatedly accused
her of leaving him for another man. Kenison went so
far as to threaten to kill one of Mary Anns co-workers
(because Kenison suspected that Mary Ann was dating
this co-worker). Kenison also threatened to stop all
involvement with the couples two children if Mary Ann
continued to see other men, and he threatened to burn
down the marital home. And, on occasion, Kenison
threatened to commit suicide if Mary Ann did not come
back to him.
Mary Ann testified that she was scared by the
number and the content of Kenisons telephone calls,
especially his repeated threats of violence. She
stated that [she] had no idea what he might do. For
this reason, Mary Ann began to tape record Kenisons
calls.
Kenisons harassment of Mary Ann was not
limited to telephone calls. Kenison drove by Mary Anns
residence twice when Mary Ann was entertaining a friend
for dinner one evening. On another occasion, during a
period when Kenison was repeatedly calling her house,
Mary Ann saw someone running out of her yard and down
the street. When she went out to check, she observed
footprints leading up to her window.
On November 7, 1998, Kenison drove by Mary
Anns residence when she was entertaining a guest, and
then he telephoned her and made threats to harm her
guest. Mary Ann called the police that night. She
testified that [she] was very scared that [Kenison] was
going to come over to [her] residence and hurt [her].
Ten days later, on November 17th, Mary Ann
petitioned the court for a 20-day protective order
against Kenison. The order was granted, and Kenison
was served with this protective order on December 3rd.
When this protective order expired on December 7th,
Mary Ann did not seek a six-month order. She explained
that she just wanted to get [Kenisons] attention ... so
that he [w]ould realize that his behavior was harmful
and inappropriate.
(b) The events leading up to the second set of
protective orders (June and July 1999)
While the November 1998 protective order was
in effect, Kenison abided by its terms. But when the
protective order expired, Kenison again began to call
Mary Ann and to write her letters. Mary Ann responded
by trying to limit her communication with Kenison to a
minimum. She did not return his phone calls, and she
ignored his letters. She also arranged child
visitation schedules so that she would not have to meet
with Kenison face-to-face.
This policy apparently worked for several
months. But in May 1999, Mary Ann started dating
another man, G.N.. Kenison called Mary Ann and left
angry messages regarding this relationship. As before,
Kenison threatened to hurt or kill Mary Anns male
friends (both G.N. and one of Mary Anns co-workers).
He also threatened to refuse to be involved with the
children if she continued to date G.N.. And Kenison
threatened to commit suicide if Mary Ann did not return
to him.
Kenison also began driving by Mary Anns
residence for no apparent reason, often with their
children in the car.
Kenison also targeted G.N. for harassing
phone calls. On three occasions, G.N. answered the
phone at his house only to be greeted by an open,
silent line. Two of these calls occurred when Mary Ann
was visiting G.N.s house.
As a result of Kenisons harassing and
threatening conduct, Mary Ann sought and obtained
another 20-day protective order on June 18, 1999. The
order was served on Kenison two days later.
Mary Ann testified that Kenison violated the
no communication provision of this protective order on
two occasions. Once, Kenison telephoned Mary Ann,
ostensibly to check on their childrens welfare. And
once, Kenison sent a letter to Mary Ann, seeking
reconciliation with her.
This time, when the 20-day protective order
expired, Mary Ann sought and obtained a six-month
protective order. This order was signed on July 6,
1999. Under the terms of the six-month order, Kenison
was prohibited from visiting Mary Anns house and her
place of employment. Further, all of Kenisons
communications with Mary Ann including any
communications involving their children were to be
conducted through an intermediary, Mary Anns brother.
According to Mary Ann, Kenison generally
conformed his behavior to the terms of this six-month
protective order. The harassing telephone calls
stopped while the order was in effect although Mary
Ann suspected that Kenison continued to drive past her
residence. (Apparently, their son later confirmed Mary
Anns suspicion.)
(c) The events leading up to the third set of
protective orders (October 2000)
In August 2000, Mary Ann started seeing
another man. This event prompted Kenison to resume his
campaign of harassment and threats.
Mary Ann happened to meet this man shortly
before she was to go on a three-week vacation. Kenison
apparently did not view this timing as coincidental.
He telephoned Mary Ann on the day that she was
scheduled to leave on her trip. Screaming and yelling,
Kenison threatened that he would refuse to take care of
their children while she was away. He accused Mary Ann
of running off to get married.
Shortly after she returned from this
vacation, Mary Ann invited her new boyfriend over for
dinner. According to her testimony, as soon as the man
arrived at her house, her telephone began ringing off
the hook: it was Kenison. Kenison demanded to know
what Mary Ann was doing with a man in her house. Mary
Ann hung up, but the calls continued until she
unplugged her phone. Later, when the man was getting
ready to leave Mary Anns home, he discovered that his
vehicle had a flat tire.
After this incident, Kenison continued to
make harassing phone calls to Mary Ann. Kenisons phone
calls were so relentless that Mary Ann was forced to
unplug her telephone in the evening so that she could
get a good nights sleep. Mary Ann testified that
Kenisons possessiveness and his jealousy were very ...
scary and very threatening.
On October 1, 2000, Mary Ann obtained a 20-
day protective order against Kenison. (This order was
served on Kenison three days later.) Eighteen days
later, Mary Ann obtained a six-month protective order
against Kenison.
(d) The events leading up to the fourth set of
protective orders (May and June 2001)
Despite this third set of protective orders,
Mary Ann continued to receive numerous hang-up
telephone calls, both at home and at her work. These
calls were now coming from unidentified numbers. When
Mary Ann sought advice from local agencies who assist
domestic violence victims, the agencies told her to
write down whatever information about these calls was
displayed on her caller-ID screen. Mary Ann did so,
and she discovered that many of the calls were
originating from pay phones in her neighborhood. In
March 2001, Mary Ann wrote a letter to Kenison in which
she confronted him with this information. Kenison
denied that he was the one calling her. The calls
continued.
Also in March 2001, Mary Ann started dating
A.B.. In April, she made plans to celebrate her
birthday by going out to dinner with A.B.. As Mary Ann
drove to meet A.B., she noticed that Kenison was
driving next to her, waving at her. Mary Ann tried to
lose Kenison by exiting the freeway, but Kenison
followed her, even though he had to cross multiple
lanes of traffic to do so. Mary Ann eventually had to
pull over and stop at which point, Kenison drove away.
A.B. also became a target of Kenisons
harassment. A.B. began to receive harassing telephone
calls on both his business and his personal phone lines
at his home. A.B. testified that, when he answered
these calls, there would be silence on the other end of
the line. The calls would usually come in spurts.
In addition, the tires of A.B.s vehicle were
slashed on two occasions that spring. One of these
occasions was on the morning after A.B. and Mary Ann
went on a date. On the second occasion, the slashing
occurred while Mary Anns vehicle was also parked at
A.B.s residence, and her vehicle also suffered two flat
tires. (The other three cars in the same parking lot
sustained no tire damage.)
Mary Ann reported this incident to the police
on May 25, 2001. That same day, Mary Ann obtained yet
another protective order against Kenison. This order
was served on Kenison on May 31, 2001. Four days later
(June 4th), Kenison violated this order by writing a
letter to Mary Ann. On June 11th, the court granted
Mary Ann a six-month protective order. Like the
previous orders, this one prohibited Kenison from
having any contact with Mary Ann, with the exception of
written communications involving their children. In
addition Kenison was prohibited from visiting Mary Anns
residence and A.B.s residence.
(e) The events leading up to Kenisons arrest on the
evening of December 7-8, 2001
During the summer of 2001, Kenison engaged in
multiple contacts with Mary Ann. She began receiving
hang-up calls from pay phones in the area. She also
received a note from Kenison in which he expressed
anger that she had (purportedly) amended the child
custody schedule to accommodate her social life.
In July 2001, when Mary Ann went to the day
care center to pick up their daughter, she found that
Kenison was behind her. Kenison attempted to engage
her in conversation. Later that same month, Mary Ann
encountered Kenison when she went to pick up their son
from a basketball camp. And on August 17th, while Mary
Ann was hosting a dinner party at her house, A.B.
looked out the window and saw Kenison slowly driving
down the cul-de-sac.
In late September, Mary Ann went to hear A.B.
play music. While she was there, she was paged two or
three times. She also continued to receive hang-up
telephone calls.
In late October 2001, Mary Ann went to
breakfast with A.B. and a third person. When Mary Ann
left the restaurant, she saw Kenison across the street,
waving at her. Mary Ann ignored him and got into her
car. Kenison, with their children in the car, followed
her. As they drove, Kenison pulled up beside her and
shouted obscenities at her.
On December 1, 2001, A.B. suffered a third
tire slashing. He filed a police report concerning
this incident on December 3rd. In the week that
followed, A.B. received more harassing phone calls than
ever before.
Also in early December, Mary Ann became
concerned because Kenison had failed to drive their
children to school. When Mary Ann telephoned Kenison
to check on the children, Kenison told her that the
children were fine, and then he began to question her
about A.B..
On the night of December 7, 2001, Mary Ann
visited A.B.s residence. Shortly after she and A.B.
entered the residence, the two telephone lines began
ringing off the hook. After answering two or three
calls, and being met with silence on the other end of
the line, A.B. called the police.
While Mary Ann and A.B. waited for the police
to arrive, the phone continued to ring. When A.B.
answered the phone, Kenison spoke to him although he
identified himself as Bill Clinton. With anger in his
voice, Kenison demanded to talk to Mary Ann, but she
refused to speak with him.
The police arrived around eleven oclock. By
that time, Mary Ann was frightened, tired, and upset;
she estimated that Kenison had called the house a total
of twenty times. By tracing another call that Kenison
made shortly thereafter, the police were able to
discover the number of the originating telephone. Mary
Ann identified this number as belonging to Kenisons
cell phone.
After the police confirmed that there was an
outstanding protective order that prohibited Kenison
from contacting Mary Ann, they arrested Kenison (either
later that night or early the next morning).
Kenison was charged with violating the
protective order, and he was also charged with first-
degree stalking. Following a jury trial, Kenison was
found guilty of both charges.
Kenisons attacks on his indictment
Before trial, Kenison filed a motion to
dismiss his indictment; he argued that the evidence
presented to the grand jury was insufficient to
establish that he had committed the crime of first-
degree stalking.
The basic crime of stalking (second-degree
stalking) is defined in AS 11.41.270. Under subsection
(a) of this statute, the crime consists of knowingly
engag[ing] in a course of conduct that recklessly
places another person in fear of death or physical
injury, or in fear of the death or physical injury of a
family member.
The phrase course of conduct is defined in
subsection (b) of the statute. It means repeated acts
of nonconsensual contact involving the victim or a
family member2 with the proviso that family member
includes any person who is or has been in a dating,
courtship, or engagement relationship with the victim.3
The term nonconsensual contact is defined as any
contact with another person that is initiated or
continued without that persons consent, [or] that is
beyond the scope of the consent provided by that
person, or that is in disregard of that persons
expressed desire that the contact be avoided or
discontinued.4 It includes such types of contact as
following the person, or approaching or confronting the
person, or appearing at the persons residence or
workplace, or contacting the person by telephone, by
mail, or by electronic communication.5
In Kenisons case, the State alleged that his
offense was aggravated to first-degree stalking under
AS 11.41.260(a)(1), a provision that elevates the
degree of the offense when the actions constituting the
offense are in violation of [a protective or
restraining] order issued under AS 18.66.100
18.66.180.
The indictment returned against Kenison
tracked the language of the pertinent statutes. The
indictment charged that on or about December 7, 2001,
... Kenison knowingly engaged in a course of conduct
that recklessly placed another [person] in fear of
death or physical injury, or in fear of the death or
physical injury of a family member[,] and the conduct
was in violation of an order issued under AS 18.66.100
18.66.180 ... .
Kenison argues that the indictment is
deficient on its face because he did not commit a
course of conduct on December 7, 2001. He concedes
that the State presented evidence that he engaged in
non-consensual contact with Mary Ann and A.B. on the
evening of December 7th, but he argues that this
conduct was a single act, not a course of conduct. We
conclude, for three reasons, that the indictment was
not limited to the events of December 7th.
First, the indictment did not specify that
Kenisons offense occurred precisely on December 7th.
Rather, the indictment charged that Kenisons offense
occurred on or about December 7th.
Second, because the crime of stalking
requires proof of a course of conduct, the crime will
necessarily consist of a series of acts committed over
time. See our discussion of this issue in Cook v.
State, 36 P.3d 710, 720-22 (Alaska App. 2001). When
Kenisons indictment is read in a common-sense manner,
in light of the evidence presented to the grand jury
(which we describe below), the indictment charges that
Kenison engaged in a lengthy series of harassment and
threats that culminated on December 7, 2001.
Third, and most important, as we recently
explained in Larkin v. State, 88 P.2d 153 (Alaska App.
2004), the date of the offense is normally not a
material element of the States proof. A deficiency or
inaccuracy in an indictments specification of the date
of the offense is generally immaterial, so long as the
States evidence reveals that the offense occurred (1)
before the indictment was returned and (2) within the
applicable statute of limitations.6
The problem is somewhat different in Kenisons
case, because he was charged with first-degree stalking
under the theory that his conduct violated a protective
order. This means that the timing of Kenisons acts of
non-consensual contact was potentially material.
Even though Mary Ann obtained several
protective orders against Kenison during the three
years between their separation (in August 1998) and
Kenisons arrest (in December 2001), there were
significant periods of time during this three-year span
when no protective order was in place. To the extent
that Kenison engaged in acts of non-consensual contact
with Mary Ann or the men she was dating during the
times when there was no protective order, this conduct
could not form the basis for a charge of first-degree
stalking.
We acknowledge that the superior court
interpreted the first-degree stalking statute
differently. The superior court held that Kenison
could properly be convicted of first-degree stalking if
any one of his acts of non-consensual contact violated
a protective order. We disagree. The crime of
stalking requires proof of a course of conduct that
is, proof of repeated acts of nonconsensual contact.7
And the pertinent clause of the first-degree stalking
statute, AS 11.41.260(a)(1), requires proof that the
actions constituting the offense [were] in violation of
[a protective] order. (Emphasis added.) Reading these
two statutes together, we conclude that the State was
required to prove that Kenison engaged in a course of
conduct whose constituent acts of non-consensual
contact violated one or more of the protective orders
issued in this case.
Nevertheless, the evidence presented to the
grand jury was sufficient to establish that Kenison
engaged in a series of non-consensual contacts with
Mary Ann and the man she was dating, A.B., between May
25, 2001 (the date when the fourth set of protective
orders first took effect) and the evening of December 7-
8, 2001 (the date of Kenisons arrest, when that fourth
set of protective orders was still in effect).
Mary Ann was the principal witness at the
grand jury. She chronicled Kenisons threatening and
harassing behavior over the course of more than three
years. She also explained that she obtained several
protective orders against Kenison because his actions
frightened her, and because she feared that he would
harm her or the men she was dating.
The final set of protective orders was issued
in May and June 2001. (As explained above, Mary Ann
obtained the initial 20-day protective order on May 25,
2001, followed by the six-month protective order issued
on June 11, 2001.) At the grand jury, Mary Ann
detailed Kenisons many violations of these protective
orders. Kenison made numerous hang-up telephone calls
to A.B., he paged Mary Ann when she attended one of
A.B.s musical performances, he followed Mary Ann (and
cursed at her) after she had breakfast with A.B. on
October 28th, he slashed A.B.s tire on December 1st,
and he made the telephone calls to A.B.s residence on
the evening of December 7th the contact that
ultimately resulted in his arrest.
This evidence was sufficient to support a
finding that, in the months leading up to December
2001, while the fourth set of protective orders were
continuously in place, Kenison engaged in repeated acts
of non-consensual contact with Mary Ann and A.B. (the
man she was dating), and that this course of conduct
ended with Kenisons arrest on the evening of December
7th-8th. In other words, this evidence was sufficient
to support Kenisons indictment for first-degree
stalking, even if we leave aside all of Kenisons
conduct before May 25, 2001 (when the fourth set of
protective orders took effect).
Kenison further attacks the sufficiency of
the grand jury evidence on the basis that Mary Ann
never expressly stated that Kenisons words and actions
made her fearful. But when the stalking statute speaks
of a course of conduct that places another person in
fear of death or physical injury (or the infliction of
death or injury on a family member), the statute is not
referring to the victims subjective feelings of fright
or intimidation. Rather, the statute requires proof
that the victim reasonably perceived or apprehended the
threat of death or physical injury.
We explained this legal concept (in the
context of Alaskas assault statutes) in Hughes v.
State, 56 P.3d 1088 (Alaska App. 2002):
It is true that the third-degree assault
statute requires proof that the defendant
place[d] another person in fear of imminent
serious physical injury. But, as used in
this statute, the word fear does not refer to
fright, dread, intimidation, panic, or
terror. Rather, a person is placed in fear
of imminent injury if the person reasonably
perceives or understands a threat of imminent
injury. The victims subjective reaction to
this perception is irrelevant. It does not
matter whether the victim of the assault
calmly confronts the danger or quivers in
terror. The question is whether the victim
perceives the threat.
Hughes, 56 P.3d at 1090 (footnote omitted).
This same rule applies to the crime
of stalking. The State was not obliged to
prove that Kenisons conduct made Mary Ann
feel frightened or intimidated. Rather, the
State was obliged to prove that Kenisons
conduct caused Mary Ann to reasonably
perceive or understand a threat of death or
injury to herself or a family member. The
evidence presented to the grand jury was
sufficient to establish this element of the
offense.
For these reasons, we conclude that
the superior court properly rejected Kenisons
challenges to the grand jury indictment.
The trial judges decision to allow the State to
introduce evidence of Kenisons entire course of
non-consensual contact with Mary Ann and her male
friends, from the marital separation in August
1998 to the time of Kenisons arrest in December
2001
At Kenisons trial, Mary Ann was allowed to
explain the course of her relationship with
Kenison from the summer of 1998 (when the couple
separated) to the events leading to Kenisons
arrest on the evening of December 7-8, 2001. In
particular, Mary Ann described Kennisons many acts
of non-consensual contact and his repeated
harassment and threats during this period of more
than three years.
Kenisons attorney objected to the
introduction of any evidence concerning Kenisons
conduct before 2000. The defense attorney
contended that this pre-2000 conduct was
irrelevant to the stalking charge. The attorneys
argument was based on the assertion that a charge
of stalking requires proof of an uninterrupted
course of conduct.
The defense attorney pointed out that,
according to Mary Anns testimony, Kenison stopped
harassing and threatening her after she obtained
the third set of protective orders in June and
July 1999. Mary Ann testified that Kenison did
not resume his pattern of harassment and threats
until a year later, in August 2000, when she
started dating another man.
Based on this interruption in Kenisons
pattern of harassment and threats, the defense attorney
argued that Kenison had actually committed two separate
courses of conduct two separate series of non-
consensual contacts. According to the defense
attorney, Kenison had been indicted solely for the
course of conduct that began in August 2000 and
culminated in December 2001. Thus, the defense
attorney contended, evidence of Kenisons conduct prior
to the summer of August 2000 was irrelevant to the
issues being litigated at Kenisons trial.
The trial judge, Superior Court Judge Michael
L. Wolverton, rejected this argument and allowed Mary
Ann to testify about all of the events described
earlier in this opinion.
Kenison now challenges this ruling on appeal.
Indeed, Kenison argues that the scope of admissible
evidence may have been even narrower than suggested in
the preceding discussion. Kenison points out that he
was indicted for first-degree stalking under the theory
that his conduct violated a protective order on or
about December 7, 2001. Based on this, Kenison asserts
that evidence of his prior acts was relevant only if
that evidence related to his conduct during the time
when the fourth set of protective orders was in effect
i.e., on or after May 25, 2001.
We addressed and rejected similar contentions
in Petersen v. State, 930 P.2d 414 (Alaska App. 1996),
and Cook v. State, 36 P.3d 710 (Alaska App. 2001). In
both Peterson and Cook, we upheld trial court rulings
that allowed the State to introduce evidence of the
defendants acts of non-consensual contact with the
victim even though these acts were committed outside
the range of time specified in the indictment.
In Petersen, the State introduced evidence
detailing the defendants interactions with the victim
during the 4-year period from 1989 until the defendants
arrest on July 18, 1993, even though stalking did not
become a crime under Alaska law until May 28, 1993 (the
effective date of our two stalking statutes, AS
11.41.260 and 270).8 Petersen argued that all of his
contacts with the victim prior to May 28, 1993 were
irrelevant to the crime charged in the indictment, and
that this evidence served only to suggest that he was a
person of bad character. Petersen therefore contended
that this evidence should have been excluded under
Alaska Evidence Rules 403 and 404(b)(1).
We rejected Petersens contention that this
evidence was irrelevant, or that it was relevant only
to prove his bad character:
The State was obliged to prove that
Petersen knowingly engaged in nonconsensual
contact with R.H.. Obviously, R.H.s reaction
to Petersens pre-May 1993 contacts (in
particular, her explicit directions to
Petersen that he stay away from her) were
relevant to prove that Petersen was aware
that R.H. did not consent to his post-May
1993 contacts with her.
Additionally, the State was obliged to
prove that R.H. was placed in fear of injury
or death by Petersens post-May 1993 contacts.
Clearly, evidence of Petersens long-standing
course of conduct toward R.H. his persistent
refusal to stay away from her, his repeated
presence at her workplace, his
middle-of-the-night trespass at her home in
January 1992, and his attempt to ram R.H.s
car in January 1993 was relevant to
establish that R.H. feared injury or death at
Petersens hands.
Finally, the State was obliged to prove
that Petersen recklessly disregarded a
substantial and unjustifiable risk that his
conduct would cause R.H. to fear injury or
death. Again, Petersens pre-May 1993 conduct
was relevant to prove this element of the
offense.
Petersen, 930 P.2d at 432. Based on this
reasoning, we concluded that evidence of
Petersens pre-May 1993 contacts with the
victim R.H. was relevant for non-propensity
purposes, and that the evidence was therefore
not barred by Evidence Rule 404(b)(1).9
We addressed the converse problem
in Cook. The defendant in Cook was charged
with first-degree stalking for engaging in a
series of non-consensual contacts with the
victim in violation of a protective order.
The indictment charged Cook with a course of
conduct committed between late October 1998
(when the protective order was issued) and
late December 1998 (when Cook was arrested).
The trial judge allowed the State to
introduce evidence that two months later, in
February 1999, while Cook was in jail
awaiting trial, Cook sent another letter to
the victim in violation of the protective
order.10
On appeal, Cook argued that this
letter was irrelevant to the charge against
him, since Cook did not send this letter
until two months after the time period
specified in the indictment. He further
argued that [t]he only impact [of] this
letter ... was to suggest to the jury that
[he] had a propensity to engage in unwanted
contact with [the victim].11 We concluded
that [t]his is precisely why the letter was
relevant and properly admitted:
[The letter] tended to show Cooks
continuing attitude toward [the victim], his
attitude toward the protective order, and his
continuing perception of his relationship
with [the victim] thus tending to prove
Cooks state of mind from late October to late
December 1998, when he committed the acts of
non-consensual contact with which he was
charged.
Cook, 36 P.3d at 723-24.
For the reasons explained in
Petersen and Cook, we conclude that the
disputed evidence in Kenisons case i.e.,
evidence of Kenisons deteriorating
relationship with Mary Ann, and evidence of
Kenisons series of non-consensual contacts
with Mary Ann and her male friends, starting
from the time of the marital separation in
August 1998 was relevant to the stalking
charge against Kenison, even if that charge
is confined to Kenisons conduct between May
and December 2001 (when the fourth set of
protective orders was in effect). Because
this evidence was relevant for non-propensity
purposes, it was not barred by Evidence Rule
404(b)(1).
Kenison alternatively argues that,
even if this evidence was admissible for non-
propensity purposes, Judge Wolverton erred by
not evaluating the various portions of the
evidence under Evidence Rule 403 i.e.,
balancing the probative value of each portion
against its potential for unfair prejudice.
Kenison claims that Judge Wolverton utterly
failed to assess the admissibility of any of
the evidence under Rule 403.
The record does not bear out this
claim. Instead, the record shows that Judge
Wolverton repeatedly engaged in a Rule 403
balancing process before deciding whether to
allow the State to introduce various portions
of this evidence.
Moreover, Kenisons assertion of
unfair prejudice is basically a reiteration
of his claim that the evidence was
irrevelant. As we have explained here, the
evidence was in fact relevant. Kenison has
made no effort to identify individual
portions of this evidence and show that these
particular portions posed a specific danger
of unfair prejudice. We accordingly conclude
that Kenison has failed to demonstrate that
he was unfairly prejudiced by this evidence.
Finally, Kenison argues that the
admissibility of the disputed evidence should
be evaluated by retroactively applying the
standards we recently announced in Bingaman
v. State, 76 P.3d 398 (Alaska App. 2003).
But Bingaman is not pertinent to the issue
presented here.
In Bingaman, we examined and
construed Alaska Evidence Rule 404(b)(4), a
rule that applies to prosecutions for
domestic violence and that allows the State
to introduce propensity evidence that would
otherwise be barred by Evidence Rule
404(b)(1). But, as we have just explained,
the evidence of Kenisons relationship with
Mary Ann, and the evidence of his prior acts
of non-consensual contact with her and
her male friends, was not propensity
evidence. This evidence was relevant for
purposes other than to prove Kenisons
character, and it was therefore not barred by
Evidence Rule 404(b)(1).
Bingaman addresses the scope of the
exceptions to Evidence Rule 404(b)(1)
primarily, the exception codified in Evidence
Rule 404(b)(4) and, to a lesser extent, the
exceptions codified in Evidence Rules
404(b)(2), and (b)(3). The disputed evidence
in Kenisons case was admissible without
regard to any of these exceptions to Rule
404(b)(1). Thus, Bingaman is not pertinent
to Kenisons case.
The superior courts decision to allow the State to
amend the stalking charge at the close of Kenisons
trial
Under Alaska Criminal Rule 7(e), a trial
judge has the authority to allow the State to
amend the indictment at any time before the jury
returns its verdict, so long as the amendment does
not alter the indictment to charge an additional
or different offense, and so long as the amendment
does not prejudice the substantial rights of the
defendant.
As discussed earlier, Kenisons indictment
charged him with engaging in a course of conduct on or
about December 7, 2001. Toward the end of Kenisons
trial, after the State had introduced the evidence
discussed in the preceding section of this opinion
(i.e., the history of Kenisons acts of harassment and
threats against Mary Ann and her male friends,
beginning in August 1998), Judge Wolverton permitted
the State to amend the indictment so that it charged
Kenison with engaging in a course of conduct between
1998 and December 7, 2001.
Kenisons attorney objected to this amendment.
The defense attorney noted that Kenison was charged
with first-degree stalking under the theory that
Kenisons course of conduct violated a protective order.
The defense attorney further noted that, if the
indictment was amended to describe the time period as
between 1998 to December 7, 2001, the jury might
convict Kenison for engaging in acts of non-consensual
contact during periods of time when there was no
protective order in effect.
Judge Wolverton rejected the defense
attorneys argument, concluding that it was premised on
a misunderstanding of the law. As we explained
earlier, Judge Wolverton construed the first-degree
stalking statute as requiring the State to prove that
at least one of Kenisons acts of non-consensual contact
violated a protective order. The judge therefore
stated that he would allow the indictment to be amended
so that it charged Kenison with engaging in a course of
conduct between 1998 and December 7, 2001.
Despite this ruling, the indictment itself
was never amended. The State did not issue an amended
indictment (i.e., a new charging document); indeed,
when Judge Wolverton gave the jurors the instruction
that recapitulated the indictment, the judge tracked
the original language of the indictment: that on or
about December 7, 2001, at or near Anchorage, in the
Third Judicial District, Joel Morris Kenison knowingly
engaged in a course of conduct that recklessly placed
another in fear of death or physical injury, or in fear
of the death or physical injury of a family member, and
the conduct was in violation of [a protective] order.
Rather, Judge Wolverton implemented his
ruling by altering the wording of the jury instruction
that listed the elements of first-degree stalking. In
this instruction, Judge Wolverton told the jurors that
the State was obliged to prove:
First, that the event in question
occurred on or about December 7, 2001, at or
near Anchorage, Alaska;
Second, that Joel Morris Kenison
knowingly engaged in a course of conduct
between 1998 and December 7, 2001;
Third, that this course of conduct
recklessly placed another person, [Mary Ann
Kenison], in actual fear of death or physical
injury, or in actual fear of death or
physical injury of a family member;12 and
Fourth, that Joel Morris Kenison
recklessly violated a protective order issued
under AS 18.66.100 through 18.66.180.
(Added emphasis in the second paragraph.)
(In various conversations with the
attorneys, Judge Wolverton explained that he
intended this instruction to communicate to
the jurors that the State was obliged to
prove (1) that on December 7, 2001, Kenison
caused Mary Ann to fear death or physical
injury, either for herself or a family
member, and (2) that Mary Anns fear on that
day was based on Kenisons course of conduct
between 1998 and December 7, 2001.)
On appeal, Kenison again challenges
Judge Wolvertons decision to allow this
amendment of the charge. However, Kenison
does not renew the objection that he raised
in the superior court the objection that, if
the time span was broadened to include all of
Kenisons conduct between 1998 and December
2001, the jury might convict Kenison based on
acts that were not committed while a
protective order was in effect. Instead,
Kenison now argues that Judge Wolvertons
ruling prejudiced his rights under Evidence
Rule 404(b).
Specifically, Kenison asserts that
Judge Wolvertons ruling undercut the defense
position that all evidence of Kenisons acts
prior to May 2001 was irrelevant and unfairly
prejudicial. According to Kenisons appellate
brief, [Judge Wolvertons] decision ...
transformed [this] evidence from irrelevant
to the corpus of the charge, thus
nullif[ying] the entire defense argument that
all these other instances [of Kenisons
behavior] were inadmissible Rule 404(b)
material.
Kenisons argument ignores the fact
that Judge Wolverton made this ruling long
after he ruled that the State could present
the disputed evidence of Kenisons harassment
and threats beginning in August 1998. In
other words, Judge Wolverton did not amend
the wording of the charge in an effort to
justify a planned decision about the
admissibility of this evidence. Rather, he
amended the charge so that it would conform
to the evidence that he had earlier admitted.
Moreover, as we explained in the
preceding section of this opinion, Judge
Wolvertons previous rulings concerning this
evidence were correct. The disputed evidence
was relevant for non-propensity purposes, and
it was therefore not barred by Evidence Rule
404(b)(1). This would remain true even if
Judge Wolverton had refused to allow
amendment of the indictment, or if the judge
had amended the indictment to include only
the time period from May 25, 2001 (when the
fourth set of protective orders took effect)
to December 7, 2001 (Kenisons last acts of
non-consensual contact before his arrest).
That being said, we believe that
Kenisons original objection to Judge
Wolvertons ruling was well-founded. Because
the jury was told that Kenisons course of
conduct could include any acts he committed
between 1998 and December 7, 2001, there was
a danger that the jury might convict Kenison
based on acts that were committed when there
was no protective order in effect. As we
explained earlier, the State was required to
prove that all of the acts of non-consensual
contact comprising Kenisons course of conduct
were committed in violation of a protective
order.
However, Kenison does not pursue
this argument on appeal. Moreover, even if
he had pursued this argument, we would
conclude that the error was harmless under
the facts of this case.
Although the State presented
evidence of Kenisons pattern of harassment
and threatening behavior beginning in August
1998, a substantial portion of the States
case focused on Kenisons conduct following
the issuance of the fourth set of protective
orders on May 25, 2001.
Moreover, Kenisons defense at trial
was not based on any purported distinction
between his pre-May 2001 conduct and his post-
May 2001 conduct, nor was it based on the
assertion that Kenison was innocent of any of
this conduct. Rather, the defense attorney
argued that even though Kenison may have
engaged in a lengthy series of non-consensual
contacts with Mary Ann and A.B., this conduct
did not cause either Mary Ann or A.B. to fear
death or physical injury.
The defense attorney told the jury,
Joel Kenison was a nuisance, and nothing
more. And [Mary Ann] knew it. [And A.B.]
knew it. The defense attorney suggested that
Mary Ann and A.B. had become frustrated and
fed up with Kenisons behavior, to the point
where they decided to press charges and
assert falsely that Kenisons conduct had
caused them to fear death or injury.
Kenison does not suggest, nor is
there any indication in the record, that
Kenison would have pursued a different
defense to the stalking charge if Judge
Wolverton had accepted the defense attorneys
argument. That is, there is nothing to
suggest that Kenisons defense would have been
any different if Judge Wolverton had agreed
with Kenison that the time period should
extend no farther back than May 25, 2001 (the
date on which the fourth set of protective
orders took effect). Accordingly, even if
Judge Wolverton should have defined the
relevant time period as between May 25, 1991
and December 7, 2001, Kenison was not harmed
by this error.13
The trial judges refusal to declare a mistrial after
the prosecutor argued to the jury that Kenison
might be convicted of stalking if his conduct
caused Mary Ann to fear that Kenison might commit
suicide
During her summation to the jury, the
prosecutor addressed the States need to prove that
Kenisons conduct caused Mary Ann to fear death or
physical injury to herself, or to fear death or
physical injury to a family member. The
prosecutor noted that the statutory definition of
family member was quite broad that this
definition included the people that the victim was
dating, and even the victims former spouse.14 The
prosecutor then suggested to the jury that, in
Kenisons case, this element could be satisfied by
proof that Mary Ann was afraid that Kenison might
kill himself. (There was evidence that, in the
months following their breakup in August 1998,
Kenison had threatened to commit suicide.)
Kenisons defense attorney immediately
objected, arguing that the prosecutor was wrong as a
matter of law and that even if the prosecutor was
conceivably correct on this point of law, Kenison had
never before received notice that the State was
pursuing Kenisons case on this theory. The defense
attorney told Judge Wolverton,
Defense Attorney: If [that theory of
the offense is] going to be [presented to the
jury], I ask for a mistrial so we can be
prepared to meet that [theory] as well.
Because we didnt even question [Mary Ann]
about her [potential] concern about
[Kenison], because that was never an issue in
this trial. It cannot be an issue now.
Judge Wolverton, too, expressed
surprise that the prosecutor was arguing this
theory of the law. The judge instructed the
prosecutor not to address that point again in
front of the jury, and the judge announced
that the matter would be taken up at the next
break. The prosecutor then proceeded with
her argument. She never mentioned this
theory again, either in the remainder of her
initial summation or in her rebuttal
although she did suggest to the jurors that
Kenisons threats of suicide were relevant to
the extent that they could explain the
reasonableness of Mary Anns fear that Kenison
was becoming unpredictable and that he might
hurt her, or their children, or the men she
was dating.
When the prosecutor finished her
initial summation, Judge Wolverton called a
recess, and the parties discussed the issue
of whether the offense of stalking might be
proved by showing that the perpetrators
course of conduct caused the victim to fear
that the perpetrator might commit suicide or
otherwise harm themself. Kenisons attorney
renewed his objections (1) that the statute
did not cover such a situation, and (2) that
Kenison had received no notice that the State
would be pursuing this theory.
The prosecutor argued that the
statute could reasonably be interpreted to
cover Kenisons threats of suicide (since he
was the victims former spouse), but the
prosecutor stated that she was willing to not
make that argument again. Judge Wolverton
replied that he thought the statute could be
read as the prosecutor suggested, but Judge
Wolverton also ruled that, under the
indictment, the issue was Mary Anns state of
mind on December 7, 2001 i.e., whether Mary
Ann thought that Kenison was threatening to
commit suicide that night.
The judge noted that there was
uncontroverted testimony that Kenison had
threatened suicide three years before (i.e.,
shortly after the marital breakup, in the
fall of 1998). But when Judge Wolverton
wondered aloud whether the prosecutor was
going to assert that, on the evening of
December 7, 2001, Mary Ann feared that
Kenison was going to commit suicide, the
prosecutor responded, thats not my argument
for that day.
The defense attorney then asked
Judge Wolverton to instruct the jury that
they could not consider Kenisons earlier
threat to commit suicide as proof of the fear
of death or injury element of the offense.
Judge Wolverton replied, You can make your
argument [to the jury], and I dont think
[that] the State is going to rebut your
argument ... . [A]s a matter of law,
[Kenisons suicide threat] could be [the basis
for a fear of death or injury to a family
member]. [But] its a matter of whether [that
theory] was factually proved, and the State
isnt even asserting that [it was].
After further comments from the
attorneys, Judge Wolverton decided that the
matter should be resolved by letting the
parties clarify the issue in argument:
The Court: Im going to leave it to
argument. [The prosecutor] is indicating
that shes not asserting that that was [Mary
Anns] concern on December 7th. And you
[i.e., the defense attorney] can make that
clear in your argument. And, apparently, its
not going to be rebutted.
On appeal, Kenison renews his argument that Judge
Wolverton should have declared a mistrial after the prosecutor
argued that Kenisons threat of suicide could form the basis for
Mary Anns fear of injury or death to a family member.
Kenison notes that, even after the bench conference we
have described, the prosecutor told the jury two more times that
Kenisons threat to commit suicide was one of the factors that
might reasonably have caused Mary Ann to fear that Kenison was
acting unpredictably or uncontrollably. This is true, but the
prosecutors comments were proper.
The transcript reveals that the prosecutor never again
argued that Kenison might be convicted based on proof that Mary
Ann feared for Kenisons safety on December 7, 2001. Rather, the
prosecutor argued that on the evening of December 7, 2001, Mary
Ann feared that Kenison might injure her or might injure the man
she was dating, A.B.. The prosecutor further argued that Mary
Anns fear was reasonable, based on the whole history of her
dealings with Kenison since the marital breakup including his
threat of suicide in 1998.
We conclude that Kenisons threat of suicide was in fact
relevant to evaluating the reasonableness of Mary Anns fear,
since it was one factor (among many) indicating that Kenison was
distraught over the marital breakup, that he was acting
unpredictably or uncontrollably in matters concerning Mary Ann,
and that, because of his emotional state, he might hurt her, or
their children, or the men she was dating.
This is not to say that we endorse the States position
that a person can be convicted of stalking based on proof that
the persons conduct caused their former spouse to fear that they
might commit suicide. It is true, as the State notes, that the
statutory definition of family member includes former spouses.
However, as we explained in Petersen v. State, the gist of the
offense of stalking is assaultive behavior.15 We have
substantial doubts whether the legislature, when enacting the
stalking statutes, intended to have people convicted of this
crime based on someone elses fear that they might do violence
solely to themselves.
But we need not resolve this issue in Kenisons case.
As explained above, after the defense attorney objected to the
prosecutors argument that fear for the safety of a family member
might include fear that a former spouse would commit suicide, the
prosecutor promised not to repeat that argument and she kept
that promise. All of the prosecutors ensuing arguments on this
topic focused on the assertion that, on December 7, 2001, Mary
Ann reasonably feared that Kenison might harm her or that he
might harm her boyfriend, A.B.. The prosecutor did not return to
the contested argument that Kenison could be convicted if Mary
Ann feared for Kenisons safety.
The defense attorneys arguments to the jury likewise
focused on Mary Anns alleged fear that Kenison would either hurt
her or would hurt A.B.. As we explained in the preceding section
of this opinion, the defense attorney argued that Mary Ann was
trying to use the judicial process for fraudulent purposes. The
defense attorney suggested that Mary Ann did not actually fear
that Kenison would hurt anyone and that she was falsely saying
that she feared for her safety so that she could be rid of
Kenison and his annoying behavior.
Given this record, we conclude that Judge Wolverton did
not abuse his discretion when he denied the defense attorneys
request for a mistrial. In the alternative, we conclude that
Kenison has failed to show that he was prejudiced by Judge
Wolvertons failure to declare a mistrial.
The trial judges refusal to give the jury an
instruction further explaining the meaning of fear
During the jurys deliberations, the jurors
asked for a definition of the term fear. After
consulting the parties, Judge Wolverton told the
jurors:
Because there is no legal definition of
the word fear in our statutes, you as a jury
are to assign the meaning you collectively
believe should be assigned [to this word]
according to what you determine to be the
common experience of mankind.
Although there is no indication in
the record that Kenisons attorney objected to
Judge Wolvertons answer to the jury, Kenison
now claims that Judge Wolverton should have
answered differently that the judge should
have instructed the jurors on the meaning of
fear, and that this instruction should have
expressly stated (1) that the victim must
actually feel fear, and (2) that this fear
must be reasonable.
Because Kenisons claim is raised
for the first time on appeal, he must show
plain error. Judge Wolvertons answer to the
jurors was in fact erroneous, but we conclude
that this error did not amount to plain
error. That is, the error did not manifestly
prejudice the fairness of the proceedings.
As we explained earlier in this
opinion, the stalking statute does not use
the word fear in its everyday sense. Rather,
the statutory phrase fear of death or
physical injury means that the State must
prove that the victim reasonably understood
or perceived a threat of death or physical
injury.
However, the error in Judge
Wolvertons answer favored Kenison. If the
jurors employed the everyday definition of
fear i.e., if they required the State to
prove that Mary Ann experienced actual
anxiety and agitation caused by the presence
or nearness of danger, or dread, or terror,
or fright16 this would have put the State to
a higher burden of proof than the law
actually requires.
We accordingly conclude that the
error was harmless.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1AS 11.41.260(a).
2AS 11.41.270(b)(1).
3AS 11.41.270(b)(2).
4AS 11.41.270(b)(3).
5Id.
6Larkin, 88 P.3d at 156-57.
7AS 11.41.270(b)(1).
8Petersen, 930 P.2d at 420-21 & 432.
9Id.
10Cook, 36 P.2d at 714-15 & 723.
11Id. at 723.
12We have previously criticized the wording used in this
third paragraph; see Cook v. State, 36 P.3d at 718.
However, Kenison does not challenge this portion of the
instruction.
13See Houston v. Anchorage, 59 P.3d 773, 777-78 (Alaska App.
2002), and Hosier v. State, 1 P.3d 107, 109 (Alaska
App. 2000), where we upheld trial judges decisions to
amend charging documents under Criminal Rule 7(e), in
large measure because we were convinced that the
amendments had no effect on the defendants litigation
of their cases.
14AS 11.41.270(b)(2)(D).
15Petersen, 930 P.2d at 431.
16Websters New World Dictionary of American English (Third
College Edition, 1988), p. 495.
