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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
| STEVEN L. BENNETT, | ) |
| ) Court of Appeals No. A-10255 | |
| Appellant, | ) Trial Court No. 3AN-08-04294 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| MUNICIPALITY OF ANCHORAGE, | ) |
| ) | |
| Appellee. | ) No. 2213 April 24, 2009 |
| ) | |
Appeal from the
District Court, Third Judicial District,
Anchorage, Alex M. Swiderski, Judge.
Appearances: Michael B. Logue, Gorton,
Logue, and Graper, Anchorage, for the
Appellant. Hanley Rebecca Smith, Assistant
Municipal Prosecutor, and James N. Reeves,
Municipal Attorney, Anchorage, for the Appel
lee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
COATS, Chief Judge.
Steven L. Bennett was convicted of assaulting his
wife. On appeal, he argues that the district court erred by
admitting testimony about a previous incident involving his wife.
Bennett argues that this prior incident should not have been
admitted as a crime of domestic violence because, according to
Bennett, he did not assault his wife in the earlier incident, but
rather injured her in self-defense. Bennett also argues that the
court should have ordered the Municipality to produce more
evidence of this prior incident before finding that it was a
crime of domestic violence. Having reviewed the record, we
conclude that the Municipality offered enough evidence that this
incident was a crime of domestic violence for the court to admit
the evidence under Evidence Rule 404(b)(4).
Bennett also claims that the district court erred by
admitting this evidence without explaining what character trait
the evidence was relevant to prove. But the record shows that
the district court admitted the evidence for the reason
articulated by the municipal prosecutor: because the evidence
was relevant to prove Bennetts propensity to assault his wife.
We therefore affirm Bennetts conviction.
Facts and proceedings
On the afternoon of April 21, 2008, Anchorage Police
Officers Horase Snyder and Roger Billiet were dispatched to the
home of Steven and Celeste Bennett on a report of a domestic
disturbance or assault. As the officers approached the Bennetts
house, Officer Billiet noticed that there was womens clothing in
the trash cans. The officers contacted Steven Bennett, who told
them he had been in an argument with his wife, Celeste, over her
use of alcohol and sleeping pills, and that Celeste had attacked
him and he had defended himself by grabbing her and throwing her
out of the house. Bennett admitted that in the course of this
argument he had pulled the closet door off its tracks and thrown
the phone against the wall, leaving a hole in the wall. The
police documented scratches on Steven Bennetts face and hand.
When the police contacted Celeste Bennett, she was
crying and shaking. She told the police that her husband had
tried to smother her. Celeste Bennett had bruises and scrapes on
her arms.
The officers arrested Steven Bennett, and he was
ultimately convicted of assault,1 family violence2 (because the
incident occurred in front of the couples young daughter) and
malicious destruction of property,3 for throwing his wifes
clothes out into the yard, damaging the closet door, and throwing
the phone against the wall, breaking the phone and leaving a hole
in the wall.
Before trial, the Municipality asked the district
court to admit evidence under Evidence Rule 404(b)(4) that Steven
Bennett had assaulted his wife once before, in 2005. Bennetts
attorney objected to the admission of this evidence, arguing that
the prior incident was not an act of domestic violence but of
self-defense. The attorney said that Celeste Bennett was very
intoxicated during the earlier incident, that she hit Steven, and
that he hit her back.
District Court Judge Alex M. Swiderski ruled that the
Bennetts could both testify about the 2005 incident. But because
he did not want a mini-trial on the prior incident that would
distract the jury from the charged offenses, Judge Swiderski
precluded the parties from offering any other evidence on this
incident although he indicated that either party could make an
application to admit additional evidence if the party believed
there was blatant perjury concerning an objective fact.
At trial, Celeste Bennett testified that on the day of
the offense charged in this case, her husband was angry and
drinking, and they were arguing. She started to call the police,
but Steven took the phone and threw it against the wall
repeatedly until the phone broke and there was a hole in the
wall. Then he started to scream at her and he held her down by
her throat and put his hand over her mouth and nose so she
couldnt breathe. When she wedged her hand between his hand and
her face, her wedding ring cut him, and he smeared the blood on
his face. Then he pushed her down to the floor and hit her in
the head a few times, then hit her head against the wall.
Celeste Bennett testified that she told her husband that their
young daughter was watching, and he grabbed the daughter and
threw her out of the room. She testified that her husband then
threw her over the footboard of the bed, grabbed her clothes out
of the closet, and left the room.
Celeste Bennett also testified about the 2005
incident. She said both she and Steven were in the military at
the time, that they had both been drinking, and that she was
highly intoxicated. They argued, and during this argument she
told Steven that he was pathetic and just like his father.
Steven Bennett then knocked her to the ground and hit her
repeatedly on the side of her face with the balls of his hands,
and choked her. She said she ended up with two black eyes and
bruises around her neck, and that the blood capillaries in her
right eye were broken. Celeste Bennett said that after she
called the sergeant in charge to pick her up, Steven told her, if
he was going down, that I was going down too, and he injured
himself by hitting his head against the thermostat.
Steven Bennett gave a different account of both
incidents. He said on the day at issue in the present case, he
and his wife were arguing and that she flew off the handle when
he threatened to take custody of the children. She tried to claw
his face, so he grabbed her by the arms and got her out the door.
He said he might have put his palm over her mouth while he was
struggling with her. He denied punching her in the head
repeatedly and banging her head against the wall. He conceded
that the closet door fell off the track as he was pulling her
clothes out of the closet and throwing them outside. He said he
threw the phone against the wall when he was alone in the room,
because he was trying to call 911 and the battery was dead. He
denied throwing his daughter out of the room; he said he took her
by the hand and led her out.
As for the 2005 incident, Steven Bennett testified
that he and his wife were fighting and that she became enraged
and tried to gouge his face. He slapped her, but she kept coming
at him. He said he slapped her three or four times, and that she
ended up with two black eyes, broken capillaries in one of her
eyes, and some bruising on her arm where he grabbed her.
Steven Bennett also testified to three other incidents
in which his wife struck him without provocation. Celeste
Bennett admitted to two of these incidents, although she said she
was provoked by things her husband said. She testified that her
husband did not hit her back on those two occasions.
Why the district court properly admitted evidence of
the 2005 incident
Bennett argues that Judge Swiderski erred by admitting
testimony about the 2005 incident under Evidence Rule 404(b)(4)
because there was insufficient evidence that the prior incident
was a crime involving domestic violence.
As a general rule, evidence of a defendants other
crimes and bad acts may not be offered at trial to prove that the
defendant has a propensity to commit similar acts.4 But when the
charged offense is a crime of domestic violence as defined in AS
18.66.990, Evidence Rule 404(b)(4) specifically authorizes courts
to admit evidence of the defendants other crimes of domestic
violence.5 The jury may rely on that evidence in deciding if the
defendant has a character to commit crimes of that nature, and,
if so, whether the defendant acted true to that character in the
incident being litigated.6 Because of the danger that juries
will be unduly prejudiced by evidence of other bad acts, in
Bingaman v. State7 we outlined a number of factors trial courts
must consider in deciding whether to admit this evidence:
(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?[8]
In Bingaman we explained that, in assessing the
probative force of bad-acts evidence, trial judges should
consider the recency or remoteness of the other bad act, as well
as the similarity of the other act and the charged act.9 If the
court determines that the character trait the government seeks to
prove is relevant to a material issue in the case, the court
should consider how seriously disputed that material issue is and
how necessary the evidence is to prove the governments case.10
And the court should consider how likely it is that litigation of
the defendants other acts will take an inordinate amount of time,
distract the jury from the main issues of the case, and lead the
jury to decide the case on improper grounds.11
Bennett argues that Judge Swiderski should have
excluded evidence of the 2005 incident under the first Bingaman
factor, which required the court to consider the strength of the
evidence that Bennett committed the bad act.12 He argues that
the Municipality presented insufficient evidence that the prior
act was an act of domestic violence, and that Judge Swiderski, by
admitting the evidence, failed in his role as gate keeper. In
support of this claim, Bennett cites Lerchenstein v. State13 for
the general presumption in Rule 404(b) against the admission of
propensity evidence.
Bennett misconstrues the trial courts role under
Bingaman. Evidence Rule 404(b)(4) provides 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.14
Rule 404(b)(4) thus exempts evidence of a defendants other acts
of domestic violence from the general presumption against the
admission of propensity evidence.15 The admission of evidence of
other acts of domestic violence is still limited by Evidence Rule
402, which states that irrelevant evidence is not admissible, and
Evidence Rule 403, which requires courts to exclude evidence if
its probative value is outweighed by the danger that it will
engender unfair prejudice, confuse the issues, or mislead the
jury.16 The Bingaman factors simply guide trial courts in
applying these rules of evidence in cases in which the government
seeks to admit evidence of a defendants other crimes or bad
acts.17
In this case, Bennett does not dispute that a prior
act of violence occurred between him and his wife Celeste he
only disputes that it was an assault. He argues that evidence of
this prior incident should have been excluded because it had no
relevance to prove his propensity to assault his wife.
When the relevance of evidence of a prior act of
domestic violence hinges on resolution of a factual dispute as to
the occurrence or nature of the prior act, Evidence Rule 104(b)
governs the determination of this preliminary fact. That rule
provides:
When the relevancy of evidence depends upon
the fulfillment of a condition of fact, the
court shall admit it upon, or subject to,
the introduction of evidence sufficient to
support a finding
of the fulfillment of the condition.[18]
The commentary to this rule explains that, as long as there is
enough evidence for a reasonable juror to find the fact
established, the dispute must be submitted to the jury:
The judge makes a preliminary determination
whether the foundation evidence is
sufficient to support a finding of
fulfillment of the condition. If so, the
item is admitted. If after all the evidence
on the issue is in, pro and con, the jury
could reasonably conclude either that
fulfillment of the condition is
or is not established, the issue is for them.[19]
In this case, the Municipality offered sufficient
evidence for a reasonable juror to conclude that the 2005
incident was an act of domestic violence: Celeste Bennett
testified that, after she insulted Steven during an argument, he
knocked her to the ground, hit her repeatedly on the side of her
face and choked her, leaving her with two black eyes, bruises on
her neck, and broken blood capillaries in her right eye.
Once the court made the preliminary finding of
sufficient evidence required by Evidence Rule 104(b), the
strength of the Municipalitys evidence of the prior act was just
one factor for Judge Swiderski to consider in balancing the
probative value of the evidence against the risk that Bennett
would be unfairly prejudiced.20 Judge Swiderski determined that
the evidence should not be excluded under Evidence Rule 403; it
then became the jurys duty to evaluate the credibility of the
Bennetts conflicting testimony on this incident, and to decide
what weight, if any, to give the evidence in assessing Bennetts
guilt of the charged assault.21
We conclude that Judge Swiderski did not abuse his
discretion in concluding that evidence of the 2005 incident was
more probative than prejudicial, and in admitting the evidence to
prove Steven Bennetts propensity for domestic violence. Steven
and Celeste Bennett both testified that on the night of the 2005
incident they were intoxicated, that they had a verbal argument
that escalated to a physical altercation, that Steven struck
Celeste in the face multiple times, and that Celeste ended up
with two black eyes. The only dispute in their testimony was
whether Steven inflicted the injuries in self-defense.
The offense in this case was similar, in that Steven
had been drinking, a verbal argument about the marriage turned
violent, and Steven later asserted that Celeste attacked him and
that he injured her defending himself. The 2005 incident thus
had some tendency to make more or less probable Steven Bennetts
propensity to assault his wife and then claim he acted in self-
defense.22 This character trait was material to the
Municipalitys case because Bennetts intent that is, whether he
intended to assault Celeste, or instead injured her in self-
defense was the only disputed issue during the trial of this
charge. Given the limits the court placed on this evidence,
there was little risk the jury would be distracted from its main
task and convict Bennett on improper grounds.
Bennett claims that there was additional evidence on
the 2005 incident witnesses and military investigative reports
that was relevant to whether he assaulted his wife in 2005. He
argues that Judge Swiderski should have required the Municipality
to produce this additional evidence in its offer of proof. But
the courts only duty was to evaluate the relevance and potential
prejudice of the evidence based on the record before it.
Bingaman imposed no independent duty on the court to order the
Municipality to produce all available evidence regarding the 2005
incident or to otherwise investigate the credibility of Celeste
Bennetts account of that incident. If Bennett believed other
evidence rebutted Celeste Bennetts testimony, he could have
offered it. In this context, it is worth noting that Judge
Swiderski invited Bennett to offer additional evidence on the
2005 incident in his offer of proof and at trial, if the
additional evidence was necessary to rebut Celeste Bennetts
testimony.
Bennett also complains that Judge Swiderski failed to
address the second Bingaman factor What character trait do the
other acts tend to prove?23 But when the parties discussed this
issue, the Municipality argued that the evidence was relevant to
prove Bennetts propensity to be violent with his wife. Bennett
argued that the evidence had no relevance to prove this character
trait because he acted in self-defense. By admitting the
evidence under Rule 404(b)(4), Judge Swiderski resolved this
dispute in the Municipalitys favor that is, he implicitly
adopted the Municipalitys view that the evidence was relevant to
show Bennetts character for assaulting his wife during domestic
arguments, and that the 2005 incident was therefore relevant
circumstantial evidence of Bennetts likely conduct during the
episode being litigated.24
In Bingaman we declared that whenever the government
offers evidence of a defendants other bad acts, the trial court
must engage in Rule 403 balancing, and must explain its decision
on the record.25 To the extent Bennett is arguing that Judge
Swiderski failed in this duty because he did not state on the
record what character trait the 2005 incident was admitted to
prove, that claim fails. Bingaman does not hold that trial
judges must, in every case, explain their analysis of each and
every Bingaman factor.26 In this case, the record viewed as a
whole leaves no doubt what character trait the 2005 incident was
admitted to prove.
Conclusion
We AFFIRM Bennetts conviction.
_______________________________
1 Anchorage Municipal Code (AMC) 8.10.010.B.1.
2 AMC 8.10.050.
3 AMC 8.20.010.
4 Alaska R. Evid. 404(b)(1) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not
admissible if the sole purpose for offering the
evidence is to prove the character of a person in
order to show that the person acted in conformity
therewith.
5 Alaska R. Evid. 404(b)(4) provides:
In a prosecution for a crime involving domestic
violence or of interfering with a report of a
crime involving domestic violence, evidence of
other crimes involving domestic violence by the
defendant against the same or another person or of
interfering with a report of a crime involving
domestic violence is admissible. In this
paragraph, domestic violence and crime involving
domestic violence have the meanings given in AS
18.66.990.
6 Bingaman v. State, 76 P.3d 398, 408, 415 (Alaska App.
2003).
7 76 P.3d 398.
8 Id. at 415.
9 Id.
10 Id.
11 Id. at 416.
12 See id. at 415.
13 697 P.2d 312 (Alaska App. 1985).
14 Emphasis added.
15 Bingaman, 76 P.3d at 401.
16 Id. at 410-13.
17 Douglas v. State, 151 P.3d 495, 503 (Alaska App. 2006).
18 Alaska R. Evid. 104(b).
19 Evidence Rules Commentary, Rule 104(b), at 486 (2008-
09).
20 See Bingaman, 76 P.3d at 415.
21 See Huddleston v. United States, 485 U.S. 681, 690, 108
S. Ct. 1496, 1501, 99 L. Ed. 2d 771 (1988) (trial courts
responsibility under Rule 404(b) is to examine all the evidence
and, without weighing credibility, decide if the jury could find
by a preponderance of the evidence that the prior bad act
occurred).
22 See Alaska R. Evid. 401:
Relevant evidence means evidence having any
tendency to make the existence of any fact that is
of consequence to the determination of the action
more probable or less probable than it would be
without the evidence.
23 See Bingaman, 76 P.3d at 415.
24 See Riggins v. State, 101 P.3d 1060, 1063 (Alaska App.
2004) (upholding admission of evidence of defendants two prior
assaults on his girlfriend, noting that they were relevant to
show the defendants character for using violence against [his
girlfriend]).
25 Bingaman, 76 P.3d at 416; see also Douglas, 151 P.3d at
503.
26 Bingaman, 76 P.3d at 416-17; cf. Douglas, 151 P.3d at
502-03.
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