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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
EARL CORNELIUS BATES,
Court of Appeals No. A-10350
Appellant, Trial Court No. 3AN-07-2010 Cr
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2310 - June 3, 2011
Appeal from the Superior Court, Third Judicial District,
Anchorage, Patrick J. McKay, Judge.
Appearances: Beth Lewis Trimmer, Assistant Public Advocate,
Appeals & Statewide Defense Section, and Rachel Levitt, Public
Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and Daniel S. Sullivan, Attorney General,
Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
Earl Cornelius Bates broke into the residence where his former girlfriend,
Jessie Ouilette, was living. Bates attacked Ouilette, and he also attacked Frank
Iyatunguk (the primary renter of the residence) and Alfred Braun (a friend of
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Iyatunguk's). Based on this incident, Bates was convicted of attempted murder for his
attack on Ouilette. Bates was also convicted of third-degree assault for his attack on
Iyatunguk and fourth-degree assault for his attack on Braun.
At Bates's trial, the prosecutor was allowed to introduce evidence of a prior
assault that Bates committed against Ouilette, as well as evidence of prior assaults that
Bates committed against a former girlfriend and her son. This evidence was admitted
under the authority of Alaska Evidence Rule 404(b)(4); this rule states that when a
defendant is tried for "a crime involving domestic violence", the government may offer
evidence of the defendant's other crimes of domestic violence, whether against the same
victim or against other persons.
Evidence Rule 404(b)(4) expressly incorporates the definition of "crime
involving domestic violence" that is codified in AS 18.66.990. Under AS 18.66.990(3),
the phrase "crime involving domestic violence" includes any crime against the person
codified in chapter 41 of Title 11 of the Alaska Statutes (crimes such as attempted
murder and assault in any degree) if the crime was committed "by [one] household
member against another household member".
In this appeal, Bates argues that the definition of "household member" is
unconstitutionally vague - and that, because Evidence Rule 404(b)(4) incorporates this
definition, Evidence Rule 404(b)(4) is likewise unconstitutional.
As we explain in this opinion, we conclude that, under the facts of Bates's
case, the definition of "household member" is not impermissibly vague. We therefore
uphold the application of Evidence Rule 404(b)(4) in Bates's case.
Bates also challenges the trial judge's decision to allow the prosecutor to
introduce the audio recording of a 911 call that was made from the Iyatunguk residence
while Bates was there. The prosecutor argued that Bates could be heard speaking to the
911 dispatcher, and that Bates's words were evidence of his state of mind and his
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intentions when he attacked Ouilette and Iyatunguk. Bates opposed the admission of this
evidence on the ground that the prosecution failed to offer any witness who would
expressly identify the voice on the 911 recording as Bates's voice.
As we explain in this opinion, the law does not require the proponent of
such evidence to produce a witness who can affirmatively identify the voice(s) heard in
the recording. Rather, the identification of the voice(s) can rest on circumstantial
evidence. In Bates's case, the circumstantial evidence was sufficient to support a
reasonable inference that Bates was the man speaking to the 911 dispatcher.
Accordingly, the trial judge could properly allow the prosecution to play the recording
for the jury.
Finally, Bates challenges the sentencing judge's decision to make Bates
ineligible for discretionary parole until he has served 20 years of his 33-year composite
sentence.
Bates received 30 years to serve for the attempted murder, plus consecutive
sentences of 2 years and 1 year to serve for the third- and fourth-degree assaults. He
normally would be eligible to apply for discretionary parole after serving 10¾ years of
this composite sentence. See AS 33.16.090(b)(1) and (b)(7).
We agree with Bates that the superior court failed to make sufficient
findings to justify this restriction on Bates's parole eligibility. We therefore direct the
superior court to reconsider this aspect of Bates's sentence.
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Why we conclude that the definition of "household member" is sufficiently
definite to be constitutionally applied to the facts of Bates's case
As we described earlier, the trial judge allowed the prosecutor to introduce
evidence of a prior assault that Bates committed against Ouilette, as well as evidence of
prior assaults that Bates committed against a former girlfriend and her son. This
evidence was admitted under Alaska Evidence Rule 404(b)(4), which applies when a
defendant is on trial for a "crime involving domestic violence". Under this rule, the
government may offer evidence of the defendant's other crimes of domestic violence
(whether against the same victim or against other persons).
Evidence Rule 404(b)(4) incorporates the definition of "crime involving
domestic violence" that is codified in AS 18.66.990. Under AS 18.66.990(3), a "crime
involving domestic violence" includes any assaultive crime codified in AS 11.41 -
crimes such as attempted murder and assault in any degree - if the crime was committed
"by [one] household member against another household member".
As this Court noted in Bingaman v. State, 76 P.3d 398, 407 (Alaska App.
2003), even though the phrase "domestic violence" is normally understood to mean an
assault committed by one domestic partner against another, AS 18.66.990 defines the
phrase "domestic violence" in a "special and wide-ranging way, quite divorced from its
everyday meaning." One of the main reasons why Alaska's definition of "domestic
violence" is so wide-ranging is that the legislature has defined the term "household
member" in a broad, non-standard way.
When AS 18.66.990(3) speaks of "domestic violence" as a crime 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
AS 18.66.990(5) defines "household member" much more broadly:
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(5) "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 the relationship; and
(H) minor children of a person in a relationship that is
described in (A) - (G) of this paragraph[.]
Now that we have described the pertinent statutory law, we will describe
Bates's attack on the constitutionality of this law.
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(a) Bates's argument that the definitions of "dating" and "sexual
relationship" are unconstitutionally vague
When the prosecutor at Bates's trial announced his intention to offer
evidence of Bates's prior assaults under Evidence Rule 404(b)(4), Bates raised a
constitutional challenge to Rule 404(b)(4). Bates acknowledged that, under the
definitions of "domestic violence" and "household member" codified in AS 18.66.990,
his assault on Jessie Ouilette might be construed as a crime of domestic violence for
purposes of Evidence Rule 404(b)(4). But Bates argued that the definition of "household
member" was impermissibly vague - so vague that the statute and the evidence rule
were both unconstitutional.
The trial judge - Superior Court Judge Patrick J. McKay - held an
evidentiary hearing to investigate the precise relationship between Bates and Ouilette.
At this hearing, Ouilette testified that she met Bates in 2003, and that Bates was her
"boyfriend". Ouilette stated that she started dating Bates in October 2003, and that she
stopped dating him only after he assaulted her on February 26, 2007 (i.e., after he
committed the assault that was litigated in this case).
Ouilette further testified that she first had sex with Bates in October 2003,
and that she continued to have sex with him until February 2007. During this period,
Ouilette stated, she and Bates had sexual relations "[a] lot of times". With specific
regard to the month of February 2007 (the month in which the assault took place),
Ouilette stated that she and Bates had sex three times.
Ouilette's testimony was corroborated in part by the testimony of
Anchorage Police Officer Justin Doll. Officer Doll testified that on June 3, 2004 he
investigated a domestic violence incident between Bates and Ouilette. When Doll
interviewed Bates, Bates told him that "he had been dating [Ouilette] off and on since
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February [of that year]." When Doll interviewed Ouilette, she confirmed that she and
Bates "had been dating off and on for several months."
Based on this evidence, Judge McKay ruled that Bates's assault on Ouilette
qualified as a "crime involving domestic violence" because Bates and Ouilette qualified
as "household members" under clauses (C) and (D) of the statutory definition codified
in AS 18.66.990(5). That is, Judge McKay concluded that Bates and Ouilette were
dating or had dated, and that Bates and Ouilette had engaged in a sexual relationship.
On appeal, Bates argues that even if the testimony presented at the
evidentiary hearing is true, Judge McKay committed error when he concluded that Bates
and Ouilette had "dated", or that they had engaged in a "sexual relationship". Bates
claims that these two clauses of the statutory definition are unconstitutionally vague
because (according to Bates) the terms "dating" and "sexual relationship" have no clear,
agreed-upon meaning.
Bates argues that, because these terms have no clear meaning, there is no
ascertainable standard for determining whether two people's social interaction constitutes
"dating" or constitutes a "sexual relationship". Consequently (under Bates's argument),
there was no objective way for Judge McKay to assess whether Bates and Ouilette were
"household members" as defined in clauses (C) or (D) of AS 18.66.990(5) - and, thus,
there was no objective way for Judge McKay to decide whether Bates was charged with
a "crime involving domestic violence" - the key foundational fact that would allow
evidence of Bates's prior assaults to be admitted under Evidence Rule 404(b)(4).
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(b) Why many of the legal principles pertaining to overly vague
statutes do not have any relevance to Bates's case
Before we reach the issue of whether the terms "dating" and "sexual
relationship" have ascertainable meanings, we must first explain why many of the legal
principles pertaining to overly vague statutes have no relevance to Bates's case.
Alaska cases generally declare that an overly vague statute poses three
potential constitutional dangers. See, e.g., Summers v. Anchorage, 589 P.2d 863, 866-67
(Alaska 1979); Bachlet v. State, 941 P.2d 200, 203-04 (Alaska App. 1997).
First, some overly vague statutes can be construed in a manner that
unlawfully restricts the exercise of protected First Amendment rights. This danger is
often referred to as "overbreadth" - although this same danger of overbreadth (i.e.,
infringement of First Amendment rights) can be posed by a statute that is perfectly clear
and unambiguous. As this Court explained in Petersen v. State,
Although courts often discuss overbreadth as an aspect of
vagueness, these two concepts are distinct. "[A] statute may
be invalid for being overbroad [even though its wording is]
clear and precise if it prohibits constitutionally protected
conduct." Stock v. State, 526 P.2d 3, 7 n. 7 (Alaska 1974)
(citing Grayned v. City of Rockford, 408 U.S. 104, 114; 92
S.Ct. 2294, 2302; 33 L.Ed.2d 222, 231 (1972)).
930 P.2d 414, 425 (Alaska App. 1996). Thus, in the context of impermissibly vague
statutes, the danger lies in the fact that the meaning of the statute is so nebulous that it
could potentially be construed in a manner that leads to overbreadth.
The second danger posed by an overly vague statute is that the statute may
not give people fair notice of what conduct is regulated or prohibited. The constitutional
guarantee of due process of law requires that statutes "be sufficiently explicit to inform
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those who are subject to [them] what conduct on their part will render them liable" to
criminal penalties. Marks v. Anchorage, 500 P.2d 644, 650 (Alaska 1972) (quoting
Connally v. General Construction Co., 269 U.S. 385, 391; 46 S.Ct. 126, 127-28; 70
L.Ed. 322 (1926)). When a statute either requires people to engage in particular conduct
or forbids people from engaging in particular conduct, the statute must not be worded "in
terms so vague that men of common intelligence must necessarily guess at its meaning
and differ as to its application". Ibid .
The third danger is that an overly vague statute may give unrestrained or
undue discretion to police officials and prosecutors - and, later, to judges and juries -
when they determine whether a person's conduct falls within the statute (i.e., whether the
person's conduct constitutes a crime). As this Court explained in Petersen, 930 P.2d at
424, an impermissibly vague statute "[places] a power of arbitrary or discriminatory
enforcement in the hands of police, prosecutors, and ultimately judges and juries".
Bates asserts that, due to the vagueness of the terms "dating" and "sexual
relationship", the definition of "household member" - and, hence, the definition of
"crime involving domestic violence" - presents all three of these dangers. But, in truth,
the alleged vagueness that Bates complains of does not involve any of these dangers.
Bates was prosecuted for attempted murder, based on his assault on
Ouilette. The definition of "crime involving domestic violence" plays no part in the
definition of attempted murder. 1 In other words, Bates's guilt or innocence of attempted
murder did not hinge on whether his offense constituted a "crime involving domestic
1 See AS 11.41.100(a) and AS 11.31.100(a).
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violence". Nor does the prescribed punishment for attempted murder differ according
to whether the crime involves domestic violence. 2
Rather, Bates's challenge to the definition of "household member" arises
in the context of deciding whether Evidence Rule 404(b)(4) applied to Bates's case -
whether this evidence rule authorized the State to introduce evidence of Bates's prior
assaults on Ouillette and on another girlfriend.
In this context, any arguable vagueness in the definition of "dating" or
"sexual relationship" has no potential bearing on Bates's exercise of First Amendment
rights. Although Bates argues that his right of association is infringed by the lack of
clarity in the definitions of "dating" and "sexual relationship", this argument has no
merit.
Evidence Rule 404(b)(4) does not restrict or chill anyone's choice of
boyfriends, girlfriends, or sexual partners. Evidence Rule 404(b)(4) merely states that
if a person is prosecuted for assaulting or trying to kill a boyfriend, girlfriend, or sexual
partner, and if the person has assaulted boyfriends, girlfriends, or sexual partners in the
past, the trial judge can allow the government to introduce evidence of these prior
assaults.
For similar reasons, the alleged lack of clarity in the definitions of "dating"
and "sexual relationship" does not raise any problem regarding Bates's advance notice
of the law. In the context of attacks on a statute for vagueness, the notion of "advance
notice" does not refer to a person's ability to anticipate what evidence will be admissible
at their trial in the event they are prosecuted for a crime. Rather, advance notice refers
2 See AS 12.55.125(b). But see AS 12.55.015(f), which declares that a sentencing court
must order the forfeiture "of a deadly weapon that was in the actual possession of or used by
the defendant during the commission of a crime involving domestic violence".
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to a person's ability to understand what conduct the law requires or forbids (so that they
can avoid criminal charges by conforming their conduct to the law).
As we have explained, Bates's guilt or innocence of assaulting and
attempting to kill Ouilette did not hinge in any way on the definition of "domestic
violence" or "crime involving domestic violence". Thus, the alleged vagueness of the
terms "dating" or "sexual relationship" had no bearing on Bates's ability to understand
the definition of attempted murder and to refrain from doing what that statute forbids
(attempting to kill another person).
For the same reason, the alleged lack of clarity in the terms "dating" or
"sexual relationship" posed no danger of giving police officials, prosecutors, and juries
the power to prosecute or convict Bates of attempted murder in an arbitrary or
discriminatory way. The question of whether Bates's attempt to kill Ouilette constituted
a "crime involving domestic violence" had no bearing on the elements of attempted
murder, nor did it have any bearing on the jury's decision as to whether the State had
proved those elements beyond a reasonable doubt.
(c) The legal test that applies to Bates's case
Although Bates's case does not involve the three dangers discussed in the
preceding section, Bates does have standing to complain of the alleged vagueness in the
definitions of "dating" and "sexual relationship". But Bates's legal interest in this matter
is merely the interest in having the trial judge apply the law of evidence rationally and
even-handedly.
The Alaska Supreme Court has addressed this point of law in two cases:
Williams v. Alaska Department of Revenue, 895 P.2d 99 (Alaska 1995), andR.R. v. State,
919 P.2d 754 (Alaska 1996).
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Williams involved a woman who filed a claim for worker's compensation
based on stress-related mental injuries. The Workers' Compensation Board denied her
claim, and she then appealed to the supreme court. 3 One of Williams's main contentions
on appeal was that the statutory definition of "injury" (for purposes of workers'
compensation claims) was unconstitutionally vague.
The supreme court noted that Williams's claim of vagueness did not present
any of the three dangers normally associated with overly vague statutes: the chilling of
First Amendment rights, the failure to give notice of prohibited conduct, or the potential
for arbitrary or discriminatory enforcement. 4 The court then stated, "Assuming that
there is a constitutional [claim] of statutory vagueness in a case such as this, ... [a]ll that
should be required is legislative language which is not so conflicting and confused that
it cannot be given meaning in the adjudication process." 5
The second case, R.R. v. State, involved a child-in-need-of-aid proceeding.
The appeal was brought by the mother of four children after the superior court removed
the children from her custody. 6 One of the mother's arguments on appeal was that there
was an unconstitutional vagueness in AS 13.26.045, the statute that grants the superior
court the authority to appoint a guardian for an unmarried minor if all rights of custody
possessed by the minor's parents have been suspended or terminated. 7
Again, as in Williams, the supreme court noted that the mother's challenge
to the statute did not involve the three dangers normally associated with overly vague
3 Williams, 895 P.2d at 99.
4 Id., 895 P.2d at 105.
5 Ibid.
6 R.R., 919 P.2d at 755.
7 Id. at 758.
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statutes. And because of this, the supreme court explained, the mother had only one
potential constitutional ground for attacking the alleged vagueness of the statute: the
claim that the statutory language was "so conflicting and confused that it cannot be given
meaning in the adjudication process." 8
The court rule at issue in Bates's case - Alaska Evidence Rule 404(b)(4)
- is analogous to the statutes at issue in Williams and R.R.. Evidence Rule 404(b)(4)
does not restrict First Amendment rights; it prohibits no conduct; and it does not
authorize either criminal prosecutions or civil enforcement actions where a person might
lose an important right based on proof that the person's conduct did not meet a certain
standard. Thus, at best, Bates's case is governed by the same limited vagueness test that
the Alaska Supreme Court applied in Williams and R.R..
We say "at best" because there is a potential distinction between Bates's
case and the litigation in Williams and R.R.. The question presented in both Williams and
R.R. was the potential vagueness of the standard that governed the granting or denial of
relief. In contrast, the evidence rule that Bates challenges in the present appeal does not
govern whether one side or the other is entitled to relief, but rather only the type of
evidence that can be introduced at trial. Arguably, then, Bates's interest in challenging
the vagueness of Evidence Rule 404(b)(4) is of even less weight than the interests of the
litigants in Williams and R.R..
But even if Bates's case is governed by the same vagueness test that the
Alaska Supreme Court applied in Williams and R.R., Bates has failed to show that
Evidence Rule 404(b)(4) suffers from unconstitutional vagueness. For the reasons we
are about to explain, we conclude that the legislature's use of the terms "dating" and
"sexual relationship" in the definition of "household member" - and, by reference, in
8 Ibid . (quoting Williams, 895 P.2d at 105).
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the definition of "crime involving domestic violence" - does not result in a definition
"so conflicting [or] confused that it cannot be given meaning in the adjudication
process." 9
(d) Application of this test to the facts of Bates's case
As we explained in the preceding section of this opinion, the question
confronting us is whether the terms "dating" and "sexual relationship" have a sufficiently
certain meaning that they provide an ascertainable standard for trial judges to use when
the judges are asked to decide whether Evidence Rule 404(b)(4) applies to a defendant's
case - that is, when judges are asked to decide whether the defendant is on trial for a
"crime involving domestic violence".
Although the law requires an ascertainable standard, the law does not
require a standard that eliminates all ambiguity or doubt. For instance, in Williams, our
supreme court had to decide whether the phrase "extraordinary and unusual ... pressures
and tensions" was sufficiently definite to survive a vagueness challenge. The court
declared that this phrase "readily satisfies [the] test". 895 P.2d at 105.
The supreme court noted that "[this] language is no more general than
numerous other terms which have survived void for vagueness challenges." Ibid ., citing
Coghill v. Coghill, 836 P.2d 921, 929 (Alaska 1992) (upholding "good cause" and
"manifest injustice"); Storrs v. State Medical Board, 664 P.2d 547, 549-50 (Alaska
1983) (upholding "professional incompetence"); R.C. v. Department of Health and
Social Services, 760 P.2d 501, 506 (Alaska 1988) (reviewing appellate decisions which
9 Williams, 895 P.2d at 105.
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rejected vagueness challenges to standards such as "unfit", "improper", "neglected",
"basic, essential, and necessary needs", and "reasonable parental care").
The supreme court also noted that the legislature, when drafting this statute,
had to "address the subject broadly[,] because every employee's condition is different".
Id. at 106. The court concluded that the statute was sufficiently clear because its wording
"provides specific information on how to determine whether a stress[-]related mental
injury is in fact compensable under the [Workers'Compensation] Act." Ibid. The court
conceded that "there [would] always be borderline and difficult cases", but the court
noted that borderline and difficult cases "are a [given] whenever a general standard is
applied." Ibid .
See also Haggblom v. City of Dillingham, 191 P.3d 991, 997-99 (Alaska
2008) (rejecting a vagueness challenge to the phrase "without provocation"), and
Panther v. State, 780 P.2d 386, 390-91 (Alaska App. 1989) (rejecting the contention that
there is no objectively ascertainable distinction between a "deviation" from the
applicable standard of care and a "gross deviation" from the same standard of care).
Returning to the vagueness claim that Bates raises in this appeal, we
conclude that the phrase "sexual relationship" is sufficiently definite to survive Bates's
vagueness challenge.
In the entry for the adjective "sexual" in Webster's New World College
Dictionary (Fourth Edition, 2004), the pertinent definition is "characteristic of, or
involving sex ... or the instincts, drives, behavior, etc., associated with sex". Id. at
p. 1314. And in the entry for the noun "relationship", the pertinent definition is "a
continuing attachment or association between persons, firms, etc., specif[ically], one
between lovers". Id. at p. 1209.
(The pertinent definition of the noun "lover" is "a person who loves
sexually or romantically; specif[ically], a) either partner in a sexual relationship of any
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kind, [or] b) either partner in an adulterous or otherwise illicit sexual relationship". Id.
at p. 851.)
These definitions provide an ascertainable standard for determining whether
two people are in a sexual relationship.
It is true, as the supreme court noted in Williams, that there will inevitably
be borderline or difficult cases - cases where the facts do not clearly disclose whether
the attachment or association between the two people is a "continuing" one, or
(alternatively) where the facts do not clearly disclose whether the continuing attachment
or association between the two people involves sex or the "instincts, drives, [or] behavior
... associated with sex". But these difficulties are not present in Bates's case.
As we explained earlier in this opinion, Judge McKay held an evidentiary
hearing to investigate the precise relationship between Bates and Ouilette. At this
hearing, Ouilette testified that she met Bates in 2003, and that Bates was her "boyfriend".
Ouilette stated that she started dating Bates in October 2003, and that she stopped dating
him only after he assaulted her on February 26, 2007 (i.e., after he committed the assault
that was litigated in this case).
Ouilette further testified that she first had sex with Bates in October 2003,
and that she continued to have sex with him until February 2007. During this period,
Ouilette stated, she and Bates had sexual relations "[a] lot of times". With specific
regard to the month of February 2007 (the month in which the assault took place),
Ouilette stated that she and Bates had sex three times.
This testimony amply supports Judge McKay's conclusion that Bates and
Ouilette were participants in a "sexual relationship".
We turn now to the more difficult question of whether the term "dating" has
a meaningful definition.
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In Webster's New World College Dictionary, the entry for the verb "date"
contains only one pertinent definition: "to have social engagements with persons of the
opposite sex". Id. at p. 368. But this definition is plainly inaccurate, or at least
misleading. For example, this definition falsely suggests that "dating" includes the act
of meeting one's relative or one's business associate for lunch, if the relative or business
associate is of the opposite sex. In addition, this definition falsely suggests that "dating"
can occur only in a heterosexual relationship.
In this country, when we say that two people are "dating", this phrase
connotes an ongoing series of social engagements, usually characterized by the parties'
interest, or at least their potential interest, in pursuing a romantic relationship. Here, for
instance, is the Wikipedia entry for "dating":
Dating is a form of human courtship consisting of
social activities done by two persons with the aim of each
assessing the other's suitability as a partner in an intimate
relationship or as a spouse. While the term has several
senses, it usually refers to the act of meeting and engaging in
some mutually agreed upon social activity in public, together,
as a couple. The protocols and practices of dating, and the
terms used to describe it, vary considerably from country to
country. The most common [meaning] is two people trying
out a relationship and exploring whether they're compatible
by going out together in public as a couple[. They] may or
may not yet be having sexual relations, and this period of
courtship is sometimes seen as a precursor to engagement or
marriage.
http://en.wikipedia.org/wiki/Dating (May 10, 2011) (emphasis in the original).
See also this entry of September 24, 2007 entitled "The Definition of
Dating", from Bonny Albo's Bonny's Dating Blog :
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[A] date refers to an activity two people share together
with the intention of getting to know each other better on a
potentially romantic level. This differs greatly from
"hooking up"[, a term] which usually describes a casual get[-]
together between two people that may or may not be sexual
in nature. Two people who are "dating" ... have shared
several dates together and have made it clear to one another
they are interested in more than just a friendship - even if so
far the exchanges have been purely friendly in nature. Dating
is, essentially, getting to know someone over an extended
period of time to determine if a relationship is something
worth pursuing.
http://dating.about.com/b/2007/09/24/the-definition-of-dating.htm.
We acknowledge that these two sources (a Wikipedia entry and a blog
entry) are not the type that courts traditionally rely on to determine the meaning of a
word or phrase. In the present case, however, the dictionary has failed us. Moreover,
as Bates strenuously notes in his brief, people can have quite different views as to what
the word "dating" means - in large part, because the meaning of this word has been
shifting in the past decades as our society has experienced changes in the relations
between the sexes and the role of marriage as an institution.
In these circumstances, one could plausibly argue that Wikipedia offers one
of the most accurate gauges of what the word "dating" now means in contemporary
culture. The articles in Wikipedia are open to editing by essentially anyone with Internet
access. This process of public input means that Wikipedia articles are subject to a type
of "social Darwinism". To quote the Wikipedia article on the characteristics of a "wiki"
website:
[B]ecause of the openness and rapidity [with which] wiki
pages can be edited, the pages undergo a natural selection
process like that which nature [imposes on] living organisms.
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"Unfit" sentences and sections are ruthlessly culled, edited[,]
and replaced if they are not considered "fit" [by the public],
which hopefully results in the evolution of ... higher quality
and more relevant [content]. Whilst such openness may
invite "vandalism" and the posting of untrue information, this
same openness also makes it possible to rapidly correct or
restore [the] quality [of the] wiki page.
http://en.wikipedia.org/wiki/Wiki, "Characteristics" (May 10, 2011).
Turning now to more traditional legal authorities, we note that several state
legislatures have likewise defined "dating" as a continuing relationship (rather than a
single social engagement or isolated outings) whose object (or at least potential object)
is long-term intimacy or marriage.
California law defines "dating relationships" as "frequent, intimate
associations primarily characterized by the expectation of affection or sexual
involvement independent of financial considerations." California Family Code, § 6210,
and California Penal Code, § 243(f)(10). In a similar vein, Texas Family Code
§ 71.0021(b) defines a "dating relationship" as a continuous relationship of a "romantic"
or "intimate" nature. The Texas statute further provides that the existence of a dating
relationship is to be determined by considering the length and nature of the relationship,
and the frequency and type of the couple's interactions. See Ochoa v. State, __ S.W.3d
__ (Tex. App. 2010), 2010 WL 4910900, *5. Washington law defines "dating
relationship" as "a social relationship of a romantic nature" Washington Statutes
§ 26.50.010(3). Like the Texas statute, the Washington statute provides that the
existence of a dating relationship is to be determined by considering various factors: the
length and nature of the relationship, as well as the frequency of the couple's
interactions. See also Massachusetts Statutes, chapter 209A, § 1.
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We acknowledge that the Alaska statute - AS 18.66.990(5)(C) - uses the
term "dating" rather than "dating relationship". We further acknowledge that this statute
speaks in terms of persons "who are dating or who have dated". The latter portion of this
phrase, "or who have dated", could conceivably be interpreted to include persons who
have gone on a single date in the past.
Nevertheless, we conclude that, at least in the context of defining "domestic
violence", it makes the most sense to interpret the term "dating" as referring to a
relationship - that is, a continuing attachment or association - rather than isolated
shared social engagements.
As the Supreme Court of Kentucky noted in Barnett v. Wiley, 103 S.W.3d
17, 19 (Ky. 2003), the purpose of domestic violence legislation
is to protect victims from harm caused by ... persons whose
intimate ... relationship to the victim increases the danger of
harm, either because the parties live in physical proximity or
because the relationship is one whose intimacy may disable
the victim from seeking protection.
See also State v. Ankeny, 243 P.3d 391, 397 (Mont. 2010) (quoting this passage).
This view, that "domestic violence" is violence that arises in the context of
a relationship, was echoed by the Colorado Supreme Court last year in People v. Disher,
224 P.3d 254, 258 (Colo. 2010): "[T]he hallmark of domestic violence [is an] action that
is used to coerce, control, punish, intimidate, or exact revenge within the context of an
intimate relationship."
Because the focus of domestic violence legislation is the violence that takes
place within the context of a relationship, we conclude that the term "dating" should be
interpreted in the sense indicated by the authorities (both legal and non-legal) that we
have reviewed here: a relationship that either is marked by emotional intimacy or whose
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purpose is to allow two people to evaluate each other's suitability as a partner in an
intimate relationship or in marriage. We believe that this interpretation most closely
reflects the legislature's intention when it enacted our domestic violence legislation.
There will inevitably be borderline or difficult cases - situations where it
is unclear whether a couple's interactions meet this definition. But this does not mean
that the definition is fatally vague. We discussed this point of law in Panther v. State,
780 P.2d 386 (Alaska App. 1989) - the case where we were asked to decide whether
there was an objectively ascertainable distinction between a "deviation" and a "gross
deviation" from the standard of care that reasonable people would observe under the
circumstances.
In Panther, we acknowledged that
[t]he distinction between a "deviation," on the one hand, and
a "gross deviation," on the other, undeniably involves a
normative component. Yet, this imprecision is unavoidable
and falls well within traditionally accepted limits.
. . .
The fact that the standard does not provide a
bright-line test for determining when a risk is so substantial
and unjustifiable that failure to observe it should be punished
does not mean that the standard is unconstitutionally vague.
Although difficult to define concretely, the statutory
requirement of a "gross deviation" from the standard of care
that a reasonable person would observe is readily
comprehensible.
780 P.2d at 390-91. See also Connally v. General Construction Co., 269 U.S. 385, 391;
46 S.Ct. 126, 127-28; 70 L.Ed. 322 (1926) (declaring that statutory definitions can
withstand a vagueness challenge "notwithstanding an element of degree in the definition
as to which estimates might differ").
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Moreover, Bates's case is not a borderline case. As we have already
described, Ouilette testified at the evidentiary hearing about the details of her relationship
with Bates. Her testimony amply supports Judge McKay's conclusion that Bates and
Ouilette were "dating" when Bates committed the assault in this case.
Under the facts of this case, and under the definitions of "sexual
relationship" and "dating" that we have described in this opinion, Judge McKay correctly
ruled that Bates and Ouilette were "household members" as that phrase is defined in
AS 18.66.990(5), and thus Bates's assault on Ouilette qualified as a "crime involving
domestic violence" for purposes of Evidence Rule 404(b)(4) - i.e., under the definition
of "domestic violence" codified in AS 18.66.990(3).
Why we conclude that the State presented a sufficient evidentiary
foundation for the audio recording of the 911 call
At Bates's trial, Judge McKay allowed the prosecutor to introduce the audio
recording of a 911 call that was made from the Iyatunguk residence while Bates was
there. The prosecutor argued that, during a portion of this recording, Bates could be
heard speaking to the 911 dispatcher, and that Bates's statements to the 911 dispatcher
were relevant to show his state of mind - in particular, his intentions when he attacked
Ouilette and Iyatunguk.
(There were actually two 911 calls placed from Iyatunguk's residence. The
first call was made by Iyatunguk, and that call is not at issue here. The controversy
pertains to the second 911 call. This second call was initiated by Iyatunguk's friend,
Alfred Braun, but then a second man - allegedly Bates - began speaking to the
dispatcher.)
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The evidence pertaining to the second 911 call was sufficient to establish
that the second man who spoke was neither Iyatunguk nor Braun. The 911 dispatcher
testified that Iyatunguk identified himself during the first call - thus allowing the
inference that the dispatcher would have recognized Iyatunguk's voice if he had spoken
to her again during the second 911 call. The dispatcher further testified that Braun
identified himself during the initial portion of the second 911 call, and that the other man
who spoke to her during the latter portion of this second call was not Ityatunguk.
Nevertheless, Bates opposed the admission of the audio recording on the
ground that the prosecution failed to offer any witness to expressly identify the second
voice on the 911 recording as Bates's voice.
Judge McKay ruled that the State could play the audio recording for the
jury, but he prohibited the State from eliciting the 911 dispatcher's opinion that the man
who spoke to her during the latter half of the second call was Bates. The State then
played the recording for the jury.
The recording begins with Alfred Braun identifying himself and asking for
police assistance because Bates and Iyatunguk were fighting. The 911 dispatcher can be
heard obtaining information from Braun, and counseling him to get away from Bates.
Braun then told the 911 dispatcher that he was going to try to separate Bates
and Iyatunguk. To do this, Braun put the phone down (without hanging up).
Shortly after Braun set the phone down, a different male voice came on the
line. When the 911 dispatcher asked this man to identify himself, the man responded,
"It doesn't matter." The man repeatedly refused to identify himself, telling the dispatcher
that his name "[didn't] matter", or that his name was "Nobody".
Shortly after this second man got on the line, he told the 911 dispatcher,
"You are gonna put a bullet in my head". The man can also be heard shouting to other
people in the apartment, "Anyone else wanna play with me, bitches?"
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The unidentified man then put the phone down, and the 911 recording
picked up a new sound - apparently, the sound of someone being hit or kicked. A
woman can be heard screaming and moaning - presumably Ouilette, since she was the
only woman at the residence. After this, the unidentified man came back on the line (and
again refused to identify himself). When the 911 dispatcher asked him, "What's going
on there?", the man responded, "You already know what's going on." Finally, the man
told the dispatcher that he was "hanging up now". The man added, "I'm bleeding
severely ... bleeding severely. And I'm ready." Shortly after that, the line went dead.
In his brief to this Court, Bates notes that the State did not ask Itayunguk
or Braun or any other person present at the residence to identify Bates as the person
speaking to the dispatcher during the latter portion of the 911 call. Bates argues that,
without this type of evidentiary foundation, the recording was inadmissible because there
was no showing that the recording was relevant. (See Alaska Evidence Rule 402, which
declares that evidence is not admissible unless it is relevant.)
The State argues that there was no need for the prosecutor to offer evidence
that the man speaking to the 911 dispatcher was Bates. The State relies on this Court's
decision in Thompson v. State, 210 P.3d 1233, 1238-39 (Alaska App. 2009), where we
stated that "the modern test for authentication [of an audio recording] is whether the
proponent of the evidence has presented sufficient evidence to support a rational finding
that the ... recording is authentic". Based on this passage from Thompson, the State
contends that once the prosecutor offered sufficient evidence to support a finding that the
recording was an accurate rendition of the 911 dispatcher's conversation with the people
in the residence, the recording was admissible even without proof that Bates was one of
the men who spoke to the dispatcher.
This may be true as far as it goes. But as we have explained, the trial
prosecutor argued to the jury that it was Bates who made the statements to the dispatcher
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during the second portion of the tape - and that these statements demonstrated Bates's
state of mind. To support this assertion, the prosecutor needed to prove something more
than simply the fact that a conversation occurred between some man and the 911
dispatcher, and that this conversation was accurately rendered in the recording. The
prosecutor also had to prove that the man speaking those words was Bates.
(This issue did not arise in Thompson because, in that case, there was no
dispute concerning the identity of the participants in the recorded conversations. The
defendant's challenge to the recording was that it might not accurately reflect the content
of the conversations.)
The rule that governs situations like this is Evidence Rule 104(b):
Relevancy Conditioned on Fact. When the relevancy of
evidence depends upon the fulfillment of a condition of fact,
the court shall admit [the evidence] upon, or subject to, the
introduction of evidence sufficient to support a finding of the
fulfillment of the condition.
As explained in the Commentary to Rule 104(b), there are times when a
piece of evidence is relevant only if a particular underlying fact is true:
[W]hen a spoken statement is relied upon to prove [that a
person had] notice [of something], [the statement] is without
probative value unless [the person] heard it. Or if a letter
purporting to be from [a particular person] is relied upon to
establish an admission [against interest by that person], [the
letter] has no probative value unless [the person] wrote or
authorized it.
This type of relevance is called "conditional relevance", and Evidence Rule
104(b) prescribes the rule for situations where the parties dispute the underlying fact
which, if true, makes the evidence relevant. Under Rule 104(b), the trial judge should
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----------------------- Page 26-----------------------
allow a party to offer the conditionally relevant evidence if there is - or if, according
to the party's offer of proof, there will be - sufficient evidence to justify a reasonable
conclusion that the disputed underlying fact should be resolved in the offering party's
favor.
Thus, in the examples given in the Commentary, the trial judge should
admit evidence of the spoken statement if there is sufficient evidence to justify a
reasonable conclusion that the person in question heard the statement. Similarly, the trial
judge should admit evidence of the content of the letter if there is sufficient evidence to
justify a reasonable conclusion that the person in question wrote or authorized the letter.
It is up to the trier of fact (the jury or, in bench trials, the judge) to
determine, during final deliberations, whether the asserted underlying fact is true. If the
trier of fact finds that the underlying fact is true, then the evidence will be relevant, and
the trier of fact can rely on the evidence in reaching the verdict.
If, on the other hand, the trier of fact finds that the underlying fact is not
true, then the trier of fact will naturally disregard the evidence - because the irrelevance
of the evidence will be obvious. For instance, in the examples described in the
Commentary, if the trier of fact finds that the person in question did not hear the spoken
statement, then of course the trier of fact will conclude that the statement is irrelevant for
purposes of deciding whether the person was on notice of the things mentioned in that
statement. Similarly, if the trier of fact finds that the person in question did not write or
authorize the letter, then the trier of fact will conclude that the things written in the letter
do not constitute admissions of the person in question.
We applied this principle in Bennett v. Anchorage, 205 P.3d 1113, 1117
(Alaska App. 2009), a case where the relevance of a prior act of domestic violence
hinged on resolution of a factual dispute concerning the nature of the prior act, and in
James v. State, 671 P.2d 885, 892-93 (Alaska App. 1983), a case where there was a
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dispute as to the identity of the person who telephoned the local police dispatcher and
asked the police to "get [the victim] out [of here] before I kill him". We also applied this
principle in Ayagarak v. State, Alaska App. Memorandum Opinion No. 4695 (April 23,
2003), 2003 WL 1922623, *5, where there was a dispute as to whether a prior bad act
was committed by the defendant or by someone else.
This same principle governs the dispute in Bates's case. The prosecutor
offered evidence of the statements made to the 911 dispatcher under the theory that it
was Bates who made those statements. Under Evidence Rule 104(b), the State could
properly introduce this evidence if there was sufficient evidence to support a reasonable
conclusion that it was, in fact, Bates who made the statements.
It is true, as Bates points out, that the prosecutor did not present any witness
who directly identified the voice in the recording as Bates's voice. But this underlying
fact could be proved by circumstantial evidence.
In this case, there were five men in the residence at the time the 911 call
was made: Iyatunguk, Braun, Bates, and two brothers whose last name was Nikolai.
Iyatunguk's voice and Braun's voice had already been identified (Iyatunguk's in the first
911 call, and Braun's in the initial portion of the second 911 call). Thus, the man
speaking to the 911 dispatcher during the latter portion of the second 911 call could only
be Bates or one of the Nikolai brothers.
The man who was speaking claimed that he was bleeding. Of the three
potential speakers (Bates and the Nikolai brothers), Bates was the only one who was
bleeding, and the only one who was conscious. (The evidence showed that the Nikolai
brothers had passed out from drinking, and they were not bleeding.)
These facts provided sufficient circumstantial evidence to support a
reasonable conclusion that Bates was the one speaking to the 911 dispatcher during the
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latter portion of the 911 call. Consequently, the recording of the 911 call - offered as
evidence of Bates's statements - was admissible under Evidence Rule 104(b).
Judge McKay's decision to restrict Bates's parole eligibility
Judge McKay sentenced Bates to serve 30 years for the crime of attempting
to murder Ouilette, and the judge imposed consecutive sentences of 2 years and 1 year
to serve for Bates's assaults on Iyatunguk and Braun. Under the rules governing parole
eligibility codified in AS 33.16.090, Bates would normally be eligible to apply for
discretionary parole after serving 10¾ years of this composite 33-year sentence. See
AS 33.16.090(b)(1) and (b)(7). However, Judge McKay exercised his authority under
AS 12.55.115 and declared that Bates would not be eligible to apply for discretionary
parole until he served 20 years of the composite sentence.
Under Alaska law, a sentencing judge who decides to restrict a defendant's
eligibility for parole must "specifically address the issue of parole restriction" and must
"[explain] with particularity [the] reasons for concluding that the [normal] parole
eligibility prescribed by AS 33.16.090 and AS 33.16.100(c) - (d) is insufficient to
protect the public and [ensure] the defendant's reformation." Hinson v. State, 199 P.3d
1166, 1173 (Alaska App. 2008), quotingStern v. State, 827 P.2d 442, 450 (Alaska App.
1992).
In its brief to this Court, the State acknowledges that even though Judge
McKay "made various direct and indirect statements" regarding his decision to restrict
Bates's parole eligibility, the judge's statements "arguably" do not satisfy the
requirements of Hinson and Stern.
We have examined the sentencing record, and we agree that Judge
McKay's sentencing remarks do not adequately explain the parole restriction as required
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by Hinson and Stern. Accordingly, we direct the superior court to reconsider this aspect
of Bates's sentence.
Conclusion
With the exception of the restriction on Bates's parole eligibility, the
judgement of the superior court is AFFIRMED.
We REMAND Bates's case to the superior court so that the superior court
can reconsider whether Bates's eligibility for parole should be restricted under
AS 12.55.115. If, on reconsideration, the superior court concludes that Bates's eligibility
to apply for parole should not be restricted, the superior court should modify the
judgement to reflect this, and the superior court should notify this Court of its decision.
We will then close this appeal.
If, on the other hand, the superior court again concludes that Bates's parole
eligibility should be restricted, the superior court should issue supplemental findings to
support that decision, and the superior court should forward a copy of those findings to
this Court. In that event, the parties shall have 30 days to file simultaneous memoranda
addressing the superior court's findings and discussing whether those findings justify the
restriction on Bates's parole eligibility. After this Court receives the parties' memo
randa, we will resume our consideration of the parole restriction issue.
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