Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Bennett v. Municipality of Anchorage (4/24/2009) ap-2213

Bennett v. Municipality of Anchorage (4/24/2009) ap-2213

                             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


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.

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC