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Olson v. State (2/17/2017) ap-2539

Olson v. State (2/17/2017) ap-2539

                                                                                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@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



DENNIS  OLSON,  

                                                                                                                                                  

                                                                                                       Court of Appeals No. A-11872  

                                                                                                                                                               

                                                      Appellant,                                    Trial Court No. 3PA-13-3129 CR  



                                         v.  

                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                  

STATE  OF  ALASKA,  



                                                      Appellee.                                        No. 2539 - February 17, 2017  

                                                                                                                                                          



                           Appeal from the District Court, Third Judicial District, Palmer,  

                                                                                                                                       

                           David L. Zwink, Judge.  

                                                           



                           Appearances:                  Lars  Johnson,  Assistant  Public  Defender,  and  

                                                                                                                                              

                           Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                                                                                                       

                           Lindsey Burton, Assistant District Attorney, Palmer, and Craig  

                                                                                                                                           

                           W. Richards, Attorney General, Juneau, for the Appellee.  

                                                                                                                                          



                           Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                                                                                    

                           Superior Court Judge.*  

                                                                         



                                                                                                       

                           Judge MANNHEIMER, writing for the Court.  

                                                                 

                           Judge SUDDOCK, dissenting.  



       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                              


----------------------- Page 2-----------------------

                                                                                                                        

                    In November 2013, Stephanie Olson obtained a 20-day domestic violence  



                                                                                                                     

protective order against her husband, Dennis Olson.  Under the terms of this restraining  



                                                                                                                                      

order, Olson was prohibited from being within a quarter-mile of Stephanie's residence.  



                                                                                                                             

                    At that time, Stephanie was living in the marital home and Olson was living  



                                                                                                                             

in a trailer on the same property (within a quarter-mile of the house).  When the State  



                                                                                                                        

Troopers served Olson with the restraining order, they informed him that he was required  



                                                                                                                         

to leave the property - that he would either have to move the trailer or find another  



                      

place to live.  



                                                                                                                              

                    Olson left the property without taking anything he needed for the cold  



                                                                                                                               

weather.  Several hours later, he returned to the trailer and went to sleep.   He was still  



                                                                                                                     

there when the troopers returned to the property the next day around noon.  



                                                                                                                     

                    Based on this  episode,  Olson was charged with violating the protective  



                                                                                                                      

order, AS 11.56.740(a).  At trial, Olson defended by asserting the defense of necessity:  



                                                                                                                           

he argued that he needed to return to  the trailer to avoid hypothermia or other injury  



                                                                 

arising from his exposure to the elements.  



                                                                                                                        

                    The jury rejected Olson's necessity defense and convicted him of violating  



                                  

the protective order.  



                                                                                                                                 

                    Olson now appeals, arguing that the fairness of his trial was prejudiced by  



                                                                                                                     

one of the trial judge's evidentiary rulings.  At Olson's trial, over the defense attorney's  



                                                                                                                     

objection, the trial judge decided to let the prosecutor introduce a copy of the restraining  



                                                                                                                                

order.  One section of this order - Section D - showed that the judge who issued the  



                                                                                                                              

order  did  so  on  the  basis  that  there  was  probable  cause  to  believe  that  Olson  had  



                                                     

committed several serious crimes.  



                                                                                                                               

                    We  agree  with  Olson  that  the  trial  judge  should  have  redacted  the  



                                                                                                                                

restraining order to delete these unproved allegations of criminal conduct.  But for the  



                                                               - 2 -                                                          2539
  


----------------------- Page 3-----------------------

reasons explained in this opinion, we conclude that this error was harmless under the                                                                                                                                                                                                                                                                                                



facts of Olson's case.                                                   



                               The trial judge's decision to let the State introduce evidence that the judge                                                                                                                                                                                                                                  

                              who issued the restraining order found                                                                                                                                                    probable cause to believe that                                                                                              

                               Olson had committed other serious crimes                                                                                                                         



                                                            Olson's attorney anticipated that the prosecutor would offer the restraining                                                                                                                                                                                                              



order into evidence, so (before the beginning of the State's case) the defense attorney                                                                                                                                                                                                                                                                        



asked the trial judge to give the jury a redacted                                                                                                                                                                          version of the restraining order - a                                                                                                                               



version that did not include the "Findings" listed on page 2 of the order.                                                                                                                                                                                                                                                          



                                                            The Alaska Court System has designed a form order for judges to use when                                                                                                                                                                                                                                         



they hear an application for a domestic violence restraining order.                                                                                                                                                                                                                             Section D of this form                                                        



order is labeled "Findings".                                                                                                 Section D offers the judge a series of check-boxes to use                                                                                                                                                                                              



when describing the basis for issuing the restraining order.                                                                                                                                                                                                          



                                                            In Olson's case, the second half of Section D looked like this:                                                                                                                                                                                                                        



                        2.	  The court finds probable cause to believe that the respondent committed, or                                                                                                                                                                                                                                                          

                                       attempted to commit, the following crime(s) involving domestic violence against                                                                                                                                                                                                                          

                                       the petitioner:                                            



                                     �	  assault or reckless endangerment                                                                                                                              G harassment (telephonic or electronic)  

                                                                                                                                                                                                                                                                                                                              

                                    �   stalking                                                                                                                                                       G terroristic threatening
  

                                                                                                                                                                                                                                                             

                                    G violating a protective order                                                                                                                                     �  criminal mischief
  

                                    �   sexual offense                                                                                                                                                 G arson or criminally negligent burning  

                                                                                                                                                                                                                                                                                                                                        

                                    G kidnapping   or   custodial  interfer-                                                                                                                           �  criminal trespass  

                                                  ence                                                                                                                                                 G burglary
  

                                                                                                                                               

                                    G robbery, extortion, or coercion
  



                                                                                                                                             

                                    G	 other AS 11.41 crime  ______________________________  



                                                                                                                                                                                         - 3 -	                                                                                                                                                                                    2539
  


----------------------- Page 4-----------------------

                                                                                                                                  

In other words,  the judge who issued the restraining order found probable cause to  



                                                                                                                         

believe  that Olson had committed,  or had attempted to commit,  assault or reckless  



                                                                                                                         

endangerment,  stalking,  and  some  unspecified  "sexual offense",  as  well as  criminal  



                                                  

mischief and criminal trespass.  



                                                                                                                                 

                     The judge's findings were based on Stephanie's ex parte presentation to the  



                                                                                                                                

court (so Olson had no chance to respond to these allegations at the time), and Olson was  



                                                                                                                                   

never charged with any of these purported crimes.   These allegations were relevant to  



                                                                                                                                 

Olson's case solely because the judge's findings of probable cause provided the basis for  



                                                                               

the judge's authority to issue the restraining order.  



                                                                                                                                 

                     Olson's attorney told the trial judge that he did not intend to challenge the  



                                                                                                                             

validity of the restraining order - that, in fact, he was willing to stipulate that the order  



                                                                                                                                 

was valid.   Thus, the defense attorney argued, the jury should not be informed of the  



                                                                                                                                 

allegations of criminal conduct listed in Section D - because these allegations had no  



                                                                                                                      

relevance to any material issue at Olson's trial, and because they presented a substantial  



                                       

risk of unfair prejudice.  



                                                                                                                                 

                     The  prosecutor  agreed  that  the  allegations  listed  in  Section  D  had  no  



                                                                                                                                

particular  relevance  to  whether  Olson  had  violated  the  restraining  order,  and  the  



                                                                                                                                

prosecutor told the trial judge that she did not plan to comment on those allegations.  But  



                                                                                                                             

the prosecutor argued that the jury needed to see the entire text of the restraining order  



                                                                                                                                  

(including the allegations contained in Section D) because,  if the jurors  received an  



                                                                                                                              

abridged  version  of  the  order,  they  might  think  that  the  State  was  trying  to  hide  



                    

something.  



                                                                                                                              

                     The prosecutor told the court, "It needs to be clear [to the jurors] that these  



                                                                                                                                       

[orders] aren't just issued for no reason - that there does have to be a [judicial] finding."  



                                                                                                                             

The prosecutor also declared that she "[did not] see how [the allegations were] more  



                                                                                                                                       

prejudicial than probative", so long as the court gave a limiting instruction to the jurors.  



                                                               - 4 -                                                          2539
  


----------------------- Page 5-----------------------

                                                                                                                             

                     After considering the parties' arguments, the trial judge decided to adopt  



                                           

the prosecutor's approach:  



                      

                                                                                                        

                               The Court:  I'm going to allow the [restraining order]  

                                                                                                        

                     in as it is.  I'm going to give ... what I hope is a very strong  

                                                                                                           

                     curative  instruction,  including  describing  the  process  [of]  

                                                                                                             

                    how  these  [orders]  come  about,  [and]  that  there  are  no  

                                                                                                             

                     assumptions to be made [about the allegations included in the  

                                                                                                      

                     order].      And  also  that  there  has  been  no  criminal charge  

                                                                                               

                    brought against Mr. Olson based on any of the [allegations]  

                                                                                      

                     that are listed as findings [in] this [order].  



                                                                                                                      

           The trial judge committed error by allowing the State to introduce the  

                                                                                                          

          allegations of criminal conduct contained in Section D of the restraining  

          order  



                                                                                                                       

                     As we  explained in the preceding section of this opinion,  the unproved  



                                                                                                                             

allegations of criminal conduct contained in Section D of the restraining order  were  



                                                                                                                        

relevant to Olson's case solely because the judge's findings of probable cause provided  



                                                                                                  

the basis for the judge's authority to issue the restraining order.  



                                                                                                                          

                     But the validity of the restraining order was not disputed.  Indeed, Olson's  



                                                                                                                                

attorney told the trial judge that he would stipulate that the order was valid.  Given the  



                                                                                                                               

defense attorney's offer to stipulate that the restraining order was valid, it is unclear why  



                                                                                                                      

the State was allowed to introduce any portion of the restraining order.  This document  



                                                                                                                              

had no apparent relevance, apart from establishing that Olson  was  subject to a valid  



                                                                                                                                 

restraining order - the very thing that the defense attorney was willing to stipulate to.  



                                                                                                                             

In light of this offered stipulation, the trial judge could have simply instructed the jurors  



                                                                                           

that the parties agreed that the restraining order was valid.  



                                                               - 5 -                                                          2539
  


----------------------- Page 6-----------------------

                                                                                                                                 

                     But in any event, the State should not have been allowed to introduce the  



                                                                                                                        

portion of the restraining order which recited that a judicial officer had found probable  



                                                                                                          

cause to believe that Olson had committed several different crimes.  



                                                                                                                         

                     In its brief to this Court, the State argues that these allegations of criminal  



                                                                                                                             

conduct were relevant because they tended to disprove the necessity defense that Olson  



                                                                                                                               

offered at trial.  But allegations are not the same as proof.  The fact that the judge who  



                                                                                                                     

issued the restraining order found probable cause to believe that Olson had committed  



                                                                                                                          

various crimes did not make the restraining order admissible to prove that Olson actually  



                           

committed those crimes.  



                                                                                                                         

                     See F.T. v. State, 862 P.2d 857, 863-64 (Alaska 1993), where our supreme  



                                                                                                                       

court  held  that  a  trial court  "erred  in  taking judicial notice  of  [domestic  violence]  



                                                                                                                                

restraining orders [issued against a child's father] for the purpose of establishing that [the  



                                                                      

father] had committed acts of violence in the past."  



                                                                                                                                  

                     The allegations of criminal conduct recited in the restraining order had no  



                                                                                                                       

relevance to any material issue at Olson's trial.  And because these allegations presented  



                                                                                                                           

a substantial risk of unfair prejudice, the jury should not have been informed of them.  



                                                                                                                            

                     As we indicated earlier, it is doubtful that the restraining order (as a whole)  



                                                                                                                                

retained any relevance once Olson's attorney stated that he was willing to stipulate that  



                                                                                                                             

the restraining order was valid.   But even assuming that the restraining order had some  



                                                                                                                                

slight relevance, the trial judge abused his discretion under Alaska Evidence Rule 403  



                                                                                                                                 

when he refused to redact the allegations of criminal conduct from the version of the  



                                                              

restraining order that the jury received.  



                                                               - 6 -                                                          2539
  


----------------------- Page 7-----------------------

                                                                                                               

           Why we conclude that the error was harmless under the facts of Olson's  

          case  



                                                                                                                           

                     Although the trial judge should not have let the State introduce the portion  



                                                                                                                           

of the restraining order which listed the various allegations of criminal conduct against  



                                                                                                                     

Olson,  we conclude that the judge's error was rendered harmless by the cautionary  



                                                                                                

instructions that the jury received regarding these allegations.  



                                                                                                                             

                     During  the  defense  attorney's  summation  to  the  jury,  the  trial  judge  



                                                                                                                                    

instructed the jurors that there was no proof that these allegations were true, and that it  



                                                                                                     

was irrelevant to the jury's decision whether the allegations were true:  



                      

                                                                                                             

                               The Court: [R]egarding whether there's any [basis] for  

                                                                                                            

                     the allegations:   That is not an issue here ...  .                        That's not  

                                                                                                        

                     anything to be considered by anybody here.   That's some- 

                                                                                                                  

                     thing for the court in deciding whether to ... [grant] orders.  

                                                                                                   

                     [That decision] ... is done totally, as [the defense attorney]  

                                                                                                                  

                    has said, on an ex parte basis, because that is the system.  ...  

                                                                                                            

                     It's not relevant to this case at all to decide whether or not  

                                                                                                         

                     any  of  the  allegations  were  accurate  or  not.                          It's  [only  

                                                                        

                    relevant] that ... an order ... was issued.  



                                                                                                                        

                     These  principles  were  reiterated  later,  when  the  trial  judge  formally  



                                

instructed the jury.  



                                                                                                                         

                     Jury Instruction No.  6 specifically addressed the allegations of criminal  



                                                                                                                                

conduct that were contained in the text of the restraining order.   Instruction No. 6 told  



                                                                                                                           

the jurors that these allegations were unproved, that they were irrelevant to the charge  



                                                                                                                                      

against Olson, and that the jurors were not to consider these allegations for any purpose:  



                      

                                                                                                         

                     The State has submitted as an exhibit the 20-Day Ex Parte  

                                                                                              

                     Domestic Violence Protective Order granted in 3PA-13-742  

                                                                               

                     CI.  This is civil order, not a criminal conviction.  



                                                               - 7 -                                                          2539
  


----------------------- Page 8-----------------------

                                                                                                        

                     A  20-Day  Ex  Parte  Domestic  Violence  Protective  Order  

                                                                                                  

                     granted by the court is based solely on the written allegations  

                                                                                                              

                     filed ... in a Petition by a Petitioner.  These are not subject to  

                                                                                                           

                     any  cross-examination.  A  Respondent  is  not  given  any  

                                                                                                              

                     opportunity to challenge the allegations or have any input to  

                                                                                          

                     the court prior to the entry of such an order.  



                                                                                                             

                     Any findings made by the court as listed on the order are not  

                                                                                                            

                     to be considered by the jury for any purpose in this case.  The  

                                                                                                

                     parties agree that  the  Protective Order was an enforceable  

                                                                                                         

                     court order.  Any of the allegations that may have been listed  

                                                                                                         

                     in the petition are irrelevant to the charge which has  been  

                                                                                                        

                     brought against Defendant in this matter now at trial.  There  

                                                                                                      

                     have been no criminal charges brought to this date against  

                                                                                                        

                     Defendant based on the allegations in the petition on which  

                                                      

                     the order was based.  



                                                                                                                             

                     In his dissent, Judge Suddock suggests that the jurors in Olson's case might  



                                                                                                                                 

have improperly considered the findings listed in the restraining order, even though the  



                                                                                                                                 

instruction we have just quoted told the jurors that those findings "[were] not to be  



                                                                                 

considered by the jury for any purpose in [Olson's] case".  



                                                                                                                              

                     Judge Suddock is concerned that the findings listed in the restraining order  



                                                                                                                              

might have influenced the jurors when they deliberated the question of whether the harm  



                                                                                                                 

that Olson avoided by violating the restraining order (i.e.,  the  risk  of hypothermia)  



                                                                                                                    

outweighed the harm that he caused by violating the restraining order.  More specifically,  



                                                                                                                                 

Judge Suddock is concerned that, based on the allegations in the restraining order, the  



                                                                                                                             

jurors might have thought that Olson's violation of the restraining order posed a threat  



                                                                                                         

that he would commit crimes of domestic violence against his wife.  



                                                               - 8 -                                                          2539
  


----------------------- Page 9-----------------------

                                                                                                                                

                    Judge Suddock's concern is a legitimate one, but based on the record of  



                                                                                                                             

Olson's trial,  we conclude that it is highly unlikely that the jurors  violated the jury  



                                            

instruction in Olson's case.  



                                                                                                                              

                    We note, in particular, that after the defense attorney argued to the jury that  



                                                                                                                       

Olson violated the restraining order out of necessity,  the prosecutor (in her rebuttal  



                                                                                                                  

summation) made no mention of whether the harm that Olson caused was outweighed  



                                                                                                            

by the harm he avoided.  Instead, the prosecutor focused solely on the reasonableness  



                                                                                                             

of Olson's decision to return home in violation of the restraining order.  



                                                                                                                        

                    The prosecutor listed all of the other options that Olson might have pursued  



                                                                                                                            

if he was concerned about hypothermia, and then she asserted that Olson rejected those  



                                                                                                                              

options because "he decided to throw a tantrum".  She continued, "[He] got angry that  



                                                                                                                             

he was being kicked out of his house, and he decided to be stubborn and not accept help  



                         

from anyone."  



                                                                                                                              

                    The prosecutor ended her summation by affirmatively tellingthe jurors that  



                                                                                                                                

Olson was "not a bad guy".                     But  the prosecutor argued that Olson made a series of  



                                                                                                                    

unreasonable decisions, ending in his choice to return home in violation of the restraining  



            

order:  



                      

                                                                                                       

                              Prosecutor :          [Olson's]  belief  that  he  had  no  other  

                                                                                                         

                    options had to have been reasonable,  and I submit to you  

                                                                                                          

                     [that] it was not reasonable.  I submit to you that, as he was  

                                                                                                           

                    walking those eight hours,  he could have been coming up  

                                                                                                       

                    with a plan for himself.                And he didn't.   He walked away  

                                                                                                   

                     [from his home] without grabbing a coat, without grabbing  

                                                                                                   

                    long  underwear,  without  grabbing  a   backpack,  without  

                                                                                                          

                    grabbing anything that he would have needed.   And he was  

                                                                                                          

                    given that opportunity,  and he admitted that.                           But he just  

                                                                                                

                    walked away, without planning, without thinking.  



                                                              - 9 -                                                          2539
  


----------------------- Page 10-----------------------

                                                                                                             So I submit to you it wasn't reasonable.                                                                                                                                                                          The decisions   

                                                                        he made here were not reasonable.                                                                                                                                                                 [He's] not a bad                                                                                      guy.   

                                                                         Just bad decisions.                                                                                    And that's what it is in this case:                                                                                                                                                        not a   

                                                                        bad guy, just bad decisions.                                                                                                                             And for that reason, the State                                                                                                               

                                                                        would ask you to find the defendant guilty.                                                                                                                                                                                               Thank you.   



                                                                        All three members of this Court agree that it was error for the trial judge to                                                                                                                                                                                                                                                                                                                 



 allow the prosecutor to introduce an unredacted version                                                                                                                                                                                                                                                                 of   the   restraining order -                                                                                                            



because this allowed the jurors to learn about the allegations of criminal conduct that led                                                                                                                                                                                                                                                                                                                                                                        



to the issuance of the restraining order, when those allegations had no relevance.                                                                                                                                                                                                                                                                                                                                                                  



                                                                         But   given   the   fact   that   Olson's   jury   was   repeatedly   told   that   these  



 allegations   were both unproved and irrelevant,                                                                                                                                                                                                                      given the fact that Instruction No.                                                                                                                                                                6  



 expressly directed the jurors not to consider these allegations for any purpose, and given                                                                                                                                                                                                                                                                                                                                                          



the tenor of the prosecutor's final argument to the jury, we conclude that the judge's                                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                                                                                                                                                                                                             1  

 error was harmless -                                                                                                   i.e., that it did not appreciably affect the jury's decision.                                                                                                                                                                                                                                                             



                                                                        We therefore AFFIRM the judgement of the district court.  

                                                                                                                                                                                                                                                                                                                                                                  



                   1                See Love v. State                                                                       , 457 P.2d 622,634 (Alaska1969) (holdingthat, for instances of non-                                                                                                                                                                                                                                                             



constitutional error, the test for harmlessness is whether the appellate court "can fairly say                                                                                                                                                                                                                                                                                                                                                                   

that the error did not appreciably affect the jury's verdict").                                                                                                                                                                                              



                                                                                                                                                                                                                            -  10 -                                                                                                                                                                                                                           2539
  


----------------------- Page 11-----------------------

Judge SUDDOCK, dissenting.                               



                                       I agree with the majority's conclusion that the trial judge erred by admitting                                                                                                           



into evidence a domestic violence protective order which recited that there was probable                                                                                                                                         



cause to believe that Olson had committed serious crimes.                                                                                                                  But I disagree that the trial                                       



court's limiting instructions rendered the error harmless.                                                                                                         



                                       I reach this conclusion because Olson bore the burden of proving, as an                                                                                                                                    



element of his necessity defense, that the harm he allegedly avoided when he violated the                                                                                                                                                        

                                                                                                                                                                                            1     Olson described the  

court's order was graver than the harm he inflicted by violating it.                                                                                                                                                                             



avoided harm at trial: he testified that after troopers served him with the protective order  

                                                                                                                                                                                                                                          



at approximately 6 p.m. at his trailer in Big Lake, he walked for about eight and a half  

                                                                                                                                                                                                                                            



hours  to  downtown Wasilla in ten-degree weather, and feared that he was becoming  

                                                                                                                                                                                                                             



hypothermic.   Concerned for his safety, he telephoned his daughter and had her drive  

                                                                                                                                                                                                                                           



him back to the trailer on Ms. Olson's property.  He then went to bed and was arrested  

                                                                                                                                                                                                                                   



later that morning.  

                           



                                       At trial's end, the jury was instructed to resolve Olson's necessity defense  

                                                                                                                                                                                                                                    



in part by balancing the alleged harm that Olson avoided (hypothermia) against the harm  

                                                                                                                                                                                                                                           



caused by his violation of the domestic violence protective order.  If the jury accepted  

                                                                                                                                                                                                                                



Olson's testimony that he only returned  to  the  trailer out of the necessity to avoid  

                                                                                                                                                                                                                                         



hypothermia, the jury could have concluded that the harm flowing from his violation of  

                                                                                                                                                                                                                                                    



the order was negligible in comparison to Olson's risk of hypothermia.  The jury could  

                                                                                                                                                                                                                                          



have then found in Olson's favor by virtue of his necessity defense.  

                                                                                                                                                                           



                                       But  once the judge allowed the introduction of evidence suggesting that  

                                                                                                                                                                                                                                              



Olson had already committed serious crimes of domestic violence - assault, stalking,  

                                                                                                                                                                                                                                  



          1        See, e.g.               ,  Greenwood v. State                                     , 237 P.3d 1018, 1022 (Alaska 2010).                                                  



                                                                                                                     -  11 -                                                                                                                  2539
  


----------------------- Page 12-----------------------

                                                                                                                             

a sexual offense, criminal mischief, and criminal trespass - the litany of crimes raised  



                                                                                                                                 

the specter of Olson as a violent and obsessive person capable of sexual predation.  



                                                                                                                        

                     It is implausible that the jury could set those allegations aside and conclude  



                                                                                                                            

that the risk posed to Ms. Olson by Olson's presence in the trailer was negligible.  Thus,  



                                                                                                            

the prior-crime evidence likely prejudiced Olson's necessity defense.  



                                                                                                                                 

                     Perhaps perfectly drafted curative instructions could have ameliorated this  



                                                                                                                              

taint.   But I conclude that the two curative instructions that were actually given were  



                                                                                                                                       

ambiguous because they failed to focus upon the core prejudice created by the evidence:  



                                                                                                                                 

the fact that the allegations of prior domestic violence  crimes could have caused the  



                                                                                                                                 

jurors to improperly  evaluate the amount of harm posed by Olson's violation of the  



                            

protective order.  



                                                                                                                      

                     The judge gave his first curative instruction during the defense attorney's  



                                                                                                                              

summation.             The  prosecutor  objected  when  the  defense  attorney  commented  that  



                                                                                                                                 

Ms. Olson's allegations were "baseless."  (The judge had precluded litigation over the  



                                                                                                                                

truth of the prior-crime evidence.)  The judge sustained the prosecutor's objection and  



                                                                                                                        

orally  instructed  the  jurors  that  they  need  not  concern  themselves  with  whether  



                                                                                                                                

Ms. Olson's allegations had a basis in fact, because another judge had already made that  



                                                                    

determination prior to issuing the protective order:  



                                                                                                 

                     [R]egarding whether there's any [basis] for the allegations:  

                                                                                                         

                     That is not an issue here.  ...  That's something for the court  

                                                                                                              

                     in deciding whether to ... grant orders.  It's not relevant to  

                                                                                                  

                     this case at all to decide whether or not any of the allegations  

                                                                                                              

                     were accurate or not.  It's [only relevant] that ... an order ...  

                                                          

                     was issued.  (Emphasis added.)  



                                                                                                                              

The jury's likely takeaway from this brief and confusing oral instruction was the exact  



                                                                                                                    

opposite of what the judge intended:  that another judge had reviewed the prior-crime  



                                                                                                                                 

allegations and had found that there was a factual basis for these allegations, and that the  



                                                              -  12 -                                                         2539
  


----------------------- Page 13-----------------------

                                                                                                                                

jurors need not decide whether there was any basis for these allegations because that had  



                                                                                               

already been decided by the other judge when he granted the order.  



                                                                                                                                       

                     The second curative instruction, given at trial's end, was scarcely clearer.  



                                                                                                                       

The judge instructed the jury that Olson "[was] not given any opportunity to challenge  



                                                                                                                               

the allegations or have any input to the court prior to the entry of such an order."  But  



                                                                                                                              

this simply informed the jury that a judge evaluated Ms. Olson's allegations - and acted  



                                                                                                                      

upon them - without Olson's input, not that the allegations were necessarily unreliable.  



                                                                                                                          

                     The curative instruction further directed the jury to disregard "any findings  



                                                                                                                                

made by the court."   This obviously referred to the probable cause  findings in the  



                                                                                                                                   

protective order.   Effectively, the instruction told the  jury to disregard the fact that a  



                                                                                                                              

judge had found probable cause to believe that Ms. Olson's prior-crime allegations were  



                                                                                                                             

true, but not the fact that she had gone to the domestic violence court and lodged those  



                                                                                                                             

accusations in the first instance.  But because Ms. Olson testified at trial, the jury could  



                                                                                                                     

well have found her to be a credible witness, one unlikely to lodge baseless allegations.  



                                                                                                                              

                     Finally,  this  curative  instruction  told  the  jury  that  the  allegations  were  



                                                                                                                                 

irrelevant to the charge against the defendant.  But a different instruction informed the  



                                                                                                                          

jury that, quite apart from the  charge, the defendant had raised the affirmative defense  



                                                                                                                              

of necessity - and that as to that defense, Olson bore the burden of proof.  The court  



                                                                                                                                

never instructed the  jury that, during its evaluation of Olson's necessity defense, and  



                                                                                                                          

more particularly in its evaluation of the harm reasonably to be foreseen from Olson's  



                                                                                                                                

return to the trailer,  the  jury could not consider Ms. Olson's sworn statement to the  



                                                                                                                                

domestic violence court.  And Ms. Olson's allegations clearly suggested that Olson was  



                                                                 

an obsessed domestic batterer and sexual offender.  



                                                                                                                                 

                     For these reasons, I am unable to share the majority's optimism that the  



                                                                                                                                   

judge's curative instructions, couched as they were in legalese, accomplished the task of  



                                                              -  13 -                                                         2539
  


----------------------- Page 14-----------------------

unringing an extraordinarily resounding bell and actually cured the error.                                                                                                                                                                                                                             Accordingly,  



I respectfully dissent.                                                                              



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