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Wendy Christine Williams v State of Alaska (4/5/2019) ap-2642

Wendy Christine Williams v State of Alaska (4/5/2019) ap-2642

                                                     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  



WENDY CHRISTINE WILLIAMS,  

                                                                    Court of Appeals No. A-12244  

                                    Appellant,                    Trial Court No. 3AN-13-8491 CR  



                           v.  

                                                                            O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                    Appellee.                          No. 2642 - April 5, 2019  



                  Appeal   from   the   District   Court,   Third   Judicial   District,  

                                                                           

                  Anchorage, Leslie Dickson, Judge.  



                  Appearances:  David T. McGee, Attorney at Law, Anchorage,  

                                                                          

                  under contract with the Public Defender Agency, and Quinlan  

                                                                        

                  Steiner,   Public   Defender,   Anchorage,   for   the   Appellant.  

                  Lawrence B. Monsma, Assistant District Attorney, Anchorage,  

                  and Jahna Lindemuth, Attorney General, Juneau, for the Appel- 

                                                            

                  lee.  



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

                                                         

                  Senior Judge. *  

                                       



                  Judge MANNHEIMER.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


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

                    Wendy  Christine  Williams  was  convicted  of  two  counts  of  violating  

                                                                                                                      



protective orders that prohibited her from contacting, communicating with, or stalking  

                                                                                                                        



Kathleen Lansdale (the wife of Williams's former husband, Robert Lansdale) and the  

                                                                                                                               



other members of the Lansdale family.  See AS 11.56.740(a).  

                                                                                               



                     One of Williams's convictions was based on her conduct at a football  

                                                                                                                        



jamboree in August 2013.  Williams's other conviction was based on her conduct in an  

                                                                                                                                 



Anchorage parking lot a few months later.  

                                                                  



                    With respect to  the conviction arising  from Williams's conduct at the  

                                                                                                                               



football jamboree, Williams argues that she was denied her right to a unanimous verdict  

                                                                                                                          



because the prosecutor openly argued to the jurors that Williams could be convicted of  

                                                                                                                                 



violating the protective order based on two different aspects of her behavior at the  

                                                                                                                               



jamboree, and that the jurors did not need to reach unanimous agreement as to which  

                                                                                                                           



aspect of Williams's behavior formed the basis of their verdict.  

                                                                                                  



                    And with respect to both of Williams's convictions, Williams argues that  

                                                                                                                              



the trial judge committed error by allowing the prosecutor to introduce evidence of three  

                                                                                                                             



prior occasions when Williams violated earlier court orders that prohibited her from  

                                                                                                                             



contacting the Lansdale family.  

                                                    



                     For the reasons explained in this opinion, we conclude that neither of  

                                                                                                                                



Williams's claims has merit, and we therefore affirm Williams's convictions.  

                                                                                                                       



           The State's case against Williams  

                                                 



                     Beginning in 2004, Williams and her former husband, Robert Lansdale,  

                                                                                                                     



were embroiled in a bitter custody battle over their son, Israel.  In 2010, Lansdale was  

                                                                                                                



granted sole custody of Israel (with Williams having a right of visitation).  Throughout  

                                                                                                                  



                                                              - 2 -                                                          2642
  


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

 these years, the superior court issued orders prohibiting the Lansdale and Williams                                                                                                                                                                                                                                                                                                     



 families from contacting each other.                                                                                                                                                



                                                                  Williams repeatedly violated the superior court's orders by approaching or                                                                                                                                                                                                                                                                                  



 contacting Robert Lansdale and his new wife, Kathleen.                                                                                                                                                                                                                               



                                                                  In March 2013, Kathleen Lansdale went to court and obtained another                                                                                                                                                                                                                                                            



 protective order against Williams.  This 6-month protective order prohibited Williams                                                                                                                                                                                                                                              



 from approaching or confronting Kathleen, watching or following her, or otherwise                                                                                                                                                                                                                                                                                                    



  stalking her.                                                   In addition, the protective order prohibited Williams from directly or                                                                                                                                                                                                                                                                                   



 indirectly communicating with any member of the Lansdale family - including Israel                                                                                                                                                                                                                                                                                                                         



 -  except for communications that were consistent with Williams's right of visitation.   



                                                                  In early August 2013, while this protectiveorder was in effect, theLansdale                                                                                                                                                                                                                                               



 family attended a football jamboree in Anchorage.                                                                                                                                                                                                      Israel was playing in this jamboree,                                                                                          



 and Robert and Kathleen were there to support him. Williams, too, attended this football                                                                                                                                                                                                                                                                                                        



jamboree, accompanied by her other son, Diego.                                                                                                                                                                                                    



                                                                  According to the testimony presented at Williams's trial, Williams was                                                                                                                                                                                                                                                                           



  sitting high in the bleachers of the football stadium, and both Robert and Kathleen                                                                                                                                                                                                                                                                                                    



 Lansdale observed her taking photographs of them and Israel.                                                                                                                                                                                                                                                In addition, according to                                                                                       



 Robert Lansdale's testimony, Williams called out to Israel and beckoned him to come                                                                                                                                                                               



 over to where she was sitting.                                                                                                                              Based on what transpired at this football jamboree,                                                                                                                                                                     



                                                                                                                                                                                                                                                                                                                              1  

 Williams was convicted of violating the March protective order.                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                                                                                                                                                                  

                                                                  In  early  November  2013,  Kathleen  Lansdale  went  back  to  court  and  



                                                                                                                                                                                                                                                                                                                                              

 obtained another 6-month protective order against Williams.  This second protective  



                                                                                                                                                                                                                                                                                          

 order contained the same provisions as the previous one.  



                  1               AS 11.56.740(a)(2).  



                                                                                                                                                                                                         -  3 -                                                                                                                                                                                                    2642
  


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

                    Williams was convicted of violating this November 2013 protective order  

                                                                                                                            



as well, based on events that took place on November 26, 2013 (about three weeks after  

                                                                                                                             



the order was issued).  

                                    



                    According to the testimony presented at Williams's trial, Robert Lansdale  

                                                                                                                       



was sitting in his vehicle in a parking lot, waiting for his wife Kathleen to get off work.  

                                                                                                                                     



While Robert was waiting, he thought he saw Williams's current husband crouched  

                                                                                                                      



behind a nearby garbage can.  

                                               



                    Shortly thereafter, when Kathleen joined Robert, she observed Williams's  

                                                                                                                    



car parked nearby.  Williams was sitting in this car, and there was a camera propped on  

                                                                                                                                



the dashboard, emitting a red light (i.e., it appeared to be recording).  Kathleen also saw  

                                                                                                                              



Williams's son, Diego, taking photographs of her and Robert.  

                                                                                                 



          The facts underlying Williams's claim that she was denied her right to jury  

                                                                                                                    

          unanimity  



                    As we indicated in the preceding section ofthis opinion, the State presented  

                                                                                                                      



evidence that Williams's conduct at the football jamboree violated the protective order  

                                                                                                                            



in two different ways:  first, because Williams took photographs of Kathleen Lansdale,  

                                                                                                                     



and second, because Williams beckoned to Israel.  

                                                                               



                    At Williams's trial, the jury was instructed that Williams should be found  

                                                                                                                           



guilty if the State proved either of these two things beyond a reasonable doubt - and  

                                                                                                                               



that the jurors did not have to unanimously agree on which of these two things had been  

                                                                                                                             



proved, so long as all the jurors agreed that one or the other was proved.  

                                                                                                                



                    On appeal, Williams argues that this was constitutional error -that Alaska  

                                                                                                                          



law required the trial judge to instruct the jury that Williams could not be convicted  

                                                                                                                     



                                                              - 4 -                                                          2642
  


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

unless the jurors reached unanimous agreement as to which of the two things had been  

                                                                                                                              



proved.  

              



                     Here is the factual background of Williams's claim:  

                                                                                                      



                     At Williams's trial, both Robert Lansdale and Kathleen Lansdale testified  

                                                                                                                         



about the events at the football jamboree.  

                                                                  



                     During his direct examination, Robert explained that Williams was sitting  

                                                                                                                            



in the bleachers at the jamboree and that, at one point, he observed Williams taking  

                                                                                                                           



photographs of his family - him, Kathleen, and Israel - while the three of them were  

                                                                                                                              



together.  

                 



                     Robert also mentioned, in passing, that Williams waved at Israel and called  

                                                                                                                            



out to him, beckoning him to come over to where she was sitting. Robert did not specify  

                                                                                                                          



whether this act of waving and beckoning occurred at the same time that Williams was  

                                                                                                                               



taking the photographs, or at some different time during the jamboree.  

                                                                                                               



                     WhenWilliams's attorneycross-examinedRobert,shedevotedonly asmall  

                                                                                                                             



portion of her examination to the topic of the football jamboree.  In that portion of her  

                                                                                                                



cross-examination, the defense attorney asked Robert only general questions about the  

                                                                                                                                



jamboree; she did not ask Robert to describe the specifics of Williams's behavior.  

                                                                                                                                



                     At three points during this cross-examination, Robert again asserted that  

                                                                                                                               



Williams took photographs of him and his family, but he did not repeat his assertion  

                                                                                                                       



about Williams's waving and calling out to Israel. Robert's comments did not evoke any  

                                                                                                                                



particular response from the defense attorney, and she moved on to other areas of cross- 

                                                                                                                            



examination.  

                      



                     Later, when Kathleen Lansdale took the stand, she too testified that she saw  

                                                                                                                                



Williams taking photos of her and Robert and Israel while they were together at the  

                                                                                                                                



jamboree. Kathleen stated that Williams had her camera pointed at the three of them for  

                                                                                                                                 



two or three minutes. The prosecutor did not ask Kathleen any questions about Williams  

                                                                                                                       



                                                               -  5 -                                                         2642
  


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

calling out to Israel or beckoning him to come over to her, and Kathleen gave no  

                                                                                                                                 



testimony concerning this aspect of Williams's behavior at the jamboree.  

                                                                                                                   



                     On   cross-examination,   Williams's   attorney   asked   Kathleen   several  

                                                                                                        



questions about the incident at the football jamboree.  During this cross-examination,  

                                                                                                        



Kathleen reiterated that Williams was taking photographs of her, Robert, and Israel. But  

                                                                                                                                



the defense attorney (like the prosecutor) did not ask Kathleen any questions about  

                                                                                                                            



Williams's act of waving and calling out to Israel.  

                                                                               



                     Thus, at the end of Williams's trial, the only testimony about Williams's  

                                                                                                                    



waving  and  calling  out  to  Israel  was  Robert  Lansdale's  passing  reference  to  this  

                                                                                                                          



occurrence.  

                    



                     When the trial judge and the attorneys met to discuss jury instructions, the  

                                                                                                                                 



prosecutor informed the judge and Williams's attorney that he would be arguing two  

                                                                                                                               



different  theories  as  to  how  Williams  violated  the  protective  order  at  the  football  

                                                                                                                        



jamboree. Specifically, theprosecutor argued that Williams violated the protective order  

                                                                                                                             



by (1) photographing Kathleen Lansdale (one of the people protected by the order) and  

                                                                                                                                



by (2) communicating with Israel (another person protected by the order).  

                                                                                                                   



                     A little later, the prosecutor gave the judge and the defense attorney copies  

                                                                                                                            



of his proposed jury instructions on this issue.  

                                                                          



                     The prosecutor's first proposed instruction, which was ultimately given to  

                                                                                                                                  



the jury as Instruction 11(a), informed the jurors that, under the terms of the protective  

                                                                                                                      



order,  (1)  Williams  was  prohibited  from  approaching,  watching,  confronting,  or  

                                                                                                                                 



otherwise stalking Kathleen, and (2) Williams was also prohibited from contacting or  

                                                                                                                                  



communicating with Israel (other than in connection with her court-ordered visitation).  

                                                                                                                                      



                     The prosecutor's second proposed instruction, which was ultimately given  

                                                                                                                             



to the jury as Instruction 11(b), informed the jurors that Williams could be found guilty  

                                                                                                                            



if her conduct at the football jamboree violated either of these two provisions of the  

                                                                                                                                



                                                               -  6 -                                                         2642
  


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

protective order - and that the jurors did not need to reach unanimous agreement as to  

                                                                                                                                  



which of these two provisions Williams violated:  

                                                                             



                      

                               With  respect  to  the  crime  of  violating  a  protective  

                                                                                                 

                    order described in Instruction 11(a), if you find that the state  

                                                                                                          

                    has proved beyond a reasonable doubt each of the acts listed  

                                                                                                         

                    the first sentence OR each of the acts listed in the second  

                                                                                                      

                     sentence, then you must find the defendant guilty.  

                                                                                        



                               On the other hand, if you find that the state has not  

                                                                                                     

                    proved beyond a reasonable doubt each of the acts listed in  

                                                                                                              

                    the first sentence AND that the state has not proved beyond  

                                                                                                     

                    a  reasonable  doubt  each  of  the  acts  listed  in  the  second  

                                                                                                     

                     sentence, then you must find the defendant not guilty.  

                                                                                              



                               To return a verdict of guilty, each of you individually  

                                                                                              

                    must find the defendant guilty, but you need not agree among  

                                                                                                       

                    yourselves which of the two sets of elements the state has  

                                                                                                           

                    proved.  



                    Williams's attorney objected to this instruction - but not because of its  

                                                                                                                                 



substantive content. The defense attorney voiced no objection to the idea that the jurors  

                                                                                                                            



did  not  need  to  reach  unanimous  agreement  as  to  whether  Williams  violated  the  

                                                                                                                                



protective order by photographing Kathleen or by communicating with Israel.  Instead,  

                                                                                                                         



thedefenseattorney objected that the prosecutor's proposed instruction did not makethis  

                                                                                                                                



concept clear enough.  

                                    



                    The defense attorney told the trial judge that she thought the prosecutor's  

                                                                                                                  



wording was "confusing", and that she was concerned that the jurors would not be able  

                                                                                                                               



to understand the instruction. The defense attorney then offered her own suggestions for  

                                                                                                                                 



rewording the instruction to make the prosecutor's ideas clearer.  

                                                                                                      



                                                               -  7 -                                                         2642
  


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

                     A little later, when the prosecutor delivered the State's summation, the  

                                                                                                                                



prosecutor explicitly argued that the jury did not need to reach unanimous agreement as  

                                                                                                                                  



to whether Williams (1) photographed Kathleen Lansdale or (2) beckoned to Israel.  

                                                                                                                                  



                     The prosecutor noted that both of these actions were violations of the  

                                                                                                                                



protective order.  And the prosecutor told the jury that, so long as each member of the  

                                                                                                                                



jury  found  that  Williams  did  either  of  these  two  things,  then  the  jury  should  find  

                                                                                                                              



Williams guilty -even if some of thejurors found that Williamsphotographed Kathleen  

                                                                                                                        



and other jurors found that Williams communicated with Israel.  

                                                                                                    



                     Consistent with the position she had taken during the earlier discussion of  

                                                                                                                                  



the jury instructions, Williams's attorney made no objection to any of the prosecutor's  

                                                                                                                  



statements on this issue.  

                                       



                     During her  own summation  to  the jury, the defense attorney  took  the  

                                                                                                                                



position that Williams had not violated the protective order at the football jamboree  

                                                                                                                      



in any fashion.   Rather than discussing and trying to rebut the details of Robert and  

                                                                                                                   



Kathleen Lansdale's testimony, the defense attorney simply argued that Robert and  

                                                                                                                               



Kathleen  were  not  credible  witnesses,  and  she  urged  the  jurors  not  to  credit  their  

                                                                                                                              



testimony.  The defense attorney told the jurors, "Your decision comes down to [this]:  

                                                                                                                                      



Do you believe Kathleen Lansdale and Robert Lansdale beyond a reasonable doubt?"  

                                                                                                                                      



           Williams's argument on appeal, and why we reject it  

                                                                                          



                     On appeal, Williams takes the opposite position from the one espoused by  

                                                                                                                                 



her trial attorney: she now argues that it was constitutional error to tell the jury that they  

                                                                                                                               



did not have to reach unanimous agreement as to whether Williams (1) photographed  

                                                                                                                



Kathleen Lansdale or (2) beckoned to Israel.  More specifically, Williams argues that  

                                                                                                                               



                                                               -  8 -                                                         2642
  


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

these were two distinct criminal acts, and that she was therefore entitled to require the  

                                                                                                                                 



jury to reach factual unanimity as to which of these acts was proved.  

                                                                                                            



                     In her briefs to this Court, Williams asserts that her attorney failed to object  

                                                                                                                             



to Instruction 11(b) - the jury instruction that Williams now attacks - and Williams  

                                                                          



refers to her claim as a claim of "plain error".  

                                                                         



                     But as we described in the preceding section of this opinion, Williams's  

                                                                                                                     



trial  attorney  did  object  to  this  instruction.                      She  objected  on  the  ground  that  the  

                                                                                                                                 



instruction, as worded, failed to adequately convey  the principle that the jurors did not  

                                                                                                                                 



need to be unanimous as to which aspect of Williams's conduct at the jamboree violated  

                                                                                                                          



the protective order.  

                                  



                     In other words, Williams's attorney endorsed the substance of the jury  

                                                                                                                                



instruction, and she asked the court to rephrase the instruction to make that substantive  

                                                                                                                     



principle even clearer.                Given  the defense attorney's actions, any  error  in  the jury  

                                                                                                                               



instruction was likely "invited error", not "plain error".  

                                                                                        



                     Williams's case is analogous to our decision in Schlosser v. State, 372 P.3d  

                                                                                                                               



272, 278 (Alaska App. 2016), where we concluded that any error in a trial judge's  

                                                                                                                          



response to a jury question was invited error.  In Schlosser, the defense attorney did not  

                                                                                                                                 



merely fail to object to the substance of the judge's response to the jury; rather, the  

                                                                                                                                 



defense attorney urged the judge to be more emphatic in his wording. This is essentially  

                                                                                                                      



what occurred in Williams's case too.  

                                                            



                     Viewing Williams's case as an instance of invited error, we would reverse  

                                                                                                                           



Williams's conviction only if his case presented an "exceptional situation where reversal  

                                                                                                                          



                                                               -  9 -                                                         2642
  


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

is necessary to preserve the integrity of the judicial process or to prevent a miscarriage                                         



                    2  

of justice."                                                                                                                                  

                       Williams's case does not present that kind of exceptional situation.  



                                                                                                                                

                       But even if we viewed Williams's claim as an assertion of "plain error",  



                                                                                                               

there are two reasons why we would not find plain error here.  



                                                                                                                                                    

                       First, as we have explained, Williams's trial attorney adopted an "all or  



                                                                                                                             

nothing"  approach  to  the  State's  allegations  concerning  Williams's  conduct  at  the  



                                                                                                                                        

football jamboree.  The defense attorney never cross-examined Robert and Kathleen  



                                                                                                                                          

Lansdale about the details of what happened at the jamboree.   Instead, the defense  



                                                                                                                                           

attorney argued that the Lansdales' testimony, taken as a whole, should not be trusted,  



                                                                                                                                             

and that the State had failed to prove its allegations beyond a reasonable doubt.  



                                                                                                                                     

                       In other words, given the way this case was litigated, there is no reasonable  



                                                                                                                                                 

possibility that the jurors would have had reached a different verdict if they had been told  



                                                                               

that they had to reach unanimous agreement as to whether Williams took photographs  



                                                              

of Kathleen or beckoned to Israel.  



                                                                                                                                            

                        Second, and more importantly, Alaska law does not provide a clear answer  



                                                                                                                   

as to whether factual unanimity was required in Williams's case.  



                                                                                                                                                  

                       In order to resolve Williams's factual unanimity claim - to answer the  



                                                                                                                                      

question  of  whether  the  jurors  were  required  to  reach  factual  unanimity  regarding  



                                                                                                                                    

Williams's conduct at the football jamboree - we must ascertain whether Williams's  



                                                                                                                                      

conduct would have supported two separate convictions for violating the protective  



             

order.  



      2     Johnson v. State , 328 P.3d 77, 86 (Alaska 2014), quoting Parson v. Alaska Housing  



Finance Corp., 189 P.3d 1032, 1038 (Alaska 2008).  



                                                                      -  10 -                                                                  2642
  


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

                       This is ultimately a question of statutory interpretation - a question of                                 



                                                                                     3  

determining the applicable "unit of prosecution".                                                                                           

                                                                                         As we explained in Taylor v. State,  



                                                                                                                                          

400 P.3d 130, 134 (Alaska App. 2017), the requirement of factual unanimity only applies  



                                                                                                                                            

when "the State presents evidence that a defendant committed different acts that could  



                                                                                  4  

                                                                                      

                                                             

each separately support a criminal conviction".  



                                                                                                                                                 

                       If the variation in the evidence concerns only the theory under which the  



                                                                                                                                            

defendant's actions constitute the charged crime, then our law does not require the jurors  



                                                                                                                                         

to reach factual unanimity. For instance, in State v. James, 698 P.2d 1161, 1167 (Alaska  



                                                                                                                                                

 1985), the Alaska Supreme Court held that when a statute defines a crime as an act  



                                                                                                                                           

performed  with  one  of  multiple  culpable  mental  states,  the  jury  need  not  reach  



                                                                                                                                                 

unanimous agreement as to exactly what culpable mental state the defendant had. As the  



                                                                                                                                       

James court explained, "where the alleged criminal deed is restricted to a single incident,  



                                                                                                                                                

any potential difference in the jurors' findings of intent versus wilful disregard is not  



                        

significant".  Ibid.  



                                                                                                                                       

                       Nor is this doctrine of non-unanimity restricted to differences in culpable  



                                                                                                                                             

mental states.  In  Gray v. State, 463 P.2d 897, 911 (Alaska 1970), the supreme court  



                                                                                                                                                  

expressly approved the practice of having a jury return a general verdict on the crime of  



                                                                                                                                               

first-degree murder, even though (under Alaska's former criminal code) this crime was  



                                                                                                                                          

defined in the disjunctive - as either a premeditated killing or an intentional killing  



                                                                                  

performed during the commission of a felony.  The supreme court explained that even  



                                                                                                                                        

though there may be several ways of committing a crime, if the defendant's conduct  



      3     Thessen v. State, 508 P.2d 1192, 1199 & n. 9 (Alaska 1973).  



      4     See, e.g., Ramsey v. State, 355 P.3d 601, 602 (Alaska App. 2015); Anderson v. State ,  



        

289 P.3d 1, 4 (Alaska App. 2012);  Castillo v. State, 821 P.2d 133, 136-37 (Alaska App.  

 1991); Covington v. State, 703 P.2d 436, 440 (Alaska App. 1985).  



                                                                      -  11 -                                                                2642
  


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

constitutes "only one crime", then "multiple theories [can] be presented to the jury", and                                                           

the jury "[need] not ... choose between them."                                      Ibid . 5  



                                                                                                                                                    

                        Returning to the facts of Williams's case, the State presented evidence that  



                                                                                                                                                            

Williams's conduct at the football jamboree violated the protective order in two ways:  



                                                                                                                                               

Williams photographed Kathleen Lansdale, and she beckoned to Israel. But only Robert  



                                                                                                                                                       

Lansdale testified about the act of beckoning - and he mentioned this conduct only in  



                                                                                                                                                     

passing, during his detailed description of the photographing. Neither the prosecutor nor  



                                                                                                                                                       

the defense attorney asked Robert to explain whether Williams's act of beckoning to  



                                                                                                                                               

Israeloccurredin conjunction with Williams's act ofphotographing theLansdalefamily,  



                                                                                                                              

or whether this act of beckoning occurred at some other discrete time.  



                                                                                                                                                      

                        Thus, the record does not clearly reveal whether the photographing and the  



                                                                                                                                                     

beckoning  were distinct acts that Williams performed  at different times during  the  



                                                                                                                                              

football  jamboree,  or  whether  the  photographing  and  the  beckoning  were  simply  



                                                                                                                                                

different aspects of one transaction between Williams and the Lansdale family.  



                                                                                                                                              

                        And if the photographing and the beckoning were simply different aspects  



                                                                                                                                           

of  one  transaction,  then  it  is  unclear  whether  these  acts  would  support  separate  



                                                                                    

convictions for violating the protective order.  



                                                                                                                                      

                        There is no Alaska decision that defines the applicable unit of prosecution  



                                                                                                                                            

for violating a protective order in situations where a defendant has potentially violated  



      5     See  also   Taylor  v.  State,  400  P.3d  130,  135   (Alaska  App.  2017)  (no  unanimity  



required regarding the different conduct that raised the defendant's act of eluding the police   

to a felony); Nicklie v. State, 402 P.3d 424, 427 (Alaska App. 2017) (no unanimity required   

regarding the various ways in which the defendant attempted to strangle the victim during                                                       

a single attack); State v. McDonald, 872 P.2d 627, 655 (Alaska App. 1994) (no unanimity         

required regarding whether the defendant personally committed the murder or, instead, aided   

or abetted another person's commission of the murder).  



                                                                        -  12 -                                                                   2642
  


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

different provisions of a protective order during a single encounter or transaction with  

                                                                                                        



the people who are protected under the order.  

                                                                         



                    Conceivably, the law might allow a separate conviction for each Lansdale  

                                                                                                                       



family member whose interests were violated. Compare Cooper v. State, 595 P.2d 648,  

                                                                                                                               



649-650 (Alaska 1979), where the supreme court upheld separate assault convictions  

                                                                                                                   



when a defendant's threatening conduct with a weapon placed three people in fear of  

                                                                                                                                  



imminent serious injury.  

                                         



                    On the other hand, since the basic purpose of the protective order was to  

                                                                                                                                  



protect the Lansdale family fromWilliams, the law might view Williams's conduct at the  

                                                                                                                                 



football jamboree as a single violation of this order, committed in different ways.  

                                                                                                                               



                    Compare Baker v. State, 22 P.3d 493 (Alaska App. 2001), a case in which  

                                                                                                                            



the defendant was charged with "interference with official proceedings" (basically,  

                                                                                                                     



attempting  to  unlawfully  influence  a  witness)  based  on  a  series  of  telephone  

                                                                                                                     



conversations  with  the  witness.                   We  held  that  factual  unanimity  was  not  required  

                                                                                                         



regarding whether the defendant threatened the witness or, instead, offered a bribe to the  

                                                                                                                                 



witness during this series of conversations.  Id. at 500-01.  

                                                                                          



                    In  sum,  Alaska  law  does  not  currently  provide  a  ready  answer  to  the  

                                                                                                                                



question of whether Williams's conduct at the football jamboree would support two  

                                                                                                                               



separateconvictions. And Williams has failed to adequately brieftheseissues. Although  

                                                                                                                       



Williams argues that her case should not be analogized to Baker, she offers no significant  

                                                                                                                     



analysis of why our decision in Baker is inapplicable - no significant analysis of what  

                                                                                                                              



the unit of prosecution should be in cases like this.  

                                                                               



                    For  these  reasons,  we  conclude  that  even  if  the  jury  instruction  in  

                                                                                                                                 



Williams's case is not viewed as an instance of invited error - so that we must analyze  

                                                                                                                         



Williams's claim under the rubric of plain error - the challenged jury instruction does  

                                                                                                                              



not present an instance of plain error.  

                                                           



                                                              -  13 -                                                         2642
  


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

          The admission of evidence concerning earlier occasions when Williams  

                                                                                                             

          violatedprotectiveorders thatprohibited her fromcontacting theLansdale  

                                                                                                             

          family  



                    As we explained earlier, the background of this case is that, for over a  

                                                                                                                                   



decade, Williams and her ex-husband Robert Lansdale engaged in a bitter custody battle  

                                                                                                                             



over their son Israel.  During this time, Kathleen Lansdale obtained several protective  

                                                                                                          



orders against Williams - and Williams repeatedly violated those protective orders.  

                                                                                                                                   



                    In the present case, the prosecutor asked the district court to admit evidence  

                                                                                                                        



of nineteen of these prior violations.  In response to the prosecutor's request, the court  

                                                                                                           



conducted extensive hearings to assess the admissibility of this evidence. Ultimately, the  

                                                                                                                                 



court concluded that most of these prior incidents were not admissible.  But the court  

                                                                                                                             



allowed the prosecutor to introduce evidence of four prior incidents in which Williams  

                                                                                                                       



violated court orders that prohibited her from contacting the Lansdales.  

                                                                                              



                    With respect to one of these incidents, Williams's own attorney asked the  

                                                                                                                                



court  to  admit  the  evidence  (because  this  particular  incident  resulted  in  Kathleen  

                                                                                                                      



Lansdale's  being  charged  with  assault).                        But  Williams  now  challenges  the  court's  

                                                                                                                          



decision to admit evidence of the other three incidents.  

                                                                                      



                    Williams argues that these prior incidents lacked any relevance, other than  

                                                                                                                               



to show her propensity to violate court orders.  Thus, Williams contends, the evidence  

                                                                                                                  



was barred by Alaska Evidence Rule 404(b)(1).  

                                                                           



                    But this is not a case where Williams's prior acts were introduced to show  

                                                                                                                             



her  general  propensity  to  violate  court  orders.                        Rather,  the  fact  that  Williams  had  

                                                                                                                               



repeatedly violated court orders protecting the Lansdale family was relevant to show the  

                                                                                                                                 



depth of Williams's antipathy toward a specific group of people - the Lansdales.  

                                                                                                                                



                    This  antipathy  was  relevant  to  the  issues  litigated  at  Williams's  trial,  

                                                                                                                             



because Williams's defense was that the Lansdales had misinterpreted innocent actions  

                                                                                                                          



                                                              -  14 -                                                         2642
  


----------------------- Page 15-----------------------

on   her   part,   and   that   her   son   Diego   was   actually   the   one   who   photographed   the  



Lansdales.   Thus, the challenged evidence had a case-specific relevance, and it was not                                                                                 



                                                                         6  

barred by Evidence Rule 404(b)(1).                                            



                                                                                                                                                                       

                           Even  though  Evidence  Rule  404(b)(1)  did  not  categorically  bar  this  



                                                                                                                                                                        

evidence, the trial judge was nevertheless required to weigh the probative value of this  



                                                                                                                                                           

evidence against its potential for unfair prejudice under Evidence Rule 403.  



                                                                                                                                                                         

                           But as we have already explained, the trial judge carefully considered the  



                                                                                                                                                                           

entirety of the State's proposed evidence, and the judge ultimately limited the State to  



                                                                                                                                                                       

three of those prior incidents.  (Evidence of a fourth incident was admitted, but this was  



                                                                                                                                                                         

at the request of Williams's attorney.) We conclude that the trial judge did not abuse her  



                                                    

discretion in this matter.  



              Conclusion  



                           The judgement of the district court is AFFIRMED.  

                                                                                                                                    



       6     See, e.g., Riggins v. State, 101 P.3d 1060, 1063 (Alaska App. 2004) (upholding the   



admission of evidence of the defendant's prior assaults on his girlfriend in a prosecution for     

a more recent assault on the girlfriend).  



                                                                                 -  15 -                                                                              2642
  

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