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Johnson v. State (1/20/2012) ap-2342

Johnson v. State (1/20/2012) ap-2342


        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. 

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JOHNNY B. JOHNSON,                              ) 
                                                )           Court of Appeals No. A-10243 
                            Appellant,          )         Trial Court No. 3AN-06-6234 CR 
             v.                                 ) 
                                                )                   O P I N I O N 
STATE OF ALASKA,                                ) 
                            Appellee.           ) 
                                                )              No. 2342 - January 20, 2012 

                Appeal from the Superior Court, Third Judicial District, 
                Anchorage, Philip R. Volland, Judge. 

                Appearances: Brooke V. Berens, Assistant Public Advocate, and 
                Rachel Levitt, Public Advocate, Anchorage, for the Appellant. 
                Ann B.  Black, Assistant  Attorney  General,  Office of   Special 
                Prosecutions      and  Appeals,    Anchorage,     and   John   J.  Burns, 
                Attorney General, Juneau, for the Appellee. 

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

                BOLGER, Judge. 

                Johnny B. Johnson was charged with three counts of attempted first-degree 

murder and three counts of first-degree assault, for cutting three individuals with a box 

cutter. At trial, Johnson claimed self-defense against all three victims. The court did not 

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

allow Johnson to introduce evidence of one victim's statement that he had attacked a 

neighbor the night before and did not allow Johnson to argue self-defense as to one of 

the   other   two   victims.   We   conclude   that   the   court   should   have   allowed   Johnson   to 

introduce this statement and should have instructed the jury on Johnson's right of self- 

defense as to all three victims. 

                The court also allowed the State to introduce a photograph of Johnson's 

tattoos that was taken in a jail cell and allegedly showed a Confederate flag tattoo on 

Johnson's chest. We conclude that the court abused its discretion when it admitted the 

photograph of this tattoo. We reverse the judgment of conviction and remand for a new 



                Larry Moulder was released from an Anchorage jail around 5:30 a.m. on 

June 11, 2006. Moulder had been arrested the previous evening for drunk and disorderly 

conduct after he threatened a neighbor who cut the water hose attached to his pressure 

washer. Moulder was walking home from the jail when he saw a man - Johnny Johnson 

- asleep in his truck in a parking lot. Moulder approached Johnson, and Johnson agreed 

to give him a ride home. Moulder drank a beer in the truck. 

                When Moulder and Johnson arrived at Moulder's apartment, his roommate, 

Jim White, answered the door. Then White went back to sleep, and Moulder woke up 

another friend, Conrad Nordeen, who was asleep in one of the bedrooms. Nordeen and 

Johnson talked while Moulder left briefly to retrieve his wallet and keys, which he had 

left with a neighbor when he was arrested. 

                When Moulder returned, Johnson was talking about his time in prison and 

his prison tattoos. Johnson showed Nordeen his tattoos. Moulder told Johnson that he 

                                                   2                                              2342

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previously served time for raping a fifteen-year-old girl. While they were talking, White 

was on the couch and occasionally moaned and asked the other men to be quiet. 

                Moulder testified that he left the living room to go to the bathroom. When 

Moulder left the bathroom, Johnson jumped on Moulder and started cutting him with a 

utility knife. Johnson slit Moulder's throat, fractured his skull, and cut his hand. Nordeen 

heard the scuffle and got up to see what was going on, but Johnson cut him on his cheek 

and   lip.   Moulder   and   Nordeen   were   able   to   escape   into   the   bathroom   and   blocked 

Johnson from entering the bathroom. 

                While Johnson was pounding on the door, Moulder and Nordeen were able 

to escape from a second door that led to the bedroom. As the men were running out of 

the   apartment,   Nordeen   yelled   to   White   to   leave   and   "save   himself."   Nordeen   and 

Moulder ran upstairs to a neighbor's house and the neighbor called for help. Johnson 

also cut White with the utility knife, then ran from the apartment and sped off in his 

truck. White passed away from natural causes before the trial. 

                Johnson's description of this incident differed from that of Moulder and 

Nordeen. Johnson testified that, after Moulder left to retrieve his keys, Nordeen asked 

him at least twice whether he ever had sex in prison with a man. Johnson testified that, 

during that time, Nordeen began tracing the tattoos with his fingers, and Johnson asked 

Nordeen to stop touching him. According to Johnson, he decided to use the restroom 

before leaving the apartment and Moulder showed Johnson to the bathroom. Before 

Johnson entered the bathroom, Moulder grabbed Johnson's crotch. Johnson attempted 

to resist Moulder, but Nordeen grabbed Johnson from behind and held him in a choke 

hold.    Johnson    saw    a  stick  (possibly    a  pool   cue)  come    down     on  his   head   and 

"[e]verything went white." 

                                                   3                                              2342

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                Johnson testified that he was scared of being severely beaten, killed, or 

raped. Then he remembered that he had a utility knife in his pocket. When Johnson 

pulled out the knife, White yelled "he's got a knife, he's got a box cutter." Johnson then 

began slashing with the knife. Johnson testified that he cut Moulder's hand and punched 

him in the neck. Johnson also dug his knife into the back of Moulder's head. Johnson 

then started jabbing his knife at Nordeen's face and ultimately escaped from Nordeen's 


                Johnson testified that, when he tried to run out of the apartment, White was 

in the doorway, blocking his way. Johnson slashed at White and scratched his neck and 

chest. Johnson testified that he cut White because he thought White was going to stop 

him from leaving. 

                After Johnson drove away, he went to a trailer where he had been staying. 

Once there, Johnson tried to burn his shirt in a barbeque and washed off the blood with 

bleach. Johnson also talked to his friend, Ryan Ducker. After Ducker asked why his shirt 

was   burning,   Johnson   began   to   tell   him   about   the   incident   at   Moulder's   apartment. 

Johnson   indicated   that   there   were   three   men   involved   and   that   he   slit   their   throats. 

Johnson told Ducker that he became angry after Moulder admitted that he had raped a 

fifteen-year-old girl. 

                The   jury   convicted   Johnson   of   three   counts   of   attempted   first-degree 

murder and tampering with evidence. The jury also found Johnson guilty of first-degree 

assault of Moulder and Nordeen, but convicted Johnson of the lesser-included offense 

of third-degree assault for Johnson's assault of White. Johnson now appeals. 

                                                    4                                               2342

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


                The evidence that Moulder had attacked his neighbor was 
                admissible      to  show   whether    Johnson's     use   of   force  was 

                Outside the presence of the jury, Johnson made an offer of proof about 

Moulder's statements after Johnson first picked him up. Johnson testified that, on the 

way to Moulder's home, Moulder told him that his neighbor cut his water hose the night 

before. According to Johnson, Moulder said that he had been drinking, that he attacked 

his neighbor, and that he refused to stop after the police arrived. Johnson's attorney 

asked to introduce Moulder's statements to Johnson, but the court denied his request. 

                The following day, Johnson again asked the court to allow him to testify 

about   Moulder's   statements.   The   court   reiterated   that   it   did   not   believe   there   was 

sufficient information to justify the level of force. The court explained that "the reason 

that specific acts come in [is] for a justification of the level of force" and that "[t]here's 

nothing about the incident as [Johnson] reported to [the court] that's sufficient for that." 

                Johnson argues on appeal that evidence of his knowledge of Moulder's 

specific acts of violence are admissible to show that he "acted reasonably in using the 

degree of force he did."  Johnson claims that the evidence of Moulder's assault on his 

neighbor was necessary to "show the reasonableness of Mr. Johnson's belief that force 

was necessary to protect himself from sexual assault, serious physical injury, or even 


                The State argues that Alaska Evidence Rules 404(a)(2) and 405 allow only 

reputation and opinion evidence to prove the character of the victim in criminal cases 

involving claims of self-defense. The State argues that the trial court placed a reasonable 

    1   Allen v. State , 945 P.2d 1233, 1241 (Alaska App. 1997). 

                                                    5                                                2342 

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

limitation   on   admitting   the   evidence   when   it   concluded   that   the   argument   with   the 

neighbor did not go to the reasonableness of Johnson's use of deadly force. 

                 Evidence Rule 404(b) provides that "[e]vidence of other crimes, wrongs, 

or acts is not admissible if the sole purpose for offering the evidence is to prove the 
character of a person in order to show that the person acted in conformity therewith."2 

However, evidence of other crimes, wrongs, or acts is "admissible for other purposes, 

including, but not limited to, proof of motive, opportunity, intent, preparation, plan, 
knowledge, identity, or absence of mistake or accident."3 A trial court's decision on 

whether to admit evidence of prior misconduct is reviewed for abuse of discretion.4 

                  In McCracken v. State, we analyzed whether a defendant asserting self- 

defense could introduce specific instances of conduct to show that they had a reasonable 
belief about the victim's propensity for violence.5 We noted that evidence of the victim's 

character for violence is potentially admissible when "it may tend to demonstrate that the 

defendant's fear of imminent deadly force at the victim's hand was reasonable."  In this 

situation, a defendant may be entitled to present evidence of what "he had heard of [the 

victim's] past acts of serious violence, as well as his reputation for serious violence, so 

that   the   jury   could   fairly   appraise   [the   defendant's]   claim   that   he   reasonably   feared 
imminent death or serious physical injury."7   A defendant is not limited to showing only 

    2    Alaska Evid. R. 404(b)(1).

    3    Id .

    4    Morrell v. State, 216 P.3d 574, 579 (Alaska App. 2009).

    5    914 P.2d 893, 898 (Alaska App. 1996). 

    6    Id . 

    7    Id . at 899. 

                                                        6                                                  2342

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

acts of violence that they personally observed: "Because the underlying issue is the 

reasonableness of the defendant's fear of the victim, all evidence tending to reveal the 
defendant's state of mind is relevant."8 

                 In Allen v. State, we further explained how evidence of specific acts of 

violence by the victim may be admitted to prove the reasonableness of the defendant's 

state of mind: 

                         When a defendant is aware of the victim's past acts of 
                 violence, and evidence of those acts of violence is offered to 
                 prove the reasonableness of the defendant's use of defensive 
                 force, ... evidence of the victim's specific acts is not barred by 
                 Evidence Rule 405 - because the evidence is not being used 
                 as "character evidence" of the type governed by Evidence 
                 Rules 404(a) and 405.9 

                 In this case, we conclude that the trial court erred in excluding the evidence 

of Moulder's statements to Johnson. First, it appears that Johnson was trying to introduce 

evidence of Moulder's statements to show the effect of these statements on Johnson's 

state of mind and the reasonableness of   his   use   of force. It does not matter for this 

purpose whether Moulder actually committed the acts of violence that he described to 
Johnson. The point is that Moulder told Johnson that he had done these things.10 Johnson 

offered   the evidence to show the reasonableness of his use of defensive force. This 

evidence was not barred by Evidence Rule 405 "because the evidence [was] not being 
used as 'character evidence' of the type governed by Evidence Rules 404(a) and 405."11 

    8   Id . at 898 (emphasis added). 

    9   945 P.2d at 1241. 

    10  See id. 

    11  Id . 

                                                     7                                                2342

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

                  The   trial   court   excluded   Johnson's   statements   about   his   state   of   mind 

because the court did not believe there was sufficient justification for the level of force. 

But, as noted in McCracken, "all evidence tending to reveal the defendant's state of mind 
is   relevant."12    The     court    is  entitled    to  place    "reasonable       limitations    on    ...  [the] 

presentation   of   evidence."13         But   Johnson's   evidence        did   not   involve   a   "parade   of 

witnesses"   or   other   excessive   evidence   that   could   have   led   the   jury   to   "reach   the 

conclusion       that   the  victim    was    unworthy      of   the  law's    protection"      or  would     have 
persuaded the jury to "base their verdict on emotion rather than the law."14 It appears 

from     the   offered    testimony      that   Johnson     would     have    testified    only   briefly    about 

Moulder's   statements.   Like   the   defendant   in  McCracken,   Johnson   was   "entitled   to 

present evidence of what he had heard of [the victim's] past acts of serious violence, as 

well as his reputation for serious violence, so that the jury could fairly appraise [his] 
claim that he reasonably feared imminent death or serious physical injury."15 

                  We conclude that the erroneous exclusion of this evidence substantially 

limited Johnson's ability to establish the basis for his belief that Moulder was about to 

attack him with deadly force or cause him serious physical injury. Johnson is entitled to 
a new trial.16 

    12   McCracken , 914 P.2d at 898. 

    13   Id . at 899. 

    14   Id . 

    15   Id .

    16   See id. ("Because the superior court's erroneous exclusion of evidence substantially

limited McCracken's ability to establish the basis for his belief that [the victim] was about 
to attack him with deadly force, we hold that McCracken is entitled to a new trial."). 

                                                         8                                                   2342

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              The admission of a photograph of Johnson's tattoos was an 
              abuse of discretion. 

              Just before the trial began, the court ordered Johnson to allow the State to 

photograph the tattoos on his chest. When the photograph was later introduced, Johnson 

objected. The photograph showed the tattoos on Johnson's upper body. Johnson initially 

only challenged the photograph on the basis that it showed Johnson was in a prison cell, 

but the court found that the background in the photo was not clearly a prison cell: it 

could have been "any locker room in any public gym in Anchorage." 

              Later,   when   the  State  was  examining    the  officer  that  photographed 

Johnson's tattoos, Johnson again objected to the admission of the photograph. Johnson's 

attorney argued that Johnson's tattoos included a Confederate flag. Since there was an 

African American member of the jury, Johnson argued that the juror might   believe 

Johnson was racist. Johnson therefore requested that, if the court decided to introduce 

the photograph, the court blur out the image of the Confederate flag. 

              The court, however, overruled the objection since it was not "sure anybody 

would recognize a portion of the tattoo as a Confederate flag." The court noted that the 

tattoo was similar to the Confederate flag, but in the middle of the rectangle was the head 

of an eagle. 

              Johnson argues on appeal that the court's decision to admit the photograph 

of Johnson's tattoos was prejudicial for two reasons: (1) the tattoo included a depiction 

of the Confederate flag and (2) the photograph was taken in a prison cell and showed that 

Johnson was in custody during the trial. Johnson claims the photograph had little in the 

way of probative value since Nordeen did not recall what the tattoos looked like and 

could only recall their general location. 

                                              9                                         2342

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

                 The   State   argues   that   the   photograph   was   relevant   to   corroborate   the 

testimony of Moulder and Nordeen. The photograph showed the location of the tattoos 

and placed the interactions regarding the tattoos in context for the jury. 

                 Alaska Evidence Rule 403 indicates that, "[a]lthough relevant, evidence 

may be excluded if its probative value is outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by considerations of undue delay, 

waste of time, or needless presentation of cumulative   evidence." The phrase "unfair 

prejudice" refers to evidence that has the "undue tendency to suggest [a] decision on an 
improper basis, commonly, though not necessarily, an emotional one."17 

                 Johnson first argues that the photograph shows that he was   in   custody 

during the course of the trial. In Alaska, defendants and witnesses may not be treated "in 

a manner that would identify them 'as someone in custody to the jury, thus undermining 

the presumption of innocence and prejudicially affecting the defendant's right to jury 
trial.'"18 But Judge Volland found that it was not readily apparent that there was a jail 

cell in the background of the photo. This finding does not appear to be clearly erroneous. 

There are no bars visible, and it is unclear whether the background is a jail cell or merely 

a public gym or another public facility. 

                 Johnson's second challenge to the admission of the photograph is related 

to the purported depiction of the Confederate flag on Johnson's chest. As noted above, 

    17  Alaska Evid. R. 403 cmt. paras. 1, 5 ("These circumstances [for excluding relevant 

evidence]   entail   risks   which   range   all   the   way   from   inducing   [a]   decision   on   a   purely 
emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the 
other extreme. Situations in this area call for balancing the probative value of and need for 
the evidence against the harm likely to result from its admission."). 

    18  Earl v. State, Mem. Op. & J. No. 4555, 2002 WL 531097, at *6 (Alaska App. Apr. 

10, 2002). 

                                                     10                                               2342

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

Judge Volland based his conclusion for the Rule 403 prejudice prong on his finding that 

he was not "sure anybody would recognize a portion of the tattoo as a Confederate flag." 

Since the court did not believe that anyone would recognize the tattoo as containing a 

Confederate flag, the court concluded that the image did not present a risk of prejudicing 


                 It appears to us that it was erroneous for the judge to say that there is no 

likelihood of any juror recognizing that the tattoo included an image of the Confederate 

flag. Even with the eagle in the center of the tattoo, the flag still closely resembles a 

Confederate flag. Thus there appears to be a risk of prejudice from showing the jury that 

Johnson had a Confederate flag tattoo. 

                 Other   courts   have   recognized   the   risk   of   prejudice   from   indicating      a 

defendant has a tattoo or another display of the Confederate flag. For example, in United 

States    v.  Blanding,     the  Fourth    Circuit   Court    of  Appeals     discussed    this  negative 


                         It is the sincerely held view of many Americans, of all 
                races,    that   the   confederate     flag   is  a  symbol     of   racial 
                 separation       and    oppression.       And,     unfortunately,       as 
                uncomfortable as it is to admit, there are still those today who 
                 affirm allegiance to the confederate flag precisely because, 
                 for   them,    that  flag   is  identified   with   racial   separation. 
                Because   there   are   citizens   who   not   only   continue   to   hold 
                 separatist    views,    but   who     revere   the   confederate      flag 
                precisely     for  its  symbolism      of  those   views,   it  is  not  an 
                 irrational inference that one who displays the confederate flag 
                may harbor racial bias against African-Americans.19 

    19  250 F.3d 858, 861 (4th Cir. 2001). 

                                                    11                                                 2342 

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

Given the potential prejudice from showing the jury the defendant's Confederate flag 

tattoo, we must examine whether this risk of prejudice outweighs the probative value of 

admitting the photograph. 

                 We   conclude   that   the   probative   value   of   the   photograph   was   minimal 

relative to the potential prejudice to the defendant from admitting the photograph. Prior 

testimony had indicated the general location of the tattoo and the identity of Johnson was 

not at issue in the case. Johnson himself acknowledged that he cut the victims. There was 

little need for the jury to understand the exact meaning or appearance of a prison tattoo 

given the lack of any particular relevance to an issue in the case. Because the potential 

for prejudice outweighs the minimal probative value of the photograph, the superior 

court abused its discretion in admitting the photograph. On retrial, this evidence should 

not be admitted. 

                Johnson   was   entitled   to   a   jury   instruction   on   whether   he 
                 acted in self-defense against White. 

                 Johnson asked the court to allow him to present a self-defense argument for 

the   charges   related   to   White.   Johnson   had   testified   that   White   was   standing   in   the 

doorway when he was trying to leave the apartment. He testified that White appeared to 

be helping Nordeen and Moulder when White yelled that Johnson had a knife. Johnson 

claimed   he   was   afraid   White   was   going   to   stop   him   from   leaving   the   apartment   by 

standing in his way. 

                 The court denied Johnson's request for a self-defense instruction regarding 

Johnson's attack on White. The court provided self-defense instructions as to Johnson's 

actions against Moulder and Nordeen. 

                                                     12                                               2342

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

                 To show   self-defense, "a defendant must satisfy both an objective   and 

subjective standard; he must have actually believed deadly force was necessary to protect 

himself, and his belief must be one that a reasonable person would have held under the 
circumstances."20 The reasonableness of a defendant's belief is a question for the jury, 

"to be assessed by weighing [a defendant's] testimony against that of other witnesses."21 

The trial court must instruct the jury on self-defense when the record contains "some 
evidence" which places the defense in issue.22 Under the "some evidence" standard, a 

"self-defense instruction must be given if there is evidence from which a reasonable juror 
could entertain a reasonable doubt as to the defendant's guilt."23 In applying this test, 

"neither the credibility of conflicting witnesses nor the plausibility of the accused's 
version is considered."24 In other words, "even a weak or implausible self-defense claim 

is a question for the jury."25 

                 In   this   case,   Johnson's   testimony   concerning   the   circumstances   of   the 

altercation   and   his   fear   that   White   would   attack   him   or   prevent   him   from   leaving 

presented      sufficient    evidence     to  justify   a   self-defense     instruction.    The    ultimate 

reasonableness of Johnson's   claim was a question for the jury. Based on Johnson's 

testimony,   a   reasonable   juror   could   conclude   that   Johnson   reasonably   believed   that 

    20   Weston v. State, 682 P.2d 1119, 1121 (Alaska 1984). 

    21  Lamont v. State, 934 P.2d 774, 777 (Alaska App. 1997). 

    22   Weston, 682 P.2d at 1121 (quoting AS 11.81.900(b)(15)(A)). 

    23  Id . 

    24  LaPierre v. State, 734 P.2d 997, 1000 (Alaska App. 1987). 

    25  Lamont, 934 P.2d at 777 (quoting Folger v. State, 648 P.2d 111, 113 (Alaska App. 


                                                      13                                                2342

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

White was acting in concert with Moulder and Nordeen. If Johnson presents the same 

evidence on retrial, then he is entitled to an instruction requiring the jury to determine 

whether he acted in self-defense when he attacked White. 


              The trial court erred in denying Johnson's request to admit evidence of 

Moulder's statements about his attack on his neighbor to show Johnson's state of mind. 

The trial court also abused its discretion in admitting the photograph of Johnson's tattoo. 

Finally, the court erred in not providing a self-defense instruction for the counts related 

to White since Johnson presented "some evidence" that he acted in self-defense. We 

therefore REVERSE the judgment of conviction. 

              We cannot tell whether the errors referenced above had an appreciable 

effect on Johnson's conviction for tampering with evidence. Neither party has briefed 

this issue on appeal. On remand the superior court shall make this determination. If any 

of these errors had an appreciable effect on the tampering charge, then Johnson is entitled 

to a new trial on this charge. 

                                             14                                        2342
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