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Robert Thomas Shedlosky v State of Alaska (8/14/2020) ap-2673

Robert Thomas Shedlosky v State of Alaska (8/14/2020) ap-2673

                                                                  NOTICE
  

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                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



ROBERT THOMAS SHEDLOSKY,  

                                                                           Court of Appeals Nos. A-12821 & A-12879  

                                             Appellant,                          Trial Court Nos. 3PA-16-00867 CR  

                                                                                             & 3AN-10-04211 CR  

                                  v.  

                                                                                                   O P I N I O N  

STATE OF ALASKA,  



                                             Appellee.                                No. 2673 - August 14, 2020  



                      Appeal  in File No. A-12821 from the Superior Court, Third  

                                                                                  

                       Judicial District, Palmer, Vanessa H. White, Judge.  Appeal in  

                       File  No.  A-12879  from  the  Superior  Court,  Third  Judicial  

                                                                 

                       District, Anchorage, Michael L. Wolverton, Judge.  



                      Appearances:   Marilyn J. Kamm (opening brief), and Margot  

                                                                              

                       Knuth  (reply  brief),  Attorneys  at  Law,  Anchorage,  under  

                                                                                             

                       contract with the Office of Public Advocacy, for the Appellant.  

                                                                                                

                       Michal Stryszak, Assistant AttorneyGeneral, Office of Criminal  

                                                                                                           

                      Appeals, Anchorage, and Kevin G. Clarkson, Attorney General,  

                                                                                                               

                       Juneau, for the Appellee.  



                       Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                             

                       Judges.  



                       Judge ALLARD.  


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

                       Robert Thomas Shedlosky was convicted of third-degree assault under a                                               



                                                                                                           1  

recidivist theory for assaulting his ex-girlfriend, Sophie Batt.                                                                         

                                                                                                               On appeal, he contends  



                                                                                                                                                  

that the trial court erred when it admitted evidence of four prior assaults. Shedlosky also  



                                                                                                                                                   

challenges his sentence and asks us to reverse the revocation of his probation.  For the  



                                                                                                                                                  

reasons  explained  here,  we  affirm  Shedlosky's  conviction  and  sentence  and  the  



                                

revocation of his probation.  



                           

            Factual Background  



                                                                                                                                                          

                        Shedlosky and Batt metaround2006 and dated for about six or seven years.  



                                                                                                                                                   

After their break up, they remained friends and would "walk and talk and drink."  On  



                                                                                                                                           

April 15, 2016, Shedlosky and Batt spent hours drinking in Anchorage before heading  



                                                                                                                                                  

to Wasilla, where they ultimately visited Shedlosky's friend, Rodney Rhodes. After Batt  



                                                                                                                                             

retired to Rhodes's bedroom to sleep, Shedlosky shook her awake.  Shedlosky started  



                                                                                                                                              

beating and punching Batt.  He threw her off the bed and kicked her a couple of times,  



                                                                                                                                 

calling her names and demanding to know if she wanted to "F Rodney."  



                                                                                                                                                  

                       Rhodes awoke to Shedlosky "smacking" Batt around.  He called 911 and  



                                                                                                                                           

asked the dispatcher to send police officers over to his apartment "right away" because  



                                                                                                                                            

his friend was "beating the hell out of [Batt]."  Rhodes also stated that "they're beating  



                                                                                                                       

each other up," and he later said that Shedlosky was "killing her."  



                                                                                                                                                   

                       At trial, Shedlosky argued that he acted in self-defense. Shedlosky did not  



                                                                                                                                          

testify.  Instead, Shedlosky relied on Rhodes's statement in the 911 call that "they're  



                                                                                                                                                 

beating each other up" to support his self-defense claim.  Rhodes testified that he only  



                                                                                                                                                          

witnessed Shedlosky beating up Batt and that he did not see Batt hitting Shedlosky.  



      1     See AS 11.41.220(a)(5) (recklessly causing physical injury to a person, having been                 



convicted within the preceding ten years on two or more separate occasions of crimes with   

elements similar to AS 11.41.230(a)(1) or (2)).  



                                                                        - 2 -                                                                   2673
  


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

Rhodes   also   testified   that   he   had   misspoken  on  the   911   call   when   he   stated   that  



 Shedlosky and Batt were "beating each other up."                                                                                                             



                                              Ultimately, the jury rejected Shedlosky's self-defense claim and convicted                                                                                                                                                  



 Shedlosky of third-degree assault under a recidivist theory.                                                                                                                        



                        Underlying facts related to the admission of Shedlosky's prior assault                                                                                                                                                             

                       convictions  



                                              Before trial, the State filed a notice of intent to introduce Shedlosky's prior                                                                                                                                                              



assault convictions.                                                  Shedlosky opposed.                                                        At a pretrial hearing on the motion, the State                                                                                            



made an offer of proof as to four specific incidents it sought to present at trial.                                                                                                                                                                                          The first   



two assaults involved Shedlosky beating Batt because he was jealous that she might be                                                                                                                                                                                                              



interested   in   other   men.     The   third   and   fourth   assaults   involved   Shedlosky,   again  



motivated by jealousy, beating up other men.                                                                                                



                                              After   considering   the   State's   offer  of   proof,   the   court   found   that  



                                                                                                                                                                                                                     2  

 Shedlosky's prior assaults were admissible for several reasons.                                                                                                                                                                                                                                 

                                                                                                                                                                                                                           The court found that the  



            2          We note that the prosecutor's motion erroneously asserted that these assaults were                                                                                       



admissible under Alaska Evidence Rule 404(a)(2) to rebut Shedlosky's self-defense claim.  

The trial court also erroneously ruled that these prior acts were admissible under Alaska                                        

Evidence Rule 405(b). Both the prosecutor and the trial court were mistaken. Although Rule                                                                                                                                                                  

404(a)(2) authorizes trial courts to admit character evidence to rebut a claim that the victim   

was the first aggressor, this evidence is limited to reputation and opinion evidence. Evidence   

of   specific instances of conduct is not permitted under Rule 404(a)(2) except on cross-  

examination.  See Alaska Evid. R. 404(a)(2); Alaska Evid. R. 405(a); see also Allen v. State,  

945 P.2d 1233, 1243 (Alaska App. 1997) (noting that Rule 405(a) allows proof of a person's                                                                                                                                                                                   

character for violence admissible under Rule 404(a)(2) to be established through reputation  

and opinion evidence).   The trial court was also mistaken in believing that the specific  

instances of conduct were admissible under Rule 405(b).                                                                                                                                           That evidence rule is limited to  

cases  in  which  a  defendant's  character  is  "an  essential  element"   of   a  charge,  claim,  or  

defense.  See Alaska Evid. R. 405(b).  Although both the prosecutor and the trial court were  

                                                                                                                                                                                                                                                                (continued...)  



                                                                                                                                              -  3 -                                                                                                                                         2673
  


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

two domestic violence assaults involving Batt were admissible under Alaska Evidence                                                                                                                                                                        



Rule 404(b)(4), which authorizes the admission of evidence of a defendant's other                                                                                                                                                                                      



crimes   of   domestic   violence   for   propensity  purposes   in   a   case   involving   domestic  



violence.   The court also found that the two assaults involving the men were admissible                                                                                                                                                              



under  Alaska Evidence Rule 404(b)(1)                                                                                                 to prove Shedlosky's "motive, pattern,                                                                                                and  



intent" because the assaults occurred as a result of Shedlosky's "feelings of jealousy and                                                                                                                                                                                    



suspicion regarding a significant other or a former significant other."                                                                                                                                   



                       Why we conclude that the trial court properly admitted the prior domestic                                                                                                                                       

                      violence assaults and that any error in admitting the two other assaults                                                                                                                                           

                      was harmless   



                                            On appeal, Shedlosky argues that the trial court erred when it allowed the                                                                                                                                                         



prosecution to introduce evidence of his four prior assault convictions.                                                                                                                                                                   According to   



 Shedlosky, the trial court failed to conduct an adequate balancing test under                                                                                                                                                                        Bingaman  



                           3  

v.  State.                                                                                                                                                                                                                                                                    

                                  He argues that the evidence should have been excluded because it was not  



                                                                                                                                                                                                                                     

needed for the State's case, which the court recognized as "strong."  Shedlosky also  



                                                                                                                                                                                                                                                                   

argues that the two prior assaults against the men had no relevance to the current assault  



involving Batt, although he acknowledges that this objection was not made in the trial  



court.  



                                                                                                                                                                                                                                                                               

                                           In assessing these claims of error, it is necessary to distinguish between the  



                                                                                                                                                                                                                                                                            

two prior domestic violence assaults against Batt and the two assaults against the two  



                                                                                                                                                                                                                                                                         

men. Having reviewed the record, we find no error in the trial court's ruling on the prior  



           2          (...continued)  



mistaken about the applicabilityof Evidence Rules 404(a)(2) and 405(b), we find these errors  

                                                                                                                                                                                                                                         

harmless  because the evidence was also separately admitted under Rules 404(b)(1) and  

                                                                                                                                                                     

404(b)(4).  



           3          See Bingaman v. State, 76 P.3d 398, 415-16 (Alaska App. 2003).  



                                                                                                                                     - 4 -                                                                                                                                 2673
  


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

domestic violence assaults against Batt.                                                                              The trial court admitted these assaults under                                                                      



Evidence Rule 404(b)(4), and the court's                                                                            Bingaman  analysis of that evidence was sound.                                                                                          



                                       The same cannot be said, however, with regard to the two prior assaults                                                                                                                     



against the men. The trial court ruled that these assaults were admissible under Evidence                                                                                                                                      



Rule 404(b)(1) for non-propensity purposes - allegedly, to "establish motive, pattern,                                                                                                                                              



intent   for   this   act   of   violence."     But   the   trial   court   then   proceeded  to  analyze   the  



admissibility of this evidence under                                                                     Bingaman 's balancing test for character evidence                                                                     



-  i.e., evidence that is being admitted, in part, to show propensity.                                                                                                                             The court's use of                              



the   Bingaman   factors in this manner was error.                                                                                               As we have previously explained,                                         



"[b]ecause   Bingaman   is   a   test   for   evaluating   the   admissibility   of   evidence   that   is  



expressly being offered to establish a defendant's character . . . , the                                                                                                                         Bingaman  test is an                              



inappropriate legal framework with which to assess the admissibility of evidence under                                                                                                                                                   



                                                                                                                                                                                                      4  

Rule 404(b)(1) - a rule that expressly                                                                           prohibits  character evidence.                                                           



                                                                                                                                                                                                                                               

                                       We  recognize  that  many  of  the  Bingaman  factors  are  relevant  to  the  



                                                                                                                                                                                                                                          

balancing test that courts are required to conduct under Alaska Evidence Rule 403 when  



                                                                                                                                                                                                                                               

considering admission of evidence under Rule 404(b)(1).  But the problem remains that  



                                                                                                                                                                                                                                                

the Bingaman balancing test was designed for certain cases in which the legislature has  



                                                                                                                                                                                                                           

specifically authorized the use of propensity evidence, in contravention of the limitations  



                                                    5  

                                                                                                                                                                                                                                              

of Rule 404(b)(1).                                       In other words, the Bingaman balancing test is premised on the idea  



                                                                                                                                                                                                                           

that the jury can properly consider a character trait of the defendant for its propensity  



          4        Berezyuk v. State, 407 P.3d 512, 516 (Alaska App. 2017).  



          5        See  Alaska  Evid.  R.   404(b)(2)  (authorizing  propensity   evidence  in  prosecutions  



involving a physical or sexual assault or abuse of a minor), (b)(3) (authorizing propensity                                                                                                                                  

evidence in sexual assault prosecutions when the defendant relies on a defense of consent),                                                                                                                                      

& (b)(4) (authorizing propensity evidence in prosecutions for a crime involving domestic   

violence or interfering with a report of such a crime).   



                                                                                                                      -  5 -                                                                                                                 2673
  


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

purposes, whereas the Rule 403 balancing test for 404(b)(1) evidence requires the court                                                                                                                               



to   exclude   evidence   offered   under   Rule   404(b)(1)   if   it   is   likely   to   be   misused   as  



propensity evidence or evidence of the defendant's "character."                                                                                                         Thus, a trial court that                         



uses the              Bingaman  factors to evaluate the admissibility of evidence under Evidence Rule                                                                                                                  



404(b)(1) runs a serious risk of discounting the unfair prejudice that may result from                                                                                                                                



introducing what is supposed to be non-propensity evidence.                                                                                                       



                                   At times, we have excused this error as an error of "nomenclature," rather                                                                                                       



than substance, when "a review of the court's actual analysis indicate[d] that it was                                                                                                                                   



engaged in the robust balancing test required for evidence admitted under Evidence Rule                                                                                                                                



                              6  

404(b)(1)."                                                                                                                                                                                                                 

                                  But we have also reversed cases where the trial court's erroneous use of the  



                                                                                                                                                                                                                       

Bingaman  factors led the prosecutor to argue evidence purportedly admitted for non- 



                                                                                                                                                                                                         7  

                                                                                                                                                                                                             

                                                                                                                                                                                

propensity purposes as though it had been admitted for propensity purposes. 



                                                                                                                                                                                                                           

                                   Here, we are concerned that the court's erroneous use of the Bingaman test  



                                                                                                                                                                                                            

may have affected the court's ability to fairly assess the probative value of this evidence  



                                                                                                                                                                                                                         

when weighed against its potential for unfair prejudice.   The probative value of this  



                                                                                                                                                                                                           

evidence was relatively marginal, given that these were not assaults against domestic  



                                                                                                                                                                                                       

partners.  Moreover, the chance that the jury might rely on the assaults for propensity  



         6       Rollins v. State                      , 2015 WL 4874789, at *3 (Alaska App. Aug. 12, 2015) (unpublished);  



see also Peters v. State, 2019 WL 1503991, at *7 (Alaska App. Apr. 3, 2019) (unpublished)   

(upholding conviction when the "non-propensitypurpose of the evidence was clear" and "the                                                            

trial judge's announced reliance on                                                          Bingaman  was an error of nomenclature rather than   

substance").  



         7  

                                                                      

                  See,  e.g ., Berezyuk,  407  P.3d  at  516-17  (reversing  conviction  where,  despite  the  

                                                                                                                                                                                                                                

prosecutor's claim that evidence of the defendant's prior conviction was admissible for a  

                                                                                                                                                                                                                          

non-propensity purpose, the record "clearly reveals that the prosecutor's primary use of this  

evidence was to urge the jurors to improperly view the evidence as character evidence").  



                                                                                                           -  6 -                                                                                                      2673
  


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

purposes was quite high, particularly because the other two domestic violence assaults                                                          



against Batt           were  being introduced for their propensity value.                                         



                        We nevertheless conclude that any error in admitting the assaults against   



                                                                                                          8  

                                                                                                                                                         

the men was harmless, given the larger context of this case.                                                 As Shedlosky admits in his  



                                                                                                                                                      

briefing on appeal, the State's case against him was strong.   And his claim of self- 



                                                                                                                                                         

defense was particularly weak. During closing argument, the prosecutor focused on the  



                                                                                                                                                         

strength of its case, emphasizing Batt's injuries, Shedlosky's lack of injury, and the  



                                                                                                        

direct eyewitness testimony of Rhodes.  The prosecutor referred to the four assaults in  



                                                                                                                                                      

her closing, but she primarily emphasized the more relevant assaults - that is, the prior  



                                                                                                                                           

domestic violence assaults against Batt, which were properly admitted for propensity  



                                                                                                                                                      

purposes under Evidence Rule 404(b)(4).   The presentation of evidence on the non- 



                                                                                                                                  

domestic violence assaults was minimal and not overly inflammatory.  



                                                                                                                                                          

                        Given all this, we conclude that it can fairly be said that any error in  



                                                                                                                                                        

admitting these additional non-domestic violence assaults was ultimately harmless and  



                                                                   

did not appreciably affect the jury's verdict.  



                                                               

             Why we affirm Shedlosky's sentence  



                                                                                                                                 

                         Shedlosky faced a presumptive range of 2 to 5 years for his third-degree  



                                  9  

                                                                                                                                                  

assault conviction.                   He stipulated to two aggravating factors - that his prior history  



                                                                                                                                                         

included repeated instances of assaultive behavior and that he was on probation for  



      8     See Love v. State            , 457 P.2d 622 (Alaska 1969) (holding that an erroneous evidentiary  



ruling is harmless when it can fairly be said that the error did not appreciably affect the jury's                                  

verdict).  



      9     See former AS 12.55.125(e)(3) (2017).  



                                                                           -  7 -                                                                     2673
  


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

                                                                             10  

another felony at the time of the offense.                                        And Shedlosky asked the court to find the                                  



mitigating factor that his conduct was among the least serious within the definition of the                                                                  



offense, arguing that what he really committed was fourth-degree assault because his                                                                         



                                                                                                                                           11  

third-degree assault conviction resulted from his prior assault convictions.                                                                    



                         The trial court rejected Shedlosky's proposed mitigator.  In its sentencing  

                                                                                                                                               



remarks, the court found that when Shedlosky drinks, he becomes "a violent, angry  

                                                                                                                                                       



person with no judgment or discernment." The court noted that this "has happened time  

                                                                                                                                                          



and time and  time  again" and, as a result, Shedlosky had at least ten prior assault  

                                                                                                                                                     



convictions - i.e., eight more than required for the recidivist statute.  Ultimately, the  

                                                                                                                                                             



court sentenced Shedlosky to 5 years to serve with no suspended time.  

                                                                                                                                      



                         On appeal, Shedlosky renews his argument that his conduct was among the  

                                                                                                                                                             



least serious conduct constituting the offense because the crime he actually committed  

                                                                                                             



was fourth-degree assault.   In other words, Shedlosky essentially argues that every  

                                                                                                                                                       



recidivist third-degree assault conviction is per se  least serious.  

                                                                                                                         



                         This argument is contrary to our cases holding that when "the legislature  

                                                                                        



includes various acts within  the  definition  of the same offense,  .  .  . each  act must  

                                                                                                                                                         

presumptively be regarded as equally serious."12  

                                                                                                                                                             

                                                                                             Accordingly, we find no error in the  



                                                                                                                                                      13  

                                                                                                                                                           

trial court's decision that Shedlosky's conduct in this case was not least serious. 



       10   See AS 12.55.155(c)(8), (20).  



       11   See AS 12.55.155(d)(9).  



       12   Simpson v. State, 796 P.2d 840, 843 (Alaska App. 1990); see Walsh v. State, 677 P.2d  



                                                                                                                                            

912, 917 (Alaska App. 1984); Juneby v. State , 641 P.2d 823, 841  (Alaska App. 1982),  

modified on other grounds, 665 P.2d 30 (Alaska App. 1983).  



       13   See Aveoganna v. State, 757 P.2d 75, 77 (Alaska App. 1988) (rejecting defendant's  



                                                                            

contention that his offense automatically qualifies as least serious in comparison to other  

                                                                                                                                          (continued...)  



                                                                             -  8 -                                                                       2673
  


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

                      Shedlosky also argues that his sentence is excessive.                                 When we review an            



excessivesentenceclaim,                   weindependentlyexaminetherecord                            to determinewhether the            



                                                 14  

sentence   is   clearly   mistaken.                                                                                                   

                                                       The  "clearly  mistaken"  standard  contemplates  that  



                                                                                                                                    

different  reasonable  judges,  confronted  with  identical  facts,  will  differ  on  what  



                                                                                                                               

constitutes an appropriatesentence, and that a reviewing court will not modify a sentence  



                                                                                                  15  

                                                                                                                      

that falls within a permissible range of reasonable sentences.                                        We have independently  



                                                                                                                                      

reviewed the sentencing record in this case and conclude that the sentence imposed here  



                       

is not clearly mistaken.  



                                                                                     

           Why we affirm the revocation of Shedlosky's probation  



                                                                                                                                       

                      After Shedlosky was convicted and sentenced, a disposition hearing was  



                                                                                                                                 

held on the State's petition to revoke Shedlosky's probation. The State based its petition  



                                                                                                                         

to revoke on two allegations - that Shedlosky had been convicted of third-degree  



                                                                                                                                       

assault and that he had consumed alcohol. The judge found both allegations proven and  



                                                                        

imposed 6 months of previously suspended time.  



                                                                                                                                

                      On appeal, Shedlosky argues that this decision should be reversed because  



                                                                                                                                       

his conviction for assaulting Batt was invalid due to the improper admission of prior bad  



                                                                                                                                       

acts evidence.   Because we affirm Shedlosky's conviction, we find no merit to this  



                   

argument.  



      13   (...continued)  



offenses with the same applicable presumptive sentencing term because the mitigating factor  

                                                                                                  

compares the defendant's conduct in committing the offense with the conduct of others  

                                                                                                                                   

committing the same offense).  



      14   See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).  



      15  

                  

           See Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).  



                                                                  -  9 -                                                             2673
  


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

                                        Shedlosky also argues that the State presented insufficient evidence that he                                                                                                                                    



consumed alcohol. We have reviewed the testimony presented at Shedlosky's probation                                                                                                                                                



revocation hearing, and we find no merit to this argument.                                                                                    



                    Conclusion  



                                       For the reasons expressed in this opinion, we AFFIRM both judgments in  

                                                                                                                                                                                                                                                         



this consolidated appeal.  

                                                                            



                                                                                                                       -  10 -                                                                                                                    2673
  

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