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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


              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

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

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

                                                                                             & 3AN-10-04211 CR  


                                                                                                   O P I N I O N  


                                             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,  



                       Judge ALLARD.  

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

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


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

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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                                                                                                                                                             


                                              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  


 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  


                                                                                                                                              -  3 -                                                                                                                                         2673

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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  


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  



                                           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  



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

                                                                                                                                     - 4 -                                                                                                                                 2673

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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                                                                                                                                                   


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  



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                                                                                                                                



                                  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- 




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   




                  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   



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  



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                                  


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

                                                                           -  7 -                                                                     2673

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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                                                                         


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  



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  


                                                                             -  8 -                                                                       2673

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

excessivesentenceclaim,                   weindependentlyexaminetherecord                            to determinewhether the            


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  



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  



      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).  



           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.                                                                                    


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


this consolidated appeal.  


                                                                                                                       -  10 -                                                                                                                    2673

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