Opinion
Court of Appeals No. A-12162 No. 6752
01-16-2019
SHANE LEE DAVIS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Douglas O. Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-12-7492 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Douglas O. Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. Judge ALLARD.
Following a jury trial, Shane Lee Davis was convicted of first-degree indecent exposure under AS 11.41.458(a)(1). Davis raises three claims on appeal. Davis contends first that the superior court should have granted his motion for a mistrial after a State's witness, a police officer, violated a protective order. Davis contends next that the trial court committed error when it denied his request for a jury instruction specifically defining "in the presence of" — one of the elements of the offense. Lastly, Davis contends that the trial court committed error when it found that Davis had failed to prove mitigator AS 12.55.155(d)(9) — i.e., that Davis's conduct was among the least serious within the definition of the offense. For the reasons explained in this decision, we affirm the judgment of the superior court.
Background facts and prior proceedings
On July 23, 2012, at approximately 8:30 p.m., a father and his thirteen-year-old son saw Davis masturbating outside their sliding glass doors in their fenced-in backyard. Davis was sitting facing the house, completely naked, with his genitals exposed. He had a container of lubricant in one hand, and he was moving his other hand up and down his erect penis. At trial, the father testified that Davis was sitting only twelve to fifteen feet from the house, and Davis would have been able to see the family inside the house through the glass doors.
When the father went outside onto the back deck and confronted Davis, Davis stopped masturbating, but he did not immediately leave. Following an exchange of words, the father made it clear that he wanted Davis to leave. Davis stood up, apologized, and put on his clothes. He then climbed over the backyard fence and left the property. The police were called, but they were unable to locate Davis that evening.
The next day, as the father and his teenage son were driving, they saw Davis. They followed him and called the police. Anchorage police responded and contacted Davis outside an apartment building just behind the victims' house. (Davis apparently lived in this apartment building.) Davis initially denied knowing anything about what had happened the previous evening, but he eventually admitted that he had masturbated while naked in the victims' backyard the day before. Davis told the police that he had been using drugs.
Davis was charged with first-degree indecent exposure under AS 11.41.-458(a)(1). His first trial ended in a mistrial; his second trial ended in a conviction. This appeal now follows.
Davis's claim that the superior court erred in denying his motion for mistrial at the second trial
At Davis's second trial, his attorney moved for a mistrial after one of the police officers testifying for the State gave testimony that violated the scope of a protective order issued earlier by the trial court.
This protective order dealt with testimony related to Davis's conviction for attempted burglary at the same residence three months earlier. During this prior incident, the police discovered Davis in a shed on the victims' property. It appeared that Davis had been rummaging through cabinets in the shed. But Davis had also removed his pants, and he had an unrolled condom next to him. Davis was arrested for second-degree burglary, and he ultimately pleaded guilty to a reduced charge of attempted second-degree burglary.
At Davis's trial for indecent exposure, the prosecutor wanted to introduce evidence of this prior incident in the victims' shed. The prosecutor's purpose in offering this evidence was to prove that, on that prior occasion, the police officer who investigated the burglary had expressly informed Davis that there were children living in the house. This fact was pertinent to the charge of first-degree indecent exposure because the State had to prove that Davis was at least reckless regarding the circumstance that a person under the age of 16 would observe him exposing his genitals.
AS 11.41.458(a)(1).
The superior court ruled that the police officer could testify that he had had prior contact with Davis on the victims' property, and that he had informed Davis that there were children living in the house. But the court ruled that the officer could not testify about the nature of this prior contact, nor about any of Davis's underlying conduct on that prior occasion.
Based on the superior court's ruling, the parties anticipated that the police officer would testify that, a few months before the events that resulted in the indecent exposure charge, the officer had come to the victims' property in the course of his duties, that he had contacted Davis, and that, during this contact, the officer told Davis that there were children living in the house.
However, during his testimony, the officer gave an answer that went beyond the limits set by the court. The officer testified that he told Davis, "There are children here. You can't do that here." — thus suggesting that Davis was engaged in conduct that would be inappropriate in the presence of children.
Davis's attorney immediately objected to the officer's testimony and moved for a mistrial. The defense attorney argued that the officer's testimony invited the jury to speculate about what Davis had been doing during the earlier incident — the very thing the protective order was designed to prevent. The defense attorney further asserted that a curative instruction would be insufficient to cure the harm, and that a mistrial was therefore needed.
In response, the prosecutor conceded that the officer's testimony violated the protective order, but he argued that a curative instruction would be sufficient to cure any prejudice.
The trial judge ultimately decided to strike all of the officer's testimony and to instruct the jury to disregard completely the officer's testimony. The judge concluded that this was sufficient to cure any prejudice, and that there was no manifest necessity for a mistrial. The judge subsequently instructed the jurors:
I'm striking all of the testimony of Officer Falvo from the record in this case. You're instructed to disregard everything that he said. You may not speculate about anything that he said, or use it in ... your deliberations or your decision-making.After the judge gave this instruction, the prosecutor called his next witness, and the trial continued. At the close of the evidence, the judge gave this curative instruction a second time.
On appeal, Davis argues that the trial judge committed error by not granting a mistrial.
Whether to grant a mistrial is a decision entrusted to the sound discretion of the trial judge, and an appellate court will not overturn the judge's exercise of discretion "except in the most exceptional circumstances to prevent a miscarriage of justice." We will not reverse a trial judge's decision to deny a motion for a mistrial unless "after reviewing the whole record, we are left with a definite and firm conviction that the trial court erred in its ruling." The law requires us to extend this deference to the trial judge's ruling because a trial judge is in a better position to observe the improper evidence in the context in which the jury received it, and to better assess its impact on the jury.
Anderson v. State, 438 P.2d 228, 233 n.16 (Alaska 1968) (quoting Otis Elevator Co. v. McLaney, 406 P.2d 7, 10 (Alaska 1965)).
Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005).
Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981); see also Anderson, 438 P.2d at 232-33 & n.16; Roussel, 115 P.3d at 585.
We have reviewed the record in this case, and we do not find an abuse of discretion here. The police officer's statement, although a violation of the protective order, was short and ambiguous. Moreover, the trial judge took swift and decisive action in response to the violation — striking not only the improper comment but also the entirety of the officer's testimony. The court also expressly instructed the jury to disregard all of the officer's testimony, and further instructed the jury not to speculate about anything the officer said, or to use anything the officer said during its deliberations. This curative instruction was also repeated at the close of evidence.
Given these circumstances, we conclude that the trial judge did not abuse his discretion when he denied the defense motion for a mistrial.
See Srala v. Anchorage, 765 P.2d 103, 106 (Alaska App. 1988); Roth, 626 P.2d at 585 (curative instructions generally presumed to cure prejudice if promptly given).
Davis's claim that the superior court erred when it refused to provide a supplemental instruction on the definition of "presence"
To prove first-degree indecent exposure under AS 11.41.458(a)(1), the State was required to prove that Davis knowingly exposed his genitals in the presence of one or more people with reckless disregard for the offensive, insulting, or frightening effect of this act, that Davis did so within the observation of a person under 16 years of age, and that Davis knowingly masturbated while engaged in this conduct.
See AS 11.41.458(a)(1) ("An offender commits the crime of indecent exposure in the first degree if the offender violates AS 11.41.460(a), the offense occurs within the observation of a person under 16 years of age, and ... while committing the act constituting the offense, the offender knowingly masturbates."); see also AS 11.58.460(a) ("An offender commits the crime of indecent exposure in the second degree if the offender knowingly exposes the offender's genitals in the presence of another person with reckless disregard for the offensive, insulting, or frightening effect the act may have.").
At trial, the parties disputed the applicable mens rea for the element "in the presence of one or more people." The prosecutor initially argued that the State needed only to prove that Davis acted recklessly with regard to the fact that he was exposing his genitals in the presence of other people. Davis's attorney argued that the statutory language required the State to prove that Davis "knowingly" exposed his genitals, and that he "knowingly" did so in the presence of another person. As part of this argument, Davis's attorney asked the trial judge to instruct the jury that the word "presence" meant "close physical proximity coupled with awareness."
The trial judge agreed with the defense attorney that the statute required the State to prove that Davis was aware that he was exposing his genitals in the presence of one or more people. However, the judge declined to give the precise jury instruction that Davis requested regarding the meaning of "presence." During closing arguments both parties made it clear that the State was required to prove that Davis was "knowingly" in the presence of another person when he exposed his genitals.
On appeal, Davis argues that the trial court erred by failing to give his requested additional jury instruction on the meaning of "presence." But under Alaska law, "as long as the jury is properly instructed on the law, ... the trial [judge] has broad discretion to determine whether to give instructions specially tailored to the case at hand."
See Young v. State, 374 P.3d 395, 405 (Alaska 2016) (quoting Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 29 (Alaska 1998)).
Here, the elements instruction provided to the jury was sufficiently clear to inform the jury that the State was required to prove that Davis was aware that he was in the presence of another person when he exposed his genitals. Moreover, any confusion regarding this element of the crime was cleared up by the parties' closing arguments. Accordingly, we find no abuse of discretion in the trial court's rejection of the supplemental instruction proposed by Davis.
See O'Brannon v. State, 812 P.2d 222, 229 (Alaska App. 1991) (noting that ambiguous jury instructions can be cured by the final arguments of counsel).
Davis's claim that the trial court erred when it rejected his proposed statutory mitigator
First-degree indecent exposure is a class C felony. Davis had five prior felony convictions; he was therefore a "third felony offender" for purposes of our presumptive sentencing laws. As a third felony offender, Davis faced a presumptive sentencing range of 15 to 25 years, and a maximum sentence of 99 years.
AS 11.41.458(b).
See AS 12.55.125(i)(4)(D).
At sentencing, Davis's attorney argued that mitigating factor AS 12.55.-155(d)(9) applied to Davis's crime. That is, the defense attorney asserted that Davis's conduct was "among the least serious conduct included in the definition of the offense." The sentencing court rejected this proposed mitigator.
When a defendant proposes a mitigating factor, the sentencing judge must engage in a two-step process. First, the judge must make findings as to what conduct the defendant engaged in (including the defendant's accompanying mental state). These are questions of historical fact, and the judge's findings are reviewed for clear error. Then the judge must assess whether the defendant's conduct is among the least serious covered by the statute. This is a question of law, and we review the judge's ruling de novo.
See AS 11.81.900(b)(7) (defining "conduct" as including a person's "accompanying mental state").
Id.
Here, the sentencing judge rejected the proposed mitigator because he found that Davis's conduct was not as mitigated as the defense attorney claimed. Davis claimed that he had been taking drugs, and that he had no memory of the incident. But the sentencing judge noted that Davis had been found on the victims' property, wearing no pants, only a few months earlier. The judge found that Davis had been affirmatively informed (on that prior occasion) that there were children living in the residence, and the judge noted that the victims' backyard contained items that made it clear that children were living there.
Based on this evidence, the sentencing judge found that Davis's return to this same backyard, and his act of masturbating in front of a glass door, was not just a coincidence. Instead, the judge found that this behavior raised "significant warning flags" that could not be ignored. Based on these findings, the judge concluded that Davis's conduct was not among the least serious covered by the first-degree indecent exposure statute.
We find no error in the court's findings of fact, nor in its ultimate decision to reject the proposed mitigator.
Conclusion
The judgment of the superior court is AFFIRMED.