Opinion
Court of Appeals No. A-12802 No. 6876
06-03-2020
SKYLER L. GATTER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Marilyn J. Kamm, Attorney at Law, under contract with the Office of Public Advocacy, for the Appellant, Anchorage. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3KO-15-00243 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kodiak, Steve W. Cole, Judge. Appearances: Marilyn J. Kamm, Attorney at Law, under contract with the Office of Public Advocacy, for the Appellant, Anchorage. Diane L. Wendlandt, Assistant Attorney General, 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 HARBISON.
Skyler L. Gatter was convicted by a jury of third-degree assault for placing his girlfriend, Rosa Cruz, in fear of imminent serious physical injury with a gun, and of fourth-degree assault for grabbing the wrist of one of the officers who responded when Cruz telephoned the police. Gatter appeals his conviction for third-degree assault, arguing that there was insufficient evidence to support his conviction and that the trial court erred when it admitted evidence of a prior incident between Gatter and Cruz. For the reasons we explain in this opinion, we affirm Gatter's conviction.
AS 11.41.220(a)(1)(A) and AS 11.41.230(a)(1), respectively.
Underlying facts and proceedings
In May 2015, Gatter and Cruz were living together with their two sons. One night, Gatter returned home after drinking, and he and Cruz got into a fight, during which Gatter grabbed Cruz by her neck, leaving red marks. The next morning, after Cruz woke up and took a shower, she walked into the bedroom and saw Gatter in the bed holding a gun. Before this, Cruz and Gatter did not have guns in their home; Gatter had obtained the gun without telling her.
When Cruz saw Gatter that morning, Gatter was playing with the gun, flipping it open and closed. Cruz told him to leave, but he refused. According to Cruz's testimony, Gatter was "waving" the gun around. He told Cruz that "no one was coming in his house," and then he walked out of the room with the gun and took it to the laundry room.
Cruz testified that Gatter sounded as if he had been drinking. She also testified that Gatter was unpredictable when he was drinking. Because she was afraid for her safety and for her family's safety, she called 911. Several police officers responded to the residence.
By the time the officers got to the residence, Cruz had left and gone to her sister's house. The officers waited for Gatter to come out of the house, and after about a half an hour, Gatter came outside and got into his truck. The officers approached the truck. When one of the officers attempted to place Gatter in handcuffs, Gatter grabbed her by the wrist. Eventually, another officer stunned Gatter with a taser in order to remove him from his truck.
During his testimony, Gatter conceded that, on the evening before the incident with the gun, he returned home after drinking and then argued with Cruz. He also conceded that he put his hand on Cruz's neck. Gatter claimed he did this to protect himself from an attack by her.
With regard to the incident with the gun that occurred the next morning, Gatter agreed that Cruz did not know he had a gun until he brought it out from a hiding place under the mattress. But he claimed that he did not do anything with the gun except move it from the hiding place into the laundry room.
According to Gatter, Cruz actually made two calls to the police. Gatter claimed that the first call was a "fake call," during which Cruz pretended to call the police but did not really call them. This, he said, led him to retrieve the gun from under the mattress. He then walked past Cruz with the gun and moved it to the laundry room. Under Gatter's version of events, Cruz then made a real call to 911, during which she reported that he had a gun and that she was scared.
Gatter's trial involved four charges arising from this conduct: second-degree assault (for recklessly causing serious physical injury to Cruz when he grabbed her by the neck), third-degree assault (for recklessly placing Cruz in fear of imminent serious physical injury with the gun), fourth-degree misconduct involving weapons (for possessing a gun while intoxicated), and fourth-degree assault (for recklessly causing physical injury to the police officer when he grabbed her wrist).
AS 11.41.210(a)(2), AS 11.41.220(a)(1)(A), AS 11.61.210(a)(1), and AS 11.41.230(a)(1), respectively. Although the State also charged Gatter with four other crimes, it ultimately dismissed those charges.
At trial, Gatter acknowledged that he had placed his hand on Cruz's neck, but he argued that he should be acquitted of second-degree assault because he had not caused serious physical injury to Cruz, and because he had acted in self-defense.
With respect to the third-degree assault charge, Gatter argued that he had not placed Cruz in imminent fear of serious physical injury with the gun because Cruz had stated to police and later testified that at least part of her fear stemmed from what might happen if her brother came over. Gatter also argued that if Cruz was afraid of the gun, this fear was unreasonable because, according to Gatter, he did nothing more than put the gun away in another room.
With respect to the charges of misconduct involving weapons and the fourth-degree assault on the officer, Gatter argued that the State had failed to present sufficient evidence to convict him of those crimes. In particular, Gatter argued that the State failed to present sufficient evidence of his intoxication.
The jury acquitted Gatter of second-degree assault for grabbing Cruz's neck, and it could not reach a verdict on the lesser included offense of fourth-degree assault. The jury also acquitted Gatter of misconduct involving weapons (possession of a weapon while intoxicated). However, the jury convicted Gatter of third-degree assault on Cruz and of fourth-degree assault on the police officer.
Gatter now appeals his third-degree assault conviction.
Gatter's claim that there was insufficient evidence to support his conviction for third-degree assault
The State charged Gatter with third-degree assault for recklessly placing Cruz in fear of imminent serious physical injury by means of a dangerous instrument. On appeal, Gatter claims that the State presented insufficient evidence to establish that Cruz was put in fear of imminent physical injury by his use of the gun.
AS 11.41.220(a)(1)(A).
As support for this claim, Gatter relies on our decision in Bahl v. State. In Bahl, we concluded that there was insufficient evidence to support Bahl's conviction for third-degree assault against his mother.
Bahl v. State, 2018 WL 2077845 (Alaska App. May 2, 2018) (unpublished).
Bahl had been using bath salts, and as a result, he was increasingly paranoid and erratic, and he was seeing and hearing non-existent people. He lived with his mother, who had removed all of the knives and guns from the house as a precautionary measure. One morning, Bahl's mother asked the troopers to come over because Bahl was acting aggressively, but she reported to them that no weapons were involved. After Bahl's mother called the troopers, and while they were on their way to the residence, she noticed that Bahl had placed a handgun in his waistband, which he later removed and placed in the kitchen. Based on the presence of the handgun and Bahl's unstable behavior, his mother was concerned that someone could get hurt if the situation escalated.
The State charged Bahl with the third-degree assault of his mother. The State's theory was that Bahl's behavior and statements while he was on bath salts, followed by his display of the handgun, caused his mother to reasonably fear imminent serious physical injury.
Bahl was also charged with third-degree assault of two troopers. He was acquitted of one of these charges. On appeal, we found insufficient evidence to convict him of the assault of the other trooper because of the absence of evidence to support the premise that Bahl knew the troopers would suddenly enter the house and experience fright at his possession of the gun. Id. at *5.
We held that the State presented insufficient evidence to convict Bahl of third-degree assault against his mother. We noted that there was no testimony that Bahl's mother feared that Bahl was about to shoot her; instead, her concern was centered on what might happen if the troopers entered the residence while a gun was still in Bahl's reach. We therefore held that Bahl's mother's concern about a "future hypothetical situation" was insufficient to establish that she was "put in fear of an imminent physical assault," and we reversed the defendant's conviction for third-degree assault.
Id. at *4.
Id. at *4-5.
Gatter argues that the facts in Bahl are similar to those in his case and that, accordingly, we must reverse his conviction. But we conclude that the facts in Bahl are distinguishable from the facts of this case.
When we evaluate the sufficiency of evidence to support a conviction, we view the evidence — and the reasonable inferences arising from that evidence — in the light most favorable to the jury's verdict, and ask whether a reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt. Viewed in this light, the evidence showed that Cruz found Gatter, who she thought was drinking, on the bed with a gun. He was "waving" the gun around and was "flipping it open and then closing it." When asked to leave, he refused and, instead, got up with the gun, telling Cruz that "no one was coming in his house." Cruz testified that she was afraid for her safety.
See Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003) (citations omitted).
Additionally, Gatter conceded that, on the night before this incident, he was drinking, and he grabbed Cruz by the neck, leaving red marks (although he claimed that he had acted in self-defense). Cruz also testified to a prior incident in which Gatter placed her in fear of imminent injury when he was drinking. Under these circumstances, and viewing the evidence in the light most favorable to the jury's verdict, a reasonable juror could conclude that Cruz was reasonably in fear that Gatter would imminently cause her serious physical injury by using the gun.
See, e.g., State v. Lessley, 26 P.3d 620, 626-28 (Kan. 2001) (evidence was sufficient to support conviction where the defendant calmly displayed a weapon to communicate a threat and gain compliance from the victim even though the victim's testimony regarding her perception of the immediacy of the threat was equivocal); State v. Ridgeway, 2008 WL 2572102, at *1 (Ohio App. June 2, 2008) (unpublished) (evidence was sufficient to support the verdict where the victim never saw a gun but the defendant was screaming at her and had been rooting around under the bed saying he was looking for his gun); cf. State v. Montano, 620 P.2d 887, 889 (N.M. App. 1980), overruled on other grounds by Sells v. State, 653 P.2d 162 (N.M. 1982) (reversing the defendant's conviction for lack of a self-defense jury instruction where the victim was drunk and angry enough earlier in the night to knock a hole in the defendant's bathroom wall, and where the defendant saw the loaded gun was now lying on the kitchen table in the victim's reach).
Gatter notes that the jury acquitted him of misconduct involving weapons (for possessing a gun while intoxicated) and argues that this acquittal demonstrates that Cruz's belief that he was intoxicated was unreasonable. We disagree. Cruz testified that when Gatter was waving the gun around, he sounded like he had been drinking. And Gatter conceded at trial both that his drinking had become a problem and that he had been drinking the night before the incident with the gun. As a result, even if the jury concluded that the State had not proved beyond a reasonable doubt that Gatter was intoxicated, the jury could also find that Cruz's belief that he had been drinking and was dangerous was not unreasonable.
Gatter also argues that he could not have been "reckless" with regard to the result of his conduct — i.e., he could not have been aware of a substantial risk that his conduct would cause Cruz to be afraid — because (according to Gatter) all he did was take the gun from under the bed and put it in the laundry room. But this argument overlooks a large portion of the State's evidence. The evidence at trial, when viewed in the light most favorable to upholding the verdict, would allow a reasonable juror to conclude that Gatter did not merely move the gun from the bed to the laundry room, but instead engaged in conduct that he knew would frighten Cruz. In particular, he waved the gun around and flipped it open and closed. Then, when Cruz asked him to leave, he refused, stood up with gun, and told her, "no one [is] coming in [my] house." And all of this occurred the morning after Cruz and Gatter had a physical altercation that involved Gatter putting his hand on Cruz's neck. Reasonable jurors could find that Gatter was aware that his conduct would cause Cruz to be afraid that he would imminently injure her with the gun.
We therefore reject Gatter's claim that his third-degree assault conviction was supported by insufficient evidence.
Gatter's claim that evidence of his prior act was inadmissible under Alaska Evidence Rules 404(b)(1) and 404(b)(4)
Before Gatter's trial, the State filed a notice of intent to introduce evidence of a prior incident between Gatter and Cruz that resulted in Gatter's arrest for fourth-degree assault. During the trial, Cruz testified about the incident outside the presence of the jury. She stated that during that incident, Gatter was intoxicated. They argued, and he then pulled the TV off of the wall, breaking it, and threw "movies" in her direction. Although nothing hit her, Cruz was scared that Gatter would hurt her.
After hearing Cruz's voir dire testimony, the court went through a Bingaman analysis. The court found that there was strong evidence that Gatter had committed a domestic violence fear assault, that the evidence was relevant to the issues at trial because it tended to prove that Gatter engaged in unpredictable and violent behavior while intoxicated, that the prior act happened recently, that it would not take much time to introduce, and that it would not lead the jury to decide the case on improper grounds, nor distract the jury. The court also noted that the evidence explained that Cruz "was scared this time because of what happened then." The court allowed the State to introduce evidence of the prior incident.
Bingaman v. State, 76 P.3d 398, 415-16 (Alaska App. 2003) (setting out the factors a trial court must consider before admitting evidence of a defendant's other acts for propensity purposes).
Gatter challenges the trial court's ruling. He argues that the court should have excluded evidence of the prior incident because, although he was charged with fourth-degree assault, he ultimately entered a plea to second-degree harassment, which he argues is not a "crime involving domestic violence" under Alaska law as required by Alaska Evidence Rule 404(b)(4).
See AS 11.61.120(a)(1) and AS 18.66.990(3).
Evidence Rule 404(b)(4) provides that "[i]n a prosecution for a crime involving domestic violence . . . evidence of other crimes involving domestic violence by the defendant against the same . . . person . . . is admissible." For purposes of this rule, "crime involving domestic violence" is defined in AS 18.66.990. This definition includes an assault committed against a household member, but it does not include the second-degree harassment for which Gatter was ultimately convicted.
But Rule 404(b)(4) does not require that the prior incident result in a conviction involving domestic violence. Rather, the rule requires that the prior act constitute a "crime" of domestic violence. As we explained in Bennett v. Anchorage, evidence of a defendant's prior act may be admitted under Rule 404(b)(4) — subject to the court's analysis of the evidence under Evidence Rules 402 and 403 — if the court concludes that there is sufficient evidence for a reasonable juror to find that the defendant committed a "crime involving domestic violence" as defined by Alaska law. The fact that the defendant ultimately entered a plea to a crime that is not "domestic violence" is not dispositive of the question of whether a reasonable juror could find that the prior act was a "crime involving domestic violence" under Rule 404(b)(4). We accordingly reject Gatter's contention.
See Bennett v. Anchorage, 205 P.3d 1113, 1117-18 (Alaska App. 2009).
Additionally, Evidence Rule 404(b)(1) permits evidence of "other crimes, wrongs, or acts" if the evidence is not admitted solely for a propensity purpose — i.e., "to prove the character of a person in order to show that the person acted in conformity therewith." Although the court did not cite Rule 404(b)(1), it appears from its ruling that the court also admitted the evidence of the prior act for such a non-propensity purpose — i.e., to explain the reasonableness of Cruz's fear when she saw Gatter, who she believed to be intoxicated, waving a gun that she had never seen before.
Lastly, Gatter argues that the court erred because it failed to consider whether the evidence of the prior incident unfairly prejudiced him. But the court applied the Bingaman factors, and after balancing these factors, the court determined that the evidence was admissible. The Bingaman factors are intended to guide trial courts in applying Rules 402 and 403 when evaluating the admissibility of evidence under Rule 404(b)(4). The trial court specifically considered whether evidence of the prior incident would "lead the jury to decide the case on improper grounds," and the court determined that it would not.
Bennett, 205 P.3d at 1117; see also Bingaman, 76 P.3d at 416 (holding that if Evidence Rules 402 and 403 are applied correctly using the factors set out in the opinion, evidence may be admitted under Rule 404(b)(4) without depriving a defendant of the due process of law).
The trial court's findings are supported by the record. Having reviewed these findings and the balancing conducted by the trial court, we conclude that the court did not abuse its discretion in admitting evidence of Gatter's prior act.
Conclusion
The judgment of the superior court is AFFIRMED.