Opinion
Court of Appeals No. A-9492.
July 25, 2007.
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge, Trial Court No. 1JU-04-1329 CR.
Rachel Levitt, Assistant Public Advocate, Palmer, and Joshua Fink, Public A dvocate, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
On September 21, 2004, a fire fed by sabotaged fuel lines spread on the water in Auke Bay in Juneau, polluting the bay and causing thousands of dollars of damage. An investigation led to charges against Rickey Gottardi for starting the fire. At trial, Gottardi was convicted of first-degree arson, first-degree criminal mischief, and oil pollution.
AS 11.46.400(a), AS 11.46.475(a), and AS 46.03.740, respectively.
Gottardi appeals, contending that an evidentiary ruling by the superior court was an abuse of discretion and arguing that the composite 20-year term to serve imposed by the superior court is excessive. We affirm Gottardi's conviction because the evidentiary ruling was not an abuse of discretion. We affirm Gottardi's sentence because it is not clearly mistaken. Background facts and proceedings
See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980) ("The admissibility of evidence is largely within the trial court's discretion and its rulings will not be overturned on appeal in the absence of an abuse of discretion.").
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to affirm a sentencing court's decision unless the sentence is clearly mistaken).
Rickey Gottardi lived with James Maher on a boat in Auke Bay in Juneau. The night before the fire, Maher and Gottardi were drinking whiskey on the boat. Gottardi told Maher that he was going to start a fire somewhere around the "harbor master place" and left the boat with a knife and some matches. He returned some time later and said that he was unable to get the fire going. He retrieved a blow torch and left again. When Gottardi returned, he woke Maher up and told him to look out the window at the fire.
According to Maher, several months before the fire, Gottardi told Maher that he was going to burn down the harbor master's office "one of these days." Gottardi was angry ("flipping out" according to Maher) over the amount of an electric bill from the harbor master.
When the fire department and fire marshal responded to the fire, they found fuel burning on the water, threatening dock pilings, a ramp, and a boat lift station. After the fire was controlled, the fire marshal found evidence that gasoline and diesel fuel lines leading to the dock were cut. An estimated 1,600 gallons of fuel went into the water. The parties stipulated that the economic damages from the fire totaled more than $154,000.
The admissibility of Gottardi's earlier statement
The jury in Gottardi's first trial was unable to reach a verdict and Superior Court Judge Larry Weeks granted Gottardi's motion for a mistrial. Before the first trial started, the court had addressed pretrial motions regarding the admissibility of evidence. The prosecutor told Judge Weeks that the State did not intend to introduce evidence of Gottardi's prior bad acts, but told the court that the State would offer evidence that a few months before the September fire, Gottardi told Maher that he was going to burn the harbor master's office. Gottardi agreed that the evidence of his statement to Maher was admissible, and it was received during the first trial without objection.
After the mistrial, Judge Weeks was unavailable for the retrial and the case proceeded before Superior Court Judge Patricia A. Collins. Before trial, the parties discussed pretrial matters with the court. There had been no evidentiary motions in the interim and the prosecutor informed Judge Collins about the evidence of Gottardi's statement to Maher a few months before the fire. Judge Collins recalled this evidence from her review of the log notes of the first trial. This time, Gottardi objected to the evidence based on "relevance and 404." He indicated that he wanted the objection noted and preserved for the record. Judge Collins ruled that the evidence was admissible because it was not unfairly prejudicial and was relevant to Gottardi's state of mind.
Evidence of a person's state of mind offered to prove the person's future action is admissible as an exception to the hearsay rule under Evidence Rule 803(3). The evidence of Gottardi's statement to Maher several months before the fire of his future intention — that he was going to burn down the harbor master's office "one of these days" — was admissible under this hearsay exception. Judge Collins used a similar analysis when she ruled on the statement's relevance, concluding that the evidence "certainly could suggest Mr. Gottardi's state of mind."
Even so, Gottardi argues on appeal that the evidence of his statement to Maher is inadmissible character evidence under Evidence Rule 404. Because the statement was admissible as evidence of Gottardi's state of mind, we reject Gottardi's claim that the statement should be analyzed as character evidence under Rule 404.
We also reject Gottardi's claim that the evidence should have been barred under Evidence Rule 403 because the probative value of the evidence was outweighed by its prejudicial impact. Judge Collins concluded that the evidence would not be unfairly prejudicial to Gottardi. Our examination of the record does not convince us that Judge Collins abused her discretion when conducting the balancing required by Rule 403.
Finally, Gottardi claims his prior statement is not relevant because he discussed a plan to burn the harbor master's office, not the facilities that were damaged in the September 21 fire. Gottardi claims that because of this dissimilarity, his earlier statement is not relevant. But the record shows that on the night of the fire, Gottardi told Maher that he was going to start a fire somewhere around the "harbor master place," and then did start a fire in the general vicinity of the harbor master's office. Gottardi's admission on the night of the fire parallels Gottardi's comments to Maher a couple of months before, and demonstrates a state of mind on the night of the fire consistent with his earlier comment. Gottardi's statement from a few months before the night of the fire was relevant.
We conclude that Judge Collins did not abuse her discretion when she ruled that Gottardi's prior statement was relevant and that the probative value of the evidence outweighed any prejudice.
Gottardi's sentence was not clearly mistaken
Gottardi was convicted of two class A felonies and one class A misdemeanor. Gottardi was a third felony offender for purposes of presumptive sentencing. The State alleged one statutory aggravating factor, AS 12.55.155(c)(15) (Gottardi had three or more prior felony convictions), based on Gottardi's record of seven prior felony convictions. Gottardi conceded that the aggravator applied, stating that he was "not in a position to contest the proposed aggravator." Gottardi argued that if the superior court aggravated the presumptive 15-year term that applied for the class A felonies, the additional time should be suspended.
AS 11.46.400(b) (first-degree arson is a class A felony); AS 11.46.475(b) (first-degree criminal mischief is a class A felony); AS 46.03.740 .790 (oil pollution is a class A misdemeanor if the oil discharge is less than 10,000 barrels).
In addition to the prior felony convictions, Gottardi had over twenty misdemeanor convictions. Gottardi was 46 years old when sentenced and his criminal history extended back to his teenage years.
Judge Collins found that Gottardi was a worst offender based on his record of prior convictions and the facts of his case. This finding authorized the court to impose a maximum term. Gottardi did not attack the worst offender finding in his opening brief.
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975) (holding that a maximum sentence should not be imposed without some foundation for characterizing a defendant as the worst type of offender).
Judge Collins addressed the sentencing criteria from AS 12.55.005 and State v. Chaney before deciding whether to adjust the presumptive 15-year term for Gottardi's class A felony convictions. Judge Collins found no positive indications for rehabilitation in Gottardi's history. She stressed deterrence and community condemnation. She found that Gottardi posed "a clear and substantial risk to the public" and that she had to isolate Gottardi to protect the public.
477 P.2d 441, 443-44 (Alaska 1970).
See Juneby v. State, 641 P.2d 823, 833, 835 n. 21 (Alaska App. 1982), modified on other grounds, 665 P.2d 30 (Alaska App. 1983).
Judge Collins aggravated the 15-year presumptive term for first-degree arson by imposing the maximum 20-year term. She imposed a concurrent 15-year presumptive term for first-degree criminal mischief and a concurrent 1-year term for oil pollution. Thus, Gottardi received a composite 20-year term to serve. On appeal, he challenges this sentence as excessive.
Gottardi's conduct caused damage of over $150,000. He endangered the safety of fire fighting personnel who fought the fire. Other property in the harbor was threatened by the fire which caused pollution in Auke Bay. From our review of the record, we conclude that Gottardi's sentence is not clearly mistaken. Conclusion
See McClain, 519 P.2d at 813-14.
The judgment of the superior court is AFFIRMED.