Opinion
Court of Appeals No. A-8539.
November 24, 2004.
Appeal from the District Court, Second Judicial District, Barrow, Michael I. Jeffery, Judge. Trial Court No. 2BA-02-492 CR.
Connie Aschenbrenner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Jill S. Kinsley, Assistant District Attorney, Jeffrey A. O'Bryant, District Attorney, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Brenton Rexford was convicted of fourth-degree assault. He appeals, contending that the district court erred when it rejected his request for a jury instruction on self defense, and when it excluded evidence of the victim's specific instances of prior assaults. He also claims that error occurred during the State's closing argument when the prosecutor quoted from the bible, and when he commented upon the lack of self defense evidence. Finally, Rexford claims that the district court erred when it found that he was a worst offender, and when it imposed a sentence of 1 year to serve. For the reasons explained below, we reject Rexford's claims and we affirm his conviction and his sentence.
AS 11.41.230 (a)(1).
Facts and proceedings
In the summer of 2002, Rexford and his girlfriend, Carolyn A. Toovak, were living together in Rexford's mother's house. When Toovak went to the house on August 14, she found Rexford drinking with his cousin. Because Toovak did not want to be around Rexford when he was drinking, she called her sister to come and get her. Before Toovak's sister arrived, Rexford began to push Toovak around, and to pull her hair. He also grabbed her by the neck and choked her, then slammed her "down against the couch" and held her down by her arms. Toovak's sister arrived while Rexford was holding Toovak down on the couch. When Rexford saw Toovak's sister, he let go of Toovak and backed away from her.
Toovak's sister convinced Toovak to report the assault to the police. Toovak went to the police station and was interviewed by North Slope Borough Police Officer Haskell Moore Jr. Moore testified that Toovak told him that Rexford had choked her. Moore could see that Toovak was upset — she was crying, her face was red, and she was complaining of pain in her neck and in her right arm. He saw a bruise and a small scratch on her right arm. Moore took photos that showed red marks under Toovak's right eye, red spots and marks that "look[ed] like bruising" on the front of her neck, and a bruise and a scratch on her right arm. Moore testified that it looked like Toovak had been "beat up" by somebody.
Based on Toovak's report and her injuries, Rexford was charged with fourth-degree assault. Trial began on January 14, 2003.
On the morning of the second day of trial, the parties discussed jury instructions. Rexford asked for an instruction on self defense. The prosecutor, who had already presented evidence from Toovak and Officer Moore, objected on two grounds: that Rexford had not given the State timely notice of this justification, and that there was no evidence warranting a self defense instruction. Superior Court Judge Michael I. Jeffery, sitting in the district court, rejected Rexford's request because it was untimely.
Soon after, during Rexford's cross-examination of Toovak's sister, Rexford attempted to introduce evidence of specific instances of Toovak's prior violent behavior. Judge Jeffery ultimately ruled that this evidence was not admissible unless Rexford could show that it was relevant.
During the State's closing argument, the prosecutor quoted a proverb from the bible. Rexford objected, asserting that "[w]e have separation of church and state. I don't believe it's appropriate to quote scripture in a closing argument." Judge Jeffery overruled this objection. Later, the prosecutor, responding to Rexford's closing argument, reminded the jury that Rexford, when he testified, had not claimed that he had acted in self defense. Afterwards, the jury found Rexford guilty.
At sentencing, Judge Jeffery found that Rexford was a worst offender. He sentenced Rexford to 1 year in jail with no time suspended. This appeal followed.
Discussion Rexford's self defense claims
As already explained, on the second day of trial, near the end of the State's case-in-chief, Rexford submitted an instruction on self defense. The State objected for two reasons: Rexford had not given the State notice of self defense before trial, nor had he presented any evidence supporting the defense. Judge Jeffery rejected the instruction for the first reason, and did not reach the second. On appeal, Rexford contends that Judge Jeffery abused his discretion when he rejected the instruction on the grounds that notice was untimely.
We find that we need not resolve Rexford's contention. Based on our review of the record, we conclude that there was insufficient evidence to support Rexford's self defense justification.
When Rexford's attorney requested the self defense instruction, she claimed that it was justified because Rexford had physically restrained Toovak to keep her from hurting him. Despite this claim, however, Rexford presented no evidence — either in an offer of proof or during his testimony — that on August 14, Toovak had used or had threatened to use any force against him. Nor did the evidence introduced during the State's case support Rexford's claim.
When determining whether a jury should have been instructed on self defense, we construe the evidence in the light most favorable to a claim of self defense. We ask whether this evidence would be sufficient to justify a finding in the defendant's favor by a reasonable fact-finder on each element of the proposed defense.
Paul v. State, 655 P.2d 772, 773 (Alaska App. 1982).
Hamilton v. State, 59 P.3d 760, 770 (Alaska App. 2002); Ha v. State, 892 P.2d 184, 190 (Alaska App. 1995).
Here, Rexford made no offer of proof showing that Toovak was the first aggressor, and nothing introduced during the State's case on the first day of trial indicated that Toovak had used or had threatened to use any force on Rexford. Even when Rexford testified, he did not claim that he had acted in self defense, nor did he assert that Toovak had used or threatened to use any force against him.
According to Rexford, Toovak did nothing but try to go into Rexford's bedroom to get some alcohol. Although he said that he physically prevented her from going into his bedroom, he did not claim that he held her because she was assaulting or threatening to assault him. He testified that after he moved her away from the bedroom, she went to the hallway or to the telephone. He went into the bedroom for a short time, and when he came out, they began to play, wrestling on the couch. Even viewed in the light most favorable to a claim of self defense, the evidence in this case did not "generate the issue of self-defense for jury consideration." Accordingly, there was no error.
See Paul, 655 P.2d at 775 (quoting State v. Millet, 273 A.2d 504, 508 (Me. 1971)).
Evidence of specific instances of Toovak's prior violent conduct
After Judge Jeffery rejected Rexford's self defense instruction, Rexford tried unsuccessfully to introduce evidence of specific instances of Toovak's prior violent conduct. Rexford explained that "evidence of specific instances of the victim's violent conduct was necessary to enable the jury to determine how much force a reasonable person with the defendant's knowledge of the victim's propensity for violence would have felt compelled to use in that instance." Judge Jeffery ruled that the evidence of specific instances of Toovak's prior violent conduct was not admissible.
On appeal, Rexford claims that Judge Jeffery erred when he did not allow Rexford to offer evidence of Toovak's prior assault conviction, her fights with other boyfriends, and her conviction for breaking a prior boyfriend's car window. Generally, evidence of a victim's prior violent conduct "is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith."
A.R.E. 404(b)(1).
Despite this general prohibition, a defendant claiming self defense can introduce character evidence "to prove the likely identity of the initial aggressor." But this character evidence cannot take the form of specific incidents of violence — the kind of evidence that Rexford offered here. Rather, when character evidence is offered for this purpose, it is limited to reputation or opinion evidence. Thus, Rexford's proposed evidence of Toovak's past acts of violence was not admissible for the purpose of proving that Toovak might have initiated an assault on Rexford.
Allen v. State, 945 P.2d 1233, 1239 (Alaska App. 1997).
A.R.E. 405(a); Allen, 945 P.2d at 1242.
(Moreover, as we have explained, there was no evidence — and no offer of proof — that Toovak had assaulted Rexford or had threatened to assault him.)
Evidence of another person's past acts of violence can sometimes be admissible to prove that a defendant acted reasonably when using force against that person. But in such situations, the true relevance of this evidence is not that the past acts of violence occurred; indeed, they may not have actually occurred. Rather, the evidence is relevant because it tends to prove the defendant's state of mind — the defendant's perception of the situation. The probative force of this evidence rests on the fact that (1) the defendant had either witnessed or heard about the other person's past acts of violence, and (2) this awareness shaped the defendant's decision to use force in the current case.
Allen, 945 P.2d at 1241.
Id.
Because the relevance of this evidence is the effect that it had on the defendant's state of mind, a key element of the defendant's foundational offer of proof is the assertion that the defendant knew of the other person's past acts of violence. In the present case, Rexford never claimed that he knew about Toovak's past acts of violence when he used force against Toovak during the episode litigated in this case. In fact, the record affirmatively suggests that Rexford did not know about these prior acts.
Id.; Amarok v. State, 671 P.2d 882, 884 (Alaska App. 1983).
As explained above, Rexford's attorney gave a very belated notice of intent to raise self defense. Attempting to justify this tardiness, Rexford's attorney complained that the government had not provided the information about Toovak's criminal history until just before the trial began. The defense attorney's statement suggests that Rexford did not know about Toovak's past instances of violence until the State apprised him of these incidents. Accordingly, the evidence was not relevant to prove Rexford's state of mind on the evening of August 14, 2002.
For these reasons, we conclude that Judge Jeffery properly excluded Rexford's proposed evidence of specific instances in which Toovak exhibited violent behavior.
The State's comments during closing argument
Rexford claims that two errors occurred during the State's closing argument. First, he claims that the prosecutor committed error when he quoted from the bible. Second, he claims that the prosecutor violated a court ruling by reminding the jury that Rexford had not testified that he had acted in self defense.
During his closing argument, the prosecutor quoted a proverb from the bible: "the guilty flees when no man pursueth; the righteous stand bold as a lion." The prosecutor then pointed out to the jury that despite Rexford's claims that he and Toovak were playing, and that he was doing nothing wrong, his actions when Toovak's sister walked in indicated that Rexford was assaulting Toovak.
Rexford asserts that by quoting from the bible, the prosecutor not only asked the jury to disregard the law and to follow the bible, but also injected his own opinion about Rexford's guilt. But based on our review of the record, we conclude that the prosecutor was not asking the jury to ignore the law, or to decide the case based on the bible; nor was he injecting his personal opinion about Rexford's guilt. Rather, he was highlighting the inconsistency in Rexford's defense.
Rexford had testified that no assault occurred, and that he and Toovak were consensually wrestling. Yet, when Toovak's sister walked in, Rexford immediately moved away from Toovak. The prosecutor's argument emphasized that had Rexford believed that he was doing nothing wrong, he would not have so abruptly stopped and moved away. Nor did the prosecutor inject his own personal opinion about Rexford's guilt; rather, he argued that Rexford's actions were evidence that Rexford was assaulting Toovak.
Rexford's other claim — that the prosecutor violated a court order when he brought up the lack of any evidence showing self defense — falters because there was no court order or ruling that prevented the parties from bringing up self defense during their closing arguments. Although it is true that Rexford's request for a jury instruction on self defense was denied, and that he was not allowed to introduce evidence of specific instances of Toovak's prior violent conduct, there was no ruling preventing Rexford from testifying that Toovak was the initial aggressor, nor was there any ruling that prevented the parties from commenting about the evidence that was admitted.
At trial, Rexford testified that neither he nor Toovak used any unlawful force against the other. Although he testified that he and Toovak had fought in the past, and that she had during these fights grabbed his crotch, he did not claim that she had grabbed him or had threatened to grab him on August 14.
When the prosecutor discussed self defense, he was using Rexford's testimony to respond to Rexford's closing argument. During Rexford's closing, his attorney had said that the evidence showed that Toovak may not have wanted to go to the police "because she did something that she didn't want to admit to." The prosecutor, in his final argument, responded to that remark:
[t]he defense said "hey, well maybe she didn't want to go to the police because she had done something wrong." What's the problem with that? It's obvious. Even the defendant says she didn't do nothing wrong. The defendant never claimed that she attacked him. The defendant never claimed "yeah, when I grabbed her and pulled her hair it was self defense," none of these things. He said she never hit him that night. He admitted [that] . . . she didn't try to grab his crotch like he claimed had happened in the past. She didn't do nothing wrong, even the defendant admits that.
In light of Rexford's closing argument, this comment was not improper.
The prosecutor did not commit misconduct during his closing argument. Accordingly, we find no error.
The worst offender finding
Rexford claims that Judge Jeffery erred when he found Rexford a worst offender. Rexford supports this claim in part by asserting that his assault on Toovak was not serious. But, recognizing that a worst offender finding can be based solely on a defendant's criminal history, Rexford also claims that, under Keyser v. State, a worst offender finding cannot be justified solely by a defendant's lengthy criminal history unless the record shows both that the defendant was given an opportunity for rehabilitation and that deterrence will not work. Based on Keyser, Rexford concludes that the worst offender finding was erroneous because the sentencing record does not show whether past rehabilitative efforts had failed.
856 P.2d 1170 (Alaska App. 1993).
Id. at 1177.
Although the parties did not expressly litigate Rexford's past efforts at rehabilitation, the record demonstrates that Judge Jeffery found that Rexford had been given chances for rehabilitation and that he had not been deterred by previous sentences. Judge Jeffery said, "I can't ignore . . . [your] record. . . . I mean it's a very, very long record and what's disturbing about it is not only that you've gone to court again and again and again, [but] you've been sentenced again and again and again, [and you] keep drinking [and] . . . doing these other different kinds of [offenses] including five prior assaults." Judge Jeffery also noted that when Rexford assaulted Toovak, he was on probation for a prior assault. Consequently, Judge Jeffery concluded that based on Rexford's criminal history, "at some point you just have to say [that] this isn't working[,] . . . at some point you just have to say [that] we have to look at . . . sentencing goals [other] than just rehabilitation." This record shows that Judge Jeffery determined that Rexford had been given chances for rehabilitation and that he had not been deterred by previous sentences.
Cf. Downs v. State, 872 P.2d 1229, 1231 (Alaska App. 1994) (number of convictions can justify judge's conclusion that an offender was largely undeterrable: "Judge Ashman could properly conclude that Downs, who had eleven convictions for [driving while license revoked], was a dangerous and largely undeterrable offender.").
The record also supports Judge Jeffery's worst offender finding. A worst offender finding can be justified by a defendant's criminal record. According to the record, at the time of sentencing in this case, Rexford had six prior convictions for either drunk driving or refusal to submit to a chemical test — one each in 1989, 1991, 1996, 1999, and two in 1993. He also had five other assault convictions — one each in 1989, 1991, 1996, 1997, and 2002. His other convictions included "a harassing communication, numerous driving offenses, such as driving while license revoked, three charges for leaving the scene of an accident," and two bail violations that had arisen since the assault in this case.
State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975); see also Pointer v. Anchorage, 812 P.2d 232, 234 (Alaska App. 1991) (upholding Pointer's classification as a "worst offender" in large part because of Pointer's "extensive misdemeanor record").
Before Rexford assaulted Toovak, he had a total of 19 prior convictions. By the time he was sentenced in this case, he had accumulated two more, and had been charged with committing another assault. Judge Jeffery noted that Rexford had an "unusually long [criminal] record."
Based on Rexford's extensive criminal record, Judge Jeffery did not err by finding that Rexford was a worst offender.
The 1-year sentence
Rexford was subject to a 60-day mandatory minimum sentence for his assault on Toovak. Judge Jeffery ultimately imposed a substantially greater sentence — 1 year to serve, the maximum penalty for fourth-degree assault.
AS 12.55.135 (g)(2).
Rexford argues that he should have received no more than the 60-day mandatory minimum sentence. But a mandatory minimum sentence represents the legislature's judgment concerning "[the] minimum sentence . . . appropriate for [an] offender whose conduct is the least serious contemplated by the definition of the offense." Here, Judge Jeffery found that Rexford was a worst offender, and the record supports that finding. Thus, Judge Jeffery was authorized to consider sentences up to the 1-year maximum penalty for Rexford's offense.
Foley v. State, 9 P.3d 1038, 1042 (Alaska App. 2000) (quoting Middleton v. Anchorage, 673 P.2d 283, 284 (Alaska App. 1983)).
Judge Jeffery found that, in light of Rexford's lengthy criminal history, he had to "look at other sentencing goals than just rehabilitation. We have to look at deterrence, we have to look at just the goal of isolation, too. And I am going to be giving that weight."
Considering Judge Jeffery's findings, Rexford's extensive criminal history, which included five other assaults, and the fact that Rexford assaulted Toovak while on probation for a prior assault, we find that the sentence imposed was not clearly mistaken. Conclusion
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment of the district court is AFFIRMED.