Opinion
Court of Appeals No. A-11046 No. 6097
09-24-2014
PAUL CHESTER THOMPSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Christopher Mishler, Assistant District Attorney, Bethel (brief), and Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage (oral argument), and Michael C. Geraghty, 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. 4SM-11-035 CR
MEMORANDUM OPINION
Appeal from the District Court, Fourth Judicial District, Saint Mary's, Dennis P. Cummings, Judge. Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Christopher Mishler, Assistant District Attorney, Bethel (brief), and Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage (oral argument), and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and E. Smith, Superior Court Judge. Judge MANNHEIMER, writing for the Court.
Judge ALLARD, concurring.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
The State charged Paul Chester Thompson with misdemeanor assault and with violating a domestic violence protective order, based on evidence that he assaulted his wife. Thompson pleaded no contest to the assault charge, and he was later convicted (at a bench trial) of violating the protective order.
Thompson appeals his conviction for violating the domestic violence protection order. He asserts that the evidence presented at his trial was not legally sufficient to support the verdict against him. Thompson also argues that the district court impermissibly limited his ability to present a defense when the court precluded him from offering evidence (and argument) that, at the time of this occurrence, he genuinely and reasonably believed that the domestic violence protective order had been dissolved and was no longer in effect.
We conclude that the evidence presented at trial was sufficient to support Thompson's conviction for violating the protective order. And with respect to Thompson's claim that he was improperly prevented from presenting a defense, we conclude that Thompson's offer of proof in the trial court was not legally adequate to support his proposed defense.
Underlying facts
In October 2010, Thompson's wife Kelly obtained a long-term domestic violence protective order against him. This order prohibited Thompson from (1) having direct or indirect contact with Kelly and their four children, (2) being within 500 feet of Kelly's residence, and (3) committing any crime of domestic violence.
At the time this protective order was issued, Kelly and the children were staying at a shelter in Anchorage. Thompson was in the village of St. Mary's, living in the family home.
In early November, Kelly filed a request to modify the protective order. In a pleading that the State filed in the district court, the State referred to Kelly's request as a motion to "dissolve" the protective order. But at trial, when Kelly was questioned about this, she testified that she did not ask the court to dissolve the protective order. Instead, she asked the court to modify the order: she intended to move back to St. Mary's, and she wanted the protective order to list the family home in St. Mary's as her residence.
However, Kelly did not attend the court hearing on this request, and the protective order remained unchanged.
Later that month, Kelly and the children moved back to St. Mary's. They initially lived with Kelly's sister, but they eventually moved back into the family home — where Thompson was already living. Apparently, the Thompsons all lived together in that home through the winter. Sometime in February 2011, Kelly requested another hearing on her application to modify the restraining order, but she again failed to attend the hearing.
On March 19, 2011, Thompson assaulted Kelly by grabbing her arm, then pushing her against a counter and into a wall. The State charged Thompson with one count of fourth-degree assault (for recklessly placing Kelly Thompson in fear of imminent physical injury), and with five counts of violating the protective order (for having contact with Kelly and the four children).
Thompson entered a no contest plea to the assault charge. The State consolidated the five counts of violating the protective order into a single unified count, and Thompson waived his right to a jury trial on that count. Thompson went to trial in front of District Court Judge Dennis P. Cummings. At the conclusion of this trial, Judge Cummings found Thompson guilty of violating the protective order.
Thompson's conviction was supported by sufficient evidence
Thompson argues that the evidence presented at his trial was legally insufficient to support the guilty verdict.
Under AS 11.56.740(a), a person commits the crime of violating a domestic violence protective order if the person is subject to a protective order and "knowingly commits or attempts to commit an act with reckless disregard that the act violates or would violate a provision of the protective order."
In the district court, the State alleged that Thompson violated the protective order in three ways: (1) by having contact with Kelly and the children, (2) by living with Kelly in the family home in St. Mary's, and (3) by committing an act of domestic violence against Kelly (i.e., the assault to which Thompson pleaded no contest).
It was essentially undisputed that Thompson was living with Kelly and the children, so when Judge Cummings announced his verdict, he focused primarily on the evidence that Thompson assaulted Kelly. Based on Thompson's plea of no contest to that charge, and based on the testimony that was elicited at Thompson's trial about the assault, the judge found that Thompson knowingly assaulted Kelly, and that Thompson acted at least recklessly with regard to whether this assault violated the provisions of the domestic violence protective order.
Thompson argues that the district court erroneously relied on his no contest plea to the assault charge when the court found that Thompson knowingly assaulted Kelly. More specifically, Thompson relies on the principle that a criminal conviction is not admissible to show that the defendant committed the conduct underlying that conviction. He also argues that the assault conviction did not establish that his conduct was "knowing", only that it was "reckless".
Jones v. State, 215 P.3d 1091, 1098-99 (Alaska App. 2009).
When Thompson pleaded no contest to the assault charge, he agreed not to contest the essential elements of that offense. That is, Thompson agreed not to contest that, through his words or other conduct, "[he] recklessly place[d] another person in fear of imminent physical injury."
Scott v. State, 928 P.2d 1234, 1236-37 (Alaska App. 1996) (quoting Charles A. Wright, Federal Practice and Procedure (Criminal) (1982), § 177, Vol. 1, pp. 662-64) (footnotes omitted) ("[A] plea of nolo contendere ... has the same effect as a plea of guilty. It is an admission of every essential element of the offense well pleaded in the charge, and is tantamount to an admission of guilt for the purposes of the case ... . No issue of fact remains.").
See AS 11.41.230(a)(3).
Thompson acknowledges this principle, but he argues that the fourth-degree assault statute, by its terms, only requires proof of a "reckless" culpable mental state. Thompson therefore argues that his plea to fourth-degree assault did not constitute a concession that his assaultive conduct was "knowing". This reasoning is incorrect.
As this Court explained in Neitzel v. State, both the Model Penal Code and the Alaska Revised Criminal Code divide the elements of criminal offenses into three categories: conduct, surrounding circumstances, and results. AS 11.81.-610(b)(1) declares that the culpable mental state that must be proved with respect to conduct is "knowingly", unless the particular charging statute calls for proof of a different culpable mental state.
655 P.2d 325 (Alaska App. 1982).
Id. at 328-29; see also Senate Journal Supp. No. 47 at 139-43 (June 12, 1978).
See also 11.81.900(a)(2) (providing that a person acts "knowingly" with respect to conduct or to a circumstance when the person is aware that the conduct is of that nature or that the circumstance exists).
Thus, to convict Thompson of fourth-degree assault, the State had to show that Thompson knowingly engaged in "words or conduct" directed at Kelly, and that he was at least reckless as to whether his words or conduct would place Kelly in fear of imminent physical injury. When Thompson pleaded no contest to this charge, he agreed that the court could find that he engaged in knowing conduct toward Kelly.
Moreover, as we explained above, the district court based its verdict not only on Thompson's no contest plea to the assault charge, but also on the testimony at trial describing the assault.
Kelly testified that, on the day of the assault, Thompson was intoxicated and angry about child support. She said Thompson hit her, grabbed her, and pushed her against the counter and the wall. She said that Thompson was "aggressive", that he was "hollering at times", and that she was afraid he was trying to kill her.
When we review the sufficiency of the evidence to support a criminal conviction, we must view the evidence in the light most favorable to upholding the verdict. Viewed in that light, the testimony at Thompson's trial was sufficient to support the judge's conclusion that Thompson knowingly committed an assault upon Kelly.
Beck v. State, 408 P.2d 996, 997 (Alaska 1965); Ross v. State, 586 P.2d 616, 618 (Alaska 1978).
Thompson's claim that the district court improperly precluded him from presenting the defense that he reasonably believed the protective order had been dissolved
In his brief to this Court, Thompson argues that the district court improperly barred him from presenting evidence that (1) Kelly told him that the protective order had been dissolved, and thus (2) Thompson honestly and reasonably believed that the protective order was no longer in effect when he resumed living with Kelly and the children, and when he assaulted Kelly.
But that is not how Thompson described his proposed defense when he made his offer of proof to the trial judge. When this issue came up in the trial court, Thompson's attorney made an offer of proof that was both unfocused and internally inconsistent: the defense attorney kept changing her description of the evidence she intended to present.
At first, the attorney merely asserted that Kelly had filed a motion to dissolve the protective order — without asserting that Kelly ever told Thompson about her action. Later in the discussion, the defense attorney asserted that Kelly told Thompson that she was trying to get the protective order dissolved. And, at a couple of points in the discussion, the defense attorney suggested that Kelly might have told Thompson that the protective order had been dissolved. But the defense attorney offered no consistent stance on this issue; she kept vacillating between these positions.
On the other hand, the trial judge's remarks during this discussion consistently demonstrate that the judge understood the defense attorney to be arguing one particular theory: that Thompson had a defense to the charge because Kelly told him that she was trying to get the protective order dissolved.
In fact, at one point in the discussion, the defense attorney seemingly confirmed the judge's understanding of her argument:
The Court: You're arguing ... that the fact that [Kelly] showed up at [the] residence, and moved in with him, somehow allows him now to nullify the protective order — because she showed up at his house and said, "I'm trying to get it dissolved." ?And this was definitely the judge's understanding of the defense argument, and the defense offer of proof, when he issued his ruling:
Defense Attorney: Yes. I mean, the difference in [State v.] Strane is someone in a car, you know, one of them 20-day thing — this is, ... Yes. ...
The Court: [AS] 18.66.130(a) [states that] ... an invitation by the petitioner to communicate, enter the residence or vehicle, or have other prohibited contact with the petitioner does not waive or nullify any provisions of the protective order. And I find that [this statutory provision prevents] the defendant [from arguing] that he didn't think the protective order was still in effect because she showed up at his house and she told him that she was trying to get it nullified.(Emphasis added.)
Thompson's attorney offered no objection to the judge's description of the proposed defense. More specifically, the defense attorney offered no objection to the judge's description of the evidence that the defense attorney intended to introduce in support of the defense — evidence that Kelly told Thompson that she was "trying" to get the protective order dissolved (as opposed to telling Thompson that the order had been dissolved).
We agree with the district court that Thompson had no valid defense to the charge of violating the protective order if he resumed living with Kelly after she told him that she was in the process of "trying" to get the protective order dissolved.
Thompson might have had a valid defense (1) if Kelly had told him that the protective order had been dissolved, and (2) if, under the circumstances, Thompson reasonably believed that Kelly was telling him the truth. But Thompson's trial judge was never put on notice that Thompson was making this claim, or that Thompson had admissible evidence to support this claim.
In fact, later at Thompson's trial, Kelly was asked about her efforts to modify the protective order, and her testimony on this issue differed substantially from anything that would support Thompson's proposed defense.
Specifically, Kelly testified that she did not ask the court to dissolve the protective order. Instead, she asked the court to modify the order so that the family home in St. Mary's would be listed as her residence — thus effectively barring Thompson from living there. Kelly also testified that she never told Thompson about her efforts to modify the protective order.
This testimony was given when, over the prosecutor's objection, the defense attorney was allowed to cross-examine Kelly extensively concerning (1) her purported efforts to dissolve the domestic violence protective order, and (2) whether she ever told Thompson about any of this.
During this cross-examination, Kelly clarified that she never asked the court to dissolve the protective order. Rather, she asked the court to modify the order to make it more restrictive — so that it clearly prohibited Thompson from living in the marital home in St. Mary's. We note that the defense attorney repeatedly tried to get Kelly to say that she asked the court to "dissolve" the protective order — and Kelly repeatedly corrected the defense attorney. Kelly also repeatedly testified that she never told Thompson anything about her effort to modify the restraining order:
Defense Attorney: Well, why did you ask for that protective order — to dissolve the protective order?(Emphasis added.)
Kelly: This [request] was not to dissolve [it].
Defense Attorney: Okay. Why did you ask to modify [the protective order]?
Kelly: Because I wanted to make sure that [there] wouldn't be a conflict of who is staying [in the St. Mary's house].
Defense Attorney: But then you just testified that you never were able to act on that request to dissolve the protective order. ... You never appeared [in] court to dissolve that protective order.
Kelly: Not dissolve — to modify.
Defense Attorney: To modify that pro — you never appeared in court to modify that protective order, is that correct?
Kelly: Yes.
. . .
Defense Attorney: Now, did you ever mention this request to dissolve the protective order to Mr. Thompson?
Kelly: It arised. [sic]
Defense Attorney: And what do you mean by that?
Kelly: I considered it, but he never ...
Defense Attorney: So you ...
Kelly: ... show ...
Defense Attorney: ... considered telling him that you had applied to exclude him from his — from the house at 100 Tyson Street?
Kelly: Yes.
Defense Attorney: But then you decided that you would not tell him that you had applied to resolve it — to dissolve that protective order?
Kelly: You're speaking of two different things. You're talking about modification and dissolving.
Defense Attorney: Okay. Well, and I'm — and that's my mistake. So we're talking about modification here. You decided not to tell Mr. Thompson that you had applied to modify the protective order, is that correct?
Kelly: Yes.
Defense Attorney: So, at this point, we have it — a request to modify the protective order, and Mr. Thompson unaware of this request.
Kelly: How am I supposed to notify him [of my request for modification] when there's a restraining order in [effect]?
Defense Attorney: Well, was he — do you know if he was ever given a copy of the order setting the date for [the] hearing?
Kelly: I don't know if the court ever notified him.
In sum, Kelly's testimony did not support the two fundamental elements of Thompson's proposed defense. According to Kelly's testimony, she never asked the court to dissolve the protective order, and she never told Thompson that she was taking action to dissolve the order. Instead, Kelly asked the court to modify the protective order to make it more restrictive, and she declared that she never spoke to Thompson about her efforts to modify the order.
The record contains no other evidence, and no other offer of proof, on these issues. Nor is there any indication that the trial judge's ruling somehow deterred Thompson's attorney from augmenting his offer of proof on this point. We note that, even at sentencing, Thompson's attorney did not argue for leniency by asserting that Thompson honestly thought the protective order had been dissolved, nor did Thompson make any such assertion during his allocution.
In other words, there is nothing in the record to suggest that Thompson had any admissible evidence that Kelly ever told him that the protective order had been dissolved. And without such evidence, there was no factual support for Thompson's proposed defense.
For these reasons, we uphold the trial judge's ruling on Thompson's proposed defense.
Conclusion
The judgement of the district court is AFFIRMED. Judge ALLARD, concurring.
I am writing separately to point out the narrow reach of our holding in this case. Thompson wished to offer the defense that he honestly and reasonably believed the protective order obtained by his wife had been dissolved. The problem with this proposed defense was not its legal invalidity, but rather Thompson's failure to offer evidence to support the defense.
Under AS 11.56.740(a), to prove that Thompson committed the crime of violating a protective order, the State had to prove the following elements: (1) that Thompson was subject to a protective order issued under AS 18.66, (2) that Thompson knew of the protective order and was aware of its provisions, (3) that Thompson committed an act (or attempted to commit an act) that violated one or more provisions of the protective order, and (4) that he did so in reckless disregard of the fact that his act violated the protective order.
See AS 11.56.740(a)(1); see also Alaska Criminal Pattern Jury Instruction for AS 11.56.740(a)(1) (added 2008).
Thompson's proposed defense centered on the fourth element — he claimed that he honestly and reasonably believed that the protective order had been dissolved by the court and that, therefore, he had not acted recklessly with respect to whether his conduct violated the order.
This was a legitimate mistake-of-fact defense, one that Thompson was entitled to argue to the factfinder if he had "some evidence" to support it. The record shows that the trial judge did not understand this point of law. Instead, the judge erroneously believed that the supreme court's decision in State v. Strane precluded this defense.
See Johnson v. State, 268 P.3d 362, 368 (Alaska App. 2012).
61 P.3d 1284 (Alaska 2003).
In Strane, the defendant argued that he was entitled to defend against the charge that he violated a protective order by showing that he genuinely (though mistakenly) believed the no-contact order did not apply if the beneficiary of the protective order consented to the contact. The Alaska Supreme Court held that this was an impermissible mistake-of-law defense.
Id. at 1285, 1287.
Id. at 1289; see also AS 18.66.130(a) ("[A]n invitation by the petitioner to communicate, enter the residence or vehicle [of the petitioner], or have other prohibited contact with the petitioner does not waive or nullify any provision in [the] protective order.").
Here, the trial judge viewed Thompson as trying to raise a similar mistake-of-law defense. The judge mistakenly interpreted Strane to mean that a defendant can never defend against a charge of violating a protective order by showing that he honestly and reasonably believed the order had been dissolved — unless the order actually had been dissolved by the court.
But as we explained in Vickers v. State, there is an important distinction between a defendant's assertion that he mistakenly believed the law did not prohibit his actions (the mistake-of-law defense prohibited by Strane) and the defendant's assertion that he mistakenly — but reasonably — believed the predicate factual circumstance that made his actions unlawful (in this case, the existence of the protective order) did not exist. This latter defense is a legitimate attack on the State's proof that the defendant acted in reckless disregard of the fact that his conduct violated the terms of the protective order.
175 P.3d 1280 (Alaska App. 2008).
Id. at 1284 (Alaska App. 2008).
See generally 1 Wayne R. LaFave et. al., Substantive Criminal Law § 5.6(b) (2d ed. 2013).
The majority faults Thompson's defense attorneys for failing to clearly articulate this theory of defense. From my review of the record, I believe that the judge's own erroneous view of the law contributed to the problems the defense attorneys had explaining their proposed defense. I nevertheless join the majority because I agree that there was an inadequate offer of proof regarding the nature of the proposed defense and the evidence that existed to support it. I therefore concur in the majority's decision.
Thompson's attorneys repeatedly failed to make an offer of proof establishing the factual basis of their proposed mistake-of-fact defense. Moreover , at sentencing, the defense abandoned its earlier unsupported factual claims, and no longer alleged that the victim tried to dissolve the protective order or that she misrepresented to Thompson that the court had dissolved the order.
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