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Farmer v. State

Court of Appeals of Alaska

August 30, 2019

CELESTY NOEL FARMER, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Court, First Judicial District Trial Court Nos. 1CR-13-00184 CR & 1CR-13-00186 CR, Craig, David V. George, Judge.

          David A. Graham, Graham Law Firm, Sitka, for the Appellant.

          Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and James E. Cantor, Acting Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.

          OPINION

          WOLLENBERG Judge.

         Celesty Noel Farmer was charged in three cases based on separate incidents occurring in 2013. These three cases were joined for trial.

         In one of the cases, the State charged Farmer with third-degree criminal mischief for causing damage in an amount of $500 or more to the fishing boat of her ex- husband, Donald Yates.[1] This charge was based on Farmer's act of cutting the ropes to Yates's boat while it was tied up at the dock in Klawock on Prince of Wales Island. Farmer conceded that she set the boat adrift, but she argued that her conduct was justified on the ground of necessity. The trial court refused to instruct the jury on the defense of necessity.

         The jury acquitted Farmer of third-degree criminal mischief but convicted her of the lesser included charge of fourth-degree criminal mischief for causing damage to the boat in an amount of $50 or more.[2] The jury also acquitted Farmer of criminal trespass in connection with this incident.

         In the second and third cases, the State charged Farmer with two counts of driving while her license was revoked (DWLR) - one for an incident in February 2013 and another for an incident in July 2013. The jury acquitted Farmer of the February 2013 charge, but the jury convicted Farmer of the July 2013 charge and a related charge of violating her conditions of release from the February DWLR charge.[3]

         On appeal, Farmer raises several challenges to her convictions. First, Farmer argues that the trial court erred in declining to instruct the jury on the defense of necessity in relation to the criminal mischief charge. Second, Farmer argues that the court should have dismissed the July DWLR and the related violating conditions of release charge because of prosecutorial misconduct. Finally, Farmer contends that the prosecutor misrepresented the evidence to the jury during his rebuttal closing argument. We reject these claims and affirm Farmer's convictions.

         Farmer also challenges the restitution judgment issued in connection with her criminal mischief conviction. At sentencing, the trial court ordered Farmer, as a condition of her probation, to pay restitution of $9, 797 for setting the boat adrift.[4]Farmer argues that the court lacked the legal authority to impose any restitution in excess of $499.99 - the upper end of the damages range for fourth-degree criminal mischief. We conclude that the judge had the authority to order restitution for the actual damages or losses caused by Farmer's criminal conduct.

         Background facts

         Farmer and Yates had a long-term relationship and had two children together. They were married in 2009, after having been together for nine years. However, in 2011, Farmer filed for divorce, and by fall 2012, the divorce was final.

         Yates was a commercial fisherman who owned a forty-two-foot wooden trailer that Yates often lived aboard. As part of the divorce settlement, Yates retained the title to, and possession of, the boat.

         According to Farmer's testimony, Yates was physically and verbally abusive to her for years. Farmer testified that in January 2013, the year following their divorce, Yates assaulted her, and she reported the incident to the police. Yates fled onto his boat, and he eluded the police for the next ten days. Yates eventually turned himself in, pleaded guilty to fourth-degree assault, and was released from custody in early February 2013.

         Farmer testified that, after Yates's release, Yates moved next door to her despite the existence of a no-contact order, and he began contacting her and threatening her with harm if she turned him in again. A few days later, Yates asked Farmer if he could take his son fishing after school. Farmer told him he could not, which led to an argument.

         Farmer testified that, later that day, Yates sent her a text message saying that he was taking his son. Farmer asserted that she only had five minutes to get to the bus stop where her son would be dropped off from school, but she did not have a driver's license. She said that she tried reaching a friend and calling a taxi, to no avail. She testified that she felt she had no other option than to drive in order to prevent Yates from taking her son. (This conduct was the basis for the first DWLR charge. The jury credited Farmer's necessity defense and acquitted her of this charge.)

         A few months later, on the night of April 16, 2013, Farmer went onto Yates's boat to retrieve a laptop that Yates had borrowed from Farmer's mother. Farmer testified at trial that Yates gave her permission to board the boat to get the laptop. Yates denied giving Farmer permission to board the boat, but he conceded that he had never prohibited Farmer from going aboard the boat.

         Farmer stopped by the boat when she knew Yates was at a friend's house. As Farmer was getting off the boat with the laptop, she used a knife to cut the boat loose from the dock. Farmer testified at trial that she had "made a huge mistake" and "wasn't thinking at [the] time" when she cut the ropes. She testified that Yates had made comments in the past about using the boat to hurt people who cared about her. Farmer testified that she thought Yates would be returning to the boat shortly that evening and that cutting the ropes "would have been a point, you know? Just leave me alone, you know?"

         However, Yates did not return to the boat that evening, and it floated away from the dock and grounded on a nearby island. Yates and many members of the community worked for two days to pull the boat off the beach during a high tide.

         Based on the April incident involving Yates's boat, the State charged Farmer with third-degree criminal mischief and first-degree criminal trespass. The jury acquitted Farmer of both charges but found her guilty of the lesser included offense of fourth-degree criminal mischief.

         The two other charges for which Farmer was convicted - the July 2013 DWLR and violating conditions of release charges-were based on a separate incident. Yates was not involved in this incident. (We discuss the facts and procedural history of these charges later in this opinion.)

         At sentencing, the court ordered Farmer to pay $9, 797 in restitution in connection with the criminal mischief conviction.

         Farmer's claim that the trial court erred in refusing to give a necessity instruction as to the criminal mischief charge

         Prior to trial, Farmer gave notice of her intent to assert a defense of necessity in relation to the criminal mischief charge. The trial court declined to instruct the jury on this defense. Farmer appeals the trial court's ruling.

         A defendant is entitled to a jury instruction on the defense of necessity if the defendant presents "some evidence" that: (1) the charged offense was committed to prevent a significant evil; (2) there was no adequate alternative to the charged offense; and (3) the foreseeable harm from the unlawful conduct was not disproportionate to the harm avoided by breaking the law.[5] "Some evidence" is "evidence that, viewed in the light most favorable to the defendant, would allow a reasonable juror to find in the defendant's favor on each element of the defense."[6]

         In the trial court, Farmer argued that the statements she made to the police after she set the boat adrift supported her request for a necessity instruction. Specifically, she pointed to statements that she was scared for her physical safety based on Yates's threats and his past actions. She contended that she believed, based on prior experience, that the police could not protect her. She asserted that she cut the mooring lines to prevent Yates from following through on his threat to use the boat to stalk her or to hurt her or others, and to prevent him from using the boat to again avoid apprehension by the police. She argued that she reasonably perceived that any potential property damage to the boat by setting it adrift was not disproportionate to the bodily harm she sought to prevent.

         The trial court declined to instruct the jury on the defense of necessity in relation to the criminal mischief charge, finding that Farmer had failed to present "some evidence" on the second and third elements of the defense. The court acknowledged that Farmer had presented evidence that she was truly scared of Yates. But the court found no evidence suggesting that Farmer faced imminent harm, or that she needed to cut the boat loose that night to avert imminent harm. The court noted that cutting the boat loose would not have made Yates any less dangerous to Farmer. The court also found that Farmer had a number of legal alternatives to cutting the boat loose, including going to the police or obtaining a domestic violence restraining order.[7] Finally, the court concluded that any future threat of harm to Farmer was outweighed by the risk that cutting the boat loose in the middle of the night could cause harm to the boat, as well as to other boats and boaters.[8]

         After independently reviewing the record in this case, we agree with the trial court that Farmer did not present evidence sufficient to entitle her to a necessity instruction on the criminal mischief charge.[9]

         Farmer's claim that the trial court should have dismissed the July 2013 charges

         Farmer argues that the trial court should have dismissed the July 2013 DWLR charge (and the related violating conditions of release charge) after the prosecutor told the jurors during his opening statement that they would hear from a particular witness, but the prosecutor later excused the witness from her subpoena.

         The July DWLR charge against Farmer was based on Farmer's allegedly driving with her friend, Cathia Demmert. Alaska State Trooper John Ryan testified that he observed Farmer driving past him in the opposite direction while they were in a construction zone. Ryan noticed Farmer because she was waving her hand outside the driver's side window and honking her horn in a friendly manner to get the attention of the flagger. Ryan was aware that Farmer's license was revoked, and he turned his vehicle around to follow her.

         Ryan stopped the vehicle about a mile down the road. By that time, he found Demmert in the driver's seat, and Farmer in the passenger seat. But Ryan noticed that the driver's seat was positioned so far forward that the steering wheel was pressing against Demmert, thus suggesting that Demmert would have found it difficult, if not impossible, to drive the vehicle.

         Farmer denied that she had been driving the vehicle. She told Ryan that she had been leaning over Demmert in the driver's seat to wave, and that Demmert had been leaning into the back seat to buckle in a child.

         Ryan reported that Demmert admitted to switching places with Farmer before Ryan reached the car.[10]

         Prior to trial, Farmer's attorney expressed concern that the prosecutor might refer to Demmert's assertion but not call Demmert to testify, thus potentially violating Farmer's right to confrontation.[11] The prosecutor told the court that Demmert had been subpoenaed and that he expected her to testify. He said that if she did not appear, he would ask for a warrant for her arrest.

         In his opening statement later that day, the prosecutor told the jury that Demmert would testify that she switched places with Farmer before the traffic stop.[12] But then, on the next day of trial (which was two days later), the prosecutor announced that Demmert was in Anchorage getting treatment - which the prosecutor himself had approved earlier in the month - and would not be in court to testify. The prosecutor told the court that he did not realize until the previous morning that Demmert was in Anchorage, and he explained that the State had decided not to pay the expense of flying her in from Anchorage, so she had been excused from her subpoena.

         Farmer's attorney reminded the court that he had raised this issue before trial to avoid precisely this situation. He maintained that the jury had been "tainted" by the prosecutor's opening statement referring to Demmert's anticipated testimony, and he argued that the unavailability of Demmert for cross-examination violated his client's right to confrontation. (He also suggested that Demmert would not testify as the State had anticipated. In response to this latter argument, the trial court noted that Farmer herself could subpoena Demmert, if she wished.)

         Farmer's attorney argued that, even though the prosecutor's opening statement was not evidence, it was impossible to "unring the bell." However, Farmer's attorney refused to request a mistrial.

         Instead, Farmer's attorney argued that dismissal of the July 2013 DWLR charge was the only appropriate remedy. The court ruled that there was no legal authority to dismiss the case; the court also concluded that there was no manifest necessity to order a mistrial. The court found that a "self-help remedy" is "usually more than sufficient" in this type of situation - that is, Farmer's attorney could ask the jury to infer that the State did not present Demmert to testify because her testimony would actually have favored Farmer. (Farmer's attorney did exactly that in his closing argument.)

         On appeal, Farmer does not challenge the court's denial of a mistrial. Instead, she argues that the court abused its discretion by denying her motion to dismiss. But rather than renew her claim that the prosecutor's statements violated her right to confrontation, Farmer now argues that the prosecutor's actions - in informing the jury of Demmert's alleged statement and then excusing her from her subpoena-constituted misconduct entitling her to a dismissal.

         Farmer acknowledges that the trial judge made no findings about the prosecutor's good or bad faith, but he argues that "the facts of this case speak clearly for themselves." While one might have concerns about the prosecutor's unilateral decision to release Demmert from her subpoena given the parties' discussion of this issue before trial and the prosecutor's remarks in his opening statement, Farmer's attorney never asked the court to rule on a claim of prosecutorial misconduct, nor did he request factual findings that would allow this Court to evaluate such a claim. Under these circumstances, we conclude that this claim is not preserved for appeal.[13]

         Moreover, on this record, we cannot say that the trial court abused its discretion in denying an outright dismissal of the DWLR charge. As a general matter, the proper remedy in this situation would either be a curative instruction or a mistrial.[14]But instead of asking for a mistrial, Farmer's attorney availed himself of the "self-help" remedy suggested by the judge. The attorney told the jury, "I ...


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