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counts of driving while her license was revoked (DWLR) - one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 ...