STICKLE v. STATE (1997)

MEMORANDUM OPINION AND JUDGMENT

A jury convicted Joseph C. Stickle of assault in the fourth degree, a class A misdemeanor.  AS 11.41.230(a)(3).¹  Stickle appeals, contending that District Court Judge Peter G. Ashman erred by admitting evidence of his past marijuana use at trial.   We affirm.

On February 17, 1996, Stickle and his wife, Krista Stickle, had a domestic argument during which Stickle shoved Krista;  Krista then left the house and called 911 for assistance because she feared that the argument would escalate into violence and that Stickle would hurt her again, as he had done in past arguments.   Palmer Police Officer John Cyr testified that when he arrived at the Stickles' home, Krista appeared nervous and upset and was crying and had difficulty talking.

Before the trial, Stickle had objected to any mention of Stickle's use or possession of drugs, arguing that any relevance of drug use to this assault case was too attenuated to overcome the substantial prejudicial impact of such evidence.   The state argued that Stickle's drug use was relevant because it was the issue that started the argument between Stickle and Krista on February 17, as the pattern of the marriage had been that the couple was unable to pay bills and necessary expenses because Stickle was spending all the money on drugs and partying, and that when Krista confronted Stickle on this subject, Stickle often responded with violence.

Judge Ashman agreed with Stickle that evidence of his drug use would have a prejudicial effect, but ruled that it was not unfairly prejudicial, because if Stickle's drug use was an ongoing dispute in the marriage and was the subject of the argument on February 17, then the drug use had an affirmative connection to the charged assault and so was directly relevant.   Judge Ashman therefore ruled that the state could present evidence of Stickle's drug use at the time of the charged assault on February 17 or within the preceding two weeks.   Judge Ashman explained that the topic of Stickle's drug use was so intertwined with the February 17 argument between Stickle and Krista that that argument could not be presented simply as a domestic dispute:  the specific issue in the argument, Stickle's drug use, had to be presented to the jury as well.

On appeal, Stickle challenges the merits of this ruling.   However, we conclude that Judge Ashman did not abuse his discretion.   Under the prosecutor's offer of proof Stickle's drug use had frequently resulted in quarrels and assaults in the past, and this had been the impetus for the domestic quarrel on February 17.   Under this offer, Stickle's drug use was particularly relevant to explain the events of February 17 and to show that Krista was placed “in fear of imminent physical injury.”   See Dorman v. State, 622 P.2d 448, 460-61 (Alaska 1981);  Toomer v. State, 890 P.2d 598, 600 (Alaska App.1995).

For the first time on appeal, Stickle notes that the drug-use evidence that was actually presented at trial did not conform to the prosecutor's pretrial offer of proof.   Indeed, there were only two brief references to Stickle's drug use in Krista Stickle's testimony; ²  the prosecutor made two additional passing references to Stickle's drug use in his closing argument.³  The trial evidence of Stickle's drug use was therefore both less probative and less prejudicial than the state had announced in its offer of proof.   However, at no time did Stickle object to this discrepancy, nor did Stickle note the discrepancy and ask Judge Ashman to reevaluate whether the actual drug-use evidence was more probative than prejudicial.   Even on appeal, Stickle does not argue that Judge Ashman committed any error as a result of this discrepancy at the trial, but argues only that Judge Ashman's pretrial ruling was an abuse of discretion.   We have already concluded that it was not.

We AFFIRM the conviction.

FOOTNOTES

1.   AS 11.41.230(a)(3) provides that a person commits fourth degree assault if “by words or other criminal conduct that person recklessly places another person in fear of imminent physical injury.”

2.   At one point, Krista Stickle testified that one of the topics to which Stickle would generally respond with an intimidating glance if she mentioned it was “if I asked him about his drugs.”   Later, Krista testified that before Stickle had beaten her in an earlier incident, “something happened;  I think I was confronting him about some pot that I found.”

3.   At one point, the prosecutor asked the jury to consider “all the problems of the marriage,” including “the drug use.”   Later, the prosecutor argued that Stickle's intimidation and control of Krista had led to her “not bringing to light [Stickle's] drug use.”

COATS, Chief Judge.