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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DENNIS OLSON,
                                                      Court of Appeals No. A-11872
                            Appellant,               Trial Court No. 3PA-13-3129 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                 No. 2539 — February 17, 2017


              Appeal from the District Court, Third Judicial District, Palmer,
              David L. Zwink, Judge.

              Appearances: Lars Johnson, Assistant Public Defender, and
              Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
              Lindsey Burton, Assistant District Attorney, Palmer, and Craig
              W. Richards, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER, writing for the Court.
              Judge SUDDOCK, dissenting.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
                 In November 2013, Stephanie Olson obtained a 20-day domestic violence
protective order against her husband, Dennis Olson. Under the terms of this restraining
order, Olson was prohibited from being within a quarter-mile of Stephanie’s residence.
                 At that time, Stephanie was living in the marital home and Olson was living
in a trailer on the same property (within a quarter-mile of the house). When the State
Troopers served Olson with the restraining order, they informed him that he was required
to leave the property — that he would either have to move the trailer or find another
place to live.
                 Olson left the property without taking anything he needed for the cold
weather. Several hours later, he returned to the trailer and went to sleep. He was still
there when the troopers returned to the property the next day around noon.
                 Based on this episode, Olson was charged with violating the protective
order, AS 11.56.740(a). At trial, Olson defended by asserting the defense of necessity:
he argued that he needed to return to the trailer to avoid hypothermia or other injury
arising from his exposure to the elements.
                 The jury rejected Olson’s necessity defense and convicted him of violating
the protective order.
                 Olson now appeals, arguing that the fairness of his trial was prejudiced by
one of the trial judge’s evidentiary rulings. At Olson’s trial, over the defense attorney’s
objection, the trial judge decided to let the prosecutor introduce a copy of the restraining
order. One section of this order — Section D — showed that the judge who issued the
order did so on the basis that there was probable cause to believe that Olson had
committed several serious crimes.
                 We agree with Olson that the trial judge should have redacted the
restraining order to delete these unproved allegations of criminal conduct. But for the



                                             –2–                                       2539

reasons explained in this opinion, we conclude that this error was harmless under the
facts of Olson’s case.


      The trial judge’s decision to let the State introduce evidence that the judge
      who issued the restraining order found probable cause to believe that
      Olson had committed other serious crimes


             Olson’s attorney anticipated that the prosecutor would offer the restraining
order into evidence, so (before the beginning of the State’s case) the defense attorney
asked the trial judge to give the jury a redacted version of the restraining order — a
version that did not include the “Findings” listed on page 2 of the order.
             The Alaska Court System has designed a form order for judges to use when
they hear an application for a domestic violence restraining order. Section D of this form
order is labeled “Findings”. Section D offers the judge a series of check-boxes to use
when describing the basis for issuing the restraining order.
             In Olson’s case, the second half of Section D looked like this:

     2.	 The court finds probable cause to believe that the respondent committed, or
         attempted to commit, the following crime(s) involving domestic violence against
         the petitioner:

        �	assault or reckless endangerment     G     harassment (telephonic or electronic)
        � stalking                             G     terroristic threatening

        G violating a protective order         �     criminal mischief

        � sexual offense                       G     arson or criminally negligent burning
        G kidnapping or custodial interfer-    �     criminal trespass
          ence                                 G     burglary

        G robbery, extortion, or coercion


        G	 other AS 11.41 crime ______________________________




                                            – 3 –	                                           2539

In other words, the judge who issued the restraining order found probable cause to
believe that Olson had committed, or had attempted to commit, assault or reckless
endangerment, stalking, and some unspecified “sexual offense”, as well as criminal
mischief and criminal trespass.
              The judge’s findings were based on Stephanie’s ex parte presentation to the
court (so Olson had no chance to respond to these allegations at the time), and Olson was
never charged with any of these purported crimes. These allegations were relevant to
Olson’s case solely because the judge’s findings of probable cause provided the basis for
the judge’s authority to issue the restraining order.
              Olson’s attorney told the trial judge that he did not intend to challenge the
validity of the restraining order — that, in fact, he was willing to stipulate that the order
was valid. Thus, the defense attorney argued, the jury should not be informed of the
allegations of criminal conduct listed in Section D — because these allegations had no
relevance to any material issue at Olson’s trial, and because they presented a substantial
risk of unfair prejudice.
              The prosecutor agreed that the allegations listed in Section D had no
particular relevance to whether Olson had violated the restraining order, and the
prosecutor told the trial judge that she did not plan to comment on those allegations. But
the prosecutor argued that the jury needed to see the entire text of the restraining order
(including the allegations contained in Section D) because, if the jurors received an
abridged version of the order, they might think that the State was trying to hide
something.
              The prosecutor told the court, “It needs to be clear [to the jurors] that these
[orders] aren’t just issued for no reason — that there does have to be a [judicial] finding.”
The prosecutor also declared that she “[did not] see how [the allegations were] more
prejudicial than probative”, so long as the court gave a limiting instruction to the jurors.

                                            –4–                                         2539

              After considering the parties’ arguments, the trial judge decided to adopt
the prosecutor’s approach:

                      The Court: I’m going to allow the [restraining order]
              in as it is. I’m going to give ... what I hope is a very strong
              curative instruction, including describing the process [of]
              how these [orders] come about, [and] that there are no
              assumptions to be made [about the allegations included in the
              order]. And also that there has been no criminal charge
              brought against Mr. Olson based on any of the [allegations]
              that are listed as findings [in] this [order].



       The trial judge committed error by allowing the State to introduce the
       allegations of criminal conduct contained in Section D of the restraining
       order


              As we explained in the preceding section of this opinion, the unproved
allegations of criminal conduct contained in Section D of the restraining order were
relevant to Olson’s case solely because the judge’s findings of probable cause provided
the basis for the judge’s authority to issue the restraining order.
              But the validity of the restraining order was not disputed. Indeed, Olson’s
attorney told the trial judge that he would stipulate that the order was valid. Given the
defense attorney’s offer to stipulate that the restraining order was valid, it is unclear why
the State was allowed to introduce any portion of the restraining order. This document
had no apparent relevance, apart from establishing that Olson was subject to a valid
restraining order — the very thing that the defense attorney was willing to stipulate to.
In light of this offered stipulation, the trial judge could have simply instructed the jurors
that the parties agreed that the restraining order was valid.



                                            –5–                                         2539

              But in any event, the State should not have been allowed to introduce the
portion of the restraining order which recited that a judicial officer had found probable
cause to believe that Olson had committed several different crimes.
              In its brief to this Court, the State argues that these allegations of criminal
conduct were relevant because they tended to disprove the necessity defense that Olson
offered at trial. But allegations are not the same as proof. The fact that the judge who
issued the restraining order found probable cause to believe that Olson had committed
various crimes did not make the restraining order admissible to prove that Olson actually
committed those crimes.
              See F.T. v. State, 862 P.2d 857, 863-64 (Alaska 1993), where our supreme
court held that a trial court “erred in taking judicial notice of [domestic violence]
restraining orders [issued against a child’s father] for the purpose of establishing that [the
father] had committed acts of violence in the past.”
              The allegations of criminal conduct recited in the restraining order had no
relevance to any material issue at Olson’s trial. And because these allegations presented
a substantial risk of unfair prejudice, the jury should not have been informed of them.
              As we indicated earlier, it is doubtful that the restraining order (as a whole)
retained any relevance once Olson’s attorney stated that he was willing to stipulate that
the restraining order was valid. But even assuming that the restraining order had some
slight relevance, the trial judge abused his discretion under Alaska Evidence Rule 403
when he refused to redact the allegations of criminal conduct from the version of the
restraining order that the jury received.




                                            –6–                                          2539

       Why we conclude that the error was harmless under the facts of Olson’s
       case


              Although the trial judge should not have let the State introduce the portion
of the restraining order which listed the various allegations of criminal conduct against
Olson, we conclude that the judge’s error was rendered harmless by the cautionary
instructions that the jury received regarding these allegations.
              During the defense attorney’s summation to the jury, the trial judge
instructed the jurors that there was no proof that these allegations were true, and that it
was irrelevant to the jury’s decision whether the allegations were true:

                     The Court: [R]egarding whether there’s any [basis] for
              the allegations: That is not an issue here ... . That’s not
              anything to be considered by anybody here. That’s some­
              thing for the court in deciding whether to ... [grant] orders.
              [That decision] ... is done totally, as [the defense attorney]
              has said, on an ex parte basis, because that is the system. ...
              It’s not relevant to this case at all to decide whether or not
              any of the allegations were accurate or not. It’s [only
              relevant] that ... an order ... was issued.

              These principles were reiterated later, when the trial judge formally
instructed the jury.
              Jury Instruction No. 6 specifically addressed the allegations of criminal
conduct that were contained in the text of the restraining order. Instruction No. 6 told
the jurors that these allegations were unproved, that they were irrelevant to the charge
against Olson, and that the jurors were not to consider these allegations for any purpose:

              The State has submitted as an exhibit the 20-Day Ex Parte
              Domestic Violence Protective Order granted in 3PA-13-742
              CI. This is civil order, not a criminal conviction.

                                           –7–                                        2539

             A 20-Day Ex Parte Domestic Violence Protective Order
             granted by the court is based solely on the written allegations
             filed ... in a Petition by a Petitioner. These are not subject to
             any cross-examination. A Respondent is not given any
             opportunity to challenge the allegations or have any input to
             the court prior to the entry of such an order.

             Any findings made by the court as listed on the order are not
             to be considered by the jury for any purpose in this case. The
             parties agree that the Protective Order was an enforceable
             court order. Any of the allegations that may have been listed
             in the petition are irrelevant to the charge which has been
             brought against Defendant in this matter now at trial. There
             have been no criminal charges brought to this date against
             Defendant based on the allegations in the petition on which
             the order was based.

             In his dissent, Judge Suddock suggests that the jurors in Olson’s case might
have improperly considered the findings listed in the restraining order, even though the
instruction we have just quoted told the jurors that those findings “[were] not to be
considered by the jury for any purpose in [Olson’s] case”.
             Judge Suddock is concerned that the findings listed in the restraining order
might have influenced the jurors when they deliberated the question of whether the harm
that Olson avoided by violating the restraining order (i.e., the risk of hypothermia)
outweighed the harm that he caused by violating the restraining order. More specifically,
Judge Suddock is concerned that, based on the allegations in the restraining order, the
jurors might have thought that Olson’s violation of the restraining order posed a threat
that he would commit crimes of domestic violence against his wife.




                                           –8–                                      2539

              Judge Suddock’s concern is a legitimate one, but based on the record of
Olson’s trial, we conclude that it is highly unlikely that the jurors violated the jury
instruction in Olson’s case.
              We note, in particular, that after the defense attorney argued to the jury that
Olson violated the restraining order out of necessity, the prosecutor (in her rebuttal
summation) made no mention of whether the harm that Olson caused was outweighed
by the harm he avoided. Instead, the prosecutor focused solely on the reasonableness
of Olson’s decision to return home in violation of the restraining order.
              The prosecutor listed all of the other options that Olson might have pursued
if he was concerned about hypothermia, and then she asserted that Olson rejected those
options because “he decided to throw a tantrum”. She continued, “[He] got angry that
he was being kicked out of his house, and he decided to be stubborn and not accept help
from anyone.”
              The prosecutor ended her summation by affirmatively tellingthe jurors that
Olson was “not a bad guy”. But the prosecutor argued that Olson made a series of
unreasonable decisions, ending in his choice to return home in violation of the restraining
order:

                      Prosecutor: [Olson’s] belief that he had no other
              options had to have been reasonable, and I submit to you
              [that] it was not reasonable. I submit to you that, as he was
              walking those eight hours, he could have been coming up
              with a plan for himself. And he didn’t. He walked away
              [from his home] without grabbing a coat, without grabbing
              long underwear, without grabbing a backpack, without
              grabbing anything that he would have needed. And he was
              given that opportunity, and he admitted that. But he just
              walked away, without planning, without thinking.



                                            –9–                                         2539

                     So I submit to you it wasn’t reasonable. The decisions
              he made here were not reasonable. [He’s] not a bad guy.
              Just bad decisions. And that’s what it is in this case: not a
              bad guy, just bad decisions. And for that reason, the State
              would ask you to find the defendant guilty. Thank you.

              All three members of this Court agree that it was error for the trial judge to
allow the prosecutor to introduce an unredacted version of the restraining order —
because this allowed the jurors to learn about the allegations of criminal conduct that led
to the issuance of the restraining order, when those allegations had no relevance.
              But given the fact that Olson’s jury was repeatedly told that these
allegations were both unproved and irrelevant, given the fact that Instruction No. 6
expressly directed the jurors not to consider these allegations for any purpose, and given
the tenor of the prosecutor’s final argument to the jury, we conclude that the judge’s
error was harmless — i.e., that it did not appreciably affect the jury’s decision. 1
              We therefore AFFIRM the judgement of the district court.




   1
        See Love v. State, 457 P.2d 622,634 (Alaska1969) (holdingthat, for instances of non-
constitutional error, the test for harmlessness is whether the appellate court “can fairly say
that the error did not appreciably affect the jury’s verdict”).

                                            – 10 –                                       2539

Judge SUDDOCK, dissenting.


              I agree with the majority’s conclusion that the trial judge erred by admitting
into evidence a domestic violence protective order which recited that there was probable
cause to believe that Olson had committed serious crimes. But I disagree that the trial
court’s limiting instructions rendered the error harmless.
              I reach this conclusion because Olson bore the burden of proving, as an
element of his necessity defense, that the harm he allegedly avoided when he violated the
court’s order was graver than the harm he inflicted by violating it.1 Olson described the
avoided harm at trial: he testified that after troopers served him with the protective order
at approximately 6 p.m. at his trailer in Big Lake, he walked for about eight and a half
hours to downtown Wasilla in ten-degree weather, and feared that he was becoming
hypothermic. Concerned for his safety, he telephoned his daughter and had her drive
him back to the trailer on Ms. Olson’s property. He then went to bed and was arrested
later that morning.
              At trial’s end, the jury was instructed to resolve Olson’s necessity defense
in part by balancing the alleged harm that Olson avoided (hypothermia) against the harm
caused by his violation of the domestic violence protective order. If the jury accepted
Olson’s testimony that he only returned to the trailer out of the necessity to avoid
hypothermia, the jury could have concluded that the harm flowing from his violation of
the order was negligible in comparison to Olson’s risk of hypothermia. The jury could
have then found in Olson’s favor by virtue of his necessity defense.
              But once the judge allowed the introduction of evidence suggesting that
Olson had already committed serious crimes of domestic violence — assault, stalking,



   1
       See, e.g., Greenwood v. State, 237 P.3d 1018, 1022 (Alaska 2010).

                                           – 11 –                                      2539

a sexual offense, criminal mischief, and criminal trespass — the litany of crimes raised
the specter of Olson as a violent and obsessive person capable of sexual predation.
              It is implausible that the jury could set those allegations aside and conclude
that the risk posed to Ms. Olson by Olson’s presence in the trailer was negligible. Thus,
the prior-crime evidence likely prejudiced Olson’s necessity defense.
              Perhaps perfectly drafted curative instructions could have ameliorated this
taint. But I conclude that the two curative instructions that were actually given were
ambiguous because they failed to focus upon the core prejudice created by the evidence:
the fact that the allegations of prior domestic violence crimes could have caused the
jurors to improperly evaluate the amount of harm posed by Olson’s violation of the
protective order.
              The judge gave his first curative instruction during the defense attorney’s
summation. The prosecutor objected when the defense attorney commented that
Ms. Olson’s allegations were “baseless.” (The judge had precluded litigation over the
truth of the prior-crime evidence.) The judge sustained the prosecutor’s objection and
orally instructed the jurors that they need not concern themselves with whether
Ms. Olson’s allegations had a basis in fact, because another judge had already made that
determination prior to issuing the protective order:
              [R]egarding whether there’s any [basis] for the allegations:
              That is not an issue here. ... That’s something for the court
              in deciding whether to ... grant orders. It’s not relevant to
              this case at all to decide whether or not any of the allegations
              were accurate or not. It’s [only relevant] that ... an order ...
              was issued. (Emphasis added.)
The jury’s likely takeaway from this brief and confusing oral instruction was the exact
opposite of what the judge intended: that another judge had reviewed the prior-crime
allegations and had found that there was a factual basis for these allegations, and that the


                                           – 12 –                                      2539

jurors need not decide whether there was any basis for these allegations because that had
already been decided by the other judge when he granted the order.
              The second curative instruction, given at trial’s end, was scarcely clearer.
The judge instructed the jury that Olson “[was] not given any opportunity to challenge
the allegations or have any input to the court prior to the entry of such an order.” But
this simply informed the jury that a judge evaluated Ms. Olson’s allegations — and acted
upon them — without Olson’s input, not that the allegations were necessarily unreliable.
              The curative instruction further directed the jury to disregard “any findings
made by the court.” This obviously referred to the probable cause findings in the
protective order. Effectively, the instruction told the jury to disregard the fact that a
judge had found probable cause to believe that Ms. Olson’s prior-crime allegations were
true, but not the fact that she had gone to the domestic violence court and lodged those
accusations in the first instance. But because Ms. Olson testified at trial, the jury could
well have found her to be a credible witness, one unlikely to lodge baseless allegations.
              Finally, this curative instruction told the jury that the allegations were
irrelevant to the charge against the defendant. But a different instruction informed the
jury that, quite apart from the charge, the defendant had raised the affirmative defense
of necessity — and that as to that defense, Olson bore the burden of proof. The court
never instructed the jury that, during its evaluation of Olson’s necessity defense, and
more particularly in its evaluation of the harm reasonably to be foreseen from Olson’s
return to the trailer, the jury could not consider Ms. Olson’s sworn statement to the
domestic violence court. And Ms. Olson’s allegations clearly suggested that Olson was
an obsessed domestic batterer and sexual offender.
              For these reasons, I am unable to share the majority’s optimism that the
judge’s curative instructions, couched as they were in legalese, accomplished the task of



                                          – 13 –                                      2539

unringing an extraordinarily resounding bell and actually cured the error. Accordingly,
I respectfully dissent.




                                        – 14 –                                    2539

