Davis v. State, 011619 AKCA, A-12162

Docket Nº:A-12162
Opinion Judge:ALLARD JUDGE
Party Name:SHANE LEE DAVIS, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Douglas O. Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Mannheimer, Chief Judge, and Allard, Judge.
Case Date:January 16, 2019
Court:Court of Appeals of Alaska
 
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SHANE LEE DAVIS, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12162

Court of Appeals of Alaska

January 16, 2019

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, No. 3AN-12-7492 CR Anchorage, Kevin M. Saxby, Judge.

Douglas O. Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

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

MEMORANDUM OPINION

ALLARD JUDGE

Following a jury trial, Shane Lee Davis was convicted of first-degree indecent exposure under AS 11.41.458(a)(1). Davis raises three claims on appeal. Davis contends first that the superior court should have granted his motion for a mistrial after a State's witness, a police officer, violated a protective order. Davis contends next that the trial court committed error when it denied his request for a jury instruction specifically defining "in the presence of - one of the elements of the offense. Lastly, Davis contends that the trial court committed error when it found that Davis had failed to prove mitigator AS 12.55.155(d)(9) - i.e., that Davis's conduct was among the least serious within the definition of the offense. For the reasons explained in this decision, we affirm the judgment of the superior court.

Background facts and prior proceedings

On July 23, 2012, at approximately 8:30 p.m., a father and his thirteen-year-old son saw Davis masturbating outside their sliding glass doors in their fenced-in backyard. Davis was sitting facing the house, completely naked, with his genitals exposed. He had a container of lubricant in one hand, and he was moving his other hand up and down his erect penis. At trial, the father testified that Davis was sitting only twelve to fifteen feet from the house, and Davis would have been able to see the family inside the house through the glass doors.

When the father went outside onto the back deck and confronted Davis, Davis stopped masturbating, but he did not immediately leave. Following an exchange of words, the father made it clear that he wanted Davis to leave. Davis stood up, apologized, and put on his clothes. He then climbed over the backyard fence and left the property. The police were called, but they were unable to locate Davis that evening.

The next day, as the father and his teenage son were driving, they saw Davis. They followed him and called the police. Anchorage police responded and contacted Davis outside an apartment building just behind the victims' house. (Davis apparently lived in this apartment building.) Davis initially denied knowing anything about what had happened the previous evening, but he eventually admitted that he had masturbated while naked in the victims' backyard the day before. Davis told the police that he had been using drugs.

Davis was charged with first-degree indecent exposure under AS 11.41.-458(a)(1). His first trial ended in a mistrial; his second trial ended in a conviction. This appeal now follows.

Davis's claim that the superior court erred in denying his motion for mistrial at the second trial

At Davis's second trial, his attorney moved for a mistrial after one of the police officers testifying for the State gave testimony that violated the scope of a protective order issued earlier by the trial court.

This protective order dealt with testimony related to Davis's conviction for attempted burglary at the same residence three months earlier. During this prior incident, the police discovered Davis in a shed on the victims' property. It appeared that Davis had been rummaging through cabinets in the shed. But Davis had also removed his pants, and he had an unrolled condom next to him. Davis was arrested for second-degree burglary, and he ultimately pleaded guilty to a reduced charge of attempted second-degree burglary.

At Davis's trial for indecent exposure, the prosecutor wanted...

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