State v. Alsanea

• Decision Date: 16 January 2003
• Docket Number: No. 27756.,27756.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Nazar Khaled ALSANEA, Defendant-Appellant.
• Court: Idaho Court of Appeals

69 P.3d 153

138 Idaho 733

STATE of Idaho, Plaintiff-Respondent, v. Nazar Khaled ALSANEA, Defendant-Appellant.

No. 27756.

Court of Appeals of Idaho.

January 16, 2003.

Review Denied May 16, 2003.

Molly J. Huskey, State Appellate Public Defender; Charles Isaac Wadams, Deputy Appellate Public Defender, Boise, for appellant. Charles Isaac Wadams argued.

Hon. Alan G. Lance, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.

PERRY, Judge.

Nazar Khaled Alsanea appeals from his judgments of conviction and sentences for two counts of aggravated assault on a law enforcement officer, use of a firearm during commission of a crime, violation of a no-contact order, and unlawful entry. Alsanea also appeals from an order of the district court denying his I.C.R. 35 motion to correct an illegal sentence. We affirm.

I. FACTS AND PROCEDURE

Alsanea had lived with his girlfriend and their son for approximately three years when they separated in July 2000. The girlfriend moved into her mother's home, and Alsanea moved into an apartment. The girlfriend initially allowed Alsanea to see their son as often as he pleased but, in August, she curtailed his visitation. In September, the girlfriend called the police twice and reported that Alsanea was stalking and harassing her. Alsanea confronted the girlfriend several times during the next two months. During one confrontation in November, Alsanea informed the girlfriend that he had purchased a gun and threatened to shoot her, her mother, their son, and himself. Alsanea was arrested on November 15 for stalking. Upon his release from jail, Alsanea continued to contact the girlfriend despite being served with a no-contact order. On November 22, an "aware alarm" was installed at the home of the girlfriend's mother so that the police could be contacted immediately if the girlfriend was being threatened by Alsanea or was in danger.

On the evening of December 6, Alsanea entered the girlfriend's mother's home through an unlocked back door. He handed the girlfriend two pictures of their son and stated that he no longer needed them. Additionally, Alsanea gave the girlfriend's mother some money that he owed her. Alsanea then asked to speak with the girlfriend outside. While the two were outside talking, the girlfriend's sister activated the aware alarm and called 911 to report Alsanea's presence at the home. Officers responded to the home and approached the front door with their weapons drawn. Alsanea was ordered to get on the ground but failed to comply. Rather, Alsanea pulled a gun from his waistband and pointed it at the officers. One of the officers fired his weapon, hitting Alsanea in the chest. Upon hearing the first officer's shot, a second officer began firing at Alsanea. Alsanea ultimately collapsed onto a bathroom floor after being shot approximately seven times.

Alsanea was charged with two counts of aggravated assault on a law enforcement officer, I.C. §§ 18-901(b), 18-905(a), 18-915; use of a firearm during the commission of a crime, I.C. § 19-2520; violation of a no-contact order, I.C. § 18-920; and unlawful entry, I.C. § 18-7034. A jury found him guilty of all charges after a trial.

For both counts of aggravated assault on a law enforcement officer, the district court sentenced Alsanea to consecutive, determinate terms of ten years. For violation of the no-contact order, Alsanea was sentenced to a consecutive, indeterminate term of one year. Alsanea was sentenced to a consecutive, indeterminate term of six months for unlawful entry. The district court also imposed an indeterminate fifteen-year term for use of a firearm during the commission of a crime and ordered that it run consecutive to Alsanea's sentence for the second aggravated assault charge. In the aggregate, Alsanea's sentences totaled thirty-six years and six months, with a minimum period of confinement of twenty years. Alsanea subsequently filed an I.C.R. 35 motion to correct an illegal sentence, which was denied. Alsanea appeals, contending that the district court erred by admitting prior bad acts evidence at trial, allowing his trial counsel to waive his right to an interpreter, and refusing to give a requested jury instruction. Alsanea also argues that his sentences are excessive and that the district court erred by denying his I.C.R. 35 motion to correct an illegal sentence.

II. ANALYSIS

A. Prior Bad Acts Evidence

Prior to trial, the state gave notice of its intent to use evidence that Alsanea had stalked his girlfriend and that he had previously threatened to kill her. At a hearing on the state's motion, there was a stipulation by the defense that a no-contact order was in effect at the time of the incident, that there had been prior contacts by Alsanea with the girlfriend requiring installation of the aware alarm, and that the aware alarm was in place at the time of the offenses. The district court determined that the officers' actual knowledge of Alsanea's propensity for violence, as demonstrated by the stalking and harassment of his girlfriend, was relevant to a key element of aggravated assault—whether the officers had a well-founded fear that violence was imminent—and that, therefore, the evidence was admissible. The district court stated:

Well, I think there's going to have to be some foundation offered through [the girlfriend] about what type of conduct it was that she complained of to the police, what she advised the police of.

I think that should be the focus of this testimony, not in general was there stalking, but what did she tell the police about what she had been experiencing, because I think that's relevant, because the knowledge is relevant to the element of a well-founded fear, and so what she told them about it is relevant.

The fact that there may have been other conduct that she experienced that she did not report, I don't think those issues we should get into, because this isn't a broader stalking trial. It is a trial on aggravated assault, and so what becomes important is what conduct did she report to the police, particularly to [the investigating officer] himself, so that it was in his mind at the time of the incident.

At trial, the girlfriend testified that: (1) in September 2000, Alsanea began stalking and harassing her and she reported this conduct to the investigating officer; (2) in October, Alsanea told her that if she did not let him see their son whenever he wanted, he was going to cause her to have a car accident; (3) on her way home from a court hearing regarding custody of their son, Alsanea forced her car off the road and threatened to kidnap their son if she did not let Alsanea see him; (4) later in October, while she was typing on a computer in her bedroom, Alsanea called and asked what she was doing on the computer and told her that he watched her all the time without her knowing it; (5) in November, Alsanea called her cell phone at least ten times in one day, which she reported to the investigating officer; (6) after leaving work one day, she saw Alsanea sitting in his car in the parking lot and he told her that he had purchased a gun; (7) as she was leaving her home for work one day, Alsanea called her on the phone and told her not to leave the house because if she did, he was going to shoot her, her mother, their son, and himself, which she reported to another officer; (8) Alsanea called her from the jail after he had been arrested for stalking and stated that he could not believe that she would have him arrested and implied that if she was scared then, she would be more scared when he was released from jail; and (9) after Alsanea was released from jail, he continued to contact her despite the no-contact order being issued.

One of the officers involved in the incident testified that: (1) in September 2000, he took two reports concerning Alsanea's stalking and harassment of the girlfriend; (2) he received a police intelligence bulletin prior to Alsanea's arrest indicating, in part, that Alsanea had purchased a gun and had threatened to kill the girlfriend, their son, and himself; (3) in late November, he discovered that Alsanea attempted to purchase a nine millimeter gun and that, when he confronted Alsanea about the purchase, Alsanea at first denied that he attempted to buy a gun but later stated that he tried to purchase a deer rifle for a friend; and (4) he knew that an aware alarm had been installed in the girlfriend's mother's home. The other officer testified that: (1) in September, he assisted the first officer with the girlfriend's harassment complaint against Alsanea; (2) he received an intelligence bulletin indicating that he needed to be aware of threats to and harassment of the girlfriend and her family by Alsanea; (3) he had received information that Alsanea attempted to purchase a gun and may be armed; and (4) he had knowledge that an aware alarm had been installed in the house of the girlfriend's mother.¹ On appeal, Alsanea claims that the admission of evidence concerning his prior bad acts was erroneous because there was not an independent basis for the relevance of the testimony, other than to prove his propensity to commit the aggravated assaults against the officers. Alsanea additionally asserts that, even if the testimony was relevant for some proper purpose, the prejudicial value of the testimony substantially outweighed its probative value because it portrayed Alsanea as a man predisposed to commit crimes of violence. Finally, Alsanea argues that the error in admitting the testimony was not harmless.

Evidence of other crimes, wrongs, or acts is not admissible to prove a defendant's criminal propensity. I.R.E. 404(b); State v. Needs, 99 Idaho 883, 892, 591 P.2d 130, 139 (1979); State v. Winkler, 112 Idaho 917, 919, 736 P.2d 1371, 1373 (Ct.App.1987). However, such evidence may be admissible for a purpose other than that prohibited by I.R.E. 404(b). State v. Avila, 137 Idaho 410,...