State v. Alvarado, 20080107.
| Decision Date | 19 November 2008 |
| Docket Number | No. 20080107.,20080107. |
| Citation | 757 N.W.2d 570,2008 ND 203 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Abraham ALVARADO, Defendant and Appellant |
| Court | North Dakota Supreme Court |
Marlyce A. Wilder (argued), State's Attorney, and Nicole Foster (on brief), Special Assistant State's Attorney, Williston, ND, for plaintiff and appellee.
Kent M. Morrow (argued), Severin, Ringsak & Morrow, Bismarck, ND, for defendant and appellant.
[¶ 1] Abraham Alvarado appeals from a criminal judgment entered following a jury verdict finding him guilty of felonious restraint. We conclude the trial court did not err in admitting Cindy Alvarado's testimony regarding prior acts of domestic violence, and there was sufficient evidence to sustain the guilty verdict of felonious restraint. We affirm the judgment of the trial court.
[¶ 2] The State charged Abraham Alvarado with felonious restraint in violation of N.D.C.C. § 12.1-18-02(2) for knowingly restraining another under terrorizing circumstances by grabbing Cindy Alvarado against her will, throwing her over his shoulder, and running toward their house on or about March 15, 2007.
[¶ 3] Prior to trial, the State filed a notice of N.D.R.Ev. 404(b) (character evidence) evidence. The State indicated the evidence at issue may not be a N.D.R.Ev. 404(b) issue, because the evidence was of activity in furtherance of the present charge of criminal activity. Abraham Alvarado objected to the use of any N.D.R.Ev. 404(b) evidence against him by the State. Abraham Alvarado moved to exclude the prospective testimony as to events between him and Cindy Alvarado which occurred prior to and subsequent to the evening of March 15, 2007. The State responded and requested Cindy Alvarado be allowed to testify to prior acts of domestic violence she experienced from Abraham Alvarado.
[¶ 4] The trial court filed an order and determined Cindy Alvarado's prospective testimony regarding past incidents of domestic violence did not fall under N.D.R.Ev. 404(b). Rather, the trial court analyzed Cindy Alvarado's prospective testimony under N.D.R.Ev. 402 (relevant evidence) and 403 (exclusion of relevant evidence). The trial court held, "that incidents predating [Abraham Alvarado's] March 15, 2007, arrest are near enough in time and place to be relevant to the charge of felonious restraint and that the probative value of the evidence outweighs the prejudicial effect." However, the trial court limited Cindy Alvarado's testimony. The trial court noted:
The Court will allow Cindy Alvarado to testify on direct examination to the first instance of domestic violence in December, 2006, ... with the further limitation that her testimony be general—that the couple had a somewhat prolonged dispute resulting in [Abraham Alvarado] pushing her around and inflicting multiple bruises and pain. The Court directs the State to instruct Cindy not to testify on direct examination that [Abraham Alvarado] was in possession of drugs at the time of the December, 2006, incident. The Court will further allow Cindy to testify that [Abraham Alvarado] has during the time period of December, 2006, to March 15, 2007, used physical force to control and/or restrict Cindy's freedom of movement, some of which resulted in Cindy receiving marks and bruises. Testimony about incidents after March 15, 2007, are not relevant and will not be allowed.
[¶ 5] On February 19-20, 2008, Abraham Alvarado was tried before a jury. In its opening statement, the State discussed incidents of past domestic violence that Abraham Alvarado committed against Cindy Alvarado. The State then asserted: Cindy Alvarado testified:
Q Are you familiar with the individual by the name of Abe or Abraham Alvarado?
A Yes.
Q How do you know him?
A He is my husband.
...
Q Going back several years ago, when did you first meet the defendant?
A Several years ago.
Q Did you have any sort of relationship with him at that time?
A We were friends.
Q Did it ever become anything more than a friendship at that time?
A No.
Q Within the last few years did you begin to have contact with the defendant again?
A In 2006, I did.
Q How did that happen?
A When I finally talked to him he had been looking for me, trying to find me.
...
Q Did the defendant indicate to you at that time he was looking for some sort of romantic relationship?
A Not the first time I spoke to him, no.
Q What happened after the first time?
A I believe the next day roses came, and he started calling me and coming by my work.
Q Was it that time that he indicated a romantic relation is what he was interested in?
A Yes.
Q What was your response?
A I said no.
Q You were not interested in that?
A No, I wasn't.
Q Then what happened?
A He was just real persistent about a relationship, and it did evolve into that.
Q When you say he was real persistent, what sort of things was he doing?
A Just calling and just pursuing me.
...
Q And, you indicate he asked you to marry him?
A Yes.... We were married in August [of 2006].
Q And, at that point is he living with you?
A Yes.
Q After you're married how was your relationship during the early months? How did it go?
A It was fine.
Q Did you do normal things that couples did?
A Yes.
...
Q At some point in your relationship did things become violent?
A Yes.
Q When is the first time that you remember that happening?
A I believe it was in December [of 2006].
Q And, there had been a disagreement?
A Yes.
Q How did you feel after the disagreement? Were you angry?
A Yes.
Q Because of what had happened did you feel as though the relationship needed to end?
A Yes.
Q What did you do?
A I had put his things out on the steps and in the kitchen for him to take and leave.
Q You wanted no further contact with him?
A Uh-huh.
Q What happened when he came home and found his stuff outside?
A He became abusive and threw me around.
[Defendant made objection as to relevance, overruled.]
Q Cindy, as a result of him coming in, you said he threw you around. Do you mean that in the sense of him literally picking you up and throwing you?
A Not literally picking me up, but shoving and pushing.
Q As a result, did you suffer some pain and bruising on that instance?
A Yes, I did.
Q Were the bruises something that you had to disguise through clothing?
A Yes.
Q Now, between December [of 2006] and March of 2007, which is the time when the incident that we are here for, did the violence in the relationship continue?
A Yes, it did.
Q Were you free to come and go from your residence as you chose?
A Not at certain times.
Q What certain times are you not free to leave?
A When there was an argument going on.
Q And, how would your movement be restrained?
A The keys would be taken to the vehicle. Sometimes my purse, so I didn't have my purse.
Q Would you physically be restrained from leaving?
A Sometimes.
Q How often would these arguments happen where you were restrained from leaving either by car keys or checkbook or physically?
A I don't know, ... every few weeks.
Q It wasn't something that was an isolated incident?
A No.
Q When you would be physically restrained from leaving would you suffer bruising?
A Sometimes.
A Sometimes.
Q Things that you would have to disguise with clothing?
A Yes.
Q After one of these incidents would happen how would you deal with it?
A I kind of became removed, just really didn't want anything to do with him.
Q And, what would happen when you would remove yourself from him for a period of time?
A I would make him angry again.
Q And, what would he do?
A It depended on what the circumstances were.
Q Would you be frightened?
A Sometimes.
Q What sort of threats would you hear?
A If I left he would find me and he would kill me.
Q Did you believe him?
A Yes.
Q Is that one of the reasons you stayed?
A Yes.
Q What are some of the other threats that he would say?
A If he couldn't find me he had people that would find me.
[Defendant made objection, overruled.]
Q It's fair to say between December and March this is a violent relationship?
A Yes.
[¶ 6] Cindy Alvarado testified on March 15, 2007, she was at home in bed. She woke up and heard voices downstairs. She went downstairs, and Abraham Alvarado was with a woman and his cousin. Cindy Alvarado told Abraham Alvarado she was going to her mother's house to stay. Cindy Alvarado testified she went to Kallie and Levi Rider's house, her neighbors, to call for a ride, and Abraham Alvarado came over and told her to go home. She resisted, and Abraham Alvarado grabbed her shirt and it ripped. Cindy Alvarado asked her neighbors to call the police. Cindy Alvarado testified Abraham Alvarado picked her up and carried her home. Cindy Alvarado testified Abraham Alvarado told her if the police showed up, she would be sorry. Cindy Alvarado testified she perceived this as a threat. She testified she does not think she was free to leave that night, and if she had tried to leave, she would have been physically restrained from leaving.
[¶ 7] Kallie Rider testified that early in the morning on March 15, 2007, she woke up because she heard a female voice screaming and her doorbell was ringing. She walked to where the screaming was and "saw Cindy hovering by the door and Abe yelling at her." Kallie Rider testified she and her husband, Levi Rider, were scared, so they discussed what they should do. Kallie Rider testified she wondered: Kallie Rider testified they tried to let Cindy Alvarado in, but Abraham Alvarado picked Cindy Alvarado up and took her away. Kallie Rider testified Cindy Alvarado was saying, "put me down" and "[h...
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