Lead Opinion
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
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. § 18-7084. 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
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 offi- . eer] 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-eontact 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 girlfidend, 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.
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,
Here, the jury was instructed that in order to convict Alsanea of aggravated assault upon a law enforcement officer, the state had the burden of proving that: (1) Alsanea committed an assault upon the person of another; (2) the person assaulted was a police officer and that Alsanea knew the person was a police officer; and (3) the assault was committed with a deadly weapon or instrument. “Assault” was defined as an unlawful attempt, with apparent ability, to commit a violent injury on the person of another or an intentional, unlawful threat by word or act to do violence to the person of another, with an apparent ability to do so, and the doing of some act which created a well-founded fear in the other person that such violence was imminent. Thus, whether the officers had a well-founded fear that violence was imminent was a material element to be proven by the state. According to the plain language of I.C. § 18 — 901(b), however, the requisite well-founded fear of an assault victim must arise from the doing of the act in question — here, aiming the gun at the officers — rather than from the defendant’s previous bad acts of which the victim is aware. Cf. State v. Boehner,
The state argues that the testimony concerning Alsanea’s stalking of and threats to the girlfriend was also relevant to Alsanea’s intent to commit the aggravated assaults. With respect to the “threat” type of assault proscribed by I.C. § 18 — 901(b), the state’s burden was to prove beyond a reasonable doubt that Alsanea intended to make a threat and caused apprehension in the officers. See State v. Dudley,
Here, Alsanea’s prior bad acts of stalking and harassing his girlfriend were not similar to the aggravated assaults committed against the officers. The prior acts of which the officers were aware involved Alsanea calling the girlfriend’s cell phone ten times in one day and Alsanea informing the girlfriend he had purchased a gun and verbally threatening to shoot her if she did not submit to his will concerning their son. The girlfriend did not testify that she observed the gun or that Alsanea pointed it at her. The aggravated assaults that Alsanea was charged involved him actually pulling a gun from the waistband of his pants and aiming it at two police officers. The victim of Alsanea’s prior acts was his girlfriend, and perhaps certain members of her family, rather than a police officer. Finally, the mens rea required for stalking and harassment is to willfully and maliciously follow or harass another, whereas the intent element of aggravated assault is to intentionally threaten violence to and cause apprehension in another. Evidence that Alsanea told his girlfriend that he had purchased a gun, and that he intimidated her by verbally threatening to shoot and kill her, was not relevant to his intent to threaten the officers with violence. The similarities between Alsanea’s prior acts of stalking and threatening his girlfriend and the aggravated assaults against the officers are lacking.
Furthermore, even if Alsanea’s prior bad acts and the charged offenses were sufficiently similar, this Court has held that where proof of the commission of the charged offense carries with it the evident implication of a criminal intent, evidence of the perpetration of other like offenses or bad acts will not be admitted. See State v. Stoddard,
In sum, we conclude that the testimony concerning Alsanea’s prior bad acts was not relevant to the officers’ well-founded fear of imminent violence or to Alsanea’s intent in committing the aggravated assaults. We now examine whether the error in admitting such evidence was harmless. Error is not reversible unless it is prejudicial. State v. Stoddard,
At trial, several witnesses testified that they observed Alsanea pull a gun from his waistband and aim it at the officers. Those witnesses further testified that they believed Alsanea fired his gun at the officers, although a defense witness refuted that testimony by stating that he conducted testing on Alsanea’s gun and discovered that it had not been fired. Alsanea testified that he did not aim the gun at the officers but, rather, unsuccessfully attempted to pull his gun from his waistband to give it to them. The resolution of the conflict in the evidence rested upon whose story the jury found more credible. Based upon the verdicts, the jury apparently believed the state’s version. There was substantial evidence, aside from the irrelevant prior bad acts evidence, supporting the jury’s verdicts of guilt. We conclude beyond a reasonable doubt that the com
B. Right to an Interpreter
English is not Alsanea’s native language. Prior to calling Alsanea to testify, defense counsel informed the district court that Alsanea wished to try the questions and answers in English and only have the interpreter available if needed. Without personally addressing Alsanea, the district court stated, “Right. But I would like the interpreter to be physically more available so Mr. Alsanea can ask a question if he needs to, so if we could get a chair for her up by the witness stand.” Thereafter, Alsanea testified in English until the trial was recessed for the day. The next day, Alsanea resumed his testimony and the following exchange took place:
THE COURT: Go ahead, but why don’t you keep your questions phrased in a simpler manner.
PROSECUTOR: Now, yesterday you
talked about seeing [the girlfriend] at Albertson’s.
DEFENDANT: Yes.
PROSECUTOR: What Albertson’s was that—
COUNSEL: Judge, I’m sorry. It doesn’t look like the interpreter is here.
THE COURT: That’s why I was asking counsel to keep it kind of simple. I don’t know what the confusion is. I know Mr. Alsanea said he doesn’t need one.
COUNSEL: Some terms he may not understand.
THE COURT: I think, especially in the legal world, people sometimes tend to use wording that everyone is not familiar with, so it can be helpful to have an interpreter. You know, I would feel more comfortable if we would wait a few minutes for her to arrive, so why don’t we take a short break. She may have car trouble or something, so we will continue after that.
After a short recess, the interpreter arrived. Thereafter, the prosecutor asked Alsanea to read a document printed in English, which he was unable to do. The interpreter assisted Alsanea in reading the document and then translated Alsanea’s response to the prosecutor’s inquiry. That was the only instance in which the interpreter assisted Alsanea with his testimony. On appeal, Alsanea claims that the district court erred by permitting him to testify in English, without the aid of his interpreter, asserting that his right to an interpreter could only be waived by him personally on the record and not by his attorney.
Generally, whether to appoint an interpreter after the defendant has requested one is a decision resting within the trial court’s discretion and will not be overturned unless the defendant shows that the discretion has been abused. State v. Hernandez,
The right to an interpreter is codified in I.C. § 9-205 and I.C.R. 28. The language used by both the statute and the rule is nearly identical and provides that in an action in which any witness or party does not understand or speak the English language, the court shall appoint a qualified interpreter to interpret the proceedings to and the testimony of such witness or party. Neither the statute nor the rule addresses whether a defendant’s right to an interpreter can be waived or the requirements for doing so.
Several courts have addressed the issue of a defendant’s waiver of his or her right to an interpreter. In State v. Neave,
In People v. Mata Aguilar,
On appeal from the defendant’s judgment of conviction, the California Supreme Court noted that the defendant’s right to an interpreter was provided by the California Constitution and that the constitution required the interpreter to aid the defendant during the whole course of the proceedings. Because the interpreter did not assist the defendant during the entire course of his trial, the court determined that the defendant was denied a constitutional right. The court further determined that because the defendant was denied a constitutional right by the borrowing of his interpreter, reversal of the defendant’s conviction was required unless the defendant waived his right. After reviewing the record, the court noted that there was no indication that the defendant voluntarily and intelligently waived his constitutional right to an interpreter. The court held that because the right to an interpreter was guaranteed by the state’s constitution, it could not validly be waived without an affirmative showing on the record of an intelligent and voluntary waiver by the defendant. The mere acquiescence by defense counsel was insufficient to waive the defendant’s right to the assistance of his interpreter.
A similar conclusion was reached in State v. Rodriguez,
From a review of the cases above, the general consensus appears to be that a defendant must waive his or her right to an interpreter personally on the record and that such a waiver must be voluntary, regardless of the source of that right. However, the case at bar is distinguishable from those cases in which the courts found that the
C. Requested Jury Instruction
At the close of trial, Alsanea requested that the district court instruct the jury that it could not find him guilty of both counts of aggravated assault on a law enforcement officer unless it found that both crimes arose out of separate and distinct acts and that each act was accompanied by a criminal intent. The district court refused, stating that Alsanea’s requested instruction was adequately covered by another instruction which advised the jury that it must consider each count of aggravated assault separately and that the state must prove each count beyond a reasonable doubt. On appeal, Alsanea asserts that it was not completely clear whether his actions were divisible into separate events and that his requested instruction should have been given according to this Court’s holding in State v. Spurr,
In determining whether a requested jury instruction should have been given, the reviewing court must examine the instructions that were given and the evidence that was adduced at trial. State v. Johns,
A trial court must charge the jury with all matters of law necessary for their information. I.C. § 19-2132(a). Thus, a defendant is entitled to instructions on rules of law material to the determination of the defendant’s guilt or innocence. State v. Fetterly,
In Spurr, the defendant was stopped by two police officers after they noticed him staggering along the roadside. Spurr became belligerent when the officers stopped and questioned him, so they handcuffed him and placed him in their patrol vehicle. Spurr began kicking the inside of the vehicle. Fearing that Spurr might damage the vehicle’s interior, the officers opened the door to restrain him. Spurr was somehow ejected from the vehicle. Upon hitting the ground, Spurr kicked one of the officers in the knee. Spurr was ultimately charged with obstructing a police officer, I.C. § 18-705, and battery upon a police officer, I.C. §§ 18-903,18-915.
On appeal from his judgments of conviction, Spurr alleged that his separate convictions for battery and obstruction violated the double jeopardy provisions of the Fifth Amendment and the prohibition against multiple punishments for the same acts con-
Idaho Code Section 18-301 was repealed on February 13, 1995. See 1995 Idaho Session Law, ch. 16, § 1. The state contends that, because the basis of the Court’s holding in Spurr is no longer the law, .Alsanea’s requested jury instruction was not an accurate statement of the law and that the district court did not err by refusing to give it. Alsanea responds that, although I.C. § 18-301 was repealed, his requested jury instruction was still an accurate statement of the law because the United States and Idaho Constitutions also protect against double jeopardy.
Assuming, without deciding, that Alsanea’s requested jury instruction was an accurate statement of the law, Alsanea was not entitled to have the district court give it. Offenses committed against multiple victims are not the same, for double jeopardy purposes, even though they may arise from the same criminal episode. See State v. Pratt,
D. Sentence Review
Alsanea next asserts that his sentences are excessive in light of his lack of prior criminal convictions; support of friends and family; positive attributes; and impaired capacity to appreciate the criminality of his conduct. An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett,
Alsanea argues that the district court erred in denying his Rule 35 motion for correction of an illegal sentence. When pronouncing Alsanea’s sentence, the district court stated:
I’m going to impose a sentence of ten years fixed on Count 1, ten years fixed consecutive on Count 2, fifteen years consecutive but indeterminate on the firearms charge; one year consecutive indeterminate on the domestic violence protection order; six months consecutive indeterminate on the remaining misdemeanor.
Alsanea’s judgment of conviction likewise provided that for the firearm enhancement, Alsanea was sentenced to a “indeterminate period of custody of up to fifteen (15) years consecutive” to his sentence for the second count of aggravated assault.
Alsanea filed a Rule 35 motion to correct an illegal sentence, claiming that the district court erroneously imposed a separate, consecutive sentence for his use of a firearm during commission of the aggravated assaults, rather than enhancing one of his aggravated assault sentences. The district court denied Alsanea’s motion and Alsanea appeals, still asserting that his sentence for the use of a firearm arm is illegal.
An illegal sentence under Rule 35 is one in excess of a statutory provision or otherwise contrary to applicable law. State v. Lee,
In the instant case, the maximum possible sentence for aggravated assault on a police officer is ten years. See I.C. §§ 18-906, -915(b). If that sentence is enhanced for use a firearm, the maximum possible term a defendant could be sentenced to is twenty-five years. See I.C. § 19-2520. If Alsanea’s sentences for the second count of aggravated assault and the firearm enhancement are construed as one continuous sentence, as they must be, the practical effect is the same as if Alsanea had been sentenced to a unified term of twenty-five years, including the firearm enhancement, with a minimum period of confinement of ten years. Such a sentence is a permissible sentence under the applicable statutes. Hence, Alsanea’s sentences were not illegal for purposes of Rule 35 despite the district court’s terminology when pronouncing them. Additionally, Alsanea has not argued that use of the term “consecutive” is causing his sentences to be administered improperly. Therefore, we conclude that Alsanea was not entitled to relief under Rule 35 and the district court did not abuse its discretion by denying his Rule 35 motion. If, and when, there comes a time when Alsanea’s sentences are inappropriately administered, his remedy would be to petition for a writ of habeas corpus. See Camarillo,
III.
CONCLUSION
The prior bad acts evidence was not relevant to the officers’ well-founded fear of imminent violence or to Alsanea’s intent in committing the aggravated assaults. Therefore, the evidence was not admissible. However, there was substantial evidence, aside from the irrelevant prior bad acts evidence, demonstrating Alsanea’s guilt. We are convinced beyond a reasonable doubt that the complained-of testimony did not contribute to the
Alsanea has failed to show that his right to an interpreter was waived. The district court appointed an interpreter to assist Alsanea and was under no obligation to monitor his use of the interpreter once one was made available to assist Alsanea. Therefore, we conclude that no error of the district court has been shown.
Even assuming that Alsanea’s requested jury instruction was an accurate statement of the law, it was not applicable to the type of charges and alleged facts involved here. Additionally, the district court did instruct the jury that it was required to consider each count of aggravated assault separately. Accordingly, we conclude that Alsanea was not entitled to have the district court give his requested jury instruction and no error has been shown in the district court’s refusal to do so.
After reviewing the record and applying the standards applicable to this Court’s review of a sentence, we conclude that Alsanea’s sentences are not unreasonable or excessive and that no abuse of the district court’s discretion has been shown. Additionally, because Alsanea’s sentence was not illegal for purposes of Rule 35, despite the district court’s imposition of a “consecutive” indeterminate fifteen-year term for use of a firearm, and no argument has been made that Alsanea’s sentence is being administered improperly, we also conclude that Alsanea was not entitled to relief under Rule 35 and that the district court did not abuse its discretion by denying his Rule 35 motion.
Alsanea’s 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 are affirmed. The order of the district court denying Alsanea’s Rule 35 motion to correct an illegal sentence is also affirmed.
Notes
. As conceded by the state and Alsanea, there .was testimony presented at trial that fell outside the scope of the district court’s pre-trial ruling on the admissibility of the prior bad acts evidence because it was not established that the officers involved in the aggravated assaults had personal knowledge of some of the acts testified to. Alsanea's trial counsel did not object to that testimony at trial. On this appeal, our examination of the admissibility of the prior had acts evidence is confined to the evidence falling within the scope of the district court’s ruling. We do not address the admissibility of the evidence that went beyond the scope of the ruling because it was not preserved for our review by an objection at trial. See State v. Rozajewski,
. The right to an interpreter in Wisconsin is now provided by statute and includes the requirement that a defendant may waive his or her right to an interpreter if the court advises the person of the nature and effect of the waiver and determines on the record that the waiver has been made knowingly, intelligently, and voluntarily. See WIS. STAT. § 885.38 (2001). Other states’ statutes similarly require that a defendant’s waiver be voluntarily and intelligently made. See, e.g., WASH. REV. CODE § 2.43.060 (1989).
Concurrence Opinion
concurring in the result.
I respectfully disagree with the majority view that the evidence of Alsanea’s harassment of his former girlfriend, particularly evidence that he had previously threatened to shoot her and their son, was irrelevant and therefore erroneously admitted. In my view, this evidence was relevant on the issue of Alsanea’s intent when he pulled the gun from his waistband.
Alsanea’s past threats toward the girlfriend were not isolated incidents unrelated to the behavior for which he was charged with assault on the officers. Rather, they were part of an ongoing course of harassment that was still continuing on the evening of December 6, 2000, when the police intervened and thereby became the new focus of Alsanea’s threatening behavior. The evidence of Alsanea’s earlier, but related, conduct suggests that he was not carrying the weapon on the night in question for some innocent purpose but for the purpose of using it to intimidate or do violence. It supports an inference that when he reached for the gun, it was Alsanea’s intent to threaten the officers. Therefore, the evidence was relevant, particularly in view of Alsanea’s claim that he grasped the weapon in order to hand it to the officers. Under Idaho Rule of Evidence 401, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The testimony about Alsanea’s past threats to shoot the girlfriend and the child meets this threshold. Accordingly, I would hold that the evidence was not erroneously admitted.
I otherwise concur with the lead opinion.