State v. Alvarado

2008 ND 203, 757 N.W.2d 570, 2008 N.D. LEXIS 225, 2008 WL 4925930
CourtNorth Dakota Supreme Court
DecidedNovember 19, 2008
Docket20080107
StatusPublished
Cited by24 cases

This text of 2008 ND 203 (State v. Alvarado) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Alvarado, 2008 ND 203, 757 N.W.2d 570, 2008 N.D. LEXIS 225, 2008 WL 4925930 (N.D. 2008).

Opinion

KAPSNER, Justice.

[¶ 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.

I.

[¶ 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.

*572 [¶ 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: “You need to have this background in or-

der to have a context to place this relationship in. You need to understand the constant state of fear that Cindy lived in, the survival that she was going through, in order to properly evaluate those terrorizing circumstances.” 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.
[[Image here]]
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 2006,1 did.
Q How did that happen?
A When I finally talked to him he had been looking for me, trying to find me.
[[Image here]]
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.
*573 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.
[[Image here]]
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.
[[Image here]]
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?

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Bluebook (online)
2008 ND 203, 757 N.W.2d 570, 2008 N.D. LEXIS 225, 2008 WL 4925930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alvarado-nd-2008.