Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

COATS, Chief Judge.

Lamar McGrew was convicted of violating a domestic violence protective order by contacting his former girlfriend, Charlene Lewis. McGrew argues that the district court should have allowed him to present evidence that Lewis had on prior occasions falsely accused him of violating the protective order. We conclude that the district court did not abuse its discretion by excluding this evidence. We therefore affirm McGrew's conviction. Because we have no jurisdiction to consider McGrew's claim that his sentence is excessive, we refer his sentence appeal to the supreme court for discretionary review under Appellate Rule 215(k).

Facts and proceedings

The pertinent facts in this case are undisputed. Lewis obtained a domestic violence protective order against McGrew. The court initially granted Lewis a temporary, twenty-day order and then, on May 31, 2007, issued a long-term order that expired in one year, on May 31, 2008. McGrew was present at the hearing at which the long-term order was issued and he received a copy of the order. On September 21, 2007, McGrew pleaded no contest to violating the protective order.

On May 12, 2008, several weeks before the order expired, McGrew called Lewis and left a message on her voice mail. Based on that contact, McGrew was again charged with violating the order.1

Before trial on that charge, the State filed notice of its intent to present evidence that McGrew had been convicted of violating the protective order before. The State also sought to introduce evidence about the underlying acts of domestic violence that led Lewis to obtain the order.

McGrew opposed the admission of this evidence. In the alternative, he argued that if the court admitted the evidence, he should be permitted to show that he was charged with other violations of the protective order based on Lewis's purportedly false allegations, and that those other charges were dismissed when he entered his no contest plea to a single violation in September 2007. McGrew also argued that he should be allowed to explain to the jury that he entered that plea, not because he believed he was guilty, but because he needed to get back to work.

District Court Judge Paul E. Olson ruled that the State could present evidence that McGrew had previously been convicted of violating the protective order. Judge Olson concluded that the primary relevance of the prior conviction was to show that McGrew acted at least recklessly — that is, to show that McGrew was on notice at the time he contacted Lewis that he was required to comply with the no contact order. Judge Olson prohibited the State from eliciting any testimony about the underlying domestic violence that led Lewis to obtain the protective order, ruling that this evidence was more prejudicial than probative under Evidence Rule 403.

Judge Olson then addressed McGrew's request to rebut the evidence of his prior conviction with testimony that Lewis made several false accusations that he violated the protective order and that he entered a no contest plea to one charge just to get the case over with. Judge Olson ruled that McGrew could explain to the jury why he entered a plea even though he believed he had committed no offense.2 But Judge Olson ruled that McGrew could not present evidence of the other, purportedly false charges that were dismissed as part of his plea agreement because that evidence was not relevant to any disputed issue in the case.

McGrew testified in his defense. He conceded that he contacted Lewis while the protective order was still in effect, but he argued that he had a reasonable, though mistaken, belief that the order had expired. McGrew testified that because the initial, temporary order was issued on Mother's Day 2007, he assumed that once Mother's Day 2008 had passed the protective order was no longer in effect. In closing argument, his attorney argued that the jury should acquit him because this honest mistake did not rise to the level of reckless disregard of the no contact order.

The jury rejected McGrew's defense and convicted him of violating the order. He appeals.

Why we conclude the district court did not abuse its discretion by precluding McGrew from testifying about Lewis's other purportedly false allegations that he violated the order

On appeal, McGrew argues that the district court erred by precluding him from testifying about Lewis's other, purportedly false accusations that he violated the order.

McGrew conceded at trial that he was subject to the no contact order at the time he made the phone call at issue in this case, and that he had received notice of the order. Therefore, the only disputed issue at trial was whether McGrew had the mental state required to convict him of violating the protective order.

A person who is subject to a protective order is guilty of violating the order if the person knowingly commits an act "with reckless disregard" that the act violates the protective order.3 In district court, the State argued that McGrew was reckless in phoning Lewis because McGrew simply assumed the protective order had expired on Mother's Day and did not look at the order or call his attorney or anyone else to verify the expiration date before he made the call. The State pointed out that McGrew understood the seriousness of this conduct because he had been convicted of violating the order before. McGrew did not dispute the State's assertion that he took no steps to verify that the order had expired, but he argued that he was "reasonable, not reckless" in believing that it had.

McGrew has not explained how the evidence of Lewis's other allegations that he violated the protective order was relevant to the jury's determination of whether he was reckless when he made the phone call at issue in this case. As just explained, the question the parties framed for the jury was whether McGrew was reasonable or reckless in assuming the order had expired on Mother's Day, and in not taking steps to verify the date the order expired before calling Lewis. McGrew's testimony that Lewis had on prior occasions falsely accused him of violating the order had no relevance to the jury's determination of this issue.

McGrew argues that he was entitled to testify about the circumstances surrounding his prior conviction — including the charges dismissed as part of his plea agreement — to rebut any inference that he had a propensity to violate the protective order. But the jury was never invited to draw a propensity inference from McGrew's prior conviction. The State only argued that the conviction was evidence that McGrew was on notice at the time he called Lewis that he was required to comply with the order and that he understood the seriousness of not complying.

Furthermore, Judge Olson ruled that McGrew could deny committing the conduct underlying his prior conviction, and that he could explain to the jury that he pleaded no contest, not because he believed he was guilty, but because he needed to get back to work. Given that McGrew had the opportunity to explain his no contest plea, and to deny that he had committed the prior offense, he cannot show that he was prejudiced because the court prevented him from testifying about other allegations that he violated the order that were not part of the State's case and were never before the jury.

McGrew cites Worthy v. State4 and Hess v. State5 to support his claim that the court abused its discretion by precluding this evidence. But those cases are distinguishable. In Worthy the supreme court held that the defendant should have been permitted to rebut evidence the State had used to bolster the victim's credibility.6 In Hess the supreme court held that the defendant should have been allowed to rebut evidence of his propensity to sexually assault women, evidence that directly undercut his defense of consent.7 In both cases the evidence the defendant sought to rebut was an "integral part" of the State's case.8

The evidence of Lewis's purportedly false allegations that McGrew violated the protective order was not relevant to discredit Lewis's testimony. Lewis did not testify about any prior violations of the order by McGrew, and McGrew conceded the material facts that Lewis did testify to: that McGrew was present at the hearing at which the long-term protective order was issued and that he received a copy of the order. Moreover, as already explained, the evidence of Lewis's other allegations was not relevant to the issue disputed at trial — whether the State had proved that McGrew had the required mens rea to commit the offense of violating the protective order. We conclude that Judge Olson did not abuse his discretion by preventing McGrew from testifying about Lewis's other allegations that he violated the order.

McGrew also argues that his sentence is excessive. As McGrew points out, under AS 22.07.020(b) we have no jurisdiction to consider this claim because McGrew received only twenty days to serve. We therefore refer his sentence appeal to the supreme court for discretionary review under Appellate Rule 215(k).

Conclusion

We AFFIRM McGrew's conviction. McGrew's sentence appeal is referred to the supreme court.