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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

ROBERT THOMAS SHEDLOSKY, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals Nos. A-12821 & A-12879 

Trial Court Nos. 3PA-16-00867 CR 

& 3AN-10-04211 CR 

O P I N I O N 

No. 2673 — August 14, 2020 

Appeal in File No. A-12821 from the Superior Court, Third 

Judicial District, Palmer, Vanessa H. White, Judge. Appeal in 

File No. A-12879 from the Superior Court, Third Judicial 

District, Anchorage, Michael L. Wolverton, Judge. 

Appearances: Marilyn J. Kamm (opening brief), and Margot 

Knuth (reply brief), Attorneys at Law, Anchorage, under 

contract with the Office of Public Advocacy, for the Appellant. 

Michal Stryszak, Assistant AttorneyGeneral, Office of Criminal 

Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, 

Juneau, for the Appellee. 

Before: Allard, Chief Judge, and Wollenberg and Harbison, 

Judges. 

Judge ALLARD. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Robert Thomas Shedlosky was convicted of third-degree assault under a 

recidivist theory for assaulting his ex-girlfriend, Sophie Batt.1 On appeal, he contends 

that the trial court erred when it admitted evidence of four prior assaults. Shedlosky also 

challenges his sentence and asks us to reverse the revocation of his probation. For the 

reasons explained here, we affirm Shedlosky’s conviction and sentence and the 

revocation of his probation. 

Factual Background 

Shedlosky and Batt metaround2006 and dated for about six or seven years. 

After their break up, they remained friends and would “walk and talk and drink.” On 

April 15, 2016, Shedlosky and Batt spent hours drinking in Anchorage before heading 

to Wasilla, where they ultimately visited Shedlosky’s friend, Rodney Rhodes. After Batt 

retired to Rhodes’s bedroom to sleep, Shedlosky shook her awake. Shedlosky started 

beating and punching Batt. He threw her off the bed and kicked her a couple of times, 

calling her names and demanding to know if she wanted to “F Rodney.” 

Rhodes awoke to Shedlosky “smacking” Batt around. He called 911 and 

asked the dispatcher to send police officers over to his apartment “right away” because 

his friend was “beating the hell out of [Batt].” Rhodes also stated that “they’re beating 

each other up,” and he later said that Shedlosky was “killing her.” 

At trial, Shedlosky argued that he acted in self-defense. Shedlosky did not 

testify. Instead, Shedlosky relied on Rhodes’s statement in the 911 call that “they’re 

beating each other up” to support his self-defense claim. Rhodes testified that he only 

witnessed Shedlosky beating up Batt and that he did not see Batt hitting Shedlosky. 

See AS 11.41.220(a)(5) (recklessly causing physical injury to a person, having been 

convicted within the preceding ten years on two or more separate occasions of crimes with 

elements similar to AS 11.41.230(a)(1) or (2)). 

– 2 – 2673
 

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2 

Rhodes also testified that he had misspoken on the 911 call when he stated that 

Shedlosky and Batt were “beating each other up.” 

Ultimately, the jury rejected Shedlosky’s self-defense claim and convicted 

Shedlosky of third-degree assault under a recidivist theory. 

Underlying facts related to the admission of Shedlosky’s prior assault 

convictions 

Before trial, the State filed a notice of intent to introduce Shedlosky’s prior 

assault convictions. Shedlosky opposed. At a pretrial hearing on the motion, the State 

made an offer of proof as to four specific incidents it sought to present at trial. The first 

two assaults involved Shedlosky beating Batt because he was jealous that she might be 

interested in other men. The third and fourth assaults involved Shedlosky, again 

motivated by jealousy, beating up other men. 

After considering the State’s offer of proof, the court found that 

Shedlosky’s prior assaults were admissible for several reasons.2 The court found that the 

We note that the prosecutor’s motion erroneously asserted that these assaults were 

admissible under Alaska Evidence Rule 404(a)(2) to rebut Shedlosky’s self-defense claim. 

The trial court also erroneously ruled that these prior acts were admissible under Alaska 

Evidence Rule 405(b). Both the prosecutor and the trial court were mistaken. Although Rule 

404(a)(2) authorizes trial courts to admit character evidence to rebut a claim that the victim 

was the first aggressor, this evidence is limited to reputation and opinion evidence. Evidence 

of specific instances of conduct is not permitted under Rule 404(a)(2) except on crossexamination. See Alaska Evid. R. 404(a)(2); Alaska Evid. R. 405(a); see also Allen v. State, 

945 P.2d 1233, 1243 (Alaska App. 1997) (noting that Rule 405(a) allows proof of a person’s 

character for violence admissible under Rule 404(a)(2) to be established through reputation 

and opinion evidence). The trial court was also mistaken in believing that the specific 

instances of conduct were admissible under Rule 405(b). That evidence rule is limited to 

cases in which a defendant’s character is “an essential element” of a charge, claim, or 

defense. See Alaska Evid. R. 405(b). Although both the prosecutor and the trial court were 

(continued...) 

– 3 – 2673
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

two domestic violence assaults involving Batt were admissible under Alaska Evidence 

Rule 404(b)(4), which authorizes the admission of evidence of a defendant’s other 

crimes of domestic violence for propensity purposes in a case involving domestic 

violence. The court also found that the two assaults involving the men were admissible 

under Alaska Evidence Rule 404(b)(1) to prove Shedlosky’s “motive, pattern, and 

intent” because the assaults occurred as a result of Shedlosky’s “feelings of jealousy and 

suspicion regarding a significant other or a former significant other.” 

Why we conclude that the trial court properly admitted the prior domestic 

violence assaults and that any error in admitting the two other assaults 

was harmless 

On appeal, Shedlosky argues that the trial court erred when it allowed the 

prosecution to introduce evidence of his four prior assault convictions. According to 

Shedlosky, the trial court failed to conduct an adequate balancing test under Bingaman 

v. State.

3 He argues that the evidence should have been excluded because it was not 

needed for the State’s case, which the court recognized as “strong.” Shedlosky also 

argues that the two prior assaults against the men had no relevance to the current assault 

involving Batt, although he acknowledges that this objection was not made in the trial 

court. 

In assessing these claims of error, it is necessary to distinguish between the 

two prior domestic violence assaults against Batt and the two assaults against the two 

men. Having reviewed the record, we find no error in the trial court’s ruling on the prior 

2 (...continued) 

mistaken about the applicabilityof Evidence Rules 404(a)(2) and 405(b), we find these errors 

harmless because the evidence was also separately admitted under Rules 404(b)(1) and 

404(b)(4). 

3 See Bingaman v. State, 76 P.3d 398, 415-16 (Alaska App. 2003). 

– 4 – 2673
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

domestic violence assaults against Batt. The trial court admitted these assaults under 

Evidence Rule 404(b)(4), and the court’s Bingaman analysis of that evidence was sound. 

The same cannot be said, however, with regard to the two prior assaults 

against the men. The trial court ruled that these assaults were admissible under Evidence 

Rule 404(b)(1) for non-propensity purposes — allegedly, to “establish motive, pattern, 

intent for this act of violence.” But the trial court then proceeded to analyze the 

admissibility of this evidence under Bingaman’s balancing test for character evidence 

— i.e., evidence that is being admitted, in part, to show propensity. The court’s use of 

the Bingaman factors in this manner was error. As we have previously explained, 

“[b]ecause Bingaman is a test for evaluating the admissibility of evidence that is 

expressly being offered to establish a defendant’s character . . . , the Bingaman test is an 

inappropriate legal framework with which to assess the admissibility of evidence under 

Rule 404(b)(1) — a rule that expressly prohibits character evidence.4 

We recognize that many of the Bingaman factors are relevant to the 

balancing test that courts are required to conduct under Alaska Evidence Rule 403 when 

considering admission of evidence under Rule 404(b)(1). But the problem remains that 

the Bingaman balancing test was designed for certain cases in which the legislature has 

specifically authorized the use of propensity evidence, in contravention of the limitations 

of Rule 404(b)(1).5 In other words, the Bingaman balancing test is premised on the idea 

that the jury can properly consider a character trait of the defendant for its propensity 

4 Berezyuk v. State, 407 P.3d 512, 516 (Alaska App. 2017). 

5 See Alaska Evid. R. 404(b)(2) (authorizing propensity evidence in prosecutions 

involving a physical or sexual assault or abuse of a minor), (b)(3) (authorizing propensity 

evidence in sexual assault prosecutions when the defendant relies on a defense of consent), 

& (b)(4) (authorizing propensity evidence in prosecutions for a crime involving domestic 

violence or interfering with a report of such a crime). 

– 5 – 2673
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

purposes, whereas the Rule 403 balancing test for 404(b)(1) evidence requires the court 

to exclude evidence offered under Rule 404(b)(1) if it is likely to be misused as 

propensity evidence or evidence of the defendant’s “character.” Thus, a trial court that 

uses the Bingaman factors to evaluate the admissibility of evidence under Evidence Rule 

404(b)(1) runs a serious risk of discounting the unfair prejudice that may result from 

introducing what is supposed to be non-propensity evidence. 

At times, we have excused this error as an error of “nomenclature,” rather 

than substance, when “a review of the court’s actual analysis indicate[d] that it was 

engaged in the robust balancing test required for evidence admitted under Evidence Rule 

404(b)(1).”6 But we have also reversed cases where the trial court’s erroneous use of the 

Bingaman factors led the prosecutor to argue evidence purportedly admitted for nonpropensity purposes as though it had been admitted for propensity purposes.7 

Here, we are concerned that the court’s erroneous use of the Bingaman test 

may have affected the court’s ability to fairly assess the probative value of this evidence 

when weighed against its potential for unfair prejudice. The probative value of this 

evidence was relatively marginal, given that these were not assaults against domestic 

partners. Moreover, the chance that the jury might rely on the assaults for propensity 

6 Rollins v. State, 2015 WL 4874789, at *3 (Alaska App. Aug. 12, 2015) (unpublished); 

see also Peters v. State, 2019 WL 1503991, at *7 (Alaska App. Apr. 3, 2019) (unpublished) 

(upholding conviction when the “non-propensitypurpose of the evidence was clear” and “the 

trial judge’s announced reliance on Bingaman was an error of nomenclature rather than 

substance”). 

7 See, e.g., Berezyuk, 407 P.3d at 516-17 (reversing conviction where, despite the 

prosecutor’s claim that evidence of the defendant’s prior conviction was admissible for a 

non-propensity purpose, the record “clearly reveals that the prosecutor’s primary use of this 

evidence was to urge the jurors to improperly view the evidence as character evidence”). 

– 6 – 2673
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

purposes was quite high, particularly because the other two domestic violence assaults 

against Batt were being introduced for their propensity value. 

We nevertheless conclude that any error in admitting the assaults against 

the men was harmless, given the larger context of this case.8 As Shedlosky admits in his 

briefing on appeal, the State’s case against him was strong. And his claim of selfdefense was particularly weak. During closing argument, the prosecutor focused on the 

strength of its case, emphasizing Batt’s injuries, Shedlosky’s lack of injury, and the 

direct eyewitness testimony of Rhodes. The prosecutor referred to the four assaults in 

her closing, but she primarily emphasized the more relevant assaults — that is, the prior 

domestic violence assaults against Batt, which were properly admitted for propensity 

purposes under Evidence Rule 404(b)(4). The presentation of evidence on the nondomestic violence assaults was minimal and not overly inflammatory. 

Given all this, we conclude that it can fairly be said that any error in 

admitting these additional non-domestic violence assaults was ultimately harmless and 

did not appreciably affect the jury’s verdict. 

Why we affirm Shedlosky’s sentence 

Shedlosky faced a presumptive range of 2 to 5 years for his third-degree 

assault conviction.9 He stipulated to two aggravating factors — that his prior history 

included repeated instances of assaultive behavior and that he was on probation for 

8 See Love v. State, 457 P.2d 622 (Alaska 1969) (holding that an erroneous evidentiary 

ruling is harmless when it can fairly be said that the error did not appreciably affect the jury’s 

verdict). 

9 See former AS 12.55.125(e)(3) (2017). 

– 7 – 2673
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

another felony at the time of the offense.10 And Shedlosky asked the court to find the 

mitigating factor that his conduct was among the least serious within the definition of the 

offense, arguing that what he really committed was fourth-degree assault because his 

third-degree assault conviction resulted from his prior assault convictions.11 

The trial court rejected Shedlosky’s proposed mitigator. In its sentencing 

remarks, the court found that when Shedlosky drinks, he becomes “a violent, angry 

person with no judgment or discernment.” The court noted that this “has happened time 

and time and time again” and, as a result, Shedlosky had at least ten prior assault 

convictions — i.e., eight more than required for the recidivist statute. Ultimately, the 

court sentenced Shedlosky to 5 years to serve with no suspended time. 

On appeal, Shedlosky renews his argument that his conduct was among the 

least serious conduct constituting the offense because the crime he actually committed 

was fourth-degree assault. In other words, Shedlosky essentially argues that every 

recidivist third-degree assault conviction is per se least serious. 

This argument is contrary to our cases holding that when “the legislature 

includes various acts within the definition of the same offense, . . . each act must 

presumptively be regarded as equally serious.”12 Accordingly, we find no error in the 

trial court’s decision that Shedlosky’s conduct in this case was not least serious.13 

10 See AS 12.55.155(c)(8), (20). 

11 See AS 12.55.155(d)(9). 

12 Simpson v. State, 796 P.2d 840, 843 (Alaska App. 1990); see Walsh v. State, 677 P.2d 

912, 917 (Alaska App. 1984); Juneby v. State, 641 P.2d 823, 841 (Alaska App. 1982), 

modified on other grounds, 665 P.2d 30 (Alaska App. 1983). 

13 See Aveoganna v. State, 757 P.2d 75, 77 (Alaska App. 1988) (rejecting defendant’s 

contention that his offense automatically qualifies as least serious in comparison to other 

(continued...) 

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Shedlosky also argues that his sentence is excessive. When we review an 

excessivesentenceclaim, weindependentlyexaminetherecord to determinewhether the 

sentence is clearly mistaken.14 The “clearly mistaken” standard contemplates that 

different reasonable judges, confronted with identical facts, will differ on what 

constitutes an appropriatesentence, and that a reviewing court will not modify a sentence 

that falls within a permissible range of reasonable sentences.15 We have independently 

reviewed the sentencing record in this case and conclude that the sentence imposed here 

is not clearly mistaken. 

Why we affirm the revocation of Shedlosky’s probation 

After Shedlosky was convicted and sentenced, a disposition hearing was 

held on the State’s petition to revoke Shedlosky’s probation. The State based its petition 

to revoke on two allegations — that Shedlosky had been convicted of third-degree 

assault and that he had consumed alcohol. The judge found both allegations proven and 

imposed 6 months of previously suspended time. 

On appeal, Shedlosky argues that this decision should be reversed because 

his conviction for assaulting Batt was invalid due to the improper admission of prior bad 

acts evidence. Because we affirm Shedlosky’s conviction, we find no merit to this 

argument. 

13 (...continued) 

offenses with the same applicable presumptive sentencing term because the mitigating factor 

compares the defendant’s conduct in committing the offense with the conduct of others 

committing the same offense). 

14 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). 

15 See Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997). 

– 9 – 2673
 
 

 

 

 

 

Shedlosky also argues that the State presented insufficient evidence that he 

consumed alcohol. We have reviewed the testimony presented at Shedlosky’s probation 

revocation hearing, and we find no merit to this argument. 

Conclusion 

For the reasons expressed in this opinion, we AFFIRM both judgments in 

this consolidated appeal. 

– 10 – 2673