Appeal from the Superior Court, Third Judicial District, Palmer, Pat L. Douglass, Judge. Trial Court No. 3PA-12-3212 CR
Nancy Driscoll Stroup, Attorney at Law, Palmer, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]
A jury found Isaiah Termaine Belcher guilty of second-degree theft for stealing a television and a Blu-ray DVD player from the Wasilla Walmart. At trial, the State offered evidence of Belcher's prior conviction for third-degree theft. Over defense objection, Superior Court Judge Pat L. Douglass admitted evidence of the prior conviction as probative of identity, intent, common scheme or plan, and absence of mistake.
On appeal, Belcher argues that the evidence was inadmissible under Alaska Evidence Rule 404(b)(1). He is correct; as explained below, the evidence had no relevance beyond establishing Belcher's character as a thief. But the error was harmless because the State presented overwhelming evidence of guilt.
On November 23, 2012 - "Black Friday" - Walmart loss-prevention officer Dean Brown heard the electronic alarm system at the doorway go off, and shortly thereafter he observed Belcher walking through the store's vestibule with a television in his cart. Brown followed Belcher outside the store, and Belcher turned and approached him. Belcher told Brown that the alarm had triggered because of DVDs in his cart that he had forgotten to pay for. He explained that after the alarm sounded, he decided he no longer wanted them and returned them to the cashier.
According to Brown's testimony at trial, he expressed skepticism about Belcher's story and asked to see Belcher's receipt. Belcher did not have one. When Brown asked Belcher how he would return the merchandise if there was something wrong with it, Belcher replied that he would just pawn it instead of returning it to the store.
Brown jotted identifying data from Belcher's driver's license and vehicle license plate number. After reviewing surveillance footage and determining that Belcher had not paid for the merchandise, Brown contacted the Wasilla Police Department to report the theft. Officer Patrick Kruchowski responded to the call, and Brown told him that Belcher had stolen a television and a Blu-ray DVD player valued at $713 and $98, respectively.
The State subsequently indicted Belcher for second-degree theft.
The State filed a notice of its intent to introduce Belcher's year-old conviction for third-degree theft. According to police reports attached to the notice, Anchorage police officers had received a report of attempted shoplifting (not involving Belcher) from a Fred Meyer store. One week later, Anchorage police stopped a car belonging to one of the suspects in that incident.
Belcher was in the back seat of the vehicle, along with $895 worth of merchandise later determined to be stolen from Bed Bath & Beyond. Belcher told Officer Boaz Gionson that the items were his and that he had bought them, but he told another officer, Robin Nave, that the items did not belong to him. Officer Nave later received a phone call from Belcher, requesting return of the items. Belcher told Officer Nave that he had purchased the items without bothering to keep the receipt because the items were intended as Christmas gifts. Officer Nave did not return the merchandise, and Belcher eventually pled guilty to third-degree theft of that merchandise.
Belcher objected to the State's notice of intent to offer this evidence, arguing that the matter had no relevance beyond Belcher's propensity to shoplift and was highly prejudicial. The judge deferred ruling on the matter until hearing the State's case and the defense theory of the case.
At trial, loss-prevention officer Brown showed the jury surveillance video footage of Belcher. The video first depicted Belcher placing the television and Blu-ray DVD player into his shopping cart. It also showed him selecting a number of DVDs and ...