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Belcher v. State

Court of Appeals of Alaska

May 6, 2016

ISAIAH TERMAINE BELCHER, Appellant,
v.
STATE OF ALASKA, Appellee

          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.[*]

          OPINION

         SUDDOCK, Judge

         A jury found Isaiah Termaine Belcher guilty of second-degree theft[1] 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.

         Background facts

         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.[2]

         Proceedings

         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 then walking past the cash registers into the store's vestibule.

         The video then depicted Belcher leaving the shopping cart in the vestibule (after the store's alarm system sounded) while he returned the DVDs to a cash register station. It then showed Belcher returning to his cart and exiting the store. The surveillance video also showed Brown emerging from the store's security office, Belcher and Brown talking outside the store, and Brown following Belcher to his car to record his license plate number.

         During cross-examination, Belcher's defense attorney inquired whether the low resolution of the video left doubt that its subject was Belcher. Brown responded that the resolution was better on his computer and also noted that he had the benefit of an in-person encounter with Belcher, which the video recorded. When the defense inquired whether Brown had accurately recorded Belcher's license plate number, Brown responded that he had " [w]alked right up to the bumper."

         Brown also explained that he checked Walmart's computer system to ensure that no television nor Blu-ray DVD player had been sold while Belcher was present in the store. The defense attorney suggested that Brown may have mis-remembered which items were in Belcher's cart, thus explaining the lack of purchase history. Brown responded that the store sold few brands of televisions and that he had carefully noted and searched for the specific television he saw in Brown's shopping cart.

         After Brown and Officer Kruchowski testified, the prosecutor renewed her request to introduce evidence of Belcher's prior theft conviction. The defense attorney argued that the conviction was more prejudicial than probative under Alaska Evidence Rule 403.

         The judge ruled that evidence of the prior crime was admissible evidence because, she concluded, both identity and mistake were part of the defense case, and she found the probative value outweighed the prejudicial effect of the evidence. But she limited evidence of the prior theft to Belcher's claim that he had bought the merchandise and did not have a receipt for it. Subsequently, Officers Gionson and Nave testified, and the judgment for Belcher's prior conviction was admitted into evidence.

         Following the parties' final arguments, the judge read the jury an instruction limiting the purposes for which the prior-crime evidence could be considered: specifically, to the issues of identity, intent, common scheme or plan, or absence of mistake. The jury convicted Belcher of second-degree theft. This appeal followed.

         The trial court erred by admitting the evidence of ...


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