from the Superior Court, Third Judicial District, Palmer, Pat
L. Douglass, Judge. Trial Court No. 3PA-12-3212 CR.
Driscoll Stroup, Attorney at Law, Palmer, for the Appellant.
W. Terrell, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Craig W. Richards, Attorney General,
Juneau, for the Appellee.
Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior
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.
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.
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.
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.
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.
State subsequently indicted Belcher for second-degree
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.
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.
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
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.
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.
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
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
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.
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.
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.
trial court erred by admitting the evidence of ...