Appeals
from the Superior Court, Third Judicial District, Trial Court
Nos. 3PA-13-067 CR & 3PA-13-053 CR Palmer, Eric Smith,
Judge.
Barbara Dunham, Assistant Public Advocate, and Richard Allen,
Public Advocate, Anchorage, for Appellant
Virginia Mae Stamper. Paul Malin, under contract with the
Public Defender Agency, and Quinlan Steiner, Public Defender,
Anchorage, for Appellant
Jesse
Robert Beebe. Timothy W. Terrell (the Stamper appeal) and
Terisia K. Chleborad (the Beebe appeal), Assistant Attorneys
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
MANNHEIMER, Judge
Virginia
Mae Stamper and her husband Jesse Robert Beebe were convicted
of crimes arising from Stamper's theft of merchandise
from a grocery store in Big Lake. Stamper, who took the
merchandise from the store, was convicted of second-degree
theft (theft of property valued at $500 or more).
[1]
Beebe, who was waiting for Stamper in a van in the parking
lot, was convicted of third-degree assault for using the van
to strike a customer who tried to stop Stamper and Beebe from
leaving the parking lot. [2](According to the testimony at trial,
Beebe's van struck the citizen in his mid-section,
knocking him backwards about five feet.)
Many of
Stamper's and Beebe's actions were recorded by the
grocery store's security cameras. When State Trooper Lane
Wraith arrived at the store to investigate the theft and
assault, he watched portions of the digital security footage
- including footage of what happened in the parking lot, as
well as footage of Stamper inside the store, putting
merchandise into her shopping cart.
Trooper
Wraith asked one of the grocery store's loss-prevention
employees, Michael Gozdor, to help him make a copy of the
digital security footage, but neither Gozdor nor Wraith could
figure out how to make a copy of the footage. Before Wraith
left the store, he asked Gozdor to try again later to make a
copy of the portions of the security footage showing
Stamper's and Beebe's actions.
Wraith
contacted Stamper and Beebe the next day. After Wraith
informed Stamper that there was video footage of her actions,
Stamper confessed to the theft. However, even though Wraith
told Beebe that there was video footage of Beebe's
collision with the customer in the parking lot, Beebe
insisted that he had not struck the customer.
In the
meantime, Gozdor managed to transfer some of the store's
digital video footage onto a thumb drive. He delivered this
thumb drive to Trooper Wraith a day or two after the
incident.
Gozdor
thought that he had successfully copied all of the relevant
security footage. But it turned out that Gozdor only copied
the footage of some of Stamper's actions inside
the store. Moreover, Gozdor failed to copy the footage of
Stamper's and Beebe's actions in the parking lot, and
he also accidentally included video footage that had nothing
to do with Stamper and Beebe's case.
After
Wraith received the thumb drive from Gozdor, he plugged it
into his computer. He could see that it contained video
files, but when Wraith tried to play these video files on his
computer, he discovered that his computer did not have the
necessary software to open and view the files. Wraith then
tried to view the files on a different computer, but he was
again unsuccessful. At that point, Wraith simply logged the
thumb drive into evidence. Apparently, no one looked at these
video files again until the first day of Stamper and
Beebe's trial.
The
computer that was used at Stamper and Beebe's trial had
the necessary software to open and view the video files from
the grocery store's security system. But during the
trial, when Wraith and Gozdor viewed the video files on the
thumb drive, they realized that these files did not include
the footage from the parking lot, nor did the files include
footage of Stamper's actions in aisle 10 of the store -
the aisle from which she had taken most of the stolen
merchandise.
By this
time, the original security footage was no longer available,
because the store's security computer recycled its video
files after six months.
After
the State concluded its evidence, and after Stamper and Beebe
rested without presenting a case, both defense attorneys
asked the trial judge to give the jurors a Thorne
instruction regarding the missing video files - that is, an
instruction directing the jurors to assume that the missing
video footage would have been exculpatory for both Stamper
and Beebe. [3]
The
trial judge rejected this request. The judge concluded that
the evidence failed to show that the troopers had ever
received the missing video files - i.e., failed to
show that the missing video files had ever been on the thumb
drive that Gozdor delivered to Trooper Wraith. Thus, the
judge concluded, the evidence did not show that the troopers
had lost or inadvertently destroyed this evidence.
Beebe's
attorney argued that this did not make any difference. He
asserted that when Wraith asked Gozdor to make a copy of the
relevant security footage, Wraith made Gozdor an
"agent" of the State Troopers for purposes of
preserving this evidence. Thus, the defense attorney argued,
when Gozdor failed to successfully copy all of the security
footage onto the thumb drive, and when Gozdor allowed six
months to elapse (so that the grocery store's security
computer re-used that hard drive space), Gozdor's actions
amounted to a loss or inadvertent destruction of evidence
that should be attributed to the State.
The
trial judge rejected this "agency" argument.
The
jury found Stamper guilty of theft, and Beebe guilty of
assault. Both defendants now appeal, arguing that the State
was at fault for losing the video footage, and that the trial
judge should have granted their request for a Thorne
instruction.
The
defendants bore the burden of proving that the troopers took
possession of the video evidence
As we
explained in the preceding section of this opinion, the trial
judge found (after hearing the evidence pertaining to the
security video footage) that the defendants had failed to
establish that the troopers ever took possession of the
missing footage.
On
appeal, Stamper and Beebe argue that the judge was wrong to
make them bear the burden of establishing that the troopers
ever possessed the missing video evidence. Stamper and Beebe
contend that the language of the Thorne decision
makes it clear that the State bears the burden of proving
that missing evidence was not lost or destroyed through state
action.
As a
preliminary matter, there is no reason to think that the
burden of proof made any difference to the trial judge's
decision.
The
trial judge employed the "preponderance of the
evidence" standard of proof when he decided the factual
question of whether Trooper Wraith ever had possession of the
missing video footage. Stamper and Beebe ...