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Stamper v. State

Court of Appeals of Alaska

September 8, 2017

VIRGINIA MAE STAMPER and JESSE ROBERT BEEBE, Appellants,
v.
STATE OF ALASKA, Appellee.

         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 ...


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