Opinion
Court of Appeals No. A-10138.
December 9, 2009.
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge, Trial Court No. 1JU-07-1113 CR.
David Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Amy M. Williams, Assistant Attorney General, and Wayne Anthony Ross, Attorney General Designate, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Jerry H. Nelson was convicted of theft for taking metal scrap from the yard of an automotive repair shop. His defense at trial was that he thought that the metal was merely junk with no value. On appeal, Nelson argues that the trial judge unfairly admitted evidence that Nelson had previously sold a large amount of salvaged material to a recycling business, and that the judge allowed the prosecutor to make an unfair comment about these sales. We conclude that the trial judge had the discretion to admit evidence of these sales to show Nelson's motive, that the judge was not required to give a special jury instruction about these sales, and that the prosecutor's comment about these sales was not obviously improper or prejudicial.
Background
On September 22, 2007, surveillance cameras captured Nelson parking his vehicle on the shared business property of Louis Grafton and Randall Ford. Grafton and Ford separately operate several businesses on the property: Grafton operates an automotive repair business and Ford operates an automotive customization and restoration business and a towing service. Ford later recognized and identified Nelson on the videotape. While parked on the lot, Nelson called Devin Moorhouse and asked him to bring a tire to replace a flat on Nelson's vehicle. The surveillance video showed the two men collecting items from around the yard and placing them in Nelson's vehicle.
Nelson was charged with theft in the second degree and first-and second-degree criminal trespass. At trial, Nelson defended himself by arguing that he believed that the property he took was "junk lying around." The State offered rebuttal evidence that Nelson had previously sold salvaged metal and thus knew that the metal items he took from Grafton and Ford had value. A jury convicted Nelson of all three charges, and Nelson now appeals.
AS 11.46.130(a)(1).
AS 11.46.320(a)(1); AS 11.46.330(a)(2).
The Evidence of Nelson's Prior Metal Sales
Nelson argues that the trial court abused its discretion by admitting evidence that Nelson had earned over $44,000 in fifty-seven prior transactions by selling recyclable metals to Peggy Cartmill, who owns a non-ferrous metal recycling business. Nelson submits that allowing the jury to hear about the extent of his prior transactions was more prejudicial than probative.
See Harapat v. State, 174 P.3d 249, 250 (Alaska App. 2007).
Under Alaska Evidence Rule 404(b)(1), evidence of prior acts may be introduced to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. A t trial, the State asserted that the evidence of Nelson's prior metal sales showed his knowledge of the stolen metal's value, his motive in taking it, and that taking the metal was not an accident or mistake. In response, defense counsel argued that there was undue prejudice in introducing the number of times Nelson had previously delivered metal to the recycling business.
Superior Court Judge Patricia A. Collins concluded that the evidence was relevant to show Nelson's knowledge of the metal's value. Judge Collins determined that Nelson's "know ledge of value, through frequent transactions by Mr. Nelson . . . [was] more probative than unfairly prejudicial," but the judge prohibited the State from suggesting that Nelson had stolen the metals he previously sold to the recycling shop.
Nelson relies heavily upon Bingaman v. State, in which this court outlined a six-factor test to determine whether evidence of prior acts admitted under Evidence Rule 404(b)(4) is more probative than prejudicial. In Bingaman, this court examined the extent to which Evidence Rule 404(b)(4) allows the State to introduce propensity evidence that would otherwise be barred by Rule 404(b)(1) in domestic violence cases. In the instant case, however, the evidence of Nelson's prior metal sales was not admitted as propensity evidence, but rather to show Nelson's motive and knowledge. The evidence was relevant for purposes other than to prove Nelson's character, and it was therefore not barred by Rule 404(b)(1).
76 P.3d 398, 415-16 (Alaska App. 2003).
Id. at 414-16; see also Kenison v. State, 107 P.3d 335, 344 (Alaska App. 2005) (discussing Bingaman).
See Kenison, 107 P.3d at 344.
Because "evidence admitted under Rule 404(b)(1) does not pose the same danger of prejudice to the fairness of the proceedings as evidence admitted under . . . [the] rules that explicitly authorize the admission of character evidence," Judge Collins was not bound by Bingaman's special requirements. Regardless, the record shows that Judge Collins did engage in a Rule 403 balancing process in deciding whether to allow the State to introduce the disputed evidence. The judge noted the potentially prejudicial effects of Cartmill's testimony about Nelson's prior metal sales and decided that the danger of prejudice could be overcome by constraining the questioning. This decision was not an abuse of discretion.
See Harapat, 174 P.3d at 252-53.
The Trial Court Was Not Required to Give a Special Jury Instruction
Relying again on Bingaman, Nelson argues that Judge Collins erred by failing to give the jury a cautionary instruction stating "that evidence of the defendant's other acts is never sufficient, standing alone, to justify the defendant's conviction." Because Nelson did not request such an instruction, he must now show plain error.
See Bingaman, 76 P.3d at 416-17.
See Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985); Bidwell v. State, 656 P.2d 592, 595 (Alaska App. 1983).
In Douglas v. State, we considered and rejected an argument identical to Nelson's. We held that a cautionary instruction is mandatory only if the defendant requests it, or when the amount and nature of the other-crimes evidence demonstrates that the failure to give such an instruction would amount to plain error. The evidence at issue in the instant case was limited to Cartmill's discussion of her business transactions with Nelson, and Judge Collins explicitly warned the witness not to talk about any previous police contacts she might have had relating to Nelson. Thus, the judge took steps to minimize the potential for prejudice, and she did not commit plain error by failing to give a limiting instruction.
151 P.3d 495, 503 (Alaska App. 2006).
Id. at 503.
The Prosecutor Did Not Make an Obviously Improper Closing Argument
In his closing argument, the State's attorney made the following comments:
One of the last things Judge Collins talked to you about was motive. I'm showing you exhibit 12, Ms. Cartmill's handwritten notes. And I would submit to you there's the motive. The motive is money. Metal's worth money. Metal's worth a lot of money. Over the course of this time, metal was worth $44,000, the metal that was taken. Some of the items, I would submit to you, were just simply taken because they were useful, but the radiators contained copper, a non-ferrous metal [and were therefore salvageable at Cartmill's shop].
Emphasis added.
The prosecutor went on to talk about the metal items that Nelson and Moorehouse took from Grafton's and Ford's property, and he asked the jury to "find Mr. Nelson guilty of taking those things."
On appeal, Nelson argues that the prosecutor's reference to "the metal that was taken" was improper because it insinuated that all of Nelson's prior metal sales involved items that were stolen. Because Nelson did not object to the prosecutor's remark at trial, we review the issue under the plain error standard. That is, we review for an error "so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection and . . . so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice."
Potts, 712 P.2d at 390.
Id.
After reviewing both the transcript and the audio recording of this portion of the closing argument, we find no obvious or prejudicial error because the prosecutor's remark was arguably proper. Reading the remark as set forth above, it could refer to the fact that Nelson had previously "taken" metals to the recycling business. There is no necessary implication that those metals were stolen.
However, listening to the audio recording, we discern another legitimate explanation for the prosecutor's remarks. The prosecutor makes a definite pause before the phrase at issue, suggesting that the argument should be punctuated as follows: "Over the course of this time, metal was worth $44,000. The metal that was taken . . . some of the items, I would submit to you, were just simply taken because they were useful, but the radiators contained copper, a non-ferrous metal." In other words, the prosecutor's comment could have referred to the metal at issue in this case, the metal that Nelson had taken from Grafton and Ford.
A prosecutor's closing statement "need only be within the range of reasonable inference which could be drawn from the evidence to be permissible." Here, there are at least two legitimate interpretations of the prosecutor's remark that seem at least as reasonable as the interpretation suggested by Nelson. We therefore conclude that Nelson has not shown that this remark was so obviously improper or prejudicial as to constitute plain error.
Dorman v. State, 622 P.2d 448, 461 (Alaska 1981).
Cumulative Error
Nelson also argues that even if this court finds the previously discussed errors to be individually harmless, the cumulative effect of the errors requires that he be granted a new trial. However, because "[t]he doctrine of cumulative error is really a doctrine of cumulative prejudice," it "applies only when real errors have been identified. . . ." Because we have not identified any obvious error or substantial prejudice, there is no potential for prejudice from cumulative error.
State v. Savo, 108 P.3d 903, 916 (Alaska App. 2005) (citing Sivertsen v. State, 963 P.2d 1069, 1073-74 (Alaska App. 1998)).
Conclusion
Judge Collins had the discretion to admit the relevant evidence of Nelson's prior metal sales. Nelson did not request a limiting jury instruction regarding this evidence, and Judge Collins was not required to give one. The prosecutor's comments during closing argument were not so obviously erroneous or substantially prejudicial as to constitute plain error.
We therefore AFFIRM the superior court judgment.