Opinion
Court of Appeals No. A-11283 Trial Court No. 3AN-10-13003 CR No. 6034
03-12-2014
BUOM SIMON BICHIOK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Nancy Driscoll Stroup, Palmer, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge.
Appearances: Nancy Driscoll Stroup, Palmer, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Buom Bichiok was convicted of second-degree robbery and fourth-degree assault following a bench trial. He appeals, arguing that the superior court erred in admitting contemporaneous videos of the crimes retrieved from another suspect's cell phone. He also argues that the evidence against him was legally insufficient to support his convictions.
AS 11.41.510 (a)(1).
AS 11.41.230 (a)(1).
For the reasons explained below, we conclude that the trial court did not err in admitting the cell phone videos into evidence. We also conclude that the evidence presented at trial was legally sufficient to support both of Bichiok's convictions.
Factual background and prior proceedings
Because Bichiok contends that the evidence presented at his trial was insufficient to support his convictions, we present that evidence here in the light most favorable to upholding the verdict. See, e.g. Cleveland v. State, 258 P.3d 878, 885 (Alaska App. 2011).
On November 14, 2010, around 4:45 a.m., the Anchorage police responded to a report of a robbery and assault in Room 331 at the Howard Johnson's hotel. One of the victims reported that four black men had beaten him up and stolen his pants and money. The hotel security guard found the victim's pants in the hallway outside Room 331 and returned the pants to the victim.
Upon arrival at the hotel, Officer Kristin Moulton interviewed the victim, John Hammarstrom. There were two other occupants in Room 331, a man and a woman, both of whom appeared intoxicated. Hammarstrom was bleeding from two places on his forehead and holding his ribs as though he was in pain. Hammarstrom was also covered in a red liquid (later identified as pomegranate juice), and the same liquid was found on one of the beds and parts of the wall. Moulton also observed clothing strewn about the hotel room and shattered hotel coffee mugs.
Officer Patrick Gilbert was directed to a nearby guest room, Room 320. A tall, thin black man wearing a red cap opened the door but immediately shut it when Gilbert identified himself as a police officer. Gilbert knocked again and could hear scuffling. A few moments later, the registered guest of the hotel room, Eric Estrada, opened the door. He told Gilbert that four black men had come into his room and had just jumped out of the window. Estrada described the men as very tall and thin, with dark complexions. Two of them were wearing checkered shirts, one short-sleeve, the other long-sleeve. They told Estrada they had "just beat someone up" and showed Estrada a video on a cell phone, which depicted two or three people hitting another man, with a woman trying to get them to go away. They said they were going to post the video on YouTube and call it "Ambush."
Officer Gilbert looked out the window and saw a group of young black men at the J.C. Penney parking garage down the street. He radioed this information to other officers who then stopped a car carrying four young black men, one of whom was Buom Bichiok. The driver, Triston Delaney, reported that the four men had approached him and asked him for a ride. The police found two checkered shirts and a red cap in the car's back seat. The police also found a cell phone on one of the other suspects, who was identified as a juvenile and transported to McLaughlin Youth Center.
Bichiok and the other two men were arrested and charged with robbery in the second degree, burglary in the first degree, assault in the fourth degree, and criminal trespass in the first degree.
The cell phone video evidence
The police obtained a search warrant for the juvenile suspect's cell phone and retrieved two videos from the phone. The first video, time-stamped 4:32, showed Bichiok talking on his cell phone in the corner of the Howard Johnson hotel room while an intoxicated man and woman (later identified as two of the occupants of Room 331) yell at him to leave. In the video, Bichiok is wearing a short-sleeve checkered shirt, an undershirt, a white bracelet, a wristwatch, and white shoes. At the time of his arrest, Bichiok was wearing the same items absent the short-sleeve checkered shirt, which was found in the back-seat of Delaney's car.
The second video, time stamped at 4:33, showed Bichiok with one of the other men arrested with Bichiok. The other man is wearing the long-sleeve checkered shirt and red cap that were later found in Delaney's car. In the video, the other man throws a red drink on the woman from the previous video and then he and Bichiok can both be seen assaulting two different men. A verbal exchange about getting money, including the words "give me money," can be heard during the assault.
Bichiok's bench trial
Bichiok waived his right to a jury trial and proceeded to a bench trial before Superior Court Judge Jack W. Smith. The State was unable to locate Hammarstrom for trial. The State's evidence against Bichiok therefore consisted of the testimony of the hotel clerk (who had seen Bichiok at the hotel shortly before the 911 call); the security guard (who found the victim's pants in the hallway); Eric Estrada (the hotel guest who viewed the video); Triston Delaney (the driver of the car); the police officers involved in the investigation and arrest; and the videos found on the cell phone.
After hearing the testimony of the State's witnesses and viewing the videos and still photographs derived from the videos, the trial court found Bichiok guilty of robbery in the second degree and assault in the fourth degree, but not guilty of burglary and criminal trespass.
Did the State lay a proper foundation for the admission of the videos at trial, and did the superior court err in failing to exclude the videos under Evidence Rule 403?
Bichiok asserts that the State failed to properly authenticate the videos under Alaska Evidence Rule 901 and that the superior court therefore erred in admitting the cell phone videos into evidence.
Alaska Evidence Rule 901 requires the proponent of evidence to present "evidence sufficient to support a finding that the matter in question is what its proponent claims." Subsection (a) also requires a prosecutor in a criminal trial seeking to offer real evidence that is susceptible to tampering or modification to demonstrate "as a matter of reasonable certainty" that the evidence has not been tampered with or modified.
Bichiok asserts that the State was unable to meet these foundational requirements because the State was unable to call the person who made the videos, or any of the people depicted in the videos, to testify to the accuracy of what was depicted in the video. Bichiok is correct that, in most cases, photographic or videographic evidence is authenticated through the person who took the photograph or shot the video and who can therefore attest to its accuracy. However, this is not the only manner through which authentication can be established.
See Thompson v. State, 210 P.3d 1233, 1239 (Alaska App. 2009); Beaumaster v. Crandall, 576 P.2d 988, 996 (Alaska 1978) (quoting McCormick, Handbook of the Law of Evidence, § 214 at 533 (2d ed. 1972) ("[T]hough the requisite foundation may, and usually will, be laid by the photographer, it may also be provided by any witness who perceived the events filmed.")).
As this Court recognized in Thompson v. State, the modern test for authentication is "whether the proponent of the evidence has presented sufficient evidence to support a rational finding that the tape [or video] recording is authentic." Here, the State was able to authenticate the video through the collective testimony of various police officers who were able to identify the hotel room, the victims, and the suspects in the videos through various distinguishing features, including the red liquid spilled in the room, the broken hotel mugs, and the clothes worn by the suspects. In addition to this testimony, the State also had the testimony of Eric Estrada, who testified that the men suspected of committing the robbery and assault had bragged about making a video of their crimes and had shown him a video on a cell phone.
210 P.3d 1233 (Alaska App. 2009).
Id. at 1239.
Given these circumstances, we conclude that the trial court did not abuse its discretion in ruling that the State had laid a proper foundation for admission of this evidence at trial.
See id.
Bichiok also argues that the videos should have been excluded under Alaska Evidence Rule 403 because he claims that they were "too confusing, unfairly prejudicial, and potentially misleading." Alaska Evidence Rule 403 permits trial courts to exclude otherwise admissible evidence "if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
We review a trial court's failure to exclude evidence under Evidence Rule 403 for an abuse of discretion. Here, the trial court acknowledged the confusing and "frenetic" nature of the videos, but ruled that these qualities went to the ultimate weight of the evidence rather than its admissibility. We conclude that this ruling was not an abuse of discretion, particularly in light of the highly probative nature of this evidence and the fact that this was a bench trial.
See Brandner v. Hudson, 171 P.3d 83, 87 (Alaska 2007) (finding that the likelihood of unfair prejudice is "greatly reduced" at a bench trial).
Does sufficient evidence support Bichiok's convictions?
Bichiok asserts that the evidence presented at trial was legally insufficient to support his convictions for assault and robbery. When we review a claim of legal insufficiency on appeal, we are required to view the evidence, and the reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the verdict. Viewing the evidence from this perspective, we must decide whether a fair-minded fact-finder exercising reasonable judgment could conclude that the State had met its burden of proving guilt beyond a reasonable doubt.
See Cleveland v. State, 258 P.3d 878, 885 (Alaska App. 2011). This is the same standard of review as the "substantial evidence test," which is the phrasing typically used in a judge-tried case, though it is not the phrasing Bichiok uses on appeal. Regardless of the label used, the test is the same whether the case is tried by a judge or by a jury. Compare id. with Y.J. v. State, 130 P.3d 954, 957 (Alaska App. 2006).
Cleveland, 258 P.3d at 885.
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Applying this standard to the evidence presented at Bichiok's trial, we conclude that the evidence is sufficient to support both of his convictions. We note that our review is aided in this case by the trial court's detailed oral findings establishing the evidentiary basis for each of its guilty verdicts.
Under AS 11.41.510(a)(1), "[a] person commits the crime of robbery in the second degree if, in the course of taking or attempting to take property from the immediate presence and control of another, the person uses or threatens the immediate use of force upon any person with intent to ... prevent or overcome resistance to the taking of the property or the retention of the property after taking." The trial court found:
The defendant used force upon any person, that's element number one. Although the defendant was not the first to use force, that was the individual in a long-sleeve shirt, and that individual clearly was more assaultive than the defendant, it is clear the defendant also struck Mr. Hammerstrom. Defendant did so in the course of taking property from the immediate presence and control of another. The verbal exchange on the video between the assaulters clearly shows communication during the ongoing assault to take propertyWe conclude that the trial court's findings are supported by the record and that a reasonable fact-finder could find, based on the direct and circumstantial evidence presented at trial, that Bichiok was guilty of robbery in the second degree beyond a reasonable doubt.
and/or money from the room, which turned out to be — Mr. Hammerstrom's pants and their contents, which subsequently was determined to be money. The defendant intended to either prevent or overcome resistance to the taking of the property or the retention of the property based on his conduct. Circumstantial evidence shows the conduct of defendant aided in making off with the pants. And the Court finds beyond a reasonable doubt defendant is guilty of robbery in the second degree.
Similarly, under AS 11.41.230(a)(1), "[a] person commits the crime of assault in the fourth degree if ... that person recklessly causes physical injury to another person." Here, the trial judge made the following findings:
The evidence that was submitted, the photographs of Mr. Hammerstrom, and his medical records reflect he had contusions to his face, scalp, neck and back, so I find he was injured beyond a reasonable doubt, and the cell phone video, which again, was found with the co-defendants and defendant was seized by police and searched per a search warrant and was found to contain a video of the assault of the victim by several individuals, including Mr. Bichiok; that the date/time on the video was consistent with the assault report; and the testimony revealed the room and its occupants on the video were consistent with the police findings during the investigation of the case. I'll find, based on that, that the assault in the fourth degree was established.Again, we conclude that the trial court's findings are supported by the record and that a reasonable fact-finder could find that Bichiok was guilty of assault in the fourth degree beyond a reasonable doubt.
Conclusion
We AFFIRM the judgment of the superior court.