Opinion
Court of Appeals No. A-9569.
March 19, 2008.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Ben J. Esch, Judge, Trial Court No. 2KB-05-034 Cr.
Kathleen Murphy and Douglas Moody, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Shannon Eddy, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Johnnie Ferreira, her parents Leo and Cheryl, and her brother Mahlon were all indicted for — and ultimately convicted of — bootlegging ( i.e., sale of alcoholic beverages without a license or permit) in Kotzebue.
AS 04.11.010(a) (c).
In this appeal, Johnnie Ferreira argues that the evidence presented to the grand jury was insufficient to support her indictment. She also argues that the trial of the charges against her should have been severed from the trial of the charges against her parents. For the reasons explained here, we reject both of these arguments and affirm Ferreira's convictions.
The sufficiency of the evidence presented to the grand jury
Ferreira was indicted on thirteen counts of bootlegging — one count for each month from June 2003 through June 2004.
The State presented evidence that, during these thirteen months, Ferreira's parents engaged in many sales of liquor to Kotzebue residents. However, the State presented no evidence that Ferreira personally participated in these sales. Rather, the State alleged that Ferreira participated in the bootlegging venture by purchasing hundreds of bottles of liquor from various retailers and then shipping this liquor to her parents.
Kotzebue is a "damp" community. That is, the sale of alcoholic beverages is prohibited in Kotzebue, but Kotzebue residents may import alcoholic beverages for their own consumption. Kotzebue residents wishing to purchase alcoholic beverages legally will generally order the alcohol from licensed liquor stores in Anchorage or elsewhere, and then these liquor retailers will ship the beverages to the purchaser in Kotzebue. Under AS 04.11.150, liquor stores may ship only 10.5 liters of distilled spirits ( i.e., fourteen 750 ml bottles) per month to an individual in a damp community.
The State presented dozens of receipts from a variety of liquor stores, signed by Ferreira. These documents showed that Ferreira imported several hundred bottles of liquor into Kotezebue between June 2003 and June 2004. Each individual receipt was for 14 bottles of liquor — which, as explained in the preceding paragraph, is the monthly maximum number of bottles that a retailer is allowed to ship to an individual living in a damp community. Ferreira would generally conduct three or four such purchases each month — circumventing the statutory limit by going to different liquor retailers.
(The State also presented evidence that Ferreira received shipments of alcohol from someone named Samantha Henry in March and April of 2004. According to the Everts Air Cargo waybill from March 2004, Ferreira received 24 pounds of spirits from Henry. And, according to testimony at the grand jury, a shipping box containing fourteen 750 ml bottles of liquor generally weighs around 25 or 26 pounds.)
In addition to the liquor that Ferreira arranged to have shipped to herself, Ferreira also repeatedly shipped liquor to her parents and her brother in May and June 2004. She shipped 25 pounds of spirits to her mother, Cheryl, on three separate occasions: May 20th, May 25th, and June 3rd. In addition, she shipped an unknown quantity of spirits to her mother on May 21st. Ferreira also shipped an unknown quantity of spirits to her father, Leo, on two occasions: May 10th and June 1st. And she shipped an unknown quantity of spirits to her brother, Mahlon, in late May.
All told, the documents obtained by the State showed that the Ferreira household in Kotzebue was receiving between 100 and 400 bottles of liquor per month during the months of June 2003 through June 2004. According to the state trooper who totaled these purchases, each of the four Ferreiras would have had to consume an average of 2.1 bottles of liquor per day for 365 consecutive days to consume all of the liquor they were ordering.
Moreover, the State presented evidence that the Ferreira household appeared to be living well above its means. Ferreira and her parents lived in a unit of low-income housing, and their only apparent source of income was Leo's social security benefit of $250 per month. Notwithstanding their seemingly limited income, the Ferreira household ordered more than $40,000 worth of liquor between June 2003 and June 2004, and their apartment was filled with expensive furniture, appliances, electronics, and recreational equipment.
In this appeal, Ferreira argues that even though this evidence may have been sufficient to support the grand jury's decision to indict her parents, it was not sufficient to support the grand jury's decision to indict her.
Specifically, Ferreira argues that the grand jury evidence was not sufficient to prove that she acted as her parents' accomplice. Ferreira concedes that she shared the residence with her parents, but she argues that the State presented no evidence that she was aware of her parents' bootlegging activities, or that she intended to advance those activities by shipping large quantities of liquor to the household.
It is true that the State presented no direct evidence that Ferreira knew about her parents' bootlegging activities, or that she shipped the liquor to Kotzebue with the intent to "promote or facilitate" these activities — the culpable mental state that must be proved under Alaska's complicity statute, AS 11.16.110(2). Nevertheless, a reasonable fact-finder could draw these conclusions from the evidence. In other words, the State presented ample circumstantial evidence of Ferreira's complicity in the bootlegging.
We therefore hold that the evidence was sufficient to support Ferreira's indictment. Whether Ferreira's trial should have been severed from the trial of her parents
Ferreira concedes that the charges against her were properly joined in the same indictment with the charges against her parents. See Alaska Criminal Rule 8(b), which authorizes the joinder of charges against two or more defendants who are alleged to have jointly participated in the same criminal act or transaction.
However, Ferreira argues that the superior court abused its discretion by denying her motion to sever under Alaska Criminal Rule 14. In particular, she argues that the fairness of her trial was prejudiced by the fact that the same jury heard the evidence against all four defendants. She points out that, although there was plenty of direct evidence that her parents engaged in bootlegging, the evidence against her was only circumstantial.
Criminal Rule 14 allows a trial court to sever the trials of co-defendants if holding a joint trial will unfairly prejudice the defendant seeking severance. But here, the superior court found that the evidence Ferreira was complaining of — the direct evidence of bootlegging by her parents — would be admissible against Ferreira even if Ferreira were tried separately.
Ferreira does not challenge this ruling ( i.e., that the evidence of her parents' bootlegging activities would be admissible against her even if she were tried separately). Moreover, the ruling appears to be correct.
To establish Ferreira's criminal liability for her parents' bootlegging activities under our complicity statute, AS 11.16.110(2), the State had to prove (1) that Ferreira's parents were in fact bootlegging, (2) that Ferreira engaged in conduct that aided or abetted ( i.e., encouraged) this bootlegging, and (3) that she did so with the intention of promoting or facilitating the bootlegging. Thus, even if Ferreira were granted a separate trial, evidence that Ferreira's parents repeatedly sold liquor from their shared residence would be both relevant and admissible at that separate trial. In other words, severance would not protect Ferreira from the supposed unfair prejudice of this evidence.
Indeed, the conclusion that the complained-of evidence would be admissible against Ferreira at a separate trial seemingly leads to the conclusion that it would not be unfairly prejudicial for a jury to hear this evidence at a joint trial (assuming that the jury was properly instructed to evaluate each defendant's guilt separately). Generally speaking, evidence is "unfairly prejudicial" if it would tend to "induce the jury to decide the case on improper grounds". Here, the complained-of evidence was needed if the jury was to determine Ferreira's guilt on proper grounds — because, if the State was to prove Ferreira's guilt as an accomplice to her parents' bootlegging activities, the State would have to show, at a minimum, that Ferreira's parents were selling bootleg liquor and that she knew about it.
See Bingaman v. State, 76 P.3d 398, 401 (Alaska App. 2003) (explaining the concept of "unfair prejudice" as a ground for a judge to exclude relevant evidence under Alaska Evidence Rule 403).
The fact that the complained-of evidence would still be admissible against a defendant seeking severance, even if the defendant were tried separately, is generally a sufficient basis to deny the request for severance.
Ferreira's argument is similar to one that this Court rejected in Badoino v. State, 785 P.2d 39 (Alaska App. 1990). In Badoino, the defendant argued that his trial should have been severed from the trial of his co-defendants because the State's case against him would be considerably weaker if the jury did not hear evidence of the other defendants' criminal activities. (The State's theory of the case was that Badoino was a supplier of cocaine, and that he was responsible as an accomplice for certain drug sales actually performed by his co-defendants.) This Court rejected the contention that severance was required under these circumstances. We said, "[Because] there was a close nexus between the claims against Badoino and the claims against the other defendants[,] severance was not called for" — assuming that the trial court carefully instructed the jury on its obligation to consider each charge individually and to consider each defendant's guilt separately.
Id. at 43.
Id.
Id.
As in Badoino, there was a close relationship between the charges against Ferreira and the charges against her parents and brother. The State alleged that all four defendants were involved in one on-going bootlegging operation that was conducted primarily from their residence. Moreover, as in Badoino, the jury in Ferreira's case was instructed to consider each charge separately and each defendant's guilt separately.
For these reasons, we conclude that the superior court did not abuse its discretion when the court denied Ferreira's request for severance.
Conclusion
For the reasons explained here, the judgement of the superior court is AFFIRMED.