Opinion
Court of Appeals No. A-10850 Trial Court No. 3AN-10-4086 Cr No. 5806
02-22-2012
AARON W. FOLTZ, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Appearances: Ella Anagick, Anchorage, for the Appellant. Seneca A. Theno, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, 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 District Court, Third Judicial District, Anchorage, David Bauer, Judge.
Appearances: Ella Anagick, Anchorage, for the Appellant. Seneca A. Theno, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MANNHEIMER, Judge.
Aaron W. Foltz appeals his conviction for shoplifting. Foltz argues that his trial judge should have granted a mistrial after the prosecutor, in her summation to the jury, referred to trial testimony which suggested that Foltz might have engaged in shoplifting from the same store (a Fred Meyer store) on an earlier occasion.
Anchorage Municipal Code § 08.15.050.A.
The trial testimony to which the prosecutor referred — testimony given by a store security officer — did indeed suggest that Foltz had committed an earlier act of shoplifting, or at least that Foltz had acted suspiciously enough on a prior occasion to attract the attention of the Fred Meyer security staff. This testimony was introduced for a non-hearsay purpose: to explain why the store's security staff was paying attention to Foltz and his wife during the present incident.
The security officer testified that the security staff at the various Fred Meyer stores "constantly" shared information about individuals who shoplifted on a regular basis (or who were suspected of shoplifting on a regular basis). The security officer explained that the security staff was "looking out for people [who] are doing this more than once." The security officer then testified that, on the date in question, he received a call from another security officer who recognized Foltz and wanted to alert the security staff to his presence in the store.
When the security officer gave this testimony, Foltz's attorney objected — but not on the ground that this testimony tended to prove that Foltz had engaged in bad acts or suspicious behavior before. Rather, the defense attorney objected on hearsay grounds. During the discussion that followed, the trial judge clarified that the prosecutor was offering this testimony for a non-hearsay purpose: to explain how the security officer became aware that Foltz was in the store, and why the security officer was keeping Foltz under surveillance. The trial judge then overruled Foltz's hearsay objection.
But the trial judge never instructed the jury to limit its consideration of the security officer's testimony to this non-hearsay purpose, nor did the defense attorney ask for such a limiting instruction. Thus, the jurors were never told that they were prohibited from treating the security officer's testimony as evidence that Foltz had indeed acted suspiciously before.
Following the resolution of Foltz's hearsay objection, the security officer proceeded to describe Foltz's behavior in the store, and to explain the several indicators that led him to suspect that Foltz was shoplifting. Among these indicators was the fact that Foltz had been recognized by the other security officer.
Although the security officer made no direct assertion that Foltz had engaged in earlier acts of misconduct, the obvious inference from his testimony was that Foltz either had shoplifted or at least had been suspected of shoplifting in the past.
Again, Foltz's attorney did not object to this testimony under Evidence Rule 404(b). That is, the defense attorney did not object that the testimony amounted to character evidence or evidence of prior bad acts. Nor did Foltz's attorney argue that, even though this testimony might conceivably be relevant to explain the security officer's actions, it should nevertheless be excluded under Evidence Rule 403 because it was more prejudicial than probative. Nor (as we have explained) did the defense attorney ask the trial judge to instruct the jurors to limit their consideration of this testimony to non-propensity purposes.
Instead, during her cross-examination of the security officer, Foltz's attorney attempted to suggest that there might be an alternative, innocent explanation as to why the other security officer recognized Foltz:
Defense Attorney: You say [the other security officer] recognized my client. Isn't it true that [my client formerly] worked as a ... loss-prevention officer at Fred Meyer's? Isn't that correct?
Witness: I couldn't tell you.
Foltz's attorney took no further action to address this problem until the end of the trial, when the prosecutor referred to the security officer's testimony during final arguments to the jury — telling the jury that "Mr. Foltz was recognized by the store [security] staff as having been there before, maybe doing something similar." At that point, Foltz's attorney asked the judge to declare a mistrial.
Instead of a mistrial, the trial judge suggested that the jury be instructed to disregard the arguments of counsel to the extent that those arguments were not supported by the evidence in the case. The defense attorney supported this suggestion. She declared that the jury had heard no evidence "with respect to [Foltz's] prior criminal history", and she asked the trial judge to tell the jurors that their verdict had to be based "just [on] the evidence that is before [them]". The trial judge gave a curative instruction along these lines.
The problem with this curative instruction is that there was evidence — the security officer's testimony described above — to support the prosecutor's suggestion that Foltz had "maybe [done] something similar" in the past.
The real problem here is that the jurors were never told that their consideration of this testimony had to be limited to the non-hearsay purpose for which it was offered (i.e., to explain why the security staff was keeping an eye on Foltz), and that the jurors should not treat this testimony as proof of the matter asserted — i.e., not as proof that Foltz had actually done things in the past to arouse the security staff's suspicions. This problem was not addressed at the time the testimony was introduced, nor was this problem addressed when the defense attorney asked for the mistrial or, alternatively, for the curative instruction.
The same thing is true on appeal. Foltz's briefs to this Court do not identify or address this underlying hearsay problem. Instead, Foltz asserts that the prosecutor's comment was improper because it was "[wholly] speculative and totally unsupported by any evidentiary basis".
But the security officer testified that he began watching Foltz because another security officer recognized Foltz. The security officer also testified that the security staff at Fred Meyer "constantly" shared information about repeat shoplifting suspects, and that of the factors that led him to conclude that Foltz was shoplifting was the fact that Foltz had been recognized by the other security officer.
This testimony clearly supported an inference that Foltz had previously shoplifted, or that Foltz had engaged in suspicious behavior indicating shoplifting. Rather than objecting to this inference, Foltz's attorney attempted to defuse the inference by suggesting, during her cross-examination of the security officer, that there might be another explanation for why Foltz was known to the security staff (by asking the security officer if Foltz had previously worked at Fred Meyer).
Given these circumstances, the prosecutor's comment in closing argument was arguably proper: there was an evidentiary basis for the comment, and the prosecutor's suggestion that Foltz "[had] been there before, maybe doing something similar", was within the range of inferences that might be reasonably be drawn from the security officer's testimony.
See Gunnerud v. State, 611 P.2d 69, 74 (Alaska 1980), citing Darling v. State, 520 P.2d 793, 794 (Alaska 1974); Howard v. State, 491 P.2d 154, 156 (Alaska 1971); Gafford v. State, 440 P.2d 405, 414 (Alaska 1968); and Anderson v. State, 384 P.2d 669, 674 (Alaska 1963).
Because Foltz never objected to this testimony on the ground that it was improper character evidence, he can not raise that claim now.
See People v. Thornton, 161 P.3d 3, 31 n. 6; 61 Cal.Rptr.3d 461, 494 n. 6 (Cal. 2007) (failure to object to the admission of character evidence constitutes a forfeiture of that claim on appeal); Krause v. State, 691 S.E.2d 211, 215 (Ga. 2010) (same); Smith v. State, 986 So.2d 290, 295 (Miss. 2008) (same); State v. Loza, 641 N.E.2d 1082, 1100 (Ohio 1994) (same). See in particular State v. Garcia, 144 P.3d 684, 696 (Kan. 2006), and Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993), both holding that a defendant's claim of improper character evidence was waived when the defendant objected to the evidence, but not on the ground that it was character evidence.
With regard to the jury's potential use of this evidence for a hearsay purpose (that is, as evidence tending to prove that Foltz had shoplifted, or was suspected of shoplifting, in the past), Foltz never asked for a limiting instruction to bar the jury from considering the evidence for that purpose. And because Foltz never sought a limiting instruction in the trial court, Foltz is not permitted to belatedly argue on appeal that the jury's consideration of this evidence should have been limited.
Under Alaska Evidence Rule 105, when the jury hears evidence that is admissible for one purpose but not admissible for another purpose, "the [trial] court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." We have italicized the phrase "upon request" because it refers to a procedural requirement that must be satisfied before a party can properly claim error on appeal. As our supreme court explained in Adkinson v. State, 611 P.2d 528, 533 (Alaska 1980), "[a party's] failure to request a limiting instruction at trial waive[s] that claim."
As noted in Adkinson, this Court would still have the authority to reverse Foltz's conviction if we were convinced that the prosecutor's comment constituted plain error. But we are not convinced that the challenged comment manifestly prejudiced the fairness of Foltz's trial.
As we have already explained, by the time the prosecutor made the challenged comment, the jurors had already heard testimony which strongly suggested that Foltz was at least suspected of shoplifting in the past. Foltz's attorney never asked the trial judge to exclude this evidence, or to instruct the jury to limit its consideration of this evidence. Thus, by remarking on this evidence, the prosecutor merely argued an inference that the jurors had no doubt already drawn. We note that the prosecutor's phrasing did not suggest that she was privy to information beyond what had been presented at trial.
Moreover, the trial evidence strongly suggested that Foltz and his wife jointly participated in a shoplifting scheme. The security officer testified that he watched the Foltzes place various items of merchandise in their shopping cart. Then, while Foltz stood by and scanned the store, his wife put this merchandise inside reusable shopping bags. The couple then split up; Foltz entered a checkout line and paid for several sodas, while his wife took the shopping cart (with the bagged merchandise) and went to the other side of the checkout counters. The security guard explained that this behavior was typical of shoplifters: they pay for one or two small items, so that sales associates will see them leaving a cash register as if they had paid for all the goods in their possession. Foltz and his wife then joined up and left the store together.
In addition to the security officer's testimony, the Municipality presented a security video that supported this testimony. This combined evidence strongly supported the Municipality's contention that Foltz actively participated in a conspiracy to leave the store without paying for the merchandise.
Finally, we note that, during their deliberations, the jurors sent a note to the trial judge inquiring whether Foltz could be convicted of shoplifting if he did not have actual physical possession of the items when he left the store. This note strongly suggests that the jurors were not swayed by the implication that Foltz had acted suspiciously before — and that, instead, the jurors carefully considered whether the Municipality had proved all the elements of the present offense.
For these reasons, we conclude that the record does not demonstrate plain error.
Foltz alternatively argues that the prosecutor's comment amounted to a statement of the prosecutor's personal belief in Foltz's guilt. It did not.
Foltz also argues that the prosecutor's comment violated Alaska Evidence Rule 404(b) because it constituted "evidence" of Foltz's propensity to commit acts of shoplifting. Foltz concedes that the jury was instructed to ignore the prosecutor's comment to the extent that the comment was not supported by the evidence presented at trial. But Foltz argues that this curative instruction — the instruction that he himself endorsed — was insufficient to cure the prejudice of the prosecutor's comment.
This claim is not preserved for appeal. After a litigant requests or endorses a curative instruction during the trial court proceedings, the litigant is not allowed to argue on appeal that the curative instruction was flawed or otherwise insufficient to cure the problem.
See Copeland v. State, 70 P.3d 1118, 1126 (Alaska App. 2003).
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For all of these reasons, the judgement of the district court is AFFIRMED.