Opinion
Court of Appeals No. A-10019.
August 20, 2008.
Appeal from the District Court, Third Judicial District, Anchorage, Paul Olson, Judge, Trial Court No. 3AN-07-4063 CR.
Thomas V. Smith, Gorton, Logue, and Graper, Anchorage, for the Appellant. Amy K. Doogan, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
William H. Foster was convicted of shoplifting two bottles of liquor. He argues that the jury had insufficient evidence to convict him of that offense because the Municipality's witnesses were not credible and because the Municipality offered no physical evidence to corroborate their testimony. Having reviewed the record, we conclude that there was sufficient evidence to support the jury's verdict. We therefore affirm Foster's conviction. Facts and proceedings
On April 20, 2007, at about 2:00 p.m., Anthony Bonini saw an intoxicated man, later identified as Foster, enter the Fred Meyer store on Northern Lights Boulevard. Bonini was a loss prevention specialist for Fred Meyer and, at the time, he was "working the floor" — that is, posing as a shopper while he looked for shoplifters. Bonini followed Foster into the liquor store, where he saw him take a bottle of Black Velvet and a bottle of Johnny Walker whiskey. Bonini then watched Foster bypass the cashier and leave the store with the two bottles. These same events were witnessed by a second Fred Meyer loss prevention specialist, Curtis Walton.
Bonini stopped Foster and identified himself. He then took the two bottles from Foster, placed him in handcuffs, and walked him back to the store's security office. Bonini interviewed Foster and started typing up a report. While his back was turned, Foster walked off, still in handcuffs, and Bonini had to chase him down and bring him back to the office.
Foster initially identified himself to Bonini as "Dwight Foster." But when Anchorage Police Officer William Cameron arrived on the scene, he obtained Foster's date of birth and social security number, called this information into dispatch, and discovered Foster's true identity. Officer Cameron arrested Foster based on Bonini's account of the incident and Foster's admissions to Bonini. Officer Cameron also observed the two bottles of liquor that Bonini had retrieved from Foster.
Foster was charged with shoplifting merchandise valued at under $50. At trial, Bonini, Walton, and Officer Cameron testified to the facts recounted above. Bonini also testified that the bottles of liquor Foster stole had a combined valued of $46.28. Foster presented no evidence. The jury convicted him of shoplifting. He appeals. There was sufficient evidence to convict Foster of shoplifting
Anchorage Municipal Code § 8.15.050(A), § 8.15.010(B)(1).
Foster argues that there was insufficient evidence to convict him of shoplifting. In ruling on a claim of insufficient evidence to support a conviction, we must view all the evidence and inferences from the evidence in the light most favorable to the jury's verdict. The question is whether, viewing the evidence in this light, there was enough evidence for a fair-minded juror exercising reasonable judgment to find that the Municipality met its burden of proving guilt beyond a reasonable doubt.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Spencer v. State, 164 P.3d 649, 653 (Alaska App. 2007).
Pease v. State, 54 P.3d 316, 331 (Alaska App. 2002); Collins v. State, 977 P.2d 741, 747 (Alaska App. 1999).
Foster argues that there was insufficient evidence to support the jury's verdict because the Municipality offered no physical evidence to corroborate the testimony of its witnesses. He asserts that the store's security cameras recorded the incident, but that none of the Municipality's witnesses obtained or watched the video recording, and that the video was not introduced into evidence. He also asserts that the Municipality offered no photographs of the bottles of liquor.
We addressed a similar claim in Roussel v. State. In Ro ussel, the defendant argued that there was insufficient evidence to convict him of fourth-degree misconduct involving a controlled substance because the State offered no physical evidence to corroborate its other evidence that he possessed the drugs. More specifically, Roussel claimed that the evidence was insufficient because the State did not offer the prescription pills into evidence and presented no video to show that he was the person who gave the false prescriptions to the pharmacist. We rejected Roussel's claim after concluding that there was sufficient other direct and circumstantial evidence — including the testimony of a pharmacist who identified Roussel at trial — showing that Roussel had committed the charged offenses.
115 P.3d 581 (Alaska App. 2005).
Id. at 585.
Id. at 586.
Id.
In this case, Bonini and Walton testified that they personally witnessed an intoxicated Foster walk into the Fred Meyer liquor store, take two bottles of liquor, and leave the store without paying. At trial, Bonini and Walton both identified Foster as the person they saw take the two bottles of liquor and as the person Bonini apprehended outside the store. Bonini also identified a photograph of Foster as the photograph he took on the date of the incident, and that photograph was admitted into evidence. Officer Cameron identified Foster as the person he arrested at the Fred Meyer store based on Bonini's report of the incident and Foster's admissions to Bonini. Cameron also testified that, at the time he arrested Foster, he observed the bottles of liquor Bonini had retrieved from Foster. This testimony, if credible, was sufficient for reasonable jurors to conclude beyond a reasonable doubt that Foster stole the two bottles of liquor from Fred Meyer.
Cf. 5 Stephen A. Saltzburg, et al., Federal Rules of Evidence Manual, 1002-2 to 1002-3 (9th ed. 2006) (citations omitted) ("The fact that a writing [or video recording] is made to describe or record an event or a condition does not prevent testimony by knowledgeable witnesses as to the same event or condition, if it is the event or condition to be proved and not the contents of the document [or recording] itself.").
Foster points to testimony he claims undermines the credibility of the Municipality's witnesses "to the point where the evidence presented was insufficient as a matter of law ." First, he asserts that the Municipality's witnesses testified inconsistently about whether a video was made of the incident. At trial, Walton testified that there were security cameras in the area where the incident occurred but that he never viewed a video of the incident. Bonini testified that he also did not view a video, and he said that the security video no longer existed. Officer Cameron said he did not see a video and he added that "I think [Bonini] said that there were none." Thus there was no significant inconsistency in the testimony of the witnesses on this point. The store's security cameras may have recorded the incident, but the Municipality's witnesses did not view that video and, according to Bonini, the video was no longer in existence at the time of trial. Foster has not claimed that his rights were infringed in any way because the Municipality failed to preserve the video.
Foster next observes that Bonini's report of the incident listed the shoplifter's name as Dwight Foster, not William Foster. But the jury heard testimony that Foster initially identified himself as Dwight Foster, and that it was not until Officer Cameron arrived on the scene that he was properly identified as William Foster. As noted above, Bonini and Walton both testified at trial that William Foster was the person they saw shoplifting the bottles of liquor, and Cameron testified that William Foster, not Dwight Foster, was the person he arrested for that offense.
Lastly, Foster points out that Officer Cameron testified that his investigation was very brief and that he did not fully read or sign the private person arrest form prepared by Bonini. But Cameron explained at trial that these types of investigations were normally "cut and dry." There were two loss prevention specialists who saw Foster take the liquor from the store without paying, and Cameron observed both Foster and the bottles when he arrived on the scene. Cameron testified that he relied on Bonini's verbal account of what happened and Foster's admissions to Bonini in determining that there was probable cause to arrest Foster. Foster has not alleged that Cameron lacked probable cause to arrest him for stealing the bottles of liquor.
The jurors heard all this evidence of the potential flaws in the Municipality's case and concluded that the evidence did not impeach the testimony of the Municipality's witnesses in any significant way. It is the jury's province to determine the credibility of the witnesses and weigh the evidence of the defendant's guilt. From our review of the record, we conclude that fair-minded jurors could reasonably conclude that the Municipality's witnesses were credible and that the Municipality proved beyond a reasonable doubt that Foster was guilty of the charged offense.
Noble v. State, 552 P.2d 142, 144 (Alaska 1976).
Conclusion
We AFFIRM Foster's conviction.