Opinion
Court of Appeals No. A-10411.
February 16, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Trial Court No. 3AN-08-981 CR.
Appearances: David Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Kenneth Grant lived at the Eagle Nest Hotel in Anchorage with his girlfriend, Michelle Comerford. Grant was charged with stealing a laptop computer from Danny Mayhak, a motel guest. At trial, Grant suggested that Comerford had stolen the laptop and given it to Grant. In support of this theory, Grant wanted to offer evidence suggesting that Comerford previously had financial difficulties and that she had possibly stolen some cash that Mayhak had paid to the hotel for a room deposit or rent. The trial judge refused to let Grant introduce this evidence. We hold that the trial judge could reasonably conclude that the danger of prejudice and confusion from this evidence outweighed its probative value.
Background
In January 2008, Grant was living at the Eagle Nest Hotel in Anchorage with Comerford. Comerford was the front desk clerk and manager, and allowed Grant to live with her rent-free in her room at the hotel. Mayhak was a hotel guest who had been living there for about three months. Mayhak had recently purchased a new laptop computer, but he had trouble uploading photos from the laptop to a website. Mayhak paid Grant to help him upload the photos.
On January 22, Mayhak's laptop was stolen from his room while he was out getting food. Mayhak immediately suspected Grant because Grant knew that Mayhak had a new laptop in his room. The front desk clerk told Mayhak that Grant had just taken a taxi to the airport, so Mayhak drove to the airport. With the help of airport police, Mayhak located Grant waiting at a gate to board a flight to Seattle. After obtaining a search warrant, police discovered Mayhak's laptop in Grant's baggage, along with Comerford's digital camera and digital music player.
The police investigation revealed that Comerford's master keycard was used to access Mayhak's room on the morning of the theft. The State charged Grant with first-degree burglary, second-degree theft of Mayhak's laptop, and third-degree theft of Comerford's camera.
AS 11.46.300(a)(1).
AS 11.46.130(a)(1).
AS 11.46.140(a)(1).
At trial, Grant made an application to present evidence suggesting that Comerford had stolen the laptop. Three pieces of evidence that Grant offered are at issue on appeal.
First, Grant asked to present evidence that about fourteen months prior to the theft, Comerford was evicted from her apartment for failing to pay rent. He argued that this was "evidence of her financial desperation and . . . of her understanding, or her knowledge, of the consequences of [the] failure to pay rent." Superior Court Judge Eric A. Aarseth rejected this argument, ruling that Comerford's financial difficulties more than a year before the theft in this case were "too attenuated to make any relevant connection to her financial state" at the time of the theft. The judge also explained that it was a faulty syllogism to argue "that if you're poor, . . . you're going to steal."
Second, Grant moved to admit evidence that thirteen months earlier, a bank sued Comerford to recover a debt of $1300 resulting from her abuse of a cash card. Grant's theory of admissibility was that the lawsuit "shows the lack of income, the desperation." The court again rejected this evidence as being too stale and inappropriately suggesting "if you're poor, . . . you're a thief."
Finally, Grant applied to introduce evidence that Comerford might have stolen $200 in cash from Mayhak shortly before the laptop theft. The court heard from three witnesses in support of this application: Comerford, Mayhak, and Carol Burton, another Eagle Nest employee.
Burton testified that she was on duty when Mayhak's $200 payment went missing. The motel owners had Burton contact Mayhak to ask him to make his payment. Burton said that Mayhak showed her a bank receipt demonstrating that he had withdrawn $200 to make the payment. Burton testified that she then called Comerford, who had been on duty when Mayhak claimed to have made his payment. Burton testified that Comerford started asking people for money to replace Mayhak's payment. Burton stated that Comerford asked Burton for a ride to a store so that she could exchange the bills she had borrowed for $20 bills like the ones Mayhak had used to make his payment. Burton also testified that Grant told her that he had $50 for Comerford to help her replace Mayhak's payment.
Burton explained that the motel had poor cash controls and that any employee could access the cash drawer. Burton offered her opinion that Comerford was "[a]bsolutely not" an honest person.
Mayhak testified that he had made the payment to Comerford with $100 and $50 bills, not $20 bills as Burton suggested. He further claimed he did not show Burton a bank receipt; he did not have a bank receipt. He had borrowed the money from a friend. He remembered that the owner's wife told him that he was short on his payment, and then later told him that the matter had been resolved. Mayhak testified that he had no reason to suspect Comerford had stolen the cash.
Comerford testified that she had not been at the motel when Mayhak made his payment. She also denied that she had asked Grant or anyone else at the motel for money to cover the payment or that Burton had driven her to the store to exchange the money for $20 bills. Rather, she testified that the owners simply deducted the missing funds from her next paycheck.
Following this evidentiary hearing, the court found Burton's testimony to be of "questionable credibility." Judge Aarseth ruled that the evidence was inadmissible because it only suggested that Comerford was of bad character. He also ruled that any probative value was outweighed by the danger of confusing the jury by having a trial within a trial. The judge did, however, allow Burton to testify as to her opinion regarding Comerford's character for honesty.
In the defense case, Grant suggested that Comerford had committed the theft of the computer, based on her conflicting accounts of her whereabouts on the morning of the theft. Grant also called Burton, who testified that Comerford was a very dishonest person. But the jury convicted Grant of all three charges. Grant now appeals, arguing that the trial court erred by excluding the evidence outlined above.
Discussion
We review a trial court's evidentiary rulings for abuse of discretion. But when a trial court's erroneous evidentiary ruling violates the defendant's right to due process, we must reverse the conviction, unless the error was harmless beyond a reasonable doubt.
Smithart v. State, 988 P.2d 583, 586 (Alaska 1999).
Id.
Alaska Rule of Evidence 404(b)(1) controls the admission of prior conduct, including prior misconduct:
Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Evidence that is admissible under this rule may still be excluded "if its probative value is outweighed by the danger of unfair prejudice [or] confusion of the issues."
Grant argues that he should have been allowed to present the evidence of Comerford's eviction and the lawsuit over her use of a bank card. But the trial judge reasonably concluded that the probative value of this evidence as proof of Comerford's financial situation had diminished with the lapse of time. The eviction was fourteen months before the theft of Mayhak's laptop, and the lawsuit was thirteen months before the theft. Balanced against this marginal probative value was the danger of unfair prejudice — the danger that the jury could conclude that Comerford had stolen the laptop merely because she had money troubles in the past or had previously acted dishonestly. The judge could reasonably conclude that the danger of this unfair prejudice outweighed the marginal probative value of these matters.
Grant also argues that he should have been allowed to present Carol Burton's testimony alleging that Comerford had stolen Mayhak's payment and borrowed $50 from Grant to replace the funds she had stolen. But the probative value of this evidence was also somewhat questionable. Not only was there substantial dispute about whether Comerford committed the theft, but the alleged theft of Mayhak's payment was not strong evidence that Comerford was in poverty, and Comerford's alleged poverty was not strong evidence that she had stolen Mayhak's laptop.
Cf. Miller v. State, 866 P.2d 130, 133 (Alaska App. 1994) ("[S]ince the desire for money is virtually universal and motivates most property crimes, it is a motive that can readily be understood by jurors, even in the absence of specific proof.").
The judge again had to balance the marginal value of Burton's testimony against the danger of unfair prejudice and confusion of the issues. The credibility of Burton's account was hotly contested; both Comerford and Mayhak denied that Comerford had stolen his payment. After hearing from all of the witnesses to this incident, the trial judge concluded that there was reason to believe that Burton was not telling the truth and that extended litigation of this issue would confuse the jury. And there was also the danger of unfair prejudice — that the jury would conclude that Comerford had stolen Mayhak's computer because she was a thief who had previously stolen his payment. The judge could reasonably conclude that the danger of this unfair prejudice and the confusion of the issues outweighed the marginal probative value of this evidence.
The due process clause does not give a defendant the right to override the normal rules of evidence when they offer evidence that someone else committed a crime. In this case, the trial judge did not restrict Grant from arguing that Comerford was an alternate suspect. In his closing argument, Grant relied on Comerford's inconsistent statements about her whereabouts on the day of the theft, and the fact that Comerford's key had been used to enter Mayhak's motel room. The judge also allowed Grant to attack Comerford's credibility by offering Burton's testimony that Comerford was a dishonest person. We conclude that the judge did not restrict Grant's defense in any way that violated his right to due process of law.
See Cleveland v. State, 91 P.3d 965, 975 (Alaska App. 2004).
Conclusion
We AFFIRM the superior court's judgment.