Opinion
Court of Appeals No. A-9828.
July 9, 2008.
Appeal from the District Court, Third Judicial District, Anchorage, Stephanie Rhoades, Judge, Trial Court No. 3AN-06-7891 CR.
Zachary Renfro, Assistant Public Defender, and Quinlan Steiner, Public Defender, A nchorage, for the A ppellant. Heather Nobrega, Assistant District Attorney, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Noel L. Roussel of theft in the fourth degree for shoplifting fishing line from Fred Meyer. Roussel appeals, claiming that District Court Judge Stephanie Rhoades erred when she ruled that some of the evidence Roussel offered was inadmissible hearsay. The State admits Judge Rhoades erred when she excluded the evidence but argues the error was harmless. Because we conclude the error might have substantially affected the verdict, we reverse Roussel's conviction.
AS 11.46.150.
Facts and proceedings
On July 25, 2006, Roussel exited Fred Meyer with fishing line in his fanny pack. According to the loss prevention officers who testified at trial, Roussel selected fishing line from the sporting goods section of the store, opened the package, discarded the empty packaging in the health and beauty department, and placed the fishing line in his fanny pack. Roussel purchased several other items but did not attempt to pay for the fishing line. After Roussel left the store, the loss prevention officers stopped him on suspicion of stealing the fishing line. At trial, the State presented a video the loss prevention officers had recorded with their surveillance cameras and photos of the fishing line they recovered from Roussel and the packaging they retrieved from store's health and beauty department.
Roussel testified at trial that he had gone to Fred Meyer the day before, July 24, 2006, and bought the fishing line, along with other fishing equipment. He testified that he went fishing on the 24th with the new fishing gear, but that he did not like the new line. So, the next day he took the line back to Fred Meyer to compare it to other lines and purchase different fishing line.
Roussel described the spool of line he brought with him as being used and missing approximately 100 yards of line (he testified a normal spool of line has about 250 yards of line). Roussel testified that the spool of fishing line in the photo that the loss prevention officers represented as coming from Roussel's fanny pack was not the spool he originally had. Roussel said his spool was used and missing a significant portion of the line; he also said his spool had white around it and the spool in the photo had black around it. Roussel testified that he told the loss prevention officers he had purchased the line the day before but they did not believe him.
Roussel called his roommate, John Brown, as a witness. Brown testified that Roussel went to Fred Meyer on July 24th, purchased fishing gear, including new line, and went fishing. Roussel's attorney asked Brown if he had talked with Roussel after Roussel returned from fishing on July 24th. Brown stated,
Yeah. He had — he had gone fishing, and he was disappointed with some new line that he had got. It didn't work with his reel. It was [starting] to fray, and he was going to go back — he went back the next day and was going to get some different line or look for some different line, compare some lines.
The State objected to this testimony as hearsay. Roussel argued the evidence was admissible as an exception to the hearsay rule because it pertained to the declarant's "state of mind, what his plan was." But Judge Rhoades ruled the testimony was self-serving hearsay under State v. Agoney and sustained the objection.
608 P.2d 762, 764 (Alaska 1980) (a defendant's self-serving statements cannot be admitted into evidence unless they qualify for some exception to the hearsay rule or are used for non-hearsay purposes).
The jury found Roussel guilty of theft in the fourth degree. Roussel renews his contention that the offered testimony was admissible.
Discussion The district court erred by excluding Brown's testimony
On appeal, Roussel argues that Brown's excluded testimony w as admissible under Evidence Rule 803(3) as an exception to the hearsay rule because it was offered to prove Roussel's then-existing state of mind, his intent or plan. The State concedes the evidence should have been admitted under this exception to the hearsay rule. The State's concession is well-founded.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (the appellate court must independently assess the State's concession of error in a criminal case).
Under Alaska Evidence Rule 803(3), otherwise inadmissible hearsay is admissible when the out-of-court statement is offered to prove the declarant's then-existing state of mind or emotion defined as follows:
Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) offered to prove the declarant's present condition or future action, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
A declarant's statement of what he plans to do is admissible under this rule to prove his future actions. Thus, Roussel's out-of-court statement to his roommate about his dissatisfaction with the line and his intent to bring it back to Fred Meyer was admissible as proof of his then-existing mental state — his dissatisfaction with the line he had previously purchased and his intent in taking the line back to Fred Meyer. We conclude that Judge Rhoades erred when she ruled this evidence was inadmissible hearsay. The Exclusion of Brown's Testimony Was Not Harmless
See Stew art v. State, 756 P.2d 900, 904 (Alaska A pp. 1988) (alleged conspirator's statement that he was going to pick up drugs at the airport was admissible under state of mind exception to hearsay rule to show that alleged conspirator's purpose in going to airport was to get heroin).
See Kelly v. State, 116 P.3d 602, 604-05 (Alaska App. 2005); Markgraf v. State, 12 P.3d 197, 199 (Alaska App. 2000); Stewart, 756 P.2d at 904.
Although the State concedes that Judge Rhoades erred when she ruled that Brown's testimony was inadmissible hearsay, the State argues the error was harmless and did not substantially affect the jury's verdict. Roussel argues that this court should apply a harmless beyond a reasonable doubt analysis and overturn his conviction because the error affected his ability to present his defense, and thus infringed his constitutional rights.
Alaska applies a harmless error analysis to erroneous evidentiary rulings but a harmless beyond a reasonable doubt analysis to errors of constitutional magnitude. Because we conclude the trial court's error might have substantially affected the verdict, we do not reach the issue of whether the error was constitutional error that affected Roussel's ability to present his defense.
Love v. State, 457 P.2d 622, 631 (Alaska 1969).
See Id.
Brown testified to essentially the same story Roussel told the jury. Brown testified that Roussel bought fishing gear at Fred Meyer on July 24th and showed his purchases to Brown. Brown testified that Roussel then went fishing. The defense attorney asked Brown if he had talked to Roussel after Roussel returned from fishing. Brown replied that Roussel told jim he was disappointed with the new line and that he went back to Fred Meyer to "look for some different line, compare some lines." At this point, the State objected, and the court sustained the objection.
The State argues that even though Judge Rhoades erred by sustaining the objection, the error was harmless because she did not instruct the jury to disregard the evidence or strike the testimony from the record. Consequently, the State argues, the jury was allowed to hear and consider the evidence.
However, at the end of trial, Judge Rhoades specifically instructed the jury that when she sustained an objection, the jury had to disregard the question and the answer to that question. The law presumes the jury follows the instructions of the court. Therefore, this court must conclude that the jury did not consider Brown's testimony about Roussel's opinion of the line after he went fishing nor his testimony about Roussel's plan to take the line back to the store to compare it with different line.
See Knix v. State, 922 P.2d 913, 923 (Alaska App. 1996); Whiteaker v. State, 808 P.2d 270, 277 (Alaska App. 1991).
Although Brown continued to testify on direct and on cross-examination, most of his testimony concerned Roussel's purchases on July 24th and the fact that he went fishing. Brown did not testify again about the heart of Roussel's defense.
The trial court's ruling excluded the only evidence corroborating Roussel's story that he had purchased the fishing line the day before, went fishing, was dissatisfied with the line, and intended to take it back to Fred Meyer to compare it with other line. This corroborating evidence was critical because the case essentially was a credibility contest between Roussel and the loss prevention officers. We conclude the exclusion of the evidence might have substantially affected the verdict. Because we cannot say the error was harmless, the erroneous exclusion of Brown's testimony requires reversal of Roussel's conviction and remand for a new trial. Conclusion
See Love, 457 P.2d at 631.
We REVERSE Roussel's conviction and REMAND for a new trial.