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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


VIRGINIA MAE STAMPER and
JESSE ROBERT BEEBE,                            Court of Appeals Nos. A-11820 & A-11821
                                                    Trial Court Nos. 3PA-13-067 CR
                            Appellants,                    & 3PA-13-053 CR

                     v.
                                                             O P I N I O N
STATE OF ALASKA,

                            Appellee.                 No. 2567 — September 8, 2017


              Appeals from the Superior Court, Third Judicial District,
              Palmer, Eric Smith, Judge.

              Appearances: Barbara Dunham, Assistant Public Advocate, and
              Richard Allen, Public Advocate, Anchorage, for Appellant
              Virginia Mae Stamper. Paul Malin, under contract with the
              Public Defender Agency, and Quinlan Steiner, Public Defender,
              Anchorage, for Appellant Jesse Robert Beebe. Timothy W.
              Terrell (the Stamper appeal) and Terisia K. Chleborad (the
              Beebe appeal), Assistant Attorneys General, Office of Criminal
              Appeals, Anchorage, and Craig W. Richards, Attorney General,
              Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.

   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
             Virginia Mae Stamper and her husband Jesse Robert Beebe were convicted
of crimes arising from Stamper’s theft of merchandise from a grocery store in Big Lake.
Stamper, who took the merchandise from the store, was convicted of second-degree theft
(theft of property valued at $500 or more). 1 Beebe, who was waiting for Stamper in a
van in the parking lot, was convicted of third-degree assault for using the van to strike
a customer who tried to stop Stamper and Beebe from leaving the parking lot. 2
(According to the testimony at trial, Beebe’s van struck the citizen in his mid-section,
knocking him backwards about five feet.)
             Many of Stamper’s and Beebe’s actions were recorded by the grocery
store’s security cameras. When State Trooper Lane Wraith arrived at the store to
investigate the theft and assault, he watched portions of the digital security footage —
including footage of what happened in the parking lot, as well as footage of Stamper
inside the store, putting merchandise into her shopping cart.
             Trooper Wraith asked one of the grocery store’s loss-prevention employees,
Michael Gozdor, to help him make a copy of the digital security footage, but neither
Gozdor nor Wraith could figure out how to make a copy of the footage. Before Wraith
left the store, he asked Gozdor to try again later to make a copy of the portions of the
security footage showing Stamper’s and Beebe’s actions.
             Wraith contacted Stamper and Beebe the next day. After Wraith informed
Stamper that there was video footage of her actions, Stamper confessed to the theft.
However, even though Wraith told Beebe that there was video footage of Beebe’s




   1
       Former AS 11.46.130(a)(1) (2013 version).
   2
       AS 11.41.220(a)(1)(A).

                                          –2–                                       2567

collision with the customer in the parking lot, Beebe insisted that he had not struck the
customer.
              In the meantime, Gozdor managed to transfer some of the store’s digital
video footage onto a thumb drive. He delivered this thumb drive to Trooper Wraith a
day or two after the incident.
              Gozdor thought that he had successfully copied all of the relevant security
footage. But it turned out that Gozdor only copied the footage of some of Stamper’s
actions inside the store. Moreover, Gozdor failed to copy the footage of Stamper’s and
Beebe’s actions in the parking lot, and he also accidentally included video footage that
had nothing to do with Stamper and Beebe’s case.
              After Wraith received the thumb drive from Gozdor, he plugged it into his
computer. He could see that it contained video files, but when Wraith tried to play these
video files on his computer, he discovered that his computer did not have the necessary
software to open and view the files. Wraith then tried to view the files on a different
computer, but he was again unsuccessful. At that point, Wraith simply logged the thumb
drive into evidence. Apparently, no one looked at these video files again until the first
day of Stamper and Beebe’s trial.
              The computer that was used at Stamper and Beebe’s trial had the necessary
software to open and view the video files from the grocery store’s security system. But
during the trial, when Wraith and Gozdor viewed the video files on the thumb drive, they
realized that these files did not include the footage from the parking lot, nor did the files
include footage of Stamper’s actions in aisle 10 of the store — the aisle from which she
had taken most of the stolen merchandise.
              By this time, the original security footage was no longer available, because
the store’s security computer recycled its video files after six months.



                                            –3–                                         2567

              After the State concluded its evidence, and after Stamper and Beebe rested
without presenting a case, both defense attorneys asked the trial judge to give the jurors
a Thorne instruction regarding the missing video files — that is, an instruction directing
the jurors to assume that the missing video footage would have been exculpatory for both
Stamper and Beebe. 3
              The trial judge rejected this request. The judge concluded that the evidence
failed to show that the troopers had ever received the missing video files — i.e., failed
to show that the missing video files had ever been on the thumb drive that Gozdor
delivered to Trooper Wraith. Thus, the judge concluded, the evidence did not show that
the troopers had lost or inadvertently destroyed this evidence.
              Beebe’s attorney argued that this did not make any difference. He asserted
that when Wraith asked Gozdor to make a copy of the relevant security footage, Wraith
made Gozdor an “agent” of the State Troopers for purposes of preserving this evidence.
Thus, the defense attorney argued, when Gozdor failed to successfully copy all of the
security footage onto the thumb drive, and when Gozdor allowed six months to elapse
(so that the grocery store’s security computer re-used that hard drive space), Gozdor’s
actions amounted to a loss or inadvertent destruction of evidence that should be
attributed to the State.
              The trial judge rejected this “agency” argument.
              The jury found Stamper guilty of theft, and Beebe guilty of assault. Both
defendants now appeal, arguing that the State was at fault for losing the video footage,
and that the trial judge should have granted their request for a Thorne instruction.




   3
       See Thorne v. Dept. of Public Safety, 774 P.2d 1326 (Alaska 1989).

                                          –4–                                          2567

      The defendants bore the burden of proving that the troopers took
      possession of the video evidence


             As we explained in the preceding section of this opinion, the trial judge
found (after hearing the evidence pertaining to the security video footage) that the
defendants had failed to establish that the troopers ever took possession of the missing
footage.
             On appeal, Stamper and Beebe argue that the judge was wrong to make
them bear the burden of establishing that the troopers ever possessed the missing video
evidence. Stamper and Beebe contend that the language of the Thorne decision makes
it clear that the State bears the burden of proving that missing evidence was not lost or
destroyed through state action.
             As a preliminary matter, there is no reason to think that the burden of proof
made any difference to the trial judge’s decision.
             The trial judge employed the “preponderance of the evidence” standard of
proof when he decided the factual question of whether Trooper Wraith ever had
possession of the missing video footage. Stamper and Beebe do not argue that this was
the wrong standard of proof.
             Because the proper standard of proof was “preponderance of the evidence”,
the question of which party bore the burden of proof would only make a difference if the
evidence was so evenly balanced that the judge could not say what conclusion the
preponderance of the evidence favored. (In such a case, the judge would have to rule
against whichever party bore the burden of proof.) But here, the trial judge’s remarks
show that he did not consider this question to be close: there was essentially no evidence
that Trooper Wraith ever had possession of the missing video footage.




                                          –5–                                        2567

             That being said, we disagree with Stamper and Beebe’s contention that the
State bore the burden of proof on this issue.
             We agree that, had the evidence shown that government agents took
possession of the video files, and that these files were now missing, the State would have
borne the burden of explaining what happened to the missing files. But in Stamper and
Beebe’s case, the question was whether the evidence was ever in the government’s
possession. Because the government’s duty to preserve evidence is triggered only when
government agents take possession of the evidence, 4 it is the defendant’s burden to show
(by a preponderance of the evidence) that this triggering event occurred.
             This corresponds to the rule that when a defendant claims that the
government obtained evidence through an unlawful warrantless search or seizure, it is
the defendant’s burden to show that a warrantless search or seizure occurred, and then
it is the government’s burden to establish a justification for the warrantless search or
seizure. 5
             Thus, the trial judge correctly allocated the burden of proof on the factual
question of whether Trooper Wraith ever possessed the security video footage. And the
evidence fully supports the judge’s finding that Trooper Wraith never had possession of
this video footage.
             We now turn to the question of whether Michael Gozdor, the grocery store
employee, was an agent of the State for this purpose.


   4
       See Snyder v. State, 879 P.2d 1025, 1028 (Alaska App. 1996) (explaining that the
government’s duty to preserve evidence applies only to evidence that has already been
gathered).
   5
       See Willie v. State, 829 P.2d 310, 312 (Alaska App. 1992): “Once the defendant
establishes that a search or a seizure has been conducted by the government without a
warrant, it is the government’s burden to justify the intrusion.”

                                          –6–                                        2567

       Why we reject the defendants’ argument that the grocery store’s loss-
       prevention employee became an agent of the State Troopers, and that the
       troopers therefore had “constructive possession” of the video files


             Stamper and Beebe raise an alternative argument — the contention that
even if Trooper Wraith never had possession of the security video files, Wraith
nevertheless made Michael Gozdor (the grocery store’s loss-prevention employee) an
agent of the State Troopers when Wraith asked Gozdor to make copies of the relevant
security video footage.
             Stamper and Beebe contend that the State should be held responsible for
the fact that Gozdor somehow failed to make copies of the pertinent security footage, or
that he somehow failed to correctly transfer those video files to the thumb drive that he
later furnished to Trooper Wraith, before the grocery store’s security system computer
over-wrote the pertinent security footage.
             We rejected an analogous argument in Carter v. State, 356 P.3d 299
(Alaska App. 2015).
             The defendant in Carter was convicted of theft for stealing money from a
wallet during an Easter service at the Tudor Rescue Mission in Anchorage. Carter’s
actions were recorded by the Rescue Mission’s video security system, and several people
who had viewed this video footage later testified at Carter’s trial. But the video itself
was not available at trial because the portion of the hard drive containing the relevant
footage was automatically recorded over by the security system after a number of
weeks. 6
             The officer who investigated Carter’s case testified that he went to the
Mission and asked the staff to make him a copy of the security video footage, but he was


   6
       Carter, 356 P.3d at 300.

                                          –7–                                       2567

told that the one person who knew how to do this was not available. The officer
repeatedly returned to the Mission to try to get a copy of the video, but he was never
successful. Ultimately, it became too late: the security system over-wrote the video
footage. 7
               On appeal, Carter argued that the police had a duty to collect the video
footage and preserve it — and that, because the police failed to do so, the trial judge
should have instructed the jurors under Thorne that they should presume that the video
would have been exculpatory. 8 We rejected this argument:

                       There is some authority for the assertion that the police
               have an affirmative duty to collect and preserve evidence that
               they know is important. See Klumb v. State, 712 P.2d 909,
               912 (Alaska App. 1986). But we conclude that this duty does
               not apply to cases like Carter’s — cases where the evidence
               is in the hands of a third party, where the defendant knows
               that the evidence exists (and understands the importance of
               it), where the evidence is not ephemeral (i.e., its probative
               value will not be impaired by a short delay in collecting it),
               and where the defendant has essentially the same opportunity
               as the government to subpoena or otherwise obtain the
               evidence.

Carter, 356 P.3d at 301.
               See also Bradley v. State, 662 P.2d 993, 994-95 (Alaska App. 1983), and
Moberg v. Anchorage, 152 P.3d 1170, 1173-74 (Alaska App. 2007), where this Court
held that the government had no duty to preserve blood samples taken by hospital
personnel for medical purposes (samples that were later destroyed after the expiration



   7
       Ibid.
   8
       Ibid.

                                            –8–                                    2567

of the retention period set by hospital procedures) when those samples would have been
equally available to the defense if a timely request had been made.
               When Trooper Wraith interviewed Stamper and Beebe on the day after the
theft, he told both of them that the grocery store had security video footage of their
actions. Wraith also told them that he had viewed this video footage, and that it
supported the accusations of theft and assault.
               Thus, as was true in Carter, Stamper and Beebe knew that the security
video footage existed, they understood the importance of it, and they knew that this
evidence was in the hands of a third party (i.e., the grocery store). Given these
circumstances, Stamper and Beebe had essentially the same opportunity as the govern­
ment to subpoena or otherwise obtain this evidence (because it remained on the grocery
store’s security system hard drive for six months).
               Stamper and Beebe attempt to analogize their case to the situation presented
in State v. Ward, 9 where this Court approved sanctions against the State when a hospital
failed to preserve the defendant’s blood sample. But Ward presented a significantly
different factual situation: the police in Ward affirmatively told the defendant that he
faced no time limit should he decide to seek preservation and testing of the blood sample.
We held that, having made such a guarantee to Ward, the police were required to take
steps to ensure that Ward’s blood sample remained available to him as they had
promised. 10
               But here, Trooper Wraith did not tell Stamper and Beebe that he had
collected the security video footage, nor did he assure Stamper and Beebe that this




   9
        17 P.3d 87, 88-89 (Alaska App. 2001).
   10
        Ward, 17 P.3d at 89.

                                           –9–                                        2567

footage would remain available indefinitely. We therefore conclude that Stamper and
Beebe’s situation is analogous to the facts of Carter rather than the facts of Ward.
             We also reject Stamper and Beebe’s argument that Gozdor should be
viewed as the “agent” of the State Troopers, and that Gozdor’s handling of the security
video footage should be viewed as tantamount to a loss or inadvertent destruction of
evidence by the State. The fact that Trooper Wraith asked Gozdor, an employee of the
grocery store, to make him a copy of the store’s security camera footage did not turn
Gozdor into an agent of the State Troopers in the sense that Gozdor now owed a duty to
Stamper and Beebe to preserve the video footage, as if he were a police evidence
custodian.
             In sum, the trial judge properly rejected Stamper and Beebe’s request for
a Thorne instruction.


      Beebe’s contention that the absence of the video deprived him of his rights
      under the confrontation clause


             Beebe raises the separate argument that his right of confrontation was
violated by the lack of video footage recording his actions in the parking lot.
             As we have explained, the parking lot footage was not available at the time
of Beebe’s trial, so that footage was not introduced into evidence against Beebe. Thus,
to prevail in his confrontation clause argument, Beebe must show that the witnesses
against him based their testimony on the unavailable video footage. See Catlett v. State,
585 P.2d 553, 557 (Alaska 1978).
             The State presented three witnesses to support its assault charge against
Beebe. Two of these witnesses personally witnessed the event: Glen Butts, who was an
employee of the grocery store, and John Otcheck, the customer who was struck by


                                         – 10 –                                        2567

Beebe’s vehicle when he tried to stop Beebe from leaving the parking lot. There is no
indication in the record that either Butts or Otcheck reviewed video footage of this
incident.
               The State’s third witness was Trooper Wraith, who investigated the incident
after it was over. During Wraith’s testimony, the prosecutor played an audio recording
of Wraith’s interview with Beebe. During Wraith’s interview with Beebe, Wraith made
assertions about the content of the video footage. In particular, Wraith told Beebe that
there was video footage of what happened in the grocery store parking lot — and that
this video showed Beebe driving toward “the guy standing in front of [his] car” (i.e.,
Otcheck).
               When the prosecutor played the audio of this interview, Beebe’s attorney
did not object. Accordingly, Beebe must now show that the playing of the audio was
plain error.
               To establish plain error, Beebe must show that there is at least a reasonable
possibility that the references to the unavailable security footage prejudiced him — i.e.,
a reasonable possibility that these references affected the jury’s decision in a manner
adverse to Beebe. 11 For two reasons, we conclude that there was no prejudice.
               First, when Wraith told Beebe that there was video footage showing that
Beebe drove his car toward Otcheck, Beebe immediately responded that this was not true
— and he urged Trooper Wraith to re-examine the video. Beebe’s precise words were,
“No. ... No. I pulled away just a little bit, nice and easy, if you look at that video. Look
at the video.” Later in the same interview, when Wraith again accused Beebe of driving
toward Otcheck and hitting him with his car, Beebe responded, “I didn’t drive towards




   11
        Adams v. State, 261 P.3d 758, 773 (Alaska 2011).

                                           – 11 –                                      2567

him. You’ve got to look at that [video] carefully. ... He was leaning [and] he moved
away gently.”
             Second, after the audio recording of the interview was played for the jury,
Trooper Wraith was cross-examined by both Stamper’s and Beebe’s defense attorneys.
During this cross-examination, Wraith conceded that he had misrepresented the content
of the video to Beebe — that the video did not actually show Beebe hitting Otcheck with
his car.
             Specifically, during cross-examination by Stamper’s attorney, Wraith was
asked, “Did you actually observe any of what occurred in the parking lot [with] the
vehicle involving Mr. Otcheck when you watched the video?” This question led to the
following colloquy:

                    Wraith: I think there was some footage of the parking
             lot that you could see in one of the videos. ... It was far out
             there in the video, and [it was] difficult to discern exactly
             what was happening, and who was where.

                    Stamper’s attorney: Okay. And I want to be clear, ...
             are those observations you made here in court, or are those
             observations you made when you looked at the store video?

                      Wraith: When I observed the [store] video.
                      . . .
                   Stamper’s attorney: Okay. And [in your interview
             with Mr. Beebe], you described a scenario to Mr. Beebe ...
             wherein you said that he drove forward [toward Otcheck].
             Did you, in fact, see that whole incident on the video?

                    Wraith: I did. But like I said, it was hard to see who
             was who. I could [see] the van moving. I could see people
             around it. But I — it was — it’s too far out in the video to
             really see clearly what had happened in it.
                                         – 12 –                                    2567

                    Stamper’s attorney: Okay. Could you actually make
             out if Mr. Otcheck was struck by the vehicle?

                      Wraith: I was unable to determine for sure by the
             video.

A few minutes later, when Trooper Wraith was cross-examined by Beebe’s defense
attorney, Wraith reiterated that the video was inconclusive:

                   Wraith: As far as the footage in the parking lot was
             concerned ... , as I explained to your colleague [i.e.,
             Stamper’s defense attorney], [in] the footage out in that
             parking lot, ... [Beebe’s] vehicle was barely discernible in the
             video at all, and you could not see what was going on right
             around the vehicle, other than people around it. So ... I was
             unable to discern what was there[.]

             Based on this record, we conclude that there is no reasonable possibility
that Beebe was prejudiced by the references to the unavailable video footage. We
therefore reject Beebe’s claim of plain error.


      Conclusion


             The judgement of the superior court is AFFIRMED.




                                         – 13 –                                  2567

