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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ISAIAH TERMAINE BELCHER,
                                                      Court of Appeals No. A-11632
                            Appellant,               Trial Court No. 3PA-12-3212 CR

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

                            Appellee.                    No. 2499 — May 6, 2016


              Appeal from the Superior Court, Third Judicial District, Palmer,
              Pat L. Douglass, Judge.

              Appearances: Nancy Driscoll Stroup, Attorney at Law, Palmer,
              for the Appellant. Timothy W. Terrell, Assistant Attorney
              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 SUDDOCK.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
               A jury found Isaiah Termaine Belcher guilty of second-degree theft1 for
stealing a television and a Blu-ray DVD player from the Wasilla Walmart. At trial, the
State offered evidence of Belcher’s prior conviction for third-degree theft. Over defense
objection, Superior Court Judge Pat L. Douglass admitted evidence of the prior
conviction as probative of identity, intent, common scheme or plan, and absence of
mistake.
               On appeal, Belcher argues that the evidence was inadmissible under Alaska
Evidence Rule 404(b)(1). He is correct; as explained below, the evidence had no
relevance beyond establishing Belcher’s character as a thief. But the error was harmless
because the State presented overwhelming evidence of guilt.


         Background facts
               On November 23, 2012 — “Black Friday” — Walmart loss-prevention
officer Dean Brown heard the electronic alarm system at the doorway go off, and shortly
thereafter he observed Belcher walking through the store’s vestibule with a television in
his cart. Brown followed Belcher outside the store, and Belcher turned and approached
him. Belcher told Brown that the alarm had triggered because of DVDs in his cart that
he had forgotten to pay for. He explained that after the alarm sounded, he decided he no
longer wanted them and returned them to the cashier.
               According to Brown’s testimony at trial, he expressed skepticism about
Belcher’s story and asked to see Belcher’s receipt. Belcher did not have one. When
Brown asked Belcher how he would return the merchandise if there was something
wrong with it, Belcher replied that he would just pawn it instead of returning it to the
store.


   1
         Former AS 11.46.130(a)(1).

                                          –2–                                       2499

                Brown jotted identifying data from Belcher’s driver’s license and vehicle
license plate number. After reviewing surveillance footage and determining that Belcher
had not paid for the merchandise, Brown contacted the Wasilla Police Department to
report the theft. Officer Patrick Kruchowski responded to the call, and Brown told him
that Belcher had stolen a television and a Blu-ray DVD player valued at $713 and $98,
respectively.
                The State subsequently indicted Belcher for second-degree theft.2


       Proceedings
                The State filed a notice of its intent to introduce Belcher’s year-old
conviction for third-degree theft. According to police reports attached to the notice,
Anchorage police officers had received a report of attempted shoplifting (not involving
Belcher) from a Fred Meyer store. One week later, Anchorage police stopped a car
belonging to one of the suspects in that incident.
                Belcher was in the back seat of the vehicle, along with $895 worth of
merchandise later determined to be stolen from Bed Bath & Beyond. Belcher told
Officer Boaz Gionson that the items were his and that he had bought them, but he told
another officer, Robin Nave, that the items did not belong to him. Officer Nave later
received a phone call from Belcher, requesting return of the items. Belcher told Officer
Nave that he had purchased the items without bothering to keep the receipt because the
items were intended as Christmas gifts. Officer Nave did not return the merchandise, and
Belcher eventually pled guilty to third-degree theft of that merchandise.




   2
       Former AS 11.46.130(a)(1) (2012) (defining the value of second-degree theft as theft
of property or services with a value of $500 to $25,000).

                                           –3–                                        2499

             Belcher objected to the State’s notice of intent to offer this evidence,
arguing that the matter had no relevance beyond Belcher’s propensity to shoplift and was
highly prejudicial. The judge deferred ruling on the matter until hearing the State’s case
and the defense theory of the case.
             At trial, loss-prevention officer Brown showed the jury surveillance video
footage of Belcher. The video first depicted Belcher placing the television and Blu-ray
DVD player into his shopping cart. It also showed him selecting a number of DVDs and
then walking past the cash registers into the store’s vestibule.
             The video then depicted Belcher leaving the shopping cart in the vestibule
(after the store’s alarm system sounded) while he returned the DVDs to a cash register
station. It then showed Belcher returning to his cart and exiting the store. The
surveillance video also showed Brown emerging from the store’s security office, Belcher
and Brown talking outside the store, and Brown following Belcher to his car to record
his license plate number.
             During cross-examination, Belcher’s defense attorney inquired whether the
low resolution of the video left doubt that its subject was Belcher. Brown responded that
the resolution was better on his computer and also noted that he had the benefit of an in-
person encounter with Belcher, which the video recorded. When the defense inquired
whether Brown had accurately recorded Belcher’s license plate number, Brown
responded that he had “[w]alked right up to the bumper.”
             Brown also explained that he checked Walmart’s computer system to
ensure that no television nor Blu-ray DVD player had been sold while Belcher was
present in the store. The defense attorney suggested that Brown may have mis­
remembered which items were in Belcher’s cart, thus explaining the lack of purchase
history. Brown responded that the store sold few brands of televisions and that he had
carefully noted and searched for the specific television he saw in Brown’s shopping cart.

                                          –4–                                        2499

             After Brown and Officer Kruchowski testified, the prosecutor renewed her
request to introduce evidence of Belcher’s prior theft conviction. The defense attorney
argued that the conviction was more prejudicial than probative under Alaska Evidence
Rule 403.
             The judge ruled that evidence of the prior crime was admissible evidence
because, she concluded, both identity and mistake were part of the defense case, and she
found the probative value outweighed the prejudicial effect of the evidence. But she
limited evidence of the prior theft to Belcher’s claim that he had bought the merchandise
and did not have a receipt for it. Subsequently, Officers Gionson and Nave testified, and
the judgment for Belcher’s prior conviction was admitted into evidence.
             Following the parties’ final arguments, the judge read the jury an
instruction limiting the purposes for which the prior-crime evidence could be considered:
specifically, to the issues of identity, intent, common scheme or plan, or absence of
mistake. The jury convicted Belcher of second-degree theft. This appeal followed.


      The trial court erred by admitting the evidence of Belcher’s prior theft
             The trial court admitted the evidence of Belcher’s prior theft under several
different theories. We will address those theories one by one, explaining why none of
them are supported by the record.
             First, the trial court admitted this evidence as probative of Belcher’s
identity. The State concedes that this was erroneous, and we find the State’s concession
well founded.




                                          –5–                                       2499

              Prior-crime evidence may only be admitted to prove identity where identity
is in issue.3 Though Belcher’s attorney briefly questioned Brown about his identification
of Belcher by pointing out the grainy quality of the surveillance video and questioning
him about accurately recording Belcher’s license plate number, this isolated exchange
did not meaningfully put identity in issue. Belcher’s theory of the case — the theory that
was argued to the jury — was that he paid for the items before exiting the store, not that
Brown misidentified him. The evidence thus had no relevance as to Belcher’s identity
and should not have been admitted on this basis.
              The superior court also admitted the evidence of Belcher’s prior theft under
the theory that it tended to prove intent.
              Intent may become an issue in a shoplifting case if, for example, a
defendant claims that he merely forgot to pay for an item, or that he intended to re-enter
the store to pay. But here Belcher’s attorney argued something quite different: the
defense attorney asserted that Belcher’s statements to the loss-prevention officer were
correct, and that he had in fact paid for the goods. Thus, the attorney argued a defense
to the actus reus of the crime of theft (taking goods without paying) rather than to the
mens rea element (intent to deprive).4
              When the prosecutor delivered her summation to the jury, she referred to
Belcher’s prior conviction as relevant to “intent.” But a close examination of the
prosecutor’s argument shows that she asked the jurors to infer, from Belcher’s prior
crime, that he had the capacity to form the intent to steal — in other words, that he had
the character of a thief:

   3
       See Coleman v. State, 621 P.2d 869, 874-75 (Alaska 1980); Moor v. State, 709 P.2d
498, 506 (Alaska App. 1985) (“[T]he issue upon which the [404(b)(1)] evidence is offered
must be truly disputed in the case.”).
   4
       AS 11.46.100(1).

                                             –6–                                     2499

                    [H]ow do we know that the defendant is capable of
              forming [the] intent to deprive ... another of their property[?]
              ... [T]hat’s one of the limited reasons you can look at
              [Belcher’s] other conviction. (emphasis added)
Effectively, the prosecutor employed the superfluous issue of “intent” to inject
propensity evidence into the case. Offered for this purpose — to show that Belcher was
capable of forming an intent to steal — the evidence proved nothing beyond his
propensity to shoplift and therefore was squarely proscribed by Alaska Evidence Rule
404(b)(1).
              The State alternatively argues that evidence of Belcher’s prior theft
conviction was properly admitted to prove a common scheme or plan. In support of its
argument, the State relies on Cohen v. State.5 In Cohen, this Court upheld the admission
of prior bad acts evidence when the evidence was probative as to a distinctive pattern of
criminal behavior — “Cohen had repeatedly engaged in a distinctive set of grooming or
courtship rituals with teenage girls.”6
              But the State alleged no such distinctive pattern of conduct in this case. In
fact, to the extent the instant charge involved a unique plan of action — using the DVDs
as an alarm system decoy to steal the television and Blu-ray DVD player — there was
no evidence that the prior crime involved similar conduct.
              And as this Court explained in Bolden v. State, “[t]o be properly admissible
under Rule 404(b) it is not enough to show that each crime was ‘planned’ in the same
way; rather, there must be some overall scheme of which each of the crimes is but a




   5
       2014 WL 5799224 (Alaska App. Nov. 5, 2014) (unpublished).
   6
       Id. at *8; see also Smithart v. State, 946 P.2d 1264, 1269-73 (Alaska App. 1997),
rev’d on other grounds, 988 P.2d 583 (Alaska 1999).

                                           –7–                                        2499

part.”7 Here, there was no such overarching scheme. The judge erred in admitting the
prior offense as tending to prove scheme or plan.
             As yet another alternative ground of relevance, the State asserts that
Belcher’s prior theft conviction tended to prove an absence of accident or mistake.
             In the trial court, the prosecutor argued that Belcher’s prior shoplifting
conviction was admissible because it tended to “disprove[] a mistake that [Belcher]
simply threw out the receipt there while at the store.”
             This was a misuse of the word “mistake” — which, in the context of
Evidence Rule 404(b)(1), refers to conduct that is unwitting or that is performed as a
result of a misunderstanding. The prosecutor was not arguing that Belcher made a
mistake when he said that he had thrown away the receipt for the merchandise. Rather,
the prosecutor was arguing that Belcher’s prior theft conviction tended to prove that he
lied when he said this. This argument rested wholly on an inference based on Belcher’s
character — the purpose forbidden by Evidence Rule 404(b)(1).
             After hearing the prosecutor’s argument, the judge ruled that the evidence
of Belcher’s prior theft conviction was relevant to the issue of “mistake.” But we are
unable to tell from the record if the judge adopted the prosecutor’s mistaken concept of
mistake, or if the judge had something else in mind.
             On appeal, the State recasts the issue. The State argues that evidence of
Belcher’s prior theft was relevant to rebut a claim of “mistake” because, at trial,
Belcher’s attorney argued that anyone who believed that Belcher was trying to steal the
Walmart electronics was laboring under a mistake.
             The State’s proposed formulation of “mistake” is based on a
misunderstanding of Alaska Evidence Rule 404(b)(1). When this evidence rule speaks


   7
       Bolden v. State, 720 P.2d 957, 961 n.2 (Alaska App. 1986).

                                          –8–                                      2499

of “mistake,” it is not referring to a defense claim that anyone who believes the defendant
to be guilty is mistaken. Rather, when Rule 404(b)(1) speaks of “mistake” it is referring
to a defense claim that the defendant’s conduct was performed unwittingly or
accidentally, or under a misapprehension of the circumstances.
               For instance, in Adkinson v. State, the defendant was tried for manslaughter
after he shot and killed a trespasser. The defendant asserted that he did not intentionally
point his firearm at the victim — that if he pointed the gun at the victim, it was
inadvertent.8 The supreme court concluded that, given this defense, the trial judge
properly allowed the State to introduce evidence of prior incidents where the defendant
pointed firearms at trespassers.9
               Similarly, in Lewis v. State, the defendant was charged with escape after he
left a residential corrections center. At trial, the defendant argued that he was not guilty
because he mistakenly believed that he had received permission to leave the center.10
This Court held that, given this defense, the trial judge properly allowed the State to
introduce evidence of the defendant’s prior conviction for escape.11
               See also Khan v. State, where the defendant was on trial for fraudulently
misrepresenting his assets when he applied for court-appointed counsel. Khan’s defense
at trial was a combination of mistake and innocent intent: his attorney argued that Khan
was emotionally distraught at the time he filled out the financial affidavit, and that he
either mistakenly or carelessly declared that he had no income and no assets.12 This

   8
        Adkinson v. State, 611 P.2d 528, 531 (Alaska 1980).
   9
        Id. at 532.
   10
        Lewis v. State, 312 P.3d 856, 859 (Alaska App. 2013).
   11
        Id.
   12
        Khan v. State, 204 P.3d 1036, 1039 (Alaska App. 2009).

                                           –9–                                         2499

Court held that the trial judge properly allowed the State to introduce evidence of Khan’s
prior fraudulent claim for unemployment benefits.13
              Belcher made no such claim of mistake — no claim that he inadvertently
failed to pay for the electronics or that he mistakenly believed that he had paid for them
when, in fact, he had not. Rather, as we explained above, Belcher asserted that he had
paid for the items and that the State was simply wrong when it alleged that he had not
paid for them.
              Accordingly, the trial judge erred when she admitted evidence of Belcher’s
prior theft under a theory of “mistake.”


        A deeper look at the admissibility of past-misconduct evidence based on its
        purported similarity with the present crime
              The judge in this case found the “pattern” of Belcher’s prior theft to be
“almost [identical to] what [is] alleged now in this case.” She employed this perceived
similarity to justify admission of the prior shoplifting for the issues of identity, mistake,
and common scheme or plan. But the judge could not meaningfully compare the two
crimes because neither she nor the prosecutor knew how Belcher committed the earlier
theft. Belcher was not arrested at the scene of that earlier crime, nor in the act of stealing
the merchandise. Rather, he was later found in possession of the stolen merchandise.
              As the judge noted, in both instances Belcher had no receipt for the
merchandise. But his proffered explanations were significantly different: in the earlier
episode, he claimed that he did not keep the receipt because the items were intended as
Christmas presents; as to the Walmart electronics, Belcher said that if the goods later
proved to be defective, he intended to pawn them rather than return them.



   13
        Id.

                                           – 10 –                                        2499

              Thus, the trial judge had no basis for concluding that these two thefts
constituted related manifestations of a single scheme or plan, or that the prior theft
demonstrated anything about Belcher’s intent during the Walmart episode. The two
thefts were linked only by a feature common to most thefts: the absence of a receipt.
              The judge’s ruling was essentially based on the premise that if Belcher was
the kind of person who would commit theft before, then it was more likely that he was
guilty of theft now. But as this Court explained in Smithart v. State, “[i]f evidence has
no genuine purpose other than to show the defendant’s character and the consequent
likelihood that the defendant acted in conformity with that character during the episode
being litigated, then Rule 404(b)(1) declares that the evidence shall not be admitted.”14


        The trial judge’s obligation when the government wishes to offer
        prior-crime evidence
              More than thirty years ago, in Moor v. State, this Court optimistically
predicted that if we required the State to give advance notice of its intent to offer Rule
404(b) evidence, such notice would guarantee that “the trial court [would] carefully
scrutinize the proffered reasons for the use of the evidence.”15 Trial judges would
thereby require the State to demonstrate that the evidence had “[true] relevance apart
from propensity.”16
              But Moor’s requirement of advance notice is only effective if trial judges
subject the government’s offer of proof to rigorous examination. Evidence Rule
404(b)(1) can be difficult to apply. Often, the difficulty arises because many of the


   14
        Smithart, 946 P.2d at 1270-71.
   15
        Moor v. State, 709 P.2d 498, 506 (Alaska App. 1985).
   16
        Id.

                                          – 11 –                                     2499

words used in Rule 404(b)(1) — “intent,” “motive,” “plan,” “knowledge,” and “mistake”
— must be understood in a limited technical sense, rather than in the broader sense in
which they are used in everyday speech.
                Mindful of these terms of art, the judge must carefully analyze the
prosecutor’s offer of proof in light of the facts of the defendant’s specific case — both
the evidence presented and the way in which the case is being argued by the parties. The
judge’s task is to determine (1) whether the prior-crime evidence is relevant to an issue
that is actually contested and, if so, (2) whether the prior-crime evidence is genuinely
relevant for a purpose other than to establish that the defendant characteristically
commits the type of offense charged.


        Why we conclude that the erroneous admission of Belcher’s prior theft
        was harmless
                In the case of a non-constitutional evidentiary error, this Court will only
reverse if the error “appreciably affected the verdict.”17 Here, the State’s case against
Belcher was overwhelming. At trial, the State introduced surveillance video that
depicted Belcher’s activities in the store, including his selection of the television and then
the Blu-ray DVD player. Of the twelve minutes that Belcher remained in the store after
he selected the television, he is visible in the footage for all but one minute and thirty-
five seconds.
                Though it is theoretically possible that Belcher could have purchased the
television during this gap in the footage, the State rebutted this possibility in several
ways. The incident occurred on “Black Friday” — the most chaotic shopping day of the
year — making it unlikely that Belcher could have checked out that quickly. Indeed the



   17
        Love v. State, 457 P.2d 622, 634 (Alaska 1969).

                                           – 12 –                                        2499

video showed that the store was extremely busy. And the loss-prevention officer
testified that he searched the store’s computer system and found no record of a customer
purchasing the television and the Blu-ray DVD player while Belcher was in the store.
              Further, Belcher’s statements to the loss-prevention officer significantly
undermined his theory of the case. Reasonable jurors could conclude that Belcher would
not purchase an expensive electronics item without retaining the receipt in case the item
did not function properly. Reasonable jurors could also conclude that Belcher’s
purported intention to pawn the television if it did not function properly was not credible.
              We conclude that, in light of the overwhelming evidence of Belcher’s guilt,
the erroneous admission of Belcher’s prior shoplifting conviction did not appreciably
affect the jury’s verdict.


       Conclusion
              We AFFIRM the judgment of the superior court.




                                          – 13 –                                       2499

