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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STEVEN GENE CARTER,
                                                      Court of Appeals No. A-11631
                            Appellant,               Trial Court No. 3AN-12-3373 CR

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

                            Appellee.                   No. 2466 — August 7, 2015


              Appeal from the District Court, Third Judicial District,
              Anchorage, Leslie Dickson and Gregory J. Motyka, Judges.

              Appearances: Andrew Steiner, Bend, Oregon, for the Appellant.
              A. James Klugman, Assistant District Attorney, Anchorage,
              and Michael C. Geraghty, Attorney General, Juneau, for the
              Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
              District Court Judge. *

              Judge MANNHEIMER.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              Steven Carter was convicted of third-degree theft for stealing $213 from a
wallet during an Easter service at the Tudor Rescue Mission in Anchorage. 1 No one
personally witnessed Carter take the wallet, but the theft was recorded by the Rescue
Mission’s video security system. Several people who viewed this video later testified
at Carter’s trial. The video itself, however, was not available at trial because the portion
of the hard drive containing the video was automatically recorded over by the security
system after a number of weeks.
              The officer who was assigned to investigate Carter’s case testified that he
went to the Mission and asked the staff to make him a copy of the video, but he was told
that the one person who knew how to do this was not available. The officer returned to
the Mission at least five times to get a copy of the video, but he was never successful.
Ultimately, it became too late: the security system over-wrote the video.
              In this appeal, Carter claims that the Anchorage police had a duty to collect
the video and preserve it — and that, because the police did not do so, the trial judge
either should have dismissed the theft charge or, in the alternative, should have instructed
the jurors that they should presume (contrary to all the evidence) that the video would
have been exculpatory. See Thorne v. Dept. of Public Safety, 774 P.2d 1326 (Alaska
1989).
              Carter’s first theory is that the Anchorage police came into “constructive”
possession of the video, and that they then allowed it to be destroyed. The facts of this
case simply do not support an assertion of “constructive possession”, at least as that
phrase is normally understood. The video was in the possession of the Mission, the



   1
        Carter was prosecuted under the 2012 version of AS 11.46.140(a)(1), which defined
third-degree theft as the theft of property valued between $50 and $500. In the 2014
legislative session, this statute was amended so that it now covers thefts of property valued
between $250 and $750. See SLA 2014, ch. 83, § 5.

                                           –2–                                         2466

Mission staff were not acting as agents of the police, and the police in fact made several
attempts — all unsuccessful — to obtain a copy of the video.                 There was no
“constructive possession”.
               Carter argues in the alternative that if police did not constructively possess
the video, they nevertheless had a due process obligation to collect the video because
they knew that it was material evidence.
               Carter concedes that, in general, the government does not have a duty to
collect all evidence pertinent to a crime. See March v. State, 859 P.2d 714, 716 (Alaska
App. 1993). But Carter asserts that the facts of his case merit an exception to this general
rule.
               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.
               We have encountered analogous situations before. For example, in Bradley
v. State, 662 P.2d 993 (Alaska App. 1983), a defendant who was involved in a vehicular
accident was taken to a hospital, where the hospital staff drew his blood and tested it for
medical purposes. 2 Three days later, in accordance with hospital policy, the staff
destroyed the blood sample (but retained a record of the test results). 3 The State



   2
        662 P.2d at 994.
   3
        Id. at 995.

                                            –3–                                        2466

obtained the test results (which included the alcohol content of the blood) and later used
those results at the defendant’s trial for driving under the influence. 4
               The defendant argued that the test results should be suppressed because the
State had failed to collect and preserve the blood sample. 5 But this Court held that the
State had no duty to collect and preserve the sample because “the blood sample was
taken by and was in the possession of an independent entity ... [,] both the defendant and
the [S]tate had the opportunity to preserve the sample.” 6
               Similarly, in Moberg v. Anchorage, 152 P.3d 1170 (Alaska App. 2007), this
Court held that the government had no duty to direct a hospital to preserve a sample of
the defendant’s blood beyond the hospital’s normal seven-day retention period. 7 We
relied on the fact that the hospital had drawn the blood sample for medical purposes, that
the defendant was aware that he faced DUI charges and the blood sample was relevant
evidence, and that both the defendant and the government had the opportunity to
preserve the sample. 8
               (Compare State v. Ward, 17 P.3d 87 (Alaska App. 2001), where a hospital
drew the defendant’s blood for medical purposes and later destroyed it pursuant to
hospital policy — but the police mistakenly told the defendant that his blood sample
would remain available until someone asked to test it. 9 This Court ruled that, once
police affirmatively represented to Ward that there was no time limit for collecting the


   4
       Id. at 994-95.
   5
       Id. at 995.
   6
       Ibid.
   7
       152 P.3d at 1173-74.
   8
       Id. at 1174.
   9
       17 P.2d at 88.

                                           –4–                                       2466

evidence, the State was required to honor that representation. That is, the State “was
obliged to make an effort to ensure that Ward’s blood sample was preserved as
promised.” 10 )
               Carter’s case presents circumstances that are analogous to the facts of
Bradley and Moberg. Carter knew that the video existed; the criminal complaint in this
case recites that “Carter was observed on recorded security video taking [the victim’s]
jacket and walking towards the restroom and then leaving the Mission.” As we have
already explained, the video remained on the Mission’s security system hard drive for
a number of weeks after this case was filed. During that time, Carter had the same means
as the State to obtain a copy of this evidence, either by requesting a copy from the
Mission staff or by invoking legal process. We therefore conclude that the police were
under no duty to collect or preserve the video.
               Finally, Carter argues that he was denied his right of confrontation because
the police failed to collect and preserve the video. Basically, Carter argues that his right
of confrontation was infringed because government witnesses testified about what they
saw on the video, but the video was not available to test these witnesses’ testimony.
               Carter analogizes his case to the situation presented in Lauderdale v. State,
548 P.2d 376 (Alaska 1976), a case dealing with prosecutions for driving under the
influence in which the State wishes to offer evidence of the defendant’s breath test result.
Lauderdale holds that if the State wishes to introduce evidence of breath test results, the
State is required to offer defendants a way to preserve independent evidence of their
blood alcohol content — for example, by preserving a sample of the defendant’s breath
for retesting. Id. at 381-82.
               But in Nicholson v. State, 570 P.2d 1058, 1064 n. 23 (Alaska 1977), the
supreme court described the Lauderdale decision as resting on the State’s duty to

   10
        Id. at 89.

                                            –5–                                        2466

“preserv[e] ... evidence already gathered by the authorities or created by the authorities.”
That is not the situation in Carter’s case. We therefore reject his confrontation clause
argument based on Lauderdale.


       Conclusion


              The judgement of the district court is AFFIRMED.




                                           –6–                                         2466

