Opinion
Court of Appeals No. A-12715 No. 6864
04-08-2020
LEIF E. THOMAS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
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 authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3PA-09-01118 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. Judge HARBISON.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
In April 2009, Leif E. Thomas stole various items of property, including a firearm, electronics, and jewelry, from his grandparents' home in Palmer. He then fled to Texas, where he called his grandparents multiple times. In these phone calls, Thomas admitted stealing their property and taking it with him to Texas. He told them that he would return the items to Alaska if they paid him for the items. The Palmer Police Department obtained a Glass warrant to record one of these phone conversations, and Thomas was subsequently indicted on two charges of second-degree theft — theft of a firearm and theft of property with a value of $500 or more. Although Thomas was indicted in May 2009, he was not arrested until December 2015, when he returned to Alaska from Texas. By the time of his trial in May 2016, the police could not locate the Glass recording, but they did have detailed notes of the conversation that were taken by an officer who listened to the recording and attempted to transcribe it.
Pursuant to State v. Glass, 583 P.2d 872 (Alaska 1978).
AS 11.46.130(a)(2) and former AS 11.46.130(a)(1) (2009), respectively.
At trial, Thomas asked the court to give a Thorne instruction requiring the jury to presume that the Glass recording would have been favorable to him. The court held an evidentiary hearing and ultimately decided to give a permissive-inference Thorne instruction to the jury — that the jury "may" but was "not required" to conclude that the missing audio would have been favorable to Thomas. Thomas was convicted of both counts of second-degree theft.
See Thorne v. Dep't of Pub. Safety, 774 P.2d 1326 (Alaska 1989).
On appeal, Thomas first argues that the trial court erred in refusing to require the jury to presume that the missing recording would have been favorable to him. We disagree. Under Thorne, when determining what, if any, sanction to impose for the State's failure to preserve evidence, a trial court must weigh four factors: (1) "the degree of culpability on the part of the state"; (2) "the importance of the evidence lost"; (3) "the prejudice suffered by the accused"; and (4) "the evidence of guilt adduced at the trial or hearing." We evaluate the trial court's balancing of these factors and its sanction decision for abuse of discretion.
Id. at 1331 (citing Putnam v. State, 629 P.2d 35, 43-44 (Alaska 1980)).
Putnam, 629 P.2d at 43-44; Duny v. State, 2017 WL 3669413, at *4 (Alaska App. Aug. 23, 2017) (unpublished) ("We evaluate a trial judge's denial of a Thorne instruction for an abuse of discretion." (citing Riney v. State, 935 P.2d 828, 840 (Alaska App. 1997))).
We note that Thomas does not challenge the trial court's finding that the State did not act in bad faith and was "at worst" negligent with respect to the tape's disappearance. Rather, Thomas primarily contests the trial court's prejudice analysis. In particular, Thomas claims that the trial court erroneously placed the burden on him to show prejudice, rather than on the State to show a lack of prejudice.
We agree with Thomas that when the State fails to preserve evidence, the burden is on the State to show that a defendant is not prejudiced. But we disagree with Thomas's contention that the trial court improperly shifted the burden in this case. The record shows that the court placed the burden on the State, and it found that the State met this burden by presenting the testimony of Thomas's grandparents, who corroborated the accuracy of the notes taken by the officer who had listened to the recording of the phone call.
Putnam, 629 P.2d at 44 n.18.
The trial court acknowledged that, in order to cross-examine the State's witnesses about Thomas's statements, defense counsel had to rely on the notes that the police officer made while listening to the Glass recording in April 2009. But Thomas was not prejudiced by this. In a hearing outside the presence of the jury, the officer who took the notes explained that he had done his best to transcribe the conversation word for word. And Thomas's grandfather confirmed that the notes taken by the officer were consistent with his memory of the conversation with Thomas. Additionally, Thomas himself was the other party to the recorded conversation. Because the court held a hearing outside the presence of the jury, Thomas could have testified to his memory of the phone call if it was different from that of the officer and his grandparents without forfeiting his fifth amendment right to remain silent at trial.
On appeal, Thomas asserts in a conclusory manner that the audio could have contained exculpatory evidence proving that he did not steal the items from his grandparents. Yet he provides no support for his claim, nor is there any indication in the record that the missing recording could have created a reasonable doubt about his guilt.
See, e.g., Williams v. State, 418 P.3d 870, 879 (Alaska App. 2018), aff'd on reh'g, 440 P.3d 399 (Alaska App. 2019) (upholding the denial of Thorne instruction because the facts of the case created "no reasonable possibility" that the missing evidence "could have been exculpatory"); Riney, 935 P.2d at 831-32, 840 (affirming the trial court's refusal to give a Thorne instruction when the defendant's claims of prejudice were "speculative at best" because the record contained no such indication, and the defendant "ha[d] not shown a reasonable possibility that he was prejudiced by the loss of the tape").
Given the manner in which this case was litigated, the trial court found that there was no reason to think that the Glass recording would have supported Thomas's defense. In fact, all evidence presented to the trial court pointed to the opposite conclusion: that the recording would have been inculpatory and significantly unfavorable to Thomas if it had been located and admitted at trial. Moreover, the trial court determined that a permissive-inference instruction was appropriate, and the court allowed defense counsel to argue about the missing audio recording in closing. Given Thomas's unsupported speculative claims of prejudice, we find no error in the court's resolution of this issue.
See Williams, 418 P.3d at 882 (relying, in part, on the fact that the judge gave defense counsel "full rein to argue (at some length) that the State's investigation was substandard and inconclusive because [the police chief's] actions had resulted in the destruction of forensic evidence"); Fredrichs v. State, 2000 WL 852435, at *4 (Alaska App. June 28, 2000) (unpublished) (finding no abuse of discretion when the court refused to issue the requested adverse-inference presumption, in part, because it had already instructed the jury that the police had breached a duty to preserve evidence and allowed the defendant to argue the issue to the jury).
See Veibell v. State, 2015 WL 2258250, at *4 (Alaska App. May 6, 2015) (unpublished) (upholding partial Thorne instruction under abuse of discretion standard because defendant's claims of prejudice were "highly speculative" and "underwhelming"); Fredrichs, 2000 WL 852435, at *4 (finding no abuse of discretion in the trial court's denial of the Thorne instruction when the defendant's arguments that the first few minutes of a missing audiotape contained favorable evidence were speculative).
Thomas also argues on appeal that the trial court erred in denying his motion for judgment of acquittal on the value-based theft count. He claims that the State presented insufficient proof that the value of the property equaled or exceeded $500. We disagree.
See Former AS 11.46.130(a)(1) (2009).
When we evaluate the sufficiency of evidence to support a conviction, we view the evidence — and the reasonable inferences arising from that evidence — in the light most favorable to the verdict and ask whether a reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Here, the jury heard direct testimony from Thomas's grandfather that the total value of the property taken — two GPS devices, two Nikon cameras, one Sony video recorder, the grandmother's gold and diamond jewelry, and a can of bear spray — exceeded $500 in 2009 when they were stolen. Thomas's grandfather testified that one brand new GPS system was worth a little over $300, and that he had purchased another new handheld system for $200. He valued the two "professional type" Nikon cameras at $475 each, and he testified that his insurance company ultimately replaced them for $1,200 a piece. The insurance company also replaced his Sony video recorder for $1,500, the same price he had originally paid for it. He estimated that his wife's jewelry was worth around $2,500 new.
The jury also heard testimony that Thomas told his grandfather that he could buy the property back from him by sending $2000 to Texas. The jury could reasonably have concluded that Thomas, in making these statements, provided sufficient evidence that the property's market value was $500 or more. We therefore conclude that the State presented sufficient evidence to support the jury's verdict.
See AS 11.46.980(a). --------
The judgment of the superior court is AFFIRMED.