Opinion
Court of Appeals No. A-8656.
March 9, 2005.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge. Trial Court No. 4FA-02-4375 Cr.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Paul M. Damitz appeals his conviction for second-degree theft. Damitz was found guilty of stealing equipment from his employer, an equipment rental company.
AS 11.46.130(a).
Damitz elected to be a witness at his trial. He testified that he took the equipment because he believed that all of the company's employees were authorized to borrow the company's rental equipment whenever they wished to, without notice to the company. The jury apparently rejected this testimony.
Earlier in the trial, when Damitz and his attorney were deciding whether Damitz should take the stand, the trial judge ruled that, if Damitz claimed that he believed that he was authorized to take the equipment, the State would be allowed to impeach Damitz with evidence of his prior theft conviction for receiving stolen property. Damitz nevertheless took the stand and presented his exculpatory testimony. And, during the ensuing cross-examination, the prosecutor questioned Damitz concerning the facts of his prior theft-by-receiving conviction.
On appeal, Damitz argues that the trial judge's ruling was wrong. Damitz concedes that, under Alaska Evidence Rule 609, his prior theft-by-receiving conviction was relevant for a limited purpose: because Damitz chose to take the stand, the State was entitled to impeach him with evidence that he had previously been convicted of a crime of dishonesty. However, Damitz argues that, under Rule 609, the State was limited to eliciting the fact that Damitz had previously been convicted of "a crime of dishonesty". Damitz contends that, if the trial judge had properly applied Alaska Evidence Rule 404(b)(1), the judge would have barred the State from eliciting the fact that Damitz's prior conviction was for theft by receiving stolen property, and from eliciting any of the details of that prior theft offense.
See City of Fairbanks v. Johnson, 723 P.2d 79, 84-85 (Alaska 1986); Alexander v. State, 611 P.2d 469, 476 n. 18 (Alaska 1980); Frankson v. State, 645 P.2d 225, 228 (Alaska App. 1982).
We conclude that the trial judge did not abuse her discretion when she ruled that Damitz's prior conviction for theft by receiving was admissible under Evidence Rule 404(b)(1) to rebut Damitz's claim that he believed he was authorized to borrow his employer's equipment without notice. However, as we explain in more detail below, the cross-examination that Damitz complains about in this appeal was not the result of the trial judge's ruling. Rather, it was the result of Damitz's own testimony on direct examination, in which he seemingly asserted his innocence of the prior theft by receiving.
Here, the prosecutor confined herself to cross-examining Damitz regarding his assertion of factual innocence of the prior crime. She did not seek to introduce extrinsic evidence to rebut or impeach Damitz's answers. Rather, when she argued the case to the jury, she simply suggested that Damitz's answers about the prior offense were not believable — and she further suggested that, when the jurors assessed the credibility of Damitz's testimony concerning the present offense, they should consider the incredibility of his answers concerning the prior offense.
All of this was proper. We therefore affirm Damitz's conviction.
Underlying facts: Independent Rental's computerized inventory system, and the company's policy of allowing its employees to borrow equipment when it was not needed by paying customers
For three and a half weeks in the fall of 2002 (from October 10th until November 4th), Damitz was employed by Independent Rental of Fairbanks. Independent Rental is a business that rents tools and equipment for building and construction.
Damitz worked as a "lot attendant". He serviced the equipment — i.e., he performed such tasks as changing the oil in engine-driven equipment and cleaning equipment after a renter brought it back, before the equipment was returned to the showroom floor. Damitz also loaded equipment into renters' vehicles, and unloaded equipment from renters' vehicles when the equipment was returned. In addition, Damitz worked on the loading dock, helping to off-load and move new equipment that Independent Rental received from its suppliers.
One of the benefits of working for Independent Rental was the company's policy of allowing its employees to borrow equipment for their personal use. Employees were not charged for their use of the equipment, so long as the equipment was not needed by paying customers. If an employee borrowed a piece of equipment and then, while the employee had the equipment, the company received a request from a paying customer who needed that same equipment, the company would notify the employee and give them the choice of either (a) returning the equipment so that it could be rented to the customer, or (b) keeping the equipment but paying rent on it.
Because employees had to pay the normal rental fee if their use of equipment conflicted with the needs of a paying customer, employees normally confined their borrowings to overnight use of equipment: the employee would take the equipment home in the evening and then return it the following day.
Independent Rental utilized a computerized inventory system to keep track of its equipment. When a new item of equipment was received by the company, the equipment would be stored in its original crate or shipping box until the company needed the new item to replace or supplement the equipment already available for rental. Whenever it was decided to place the new equipment into use, one of the senior company employees (one of the "counter men") would uncrate the equipment, set it up and test it (to make sure that it was undamaged and was working properly), and then enter information about the equipment into the computerized inventory system. The computer system generated a special inventory tracking number for each new piece of equipment; this tracking number was painted onto the piece of equipment before the equipment was released for rental.
Items of equipment were not available for rental — or for borrowing by employees — until the equipment had been set up and tested, and information about the equipment had been entered into the computerized inventory system, and the inventory tracking number had been painted onto the equipment.
The company's computerized system for inventorying equipment was explained to all employees. In particular, employees knew that they were not allowed to borrow equipment until it had been entered into the computer system. That is, employees knew that they were not allowed to borrow equipment that was still sitting in its box or crate. In addition, employees knew that they had to notify the manager or one of the counter men if they wished to exercise their privilege of borrowing equipment — so that this information (the absence of the equipment, and the identity of the person who had it) could be entered into the computer.
The computer system would actually generate a written "contract" to memorialize the fact that the employee was borrowing the equipment — although the counter men often did not require the employee to sign this document. The important thing, as far as the counter men were concerned, was that the computerized inventory system would "know" (1) that the equipment was not currently in stock and available for rental, and (2) which employee had the equipment.
Similarly, when an employee returned an item of equipment, the employee was supposed to notify the manager or one of the counter men — so that the return of the equipment (and the fact that it was again in stock, available for rental) could be entered into the computer.
Damitz took advantage of his equipment-borrowing privileges on several occasions during his three-week employment with Independent Rental. According to the data in the company's computerized inventory system, Damitz borrowed items of equipment on four different occasions: a shampooer, a pressure washer, a tow dolly, and an air tank/propane tank. Each time, he returned the equipment to the company.
Underlying facts: Damitz's taking and keeping of the company's drywall jack
In October 2002, Independent Rental ordered three new drywall jacks from its supplier, to supplement the nine drywall jacks that the company already had in stock. The three new jacks arrived during the last week in October.
One of Independent Rental's counter men, Scott McDonnell, personally unloaded the jacks from the shipper's truck and placed them inside Independent Rental's warehouse — still in their shipping boxes. Because the company did not immediately need these extra jacks, they remained stored in their boxes. They were not yet set up and tested, and not yet entered into the company's computerized inventory system. In other words, the three jacks were not yet available for renting — or for borrowing by company employees.
These new drywall jacks arrived during Damitz's short employment with Independent Rental. (As explained above, Damitz worked at Independent Rental from October 10th until November 4th.) Although Damitz's job duties did not include any responsibility for these jacks, or any contact with them, Damitz did have access to the warehouse where the jacks were stored.
On November 4th, Damitz called the company manager, Penny Stuart, to say that he was not coming to work any more — that he had obtained another job. During this conversation, Damitz did not mention that he had any items of equipment belonging to Independent Rental. However, after Stuart received Damitz's call, she checked the computer system to see if Damitz still had any equipment checked out. The computer system showed that Damitz had checked out an air tank/propane tank. Damitz returned this tank within the next day or two.
One month later, on December 6, 2002, Stuart received a telephone call regarding Damitz. The caller (who declined to give his name) told Stuart that he had seen Damitz's vehicle, that the vehicle had a lot of equipment in it, and that he (the caller) thought that this equipment belonged to Independent Rental.
After receiving this call, Stuart asked one of her counter men (Scott McDonnell) to leave work, locate Damitz's truck, and take a look in the back of the vehicle to see if any of the company's equipment was there. McDonnell later located Damitz's truck at his new place of employment. One of Independent Rental's new drywall jacks was sitting in the back of the truck. The jack was still in its shipping box, with all of the original labels and shipping information.
(McDonnell wrote down the serial number located on the side of the shipping box. By comparing this serial number with the serial numbers on the shipping boxes of the remaining two drywall jacks (which were still in the company warehouse, where McDonnell had put them), McDonnell positively identified the drywall jack in Damitz's truck as one of the three jacks that had arrived in late October. The numbers of the three jacks were in sequence.)
The police were summoned, and Damitz was charged with theft.
Underlying facts: Damitz's explanation for his possession of the company's drywall jack
As noted above, Damitz took the stand at his trial and offered an exculpatory explanation for his possession of the drywall jack. Basically, Damitz asserted that he had borrowed the drywall jack for his personal use and then, because of his work schedule at his new job, he had never gotten around to returning the jack to Independent Rental.
Damitz testified that he did not know that he was required to follow any special procedures when he exercised his privilege to borrow the company's equipment. In particular, Damitz asserted that he was unaware of any rule requiring him to notify the manager or one of the counter men when he borrowed company equipment, or to notify them when he returned the equipment.
Damitz's position is summed up in the following excerpt from his cross-examination by the prosecutor. After Damitz asserted that he was unaware of any formal procedure for borrowing company equipment, the prosecutor asked Damitz to explain how it was that Independent Rental's computer system contained records for the previous times when Damitz had borrowed company equipment:
Damitz: They probably knew [about it], I guess, [from seeing] me loading it up, or something.
Prosecutor: You never went to the front counter to let them know, "Hey, I'm going to take out this item; make sure you write it up for me?"
Damitz: Maybe the first couple of times. . . . I remember once or twice going up there [to do that].
[At this point, the prosecutor handed Damitz the print-outs of four "contracts" showing that he had borrowed company equipment]
Prosecutor: Mr. Damitz, isn't it true that each of the times that you took the items shown in the four different rental contracts in front of you, you formally let somebody know [that] you were taking out an item?Damitz: No, it is not.
Prosecutor: No? Somebody just, somehow, knew to write up a rental contract?
Damitz: My vehicle is parked right out [in] front of the warehouse. Someone probably seen me.
. . .
Prosecutor: So far as you know, the only way [these] contracts . . . got written up [was that] somebody just happened to see [you taking the equipment] and went in and did this paperwork?
Damitz: I said [that] I let them know . . . once or twice, in the beginning.
Prosecutor: Okay. But there's four [contracts] there. So far as you know, other than one or two of them, the other two or three just — it's a mystery to you how [the company] knew [that] you took those items?Damitz: I guess. Yeah.
Prosecutor: Okay. And, as [to] how they knew when you returned [those items]: there are [dates and] times on each of those [documents], right? . . . Aren't there times and dates for when the returns occurred?
. . .
Damitz: That's correct.
Prosecutor: And is that also a mystery to you, as to how those [dates and times] got entered, or how someone knew to do that?Damitz: Yes, it is.
Prosecutor: And your testimony, under oath, is that you had no idea that there was this formal policy for taking out items from Independent Rental?Damitz: That's correct.
In addition to claiming ignorance of any rule requiring him to let his supervisors know when he was borrowing company equipment, Damitz also gave disputed testimony concerning how he took possession of the drywall jack.
According to Damitz, he decided to borrow a drywall jack in late October, around Halloween. He did not want to borrow one of the nine jacks that were already in service, because these jacks were old and somewhat damaged. So, according to Damitz, he went to the company warehouse, unpacked two of the three newly arrived jacks, and then set them up and tested them. When he found that these two jacks were in good condition, he assumed that the third jack (which was still in its box) would be in similar good condition, so he did not bother to unpack and test it — he just loaded it into his truck.
(Damitz testified that he did not do this stealthily; he asserted that another employee helped him load the drywall jack into his truck. However, even though Independent Rental employed only ten people, Damitz could not remember who this other employee was.)
Contrary to the testimony of the company employees, Damitz asserted that it was part of his job to assemble and test newly arrived equipment. (The manager and two of the counter men testified that this duty was reserved to the three counter men. These counter men decided when they needed to put the new equipment into service. And, when equipment was to be placed into service, it was the counter men who assembled and tested the equipment, and then entered the proper identifying information about the equipment into the computerized inventory system.)
According to Damitz, after he decided that he needed one of the three new drywall jacks, he took it upon himself to assemble and test two of the jacks. Damitz further stated that, after testing the two jacks, he threw their shipping boxes into a dumpster.
This testimony was directly contradicted by the testimony of Scott McDonnell, who stated that the remaining two jacks were still in their shipping boxes, unopened, when Damitz's theft of the third jack was discovered. As explained above, McDonnell testified that he was able to identify the jack in Damitz's truck by comparing the serial number on its shipping box with the serial numbers on the shipping boxes of the other two jacks.
Damitz claimed that he intended to use the drywall jack to help his mother finish her basement. But, he explained, he was working such long hours at his new job that he never got around to doing this project for his mother — so the drywall jack remained boxed up in the back of his truck. According to Damitz, he fully intended to return the jack to Independent Rental as soon as the basement project was completed — although he conceded that he "should've returned it a lot sooner".
The trial judge's ruling concerning the admissibility of Damitz's prior conviction for theft by receiving
Before Damitz's trial began, the State gave notice that Damitz had two prior convictions for theft-related offenses: a second-degree theft conviction from one year before (2001) involving Damitz's receipt of stolen property, and a concealment of merchandise conviction from 1997. The State asked the trial court's permission to impeach Damitz with these two crimes of dishonesty if Damitz took the stand at his trial. See Alaska Evidence Rule 609.
The trial judge ruled (in fact, the prosecutor eventually conceded) that the State could not use the 1997 concealment of merchandise conviction, since it was more than 5 years old. See Evidence Rule 609(b). However, the judge ruled that Damitz could be impeached with the 2001 theft conviction if he took the stand.
The issue of Damitz's prior convictions was raised again after the prosecutor rested the State's case-in-chief. The prosecutor informed the trial judge that it appeared that Damitz intended to take the stand and testify that he had merely borrowed the equipment without telling anyone. The prosecutor argued that, given this defense, both of Damitz's prior convictions should be admissible under Evidence Rule 404(b)(1) — i.e., admissible not just to impeach Damitz's credibility as a witness under Rule 609, but also to rebut his claim that he had no intent to permanently deprive Independent Rental of the equipment.
Damitz's attorney responded that Damitz's receipt of stolen snow machine parts had no particular relevance to the issue of whether Damitz had borrowed the drywall jack or had stolen it. The defense attorney contended that Damitz would not be making a claim of "mistake"; that is, the defense would not be arguing that Damitz mistakenly believed that he was authorized to borrow the drywall jack. Rather, the defense attorney asserted, Damitz would be contending that he indeed was authorized to borrow the jack — and that any testimony to the contrary was false.
The trial judge still refused to allow the State to bring up the 1997 concealment of merchandise conviction. However, despite the defense attorney's protestation that Damitz would not be relying on a claim of mistake, the judge concluded otherwise — and she ruled that the 2001 theft-by-receiving conviction would be admissible under Rule 404(b)(1) to rebut this claim of mistake. Thus, the prosecutor could ask Damitz about the facts of that prior case. The trial judge explained:
The Court: [Based on what I have heard so far, Mr. Damitz] is essentially saying [that] they need to show absence of mistake. From what you're telling me, I gather [that] he's going to say it was a mistake — that if [the drywall jack] was something that he wasn't allowed to take, . . . then maybe it's a mistake that he took [it]. . . . And [the prior theft conviction] would go toward showing a lack of mistake, . . . [that Mr. Damitz] was sort of put on notice [that] you've got to be careful . . . about [keeping] things that you don't pay for.
. . .
I think it's the same kind of [thing]: . . . If you're [convicted of theft for] buying stolen snow machine parts, you're not being very careful about making sure that they aren't stolen. And if you're taking [the rental company's equipment] without filling out a "contract" or whatever, . . . you're not being very careful about whether you should have that item. So I think . . . it is [relevant].
Immediately after making this ruling, the trial judge asked the defense attorney if, given the ruling, Damitz still intended to testify. The defense attorney answered that "[they would] put on other witnesses and see". The next day, after the defense had presented three other witnesses, Damitz took the stand and presented the testimony that we have described above.
The defense attorney's attempt to mitigate the impact of Damitz's theft-by-receiving conviction by bringing the matter up during his direct examination of Damitz; Damitz's answers to his attorney's questions; and the ensuing cross-examination by the prosecutor
In an apparent attempt to mitigate the "sting" of Damitz's prior theft-by-receiving conviction, the defense attorney brought the matter up during his direct examination of Damitz.
The defense attorney asked Damitz if he had previously been convicted of theft, and Damitz conceded that he had. Then the defense attorney asked Damitz, "What happened [in that prior case]?" Rather than admitting that he had purchased snow machine parts for very little money, without taking reasonable precautions to make sure that the parts weren't stolen, Damitz answered his attorney's question by suggesting that he was innocent of wrongdoing. Damitz declared: "I purchased some snow machine parts from a guy, and later found out that they were stolen."
A few minutes later, on cross-examination, Damitz reiterated that he had innocently purchased the snow machine parts:
Prosecutor: [Regarding] the snow machine parts: You testified [that] you didn't realize that they were stolen?Damitz: That's correct.
Prosecutor: [But] you bought the parts from a friend, correct?Damitz: Correct.
. . .
Prosecutor: You knew that the parts were stolen, didn't you?Damitz: No, I did not.
The prosecutor then impeached Damitz's assertions of innocence by asking Damitz to reconcile his current claim (that he had no knowledge that the snow machine parts were stolen when he purchased them) with the statements that Damitz made, and the actions he took, during the police investigation of that earlier theft case.
Prosecutor: You gave an interview [to] Investigator Olsen of the Alaska State Troopers, correct?Damitz: I did.
Prosecutor: And didn't you admit to him that you did know that . . . the snow machine was stolen?
Damitz: [I only said that because the trooper] made me feel . . . like if I admitted [that I knew the snow machine was stolen], I wouldn't be in trouble. So, yeah, I told him [that] I did know [that the snow machine parts] were stolen.
Prosecutor: [So] it's your testimony [that] you were . . . lying when you told Investigator Olsen that you did know [that] the parts were stolen?
. . .
Damitz: Yeah, I — basically, I was — like I said.
Prosecutor: When the troopers arrived at your house [in response to the] report of the stolen snow machine parts, didn't you run out [and yell] at them, "The stuff you want is in here!"? . . . And you ran to your garage, and you started throwing out stolen snow machine parts, saying, "Here's everything you want."?Damitz: I don't recall.
Prosecutor: So it's possible? You just don't remember?Damitz: That's — yeah.
. . .
Prosecutor: Wasn't it, in fact, true . . . that you did know the parts were stolen?Damitz: No, I did not.
Prosecutor: . . . Didn't you help [your friend] strip down the parts [from the snow machine]?
Damitz: No, I did not. He came over to my house with the parts.
Prosecutor: Did you [ever] see the snow machine that the parts came from?Damitz: No, I did not.
Prosecutor: Not at any point?
Damitz: Nope.
After Damitz gave these answers, the prosecutor reminded Damitz that when he pleaded no contest to the charge of receiving stolen property in 2001, he had not disputed the State's assertions that he had ridden on the stolen snow machine and had helped strip the parts from the machine. Damitz responded that his attorney had counseled him not to dispute these facts, so that the entry of plea would go smoothly and Damitz would receive the promised sentencing concession (a suspended imposition of sentence).
A few moments later, the prosecutor handed Damitz a transcript of his interview with the state troopers from that earlier theft case, for the purpose of refreshing his recollection. The prosecutor then asked Damitz:
Prosecutor: How much did you pay for the snow machine parts?Damitz: I believe $100.
Prosecutor: And you know something about machines and equipment, right?Damitz: Yeah, a little bit.
Prosecutor: And what you [purchased for $100] was about $3,600 worth of snow machine parts?Damitz: I didn't know it was worth that much, no.
Prosecutor: Okay. And you bought those [parts] from a Steven Kinman?Damitz: Correct.
Prosecutor: All right. And weren't you at your friend Daniel Spence's house, with Mr. Kinman, [on] the night [that] the snow machine was stolen?
Damitz: . . . It [ i.e., the transcript] says I was.
Prosecutor: Okay. So you were there that night, and later Mr. Kinman came to you with his snow machine and asked if you wanted to buy some parts from it?
Damitz: Well, the next day, he came to my house. That's correct.
Prosecutor: [But] you didn't help him take the parts [off the snow machine]?Damitz: No, I did not.
Prosecutor: Didn't he drive the snow machine to your house?
Damitz: I think he came to my house once on the snow machine, and [then he] left, and then he came back with the — just parts.
Prosecutor: Oh. Let me . . . see if this refreshes your recollection again. Why don't you take a minute to read your interview with Investigator Olsen. . . . Mr. Damitz, isn't it true that [your friend] drove the snow machine to your house, and you got the parts . . . by helping him take [those parts] off the snow machine?Damitz: He drove the snow machine to my house.
Prosecutor: And you [obtained] the parts . . . by disassembling the snow machine with him, correct?Damitz: I don't remember.
At this point, the prosecutor let the matter drop. She did not attempt to introduce Damitz's statement to the state troopers, nor did she attempt to introduce any other evidence pertaining to Damitz's prior theft by receiving. Rather, the prosecutor pursued a strategy of letting Damitz's testimony speak for itself.
Our analysis of the trial judge's 404(b) ruling, and of the propriety of the prosecutor's cross-examination of Damitz concerning the facts of his prior theft by receiving
In his brief to this Court, Damitz contends that his prior conviction for theft by receiving was not pertinent to any issue being litigated in the present case. He argues that the facts of his prior offense (purchase of stolen snow machine parts at far below value) are too dissimilar to the facts of the present case to be probative of his intent, or to be probative on the question of whether Damitz acted in good faith when he took the drywall jack from his employer.
Having reviewed the record in some detail, we conclude that the trial judge did not abuse her discretion when she concluded that Damitz's conduct on that prior occasion was probative on the issue of his good faith, or lack of mistake, in the present case. As the trial judge pointed out, Damitz's defense — that he thought he was entitled to take the drywall jack because Independent Rental allowed its employees to borrow equipment whenever they wished — ultimately rested on a claim of good-faith mistake concerning his privileges as an employee.
If Damitz understood that he lacked the authority to remove the drywall jack from his employer's premises for his own personal use, or that he lacked the authority to do so without informing his employer, then Damitz's taking of the jack would constitute embezzlement — i.e., either the offense of theft under AS 11.46.110, or the offense of misapplication of property under AS 11.46.620 — even though he might have intended ultimately to return the jack. Damitz's taking of the jack would be innocent only if he had the authority to take the equipment (and retain it, even after the termination of his employment), or if he honestly believed that he had this authority.
See State v. Saathoff, 29 P.3d 236, 241 n. 35 (Alaska 2001) (noting that Alaska's theft statutes were intended to incorporate "[t]he traditionally distinct crimes of larceny, larceny by trick, embezzlement, theft of mislaid property, obtaining property by false pretenses and receiving stolen property . . . into the single crime of `theft'.")
See Disciplinary Matter of Friedman, 23 P.3d 620, 630 (Alaska 2001) (holding that, to be guilty of misapplication of property under AS 11.46.620, a person must act with the knowledge that their handling of the property is contrary to their fiduciary obligations).
The trial judge concluded that Damitz's prior conviction for theft by receiving — i.e., his act of purchasing property without taking reasonable precautions to ensure that it had not been stolen — was pertinent to the jury's assessment of whether Damitz took reasonable steps to make sure that he had the authority to remove and use his employer's equipment without telling anyone. It is true that the facts of the two cases are different in many respects, but the trial judge focused on the similarity that, in both instances, Damitz had arguably demonstrated a criminal disregard of other people's rights in property to which he had access.
Reasonable people might disagree on this point, but we can not say that the trial judge's ruling constituted an abuse of discretion.
Moreover, the trial judge's ruling on this Rule 404(b) question ultimately became a moot issue. The challenged cross-examination in this case did not arise from the trial judge's Rule 404(b) decision. Rather, it arose from Damitz's own testimony on direct examination — his repeated suggestions that he had purchased the snow machine parts without knowledge that they were stolen.
(On appeal, Damitz notes that, technically speaking, an assertion that he did not know that the parts were stolen might still be consistent with an acknowledgement that he was guilty of receiving stolen property — since the culpable mental state for that crime is "recklessness" regarding the stolen nature of the property, rather than "knowledge". We are not sure whether a jury of lay persons would have perceived this distinction. But more important, the portions of the record that we have quoted here show that Damitz was not attempting to draw a line between recklessness and knowledge. Rather, Damitz was disavowing his earlier statements that he knew the snow machine was stolen, and that he helped his friend strip the parts from the snow machine.)
See AS 11.46.190(a).
As we have described in some detail, the prosecutor's cross-examination on this point consisted wholly of confronting Damitz with his prior, contemporaneous statements and actions concerning his acquisition of the stolen snow machine parts. The prosecutor's aim was to show that, at the time when the prior offense was discovered, Damitz's story was different: he repeatedly admitted to the police that he did know that the parts were stolen.
It is important to note that the prosecutor confined herself to cross-examining Damitz regarding his prior statements. She did not attempt to refute or rebut Damitz's answers by introducing evidence of Damitz's prior statements, or by introducing any other extrinsic evidence concerning the prior offense. That is, the prosecutor limited herself to the type of impeachment that is allowed even on collateral issues.
See Worthy v. State, 999 P.2d 771, 774 (Alaska 2000) ("As a general rule, contradictory evidence may not be admitted if it relates to a collateral matter. If a matter is considered collateral, the testimony of the witness on direct or cross-examination stands — the examiner must take the witness's answer. If the matter is not collateral, extrinsic evidence may be introduced disputing the witness's testimony on direct or cross-examination."); accord, Morgan v. State, 54 P.3d 332, 335 (Alaska App. 2002) ("[A] party is not allowed to introduce extrinsic evidence to impeach a witness's answers on cross-examination regarding collateral matters (such as the witness's possible acts of dishonesty on other occasions).").
Moreover, when the prosecutor delivered the State's summation to the jury, she actually relinquished the evidentiary advantage of the trial judge's Rule 404(b) ruling. That is, the prosecutor abandoned any reliance on Damitz's prior offense as being probative of his guilt in the present case. Instead, she told the jurors that Damitz's testimony concerning that prior theft was relevant for only one purpose: his testimony on this subject was so unbelievable that it reflected on Damitz's overall credibility as a witness.
Prosecutor: [You are not] here . . . to judge whether Mr. Damitz is a good person or a bad person. That's not what jurors do. . . .
[And] the fact that he committed another theft crime doesn't mean that he's any more likely to have committed this one, and you can't consider [the prior conviction] for those purposes.
But his credibility about what he remembered [about that incident], and what he didn't [remember], and what he admitted, and what he didn't — "I don't remember if I stripped the snow machine, or [if I] just [paid] $100 [for] those $3600 [worth] of parts." And, in this case, "I don't remember who loaded [the drywall jack into my truck], but it must have been somebody, so [the company] must have known [about my borrowing the equipment], even though I didn't ask [permission]. . . . Those kind[s] of credibility determinations are critical in this case, and I ask you to pay attention."
In other words, by the end of Damitz's case, the trial judge's ruling on the Rule 404(b) issue was moot. The cross-examination that Damitz challenges on appeal was a response to Damitz's assertion that he was innocent of wrongdoing in the prior incident. The prosecutor treated Damitz's assertion of innocence as a collateral issue; she limited herself to cross-examining Damitz on this point, and she never introduced extrinsic evidence of Damitz's prior offense. And, at trial's end, the prosecutor explicitly told the jurors that they should not treat Damitz's prior offense as evidence of his guilt in the present case.
For these reasons, we conclude that even if the trial judge's Rule 404(b) ruling was conceivably an abuse of discretion, any error was harmless.
Conclusion
The judgement of the superior court is AFFIRMED.