Opinion
Court of Appeals No. A-10172.
March 2, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, John Suddock, Judge, Trial Court No. 3AN-07-1554 CR.
Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Randall Gehrke was convicted of first-degree burglary and fifth-degree criminal mischief for breaking into the Anchorage residence of Jan Welt. Welt caught Gehrke after he entered the residence, but before Gehrke committed any additional crimes, so the contested issue at trial was whether Gehrke was guilty of burglary — that is, whether he intended to commit a crime inside the residence.
On appeal, Gehrke challenges the admission of two papers that were seized from his wallet when the police executed a search warrant for items left in his hotel room. The papers contained a list of Gehrke's debts, maps of several residences in Anchorage, and notations for each residence such as coins, art, and bling. Gehrke claims that the papers are inadmissible propensity evidence under Alaska Evidence Rule 404(b)(1). But we conclude that the papers are evidence of a burglary plan that shows Gehrke's intent to steal property to satisfy his debts — a valid, nonpropensity purpose for admission of this evidence.
Background
On February 12, 2007, Teri Norton saw a man acting suspiciously as he approached the front door of her neighbor Welt's home near downtown Anchorage. While Norton was on the phone with the police, she saw the man run "really fast" from Welt's home. Norton described the man as wearing a bomber-style jacket, camouflage pants, and a hat.
Welt was in the bathroom of his home when the man approached his door. Welt heard the doorbell ring several times, but he was not expecting anyone, so he ignored it. As Welt left the bathroom, he heard the sound of someone breaking in his front door. Welt confronted the man in the living room, and the man ran out of the door.
The police found Gehrke less than three blocks away, wearing a bomber-style jacket, green army-style fatigue pants, and with a hat in the pocket of his pants. Welt and Norton identified Gehrke as the individual that broke into Welt's residence. The police also tracked the footprints from Welt's home to an alley near the location where the police arrested Gehrke.
The police obtained a warrant to search belongings Gehrke left in his motel room at the Black Angus Inn. They found Gehrke's wallet, which contained two folded pieces of paper. One of the sheets contained a list of debts that totaled $50,000. The same page contained a list of twelve Anchorage locations with a description of items, as well as their approximate value, that could be found at those locations. The back of this sheet contained the phrase "What Will Be — Is in Your Hands" and a to-do list for February 4-7.
On the second sheet of paper, were hand-drawn maps illustrating how to travel to the locations listed on the first sheet of paper. The maps and the list of locations both contained words or symbols that referred to property such as bling (jewelry), bang (guns), tweak (drugs), art, prints, coins, $, and H.D. (possibly high-definition television).
Gehrke was charged with first-degree burglary and fifth-degree criminal mischief. Gehrke's indictment for first-degree burglary alleged that Gehrke entered Welt's dwelling with the intent to commit the crime of theft, assault, or criminal mischief.
AS 11.46.300(a)(1).
AS 11.46.486(a)(2).
On the first day of trial, Gehrke filed a motion in limine to preclude the State from introducing or mentioning the two sheets of paper from his wallet. At the hearing on Gehrke's motion, Gehrke argued the court should exclude the evidence because the papers were not found on Gehrke when he was arrested, because the addresses did not include Welt's residence or any residences in that neighborhood, and because the papers constituted impermissible character evidence.
The State argued that the papers were necessary to prove Gehrke's intent when he entered the residence because Gehrke was "caught in the act" and did not commit any additional criminal act before Welt scared off Gehrke. According to the State, the map was circumstantial evidence of Gehrke's intent. As the trial judge was making his ruling, the prosecutor added that Gehrke had sent her a letter, prior to the hearing, in which he claimed that he was intoxicated when he entered Welt's residence and that he believed someone in the home owed him $200.
Superior Court Judge John Suddock found that the papers provided a "pretty clear indication of a plan to burgle or to get money from different locales and to use that money for a specific purpose, getting out of debt." The trial court concluded that the evidence was more probative than prejudicial and denied the motion in limine.
Detective Amy Lyons testified at the trial about her discovery of the papers in Gehrke's wallet. But she also admitted that there was no evidence of any burglaries in the areas listed on the maps, and that Gehrke was not charged with any burglaries in those areas.
The jury found Gehrke guilty of both charges, and he now appeals.
Discussion
Gehrke argues that the maps and lists constitute character evidence that should have been excluded under the terms of Rule 404(b)(1):
Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In the alternative, Gehrke argues that, even if the maps and lists are admissible under Rule 404, they should have been excluded under Rule 403 because their "probative value is outweighed by the danger of unfair prejudice."
The trial judge found that the maps and lists suggested that Gehrke planned to break into several Anchorage residences to steal property to satisfy his debts. A plan is often proven by evidence of other crimes. For example, evidence that a defendant had debts associated with drug dealing has been held to be admissible to show that he had a plan to steal property (i.e., by robbing a jewelry shop) to satisfy those debts. Or evidence that a defendant possessed credit cards and identification documents for dozens of people was held to be admissible to show that he had an identity theft scheme consistent with his intent to make unauthorized purchases. In these cases, the jury was allowed to infer that the uncharged crimes were evidence of a plan that included the charge under consideration.
Miller v. State, 866 P.2d 130, 133-34 (Alaska App. 1994).
Phillips v. State, 211 P.3d 1148, 1152 (Alaska App. 2009).
Gehrke contends that his case is distinguishable. He argues that the maps and lists were not admissible as evidence of a plan because there was no evidence that he had broken into any of the listed residences to steal property. But this distinction suggests that the evidence of Gehrke's plan was somewhat stronger than the reported cases discussed above. Here, the jury did not have to use any crimes that Gehrke had committed to infer that he had a plan to commit burglaries; rather, the State offered direct evidence that Gehrke had a plan to commit these burglaries because he had committed the plan to writing. The trial judge could reasonably conclude that the maps and lists contained evidence of a plan that was not excluded by Rule 404.
Gehrke contends that the evidence of this plan was not relevant to the issue of whether he intended to steal property when he broke into Welt's residence. In order to be relevant the evidence must "hav[e] any tendency to make the existence of any fact that is of consequence to the [jury's verdict] more probable or less probable than it would be without the evidence."
Here the list of debts showed that Gehrke had a motive to steal property. The need for money is a common problem, so this list alone would not necessarily be admissible to show that Gehrke was the individual who broke into Welt's residence. But the list of properties on the same page provided an affirmative link between Gehrke's debts and the charged crime — Gehrke planned to satisfy these debts by committing burglaries in various Anchorage neighborhoods.
See Miller, 866 P.2d at 133 ("[S]ince the desire for money is virtually universal and motivates most property crimes, it is a motive that can readily be understood by jurors, even in the absence of specific proof.").
In addition, the trial judge considered the evidence that Gehrke had actually broken into Welt's home only a few days after he made this plan. The question for the jury was what Gehrke intended to do when he broke into Welt's home.
A reasonable juror could make at least two legitimate inferences from the plan and the circumstances of the break-in. Based on this evidence, a juror could reasonably conclude that Gehrke had an overall plan to burglarize residences to satisfy his debts, and that the maps and lists and the burglary of Welt's residence were all part of the execution of that overall plan. Or a juror could reasonably conclude that Gehrke had a plan to burglarize the listed residences to satisfy his debts and that he recognized that Welt's residence presented an opportunity similar to the listed residences. Either inference reasonably suggests that Gehrke broke into Welt's residence because he intended to commit the crime of theft.
The State was not required to prove these inferences beyond a reasonable doubt in order to introduce this evidence. The evidence is relevant if the jury could make either of these reasonable inferences.
See Alaska Evid. R. 104(b) ("When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.").
Gehrke also argues that the maps and lists of Anchorage homes were not admissible because the Welt residence was not included. But a plan may be relevant to motive or intent even when the crime with which a defendant is charged was not part of the original plan. The evidence of Gehrke's plan to satisfy his debts was relevant to show that Gehrke intended to steal Welt's property, even though he may not have had Welt's residence in mind when he originally formulated his plan. We accordingly conclude that this evidence was relevant and was not excluded by the language of Rule 404.
See Miller, 866 P.2d at 134 (indicating motive and existence of plan were not elements of the charged offense, but were "crucial and legitimate components of the prosecution's case").
In some cases, there is a danger that the prejudicial impact of evidence of prior crimes could require that evidence to be excluded under Rule 403. This danger is especially apparent in cases where the proponent argues that the evidence establishes that the defendant intended to steal property during a burglary only because he had done so in the past. For example, in Oksoktaruk v. State, the trial court admitted evidence that the defendant had burglarized a fur store to show his intent when he broke into a photo lab two years later. The Alaska Supreme Court held that the relevance of the prior burglary was outweighed by the danger of unfair prejudice — the danger that the jury would infer that Oksoktaruk burglarized the photo lab because he had the propensity to commit this kind of crime. Likewise, in Beekman v. State, this court held that the defendant's intent could not be established by burglaries that he had committed four years earlier.
611 P.2d 521, 524 (Alaska 1980).
Id. We note that at the time of the Oksoktaruk decision, the rule regarding evidence of other crimes was regarded as a rule of exclusion, see id., and that the rule has since been amended to make it one of inclusion. See ch. 79, § 1(c), SLA 1991.
706 P.2d 704, 706 (Alaska App. 1985).
But this case does not present the same danger. Here the testimony from Detective Lyons made it clear that there was no evidence that Gehrke had committed the other burglaries shown on his plan. So there was no danger that the jury would conclude that he had burglarized the Welt residence merely based on his propensity to commit this type of crime. Moreover, the evidence of Gehrke's plan was especially probative because it was devised only a few days before the break-in. We accordingly conclude that Judge Suddock exercised reasonable discretion when he concluded that the probative value of this plan was not outweighed by unfair prejudice.
Conclusion
We AFFIRM the superior court's judgment.
I write separately because I wish to clarify the concept of "propensity" evidence, and how this concept relates to Alaska Evidence Rule 404(b).
Evidence Rule 404(b)(1) declares that evidence of a person's misdeeds or other acts is inadmissible "if the sole purpose for offering the evidence is to prove the character of [the] person in order to show that the person acted in conformity [with their character]". Our cases use the term "propensity" as judicial shorthand for the forbidden purpose stated in Rule 404(b)(1): the purpose "to prove the character of a person" so that this character can be used as circumstantial evidence "to show that the person acted in conformity [with their character]".
This point is discussed in Smithart v. State, 946 P.2d 1264, 1270 (Alaska App. 1997), rev'd on other grounds, 988 P.2d 583 (Alaska 1999).
Although Alaska decisions often speak of Rule 404(b)(1) as barring the admission of "propensity evidence", the term "propensity" is arguably a poor choice of words. It creates a verbal ambiguity — an ambiguity that makes cases like Gehrke's more difficult.
The challenged evidence in Gehrke's case was a list of residences with notations that apparently indicated the type of valuables that Gehrke believed could be found in those residences. One might reasonably infer, based on Gehrke's compilation of this list, that Gehrke intended to burglarize these residences and steal property from within them. Without doing too much damage to the English language, one might say that Gehrke's possession of this list demonstrated his propensity to commit burglary.
In common usage, the word "propensity" means "a natural inclination or tendency; [a] bent". Webster's New World College Dictionary (Fourth Edition, 2004), p. 1150.
But in judicial usage, "propensity" is a term of art that refers to the type of character evidence forbidden by Evidence Rules 404(a) and 404(b)(1): evidence demonstrating a person's character, offered for the specific purpose of using that person's character as circumstantial evidence of the person's actions on another occasion. As this Court explained in Smithart, evidence of a defendant's wrongful acts qualifies as "propensity" evidence
if the only relevance of those other wrongful acts is to show that the defendant is a person who, by nature, engages in such wrongful acts, and if there is no connection between those prior acts and the episode being litigated other than the assumption that people of a certain character would act the same way on both occasions.
In Gehrke's case, his compilation of the list of residences and valuables had case-specific relevance beyond what it might say about his underlying character. Regardless of whether Gerhke was characteristically honest or dishonest, regardless of whether he characteristically respected or violated other people's property rights, Gehrke's creation of the list of residences tended to show that, in the immediate past, he had actively planned a series of burglaries to alleviate his debts. And his continued possession of this list at the time of the events in the present case tended to show that Gehrke's plan was ongoing.
Thus, Gehrke's case is not a situation where the only connection between the list of residences and the offense being litigated (the residential break-in) is an inference about Gehrke's underlying character (and the further inference that he would act true to character). Regardless of Gehrke's underlying character, his preparation and possession of the list provided case-specific insight into his mental state — his purpose — when he broke into the residence in this case. Accordingly, evidence of the list was not barred by Evidence Rule 404(b)(1).