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Stamper v. State (9/8/2017) ap-2567

Stamper v. State (9/8/2017) ap-2567


         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  

                                   303 K Street, Anchorage, Alaska  99501

                                               Fax:  (907) 264-0878

                                       E-mail:  corrections @



JESSE ROBERT BEEBE,                                          Court of Appeals Nos. A-11820 & A-11821  

                                                                    Trial Court Nos. 3PA-13-067 CR  

                                     Appellants,                              & 3PA-13-053 CR  


                                                                               O  P  I  N  I  O  N  


                                     Appellee.                       No. 2567 - September 8, 2017  

                  Appeals  from  the  Superior  Court,  Third  Judicial  District,  


                  Palmer, Eric Smith, Judge.  

                  Appearances: Barbara Dunham, Assistant Public Advocate, and  


                  Richard  Allen,  Public  Advocate,  Anchorage,  for  Appellant  


                  Virginia Mae Stamper.   Paul Malin, under  contract with the  


                  Public Defender Agency, and Quinlan Steiner, Public Defender,  

                  Anchorage,  for  Appellant  Jesse  Robert  Beebe.                  Timothy W.  


                   Terrell  (the  Stamper  appeal)  and  Terisia  K.  Chleborad  (the  


                  Beebe appeal), Assistant Attorneys 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 MANNHEIMER.  

     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  

Constitution and Administrative Rule 24(d).  

----------------------- Page 2-----------------------

                          Virginia Mae Stamper and her husband Jesse Robert Beebe were convicted                                                         

of crimes arising from Stamper's theft of merchandise from a grocery store in Big Lake.                                                                                       

Stamper, who took the merchandise fromthe store, was convicted of second-degree theft                                                                               



(theft of property valued at $500 or more).                                               Beebe, who was waiting for Stamper in a  


van in the parking lot, was convicted of third-degree assault for using the van to strike  



a  customer  who  tried  to  stop  Stamper  and  Beebe  from  leaving  the  parking  lot.  


(According to the testimony at trial, Beebe's van struck the citizen in his mid-section,  


knocking him backwards about five feet.)  


                          Many of Stamper's and Beebe's actions were recorded by the grocery  


store's  security  cameras.                            When  State Trooper  Lane  Wraith  arrived at the store to  

investigate the theft and assault, he watched portions of the digital security footage -  


including footage of what happened in the parking lot, as well as footage of Stamper  


inside the store, putting merchandise into her shopping cart.  


                           TrooperWraith asked oneofthegrocery store'sloss-preventionemployees,  


Michael Gozdor, to help him make a copy of the digital security footage, but neither  


Gozdor nor Wraith could figure out how to make a copy of the footage.  Before Wraith  


left the store, he asked Gozdor to try again later to make a copy of the portions of the  


security footage showing Stamper's and Beebe's actions.  


                          Wraith contacted Stamper and Beebe the next day. After Wraith informed  


Stamper that there was video footage of her actions, Stamper confessed to the theft.  


However, even though  Wraith told Beebe that there was video footage of Beebe's  

       1     Former AS 11.46.130(a)(1) (2013 version).  

       2     AS 11.41.220(a)(1)(A).  

                                                                                 - 2 -                                                                             2567

----------------------- Page 3-----------------------

collision with the customer in the parking lot, Beebe insisted that he had not struck the  




                    In the meantime, Gozdor managed to transfer some of the store's digital  


video footage onto a thumb drive.  He delivered this thumb drive to Trooper Wraith a  


day or two after the incident.  


                    Gozdor thought that he had successfully copied all of the relevant security  


footage.  But it turned out that Gozdor only copied the footage of some of Stamper's  


actions inside the store.  Moreover, Gozdor failed to copy the footage of Stamper's and  


Beebe's actions in the parking lot, and he also accidentally included video footage that  


had nothing to do with Stamper and Beebe's case.  


                    After Wraith received the thumb drive from Gozdor, he plugged it into his  


computer. He could see that it contained video files, but when Wraith tried to play these  


video files on his computer, he discovered that his computer did not have the necessary  


software to open and view the files.  Wraith then tried to view the files on a different  


computer, but he was again unsuccessful. At that point, Wraith simply logged the thumb  


drive into evidence.  Apparently, no one looked at these video files again until the first  


day of Stamper and Beebe's trial.  


                    The computer that was used at Stamper and Beebe's trial had the necessary  


software to open and view the video files from the grocery store's security system.  But  


during the trial, when Wraith and Gozdor viewed the video files on the thumb drive, they  


realized that these files did not include the footage from the parking lot, nor did the files  


include footage of Stamper's actions in aisle 10 of the store - the aisle from which she  


had taken most of the stolen merchandise.  


                    By this time, the original security footage was no longer available, because  


the store's security computer recycled its video files after six months.  


                                                               -  3 -                                                         2567

----------------------- Page 4-----------------------

                             After the State concluded its evidence, and after Stamper and Beebe rested                                                                       

without presenting a case, both defense attorneys asked the trial judge to give the jurors                                                                                    

a  Thorne  instruction regarding the missing video files - that is, an instruction directing                                                                            

the jurors to assume that the missing video footage would have been exculpatory for both                                                                                          


Stamper and Beebe.                                      


                             The trial judge rejected this request. The judge concluded that the evidence  


failed to show that the troopers had ever received the missing video files - i.e., failed  


to show that the missing video files had ever been on the thumb drive that Gozdor  


delivered to Trooper Wraith. Thus, the judge concluded, the evidence did not show that  


the troopers had lost or inadvertently destroyed this evidence.  


                             Beebe's attorney argued that this did not make any difference. He asserted  


that when Wraith asked Gozdor to make a copy of the relevant security footage, Wraith  


made Gozdor an "agent" of the State Troopers for purposes of preserving this evidence.  


Thus, the defense attorney argued, when Gozdor failed to successfully copy all of the  


security footage onto the thumb drive, and when Gozdor allowed six months to elapse  


(so that the grocery store's security computer re-used that hard drive space), Gozdor's  


actions  amounted  to  a  loss  or  inadvertent  destruction  of  evidence  that  should  be  


attributed to the State.  


                             The trial judge rejected this "agency" argument.  


                             The jury found Stamper guilty of theft, and Beebe guilty of assault.  Both  


defendants now appeal, arguing that the State was at fault for losing the video footage,  


and that the trial judge should have granted their request for a Thorne instruction.  

       3      See Thorne v. Dept. of Public Safety                                       , 774 P.2d 1326 (Alaska 1989).  

                                                                                        - 4 -                                                                                    2567

----------------------- Page 5-----------------------

          The  defendants  bore  the  burden  of  proving  that  the  troopers  took  


          possession of the video evidence  


                    As we explained in the preceding section of this opinion, the trial judge  


found (after hearing the evidence pertaining to the security video footage) that  the  


defendants had failed to establish that the troopers ever took possession of the missing  




                    On appeal, Stamper and Beebe argue that the judge was wrong to make  


them bear the burden of establishing that the troopers ever possessed the missing video  


evidence.  Stamper and  Beebe contend that the language of the Thorne decision makes  


it clear that the State bears the burden of proving that missing evidence was not lost or  


destroyed through state action.  


                    As a preliminary matter, there is no reason to think that the burden of proof  


made any difference to the trial judge's decision.  


                    The trial judge employed the "preponderance of the evidence" standard of  


proof  when  he  decided  the  factual  question  of  whether  Trooper  Wraith  ever  had  


possession of the missing video footage.  Stamper and Beebe do not argue that this was  


the wrong standard of proof.  


                    Becausetheproper standard ofproofwas"preponderanceoftheevidence",  


the question of which party bore the burden of proof would only make a difference if the  


evidence was so evenly balanced that the judge could not say what conclusion the  


preponderance of the evidence favored.  (In such a case, the judge would have to rule  


against whichever party bore the burden of proof.)  But here, the trial judge's remarks  


show that he did not consider this question to be close: there was essentially no evidence  


that Trooper Wraith ever had possession of the missing video footage.  


                                                              -  5 -                                                         2567

----------------------- Page 6-----------------------

                                   That being said, we disagree with Stamper and Beebe's contention that the                                                                                                             

State bore the burden of proof on this issue.                                                                        

                                   We   agree   that,   had   the   evidence   shown  that   government   agents   took  

possession of the video files, and that these files were now missing, the State would have                                                                                                                           

borne the burden of explaining what happened to the missing files.                                                                                                            But in Stamper and                        

Beebe's case, the question was whether the evidence was ever in the government's                                                                                                             

possession. Because the government's duty to preserve evidence is triggered only when                                                                                                                              


government agents take possession of the evidence,                                                                                                                                                                  

                                                                                                                                       it is the defendant's burden to show  


(by a preponderance of the evidence) that this triggering event occurred.  


                                   This  corresponds  to  the  rule  that  when  a  defendant  claims  that  the  


government obtained evidence through an unlawful warrantless search or seizure, it is  


the defendant's burden to show that a warrantless search or seizure occurred, and then  


it is the government's burden to establish a justification for the warrantless search or  




                                   Thus, the trial judge correctly allocated the burden of proof on the factual  


question of whether Trooper Wraith ever possessed the security video footage. And the  


evidence fully supports the judge's finding that Trooper Wraith never had possession of  


this video footage.  


                                   We now turn to the question of whether Michael Gozdor, the grocery store  


employee, was an agent of the State for this purpose.  

         4       See Snyder v. State                              , 879 P.2d 1025, 1028 (Alaska App. 1996) (explaining that the   

government's  duty to                                    preserve  evidence  applies  only to                                                     evidence  that  has  already been   




                 See Willie v. State, 829 P.2d 310, 312 (Alaska App. 1992):   "Once the defendant  


establishes  that  a  search  or  a  seizure  has  been  conducted  by the  government  without  a  

warrant, it is the government's burden to justify the intrusion."   

                                                                                                          -  6 -                                                                                                      2567

----------------------- Page 7-----------------------

                                Why we reject the defendants' argument that the grocery store's loss-                                                                                                                                                                                                                                                  

                             prevention employee became an agent of the State Troopers, and that the                                                                                                                                                                                                                                                             

                               troopers therefore had "constructive possession" of the video files                                                                                                                                                                                                                            

                                                              Stamper and Beebe raise an alternative argument - the contention that                                                                                                                                                                                                                                                        

even   if   Trooper   Wraith   never   had   possession   of   the   security   video   files,   Wraith  

nevertheless made Michael Gozdor (the grocery store's loss-prevention employee) an                                                                                                                                                                                                                                                                                                                

agent of the State Troopers when Wraith asked Gozdor to make copies of the relevant                                                                                                                                                                                                                                                       

 security video footage.                                                                                    

                                                              Stamper and Beebe contend that the State should be held responsible for                                                                                                                                                                                                   

the fact that Gozdor somehow failed to make copies of the pertinent security footage, or                                                                                                                                                                                                                                                                                                            

that he somehow failed to correctly transfer those video files to the thumb drive that he                                                                                                                                                                                                                                                                                                          

later furnished to Trooper Wraith, before the grocery store's security system computer                                                                                                                                                                                                                                                                            

over-wrote the pertinent security footage.                                                                                                                                                        

                                                             We   rejected   an   analogous   argument   in   Carter   v.   State,   356  P.3d   299  

(Alaska App. 2015).                                                                              

                                                              The defendant in                                                              Carter  was convicted of theft for stealing money from a                                                                                                                                                                                                     

wallet during an Easter service at the Tudor Rescue Mission in Anchorage.                                                                                                                                                                                                                                                                                              Carter's  

actions were recorded by the Rescue Mission's video security system, andseveral people                                                                                                                                                                                                                                                                                          

who had viewed this video footage later testified at Carter's trial.                                                                                                                                                                                                                                             But the video itself                                                 

was not available at trial because the portion of the hard drive containing the relevant                                                                                                                                                                                                                                                                               

footage   was   automatically   recorded   over   by   the   security   system after                                                                                                                                                                                                                                                            a   number   of  




                                                              The officer who investigated Carter's case testified that he went to the  


Mission and asked the staff to make him a copy of the security video footage, but he was  

                6              Carter, 356 P.3d at 300.  

                                                                                                                                                                                            -  7 -                                                                                                                                                                                        2567

----------------------- Page 8-----------------------

told that the one person who                          knew how to do this was not available.                                     The officer   

repeatedly returned to the Mission to try to get a copy of the video, but he was never                                                      

successful.    Ultimately, it became too late:                                the security system over-wrote the video                      




                       On appeal, Carter argued that the police had a duty to collect the video  


footage and preserve it - and that, because the police failed to do so, the trial judge  


should have instructed the jurors under Thorne that they should presume that the video  



would have been exculpatory.                            We rejected this argument:  



                                   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  




Carter, 356 P.3d at 301.  


                       See also Bradley v. State, 662 P.2d 993, 994-95 (Alaska App. 1983), and  

Moberg v. Anchorage, 152 P.3d 1170, 1173-74 (Alaska App. 2007), where this Court  


held that the government had no duty to preserve blood samples taken by hospital  


personnel for medical purposes (samples that were later destroyed after the expiration  

      7    Ibid.  

      8    Ibid.  

                                                                       -  8 -                                                                2567

----------------------- Page 9-----------------------

of the retention period set by hospital procedures) when those samples would have been                                                                                                                                                                             

equally available to the defense if a timely request had been made.                                                                                                                                                  

                                          When Trooper Wraith interviewed Stamper and Beebe on the day after the                                                                                                                                                         

theft, he told both of them that the grocery store had security video footage of their                                                                                                                                                                             

actions.     Wraith   also   told   them that                                                                             he   had   viewed   this   video   footage,   and   that   it  

supported the accusations of theft and assault.                                                                                                      

                                          Thus, as was true in                                                Carter, Stamper and Beebe knew that the security                                                                                          

video footage existed, they understood the importance of it, and they knew that this                                                                                                                                                                                  

evidence   was   in   the   hands   of   a   third   party   (i.e.,   the   grocery   store).     Given   these  

circumstances, Stamper and Beebe had essentially the same opportunity as the govern-                                                                                                                                                                     

ment to subpoena or otherwise obtain this evidence (because it remained on the grocery                                                                                                                                                                    

store's security system hard drive for six months).                                                                                                               

                                           Stamper and Beebeattempt to analogizetheir caseto thesituation                                                                                                                                          presented  



in  State v. Ward                                 ,  where this Court approved sanctions against the State when a hospital  


failed to preserve the defendant's blood sample.  But  Ward presented a significantly  


different factual situation:  the police in  Ward affirmatively told the defendant that he  


faced no time limit should he decide to seek preservation and testing of the blood sample.  


We held that, having made such a guarantee to Ward, the police were required to take  


steps  to  ensure  that  Ward's  blood  sample  remained  available  to  him  as  they  had  




                                          But  here,  Trooper Wraith did not tell Stamper and Beebe that he had  


collected the security video footage, nor did he assure Stamper and Beebe that this  

           9          17 P.3d 87, 88-89 (Alaska App. 2001).  

           10         Ward, 17 P.3d at 89.  

                                                                                                                                  -  9 -                                                                                                                            2567

----------------------- Page 10-----------------------

footage would remain available indefinitely.  We therefore conclude that Stamper and  


Beebe's situation is analogous to the facts of Carter rather than the facts of  Ward.  


                    We  also  reject  Stamper  and  Beebe's  argument  that  Gozdor  should  be  


viewed as the "agent" of the State Troopers, and that Gozdor's handling of the security  


video footage should be viewed as tantamount to a loss or inadvertent destruction of  


evidence by the State.  The fact that Trooper Wraith asked Gozdor, an employee of the  


grocery store, to make him a copy of the store's security camera footage did not turn  


Gozdor into an agent of the State Troopers in the sense that Gozdor now owed a duty to  


Stamper  and  Beebe to  preserve the video  footage,  as if he were a police evidence  




                    In sum, the trial judge properly rejected Stamper and Beebe's request for  


a Thorne instruction.  


          Beebe's contention that the absence of the video deprived him of his rights  


          under the confrontation clause  


                    Beebe raises the separate argument that his right of confrontation was  


violated by the lack of video footage recording his actions in the parking lot.  


                    As we have explained, the parking lot footage was not available at the time  


of Beebe's trial, so that footage was not introduced into evidence against Beebe.  Thus,  


to prevail in his confrontation clause argument, Beebe must show that the witnesses  


against him based their testimony on the unavailable video footage.  See Catlett v. State,  


585 P.2d 553, 557 (Alaska 1978).  


                    The State presented three witnesses to support its assault charge against  


Beebe. Two of these witnesses personally witnessed the event: Glen Butts, who was an  


employee of the grocery store, and John Otcheck, the customer who was struck by  


                                                             -  10 -                                                         2567

----------------------- Page 11-----------------------

Beebe's vehicle when he tried to stop Beebe from leaving the parking lot.  There is no                                                                                                                                                                                                  

indication in the record that either Butts or Otcheck reviewed video footage of this                                                                                                                                                                                                                                                    


                                                     TheState'sthirdwitness wasTrooperWraith,                                                                                                                                          who investigatedtheincident                                                       

after it was over.                                                  During Wraith's testimony, the prosecutor played an audio recording                                                                                                                                                                          

of Wraith's interview with Beebe. During Wraith's interview with Beebe, Wraith made                                                                                                                                                                                                                                                

assertions about the content of the video footage.                                                                                                                                                   In particular, Wraith told Beebe that                                                                                               

there was video footage of what happened in the grocery store parking lot - and that                                                                                                                                                                                                                                                    

this video showed Beebe driving toward "the guy standing in front of [his] car" (                                                                                                                                                                                                                                                     i.e.,  


                                                     When the prosecutor played the audio of this interview, Beebe's attorney                                                                                                                                                                                          

did not object.                                             Accordingly, Beebe must now show that the playing of the audio was                                                                                                                                                                                                          

plain error.                                   

                                                     To establish plain error, Beebe must show that there is at least a reasonable                                                                                                                                                                       

possibility that the references to the unavailable security footage prejudiced him -                                                                                                                                                                                                                                                    i.e.,  

a reasonable possibility that these references affected the jury's decision in a manner                                                                                                                                                                                                                              


adverse to Beebe.                                                                                                                                                                                                                                                                                                            

                                                                                    For two reasons, we conclude that there was no prejudice.  


                                                     First, when Wraith told Beebe that there was video footage showing that  


Beebe drove his car toward Otcheck, Beebe immediately responded that this was not true  


- and he urged Trooper Wraith to re-examine the video.  Beebe's precise words were,  


"No. ...  No.  I pulled away just a little bit, nice and easy, if you look at that video.  Look  


at the video." Later in the same interview, when Wraith again accused Beebe of driving  


toward Otcheck and hitting him with his car, Beebe responded, "I didn't drive towards  

              11          Adams v. State , 261 P.3d 758, 773 (Alaska 2011).  

                                                                                                                                                                 -  11 -                                                                                                                                                               2567

----------------------- Page 12-----------------------

him. You've got to look at that [video] carefully.  ...  He was leaning [and] he moved  


away gently."  


                     Second, after the audio recording of the interview was played for the jury,  


Trooper Wraith was cross-examined by both Stamper's and Beebe's defense attorneys.  


During this cross-examination, Wraith conceded that he had misrepresented the content  


of the video to Beebe - that the video did not actually show Beebe hitting Otcheck with  


his car.  


                     Specifically, during cross-examination by Stamper's attorney, Wraith was  


asked, "Did you actually observe any of what occurred in the parking lot [with] the  


vehicle involving Mr. Otcheck when you watched the video?"  This question led to the  


following colloquy:  



                               Wraith:  I think there was some footage of the parking  


                    lot that you could see in one of the videos.  ...  It was far out  


                    there in the video, and [it was] difficult to discern exactly  


                    what was happening, and who was where.  


                               Stamper's attorney:  Okay. And I want to be clear, ...  


                    are those observations you made here in court, or are those  


                    observations you made when you looked at the store video?  


                               Wraith:  When I observed the [store] video.  


                               .  .  .  


                               Stamper's attorney:   Okay. And [in your interview  


                    with Mr. Beebe], you described a scenario to Mr. Beebe ...  


                    wherein you said that he drove forward [toward Otcheck].  


                    Did you, in fact, see that whole incident on the video?  


                               Wraith:  I did.  But like I said, it was hard to see who  


                    was who.  I could [see] the van moving.  I could see people  

                    around it.  But I - it was - it's too far out in the video to  


                    really see clearly what had happened in it.  


                                                              -  12 -                                                         2567

----------------------- Page 13-----------------------

                              Stamper's attorney:  Okay. Could you actually make  


                    out if Mr. Otcheck was struck by the vehicle?  


                               Wraith:   I was unable to determine for sure by the  




A few minutes later, when Trooper Wraith was cross-examined by Beebe's defense  


attorney, Wraith reiterated that the video was inconclusive:  



                               Wraith:  As far as the footage in the parking lot was  


                    concerned  ...  ,  as  I  explained  to  your  colleague  [i.e.,  


                    Stamper's  defense  attorney],  [in]  the  footage  out  in  that  


                    parking lot, ... [Beebe's] vehicle was barely discernible in the  


                    video at all, and you could not see what was going on right  


                    around the vehicle, other than people around it.  So ... I was  


                    unable to discern what was there[.]  


                    Based on this record, we conclude that there is no reasonable possibility  


that Beebe was prejudiced by the references to the unavailable video footage.   We  


therefore reject Beebe's claim of plain error.  



                    The judgement of the superior court is AFFIRMED.  


                                                             -  13 -                                                         2567

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