Calapp v. State

OPINION

COATS, Judge.

Phillip D. Calapp was convicted by a Kenai jury of theft in the second degree. AS 11.46.130(a)(1). Superior Court Judge Jonathan H. Link sentenced Calapp to five years of imprisonment with two years suspended. Calapp appeals, arguing that Judge Link erred when he allowed the state to reveal to the jury Calapp’s prior convictions for forgery and theft. We reverse.

On December 31,1994, someone broke into the Kenai Pawn Shop and stole various items, including twenty-four envelopes containing jewelry. Four or five days later a woman brought two rings into the same shop to pawn them. The owner of the shop recognized the rings and loaned the woman one hundred dollars, in order to recover the rings and to obtain identification of the woman. The woman provided information identifying herself as Melinda Raysin. The next day, the police interviewed Raysin and learned that the rings had come from Calapp, Ray-sin’s ex-boyfriend.

On January 9, 1995, a man attempted to pawn a watch at a jewelry store; an employee at the store suspected it was stolen and called the police. The man was later identified as Shawn Crandall. Crandall told the police that Calapp approached him on January 6th and again on the 7th and asked him if he wanted any jewelry. Calapp showed Crandall a watch and about eight rings that were in a plastic bag. Crandall took the watch and tried to sell it for Calapp, the agreement being that Crandall could keep any money in excess of $500. Crandall agreed to cooperate with the police by engaging Calapp in a recorded telephone call. During the call, Crandall told Calapp that he was “getting kind of leery on this deal here,” and was concerned that he might “[g]et busted or something,” voicing concern that Cal-app’s girlfriend knew about the jewelry. Calapp responded, “Well I don’t see how.... [M]y old lady is cool.” Crandall then arranged a meeting with Calapp at a bathroom in a shopping mall, during which the police entered and confronted Calapp.

*387Investigator Joe Harrison of the Kenai Police Department interviewed Calapp. In this interview Calapp told Harrison that he had received four rings and a watch from a man named Don Dushkin for a repayment of a debt. He admitted that he went with Raysin to the Kenai Pawn Shop, waited outside while she pawned two rings, and split the $100 with her which she received from the transaction. He admitted Raysin told him that the police interviewed her, and told her that the rings were stolen. Calapp admitted that he became suspicious that the property might be stolen; however, he insisted that he “didn’t know for a fact that anything was stolen.”

The state indicted Calapp for second degree theft on the theory that Calapp received, concealed, or disposed of stolen property valued at $500 or more with reckless disregard that the property was stolen and with the intent to appropriate property of another. AS 11.46.130(a)(1). Calapp testified at trial that he did not know where Dushkin got the jewelry, which Dushkin had in a sock in his trailer. He claimed that Dushkin told him that Dushkin’s godfather had died and that he had received the property as an inheritance. Calapp claimed that he asked Dushkin if the property was stolen, and Dushkin had replied that it was not. Calapp testified that when he later found out that the jewelry might have been stolen, he tried to get it back from Crandall and turn it into the police.

During his direct examination, Calapp brought out that he had been convicted of a crime of dishonesty (larceny) in 1990.1 Cal-app explained the statements which he made in his interview with Investigator Harrison by stating that Harrison was a “longterm veteran police officer that’s got a way with word games.”

• Following Calapp’s testimony on direct examination, the prosecutor asked Judge Link to allow him to admit into evidence three other convictions of Calapp’s: a 1989 conviction for forgery, a 1987 conviction for theft in the fourth degree, and a 1987 conviction for theft in the second degree. The prosecutor argued that these convictions were admissible to rebut Calapp’s assertion that he was caught off guard when the police confronted him at the shopping mall and interviewed him, and to rebut Calapp’s testimony which the prosecutor asserted had given the jury the general impression that Calapp was “an innocent neophyte” when in fact Calapp had several prior convictions and had spent “considerable time in prison.” Judge Link decided to admit the prior convictions, but on a different theory than the theory argued by the prosecutor. Judge Link concluded that the convictions were admissible under Evidence Rule 404(b)(1) to rebut Calapp’s assertion that his receipt and disposition of the stolen property was the result of a mistake or accident. The state was allowed to admit the prior convictions on this ground and Judge Link instructed the jury on the limited purpose for which the testimony was admitted. Calapp contends that admission of these convictions was error.

The admission of the challenged evidence is governed by Alaska Evidence Rules 403 and 404(b)(1). Under Rule 404(b)(1), evidence of Calapp’s other crimes was admissible if it was relevant for some purpose other than to prove his criminal propensity; and under Rule 403, this evidence should have been excluded if its potential for unfair prejudice outweighed its proper probative value. A trial judge must apply a two-step analysis when determining whether to admit evidence of prior bad acts under these two rules. First, the judge must determine whether the evidence is relevant for a purpose other than to show criminal propensity. *388Second, the judge must weigh the probative value of the evidence against its potential for unfair prejudice. Lerchenstein v. State, 697 P.2d 312, 315-16 (Alaska App.1985), aff'd 726 P.2d 546 (Alaska 1986).

The major disputed issue at Calapp’s trial was not whether the jewelry was stolen, but whether Calapp recklessly disregarded this fadt — whether he was aware of a substantial and unjustifiable risk that the jewelry was stolen and consciously disregarded this risk. See AS 11.81.900(a)(3). The prior convictions that the state introduced — one conviction for forgery and two convictions for theft — certainly tended to show that Calapp was a dishonest and larcenous individual. But, standing alone, these convictions proved little of relevance except Calapp’s general proclivity to lie and steal. Accordingly, these convictions should have been excluded under Rule 404(b) because they showed nothing but Calapp’s criminal propensity.

The state argues that Calapp’s convictions are relevant for another, more case-specific purpose: to prove Calapp’s likely knowledge that the jewelry he was trying to sell through the two intermediaries was, in fact, stolen. However, under our past decisions on this topic, the state must show that' the defendant’s past criminal acts bear a relevant factual similarity to the charged offense before these past acts can be admitted to prove knowledge, intent, or absence of mistake or accident. See Allen v. State, 759 P.2d 541, 546-47 (Alaska App.1988) (upholding admission of a similar incident to rebut the defendant’s “good Samaritan” defense to a charge of terroristic threatening); Sheakley v. State, 644 P.2d 864, 873-75 (Alaska App.1982) (where defendant was charged with mayhem for intentionally gouging out the victim’s eye, this court upheld the admission of two prior incidents in which defendant attempted to gouge out others’ eyes); Adkinson v. State, 611 P.2d 528, 530-32 (Alaska 1980) (upholding admission of evidence that the defendant had pointed a shotgun at trespassers on two previous occasions .to rebut the defendant’s assertion that his shooting of a trespasser had been an accident). -

In Calapp’s case, the state made no attempt to establish the facts of the prior forgery and theft convictions or to explain how those prior episodes bore any particularized relevance to the issue in this case— whether Calapp was aware that the jewelry was stolen. For all that the jury knew, Calapp may have forged a fishing license application and shoplifted an apple. Or he might have forged a Picasso and hijacked a truck full of stereo components. ■ The point is that the jury heard only the unelaborated fact that Calapp had prior convictions for forgery and theft. This being so, the jurors had no reasoned basis for using this evidence for any purpose other than the purpose prohibited by Alaska Evidence Rule 404(b)— proof of Calapp’s general propensity to lie and steal.

Under these circumstances, we conclude that the trial judge abused his discretion when he allowed the state to introduce the challenged convictions. Admission of this evidence created a substantial danger that Calapp was convicted based upon his prior record rather than based on the evidence properly relevant to the specific crime under consideration.

Calapp’s conviction is REVERSED.

MANNHEIMER, J., concurs.

BRYNER, C.J., dissents.

. This conviction was admitted under Evidence Rule 609 which provides as follows:

Rule 609. Impeachment by Evidence of Conviction of Crime.
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is only admissible if the crime involved dishonesty or false statement.
(b) Time Limit. Evidence of a conviction under this rule is inadmissible if a period of more than five years has elapsed since the date of the conviction....

Calapp does not contest the admissibility of this conviction.