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THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM TOOMER, )
) Court of Appeals No. A-4752
Appellant, ) Trial Court No. 2BA-S92-210CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1393 - March 3, 1995]
________________________________)
Appeal from the Superior Court, Second
Judicial District, Barrow, Michael I.
Jeffery, Judge.
Appearances: Rebecca Wright, Assistant
Public Defender, Barrow, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Cynthia L. Herren, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
William Toomer was convicted of second-degree theft, AS
11.46.130(a)(1), following a jury trial presided over by Superior
Court Judge Michael I. Jeffery in Barrow. Toomer appeals,
arguing that the trial court erred in allowing the state to
present evidence that Toomer had been seen using cocaine. We
find that the trial court erred in admitting the disputed
evidence, and we reverse.
Toomer was convicted of stealing $20,165.26 from his
employer, the Ukpeakgvik Inupiat Corporation Construction, Inc.
(UICC). UICC is an Anchorage construction company, with the
majority of its revenue coming from commercial building
maintenance and construction. In addition, UICC has a facility
in Barrow, which, among other things, operates a window plant and
a body shop that does both light and heavy equipment repair work
and handles heavy equipment rentals.
Prior to June 1990, most of the paperwork and receipts
generated by operation of the Barrow facility were handled by
UICC's Anchorage administrative office. In June of 1990, UICC
asked Toomer -- an Anchorage employee -- to travel to Barrow in
order to review the company inventory there. Toomer extended his
stay in Barrow because he was assigned additional
responsibilities. In August of 1990, he was instructed to review
the petty cash procedures and to do a cash count. By November of
1990, Toomer had assumed the duties of Barrow administration
manager for UICC. Sometime thereafter, Toomer requested that
Barrow customers pay for Barrow UICC services in Barrow, instead
of sending their payment checks to the Anchorage office as they
had previously done. As a result, Barrow receipts increased
dramatically. Some of the Barrow customers paid for UICC
services in cash, and some of that cash was kept in the petty
cash fund.
On January 30, 1991, Toomer became responsible for
overseeing the petty cash fund, making petty cash logbook
entries, making daily bank deposits, and sending petty cash
logbooks and records to the Anchorage office. By July of 1991,
after Toomer had persistently failed to forward the petty cash
records to the Anchorage office, and after inconsistencies had
surfaced regarding the Barrow accounts receivable, UICC
administrative manager Robert Hall traveled to Barrow to review
the records and conduct a surprise cash count of the petty cash
fund. He discovered that Toomer had not been making daily bank
deposits and had consistently kept very large amounts of money
(approximately $30,000 to $40,000) "sitting in the petty cash
box." In addition, although the amount of cash that had been
logged into the petty cash logbook and the amount of money that
had been deposited into the bank matched, there were receipts for
payments that had never been entered into the petty cash logbook.
Initially, Hall suspected that the missing logbook
entries were "voids or mistakes," and thought the problem was one
of poor recordkeeping. However, by adding receipt amounts and
logbook cash entries for the period of January 30, 1991, through
July 18, 1991, and by subtracting petty cash disbursements, Hall
eventually concluded that $20,165.26 of company money was indeed
missing.1
At no time during his tenure at the Barrow facility had
Toomer ever notified the Anchorage office about inconsistencies
between the amount of money in the petty cash fund and the amount
entered into the logbook. Because Toomer had been the only
Barrow employee to make UICC bank deposits since January 30th,
and because Toomer would, therefore, have been the only person to
know about the unaccounted cash, Hall concluded that Toomer had
stolen the money.
Hall then confronted three employees, including Toomer,
who had direct access to the money in the petty cash fund. All
three denied taking the money, but Toomer said that he felt
responsible for the office and resigned. He was subsequently
indicted for second-degree theft.
At trial, in addition to establishing the foregoing
facts, the state presented testimony from a UICC employee who
stated that he frequently walked into Toomer's office and saw him
counting the petty cash, with the money "spread out on his desk."
Another employee testified that he saw cash and checks in
Toomer's desk drawer. And still another noticed that Toomer
"always seemed to have a roll of bills in his pocket. . . . [A]
big wad, which was kind of impressive . . . and kind of odd."
The state further presented testimony from Officer Dennis Packer,
who had investigated Toomer's finances. Packer testified that
Toomer's paychecks had always been picked up in Anchorage by his
girlfriend and deposited into bank accounts there. Toomer made
money wire transfers to certain people in Anchorage from the
Anchorage accounts. In presenting Packer's testimony, the state
evidently intended to raise an inference that Toomer must have
used funds from sources other than his paychecks for his living
expenses in Barrow.
In an attempt to show a possible motive for Toomer to
have committed the alleged theft, the state additionally offered
to call an acquaintance of Toomer from Barrow to testify about an
occasion when Toomer had used cocaine. Toomer objected to the
evidence, contending that it was irrelevant and, even if
relevant, unduly prejudicial. Judge Jeffery nonetheless ruled
the proffered evidence admissible.
Over Toomer's objection, Francine Hopson testified that
she and a friend had once been drinking with Toomer and had gone
to Toomer's residence in Barrow. There, Hopson said, she had
seen Toomer "having cocaine." Hopson testified that after a
short time at Toomer's residence she left and returned home;
Hopson's friend remained at Toomer's residence.
On appeal, Toomer argues that Judge Jeffery erred in
admitting Hopson's testimony. This argument has merit. In
Alaska, the rule is well settled that evidence of past drug use
by a person accused of a property crime is normally inadmissible
on the issue of motive. See Gould v. State, 579 P.2d 535 (Alaska
1978); Eubanks v. State, 516 P.2d 726 (Alaska 1973); Miller v.
State, 866 P.2d 130 (Alaska App. 1994). To secure admission of
such evidence, the state must establish a "particularized
connection, or affirmative link, between the drug use and the
charged offense." Miller, 866 P.2d at 133.2
No affirmative link was proved by the state or found by
the trial court in Toomer's case. Gould and Eubanks squarely
preclude the state's claim that Toomer's use of cocaine was
relevant to show one of many uses to which he may have put money
from the petty cash fund. There is no evidence here that
obtaining cocaine was Toomer's direct objective in stealing money
from the petty cash fund. See People v. Cardenas, 647 P.2d 569,
573-74 (Cal. 1982)(evidence of narcotics addiction inadmissible
because it "tended `only remotely' to prove that appellant had
committed the attempted robbery of money from the 7-Eleven
store"). There is likewise no evidence that the drug use and the
theft were an integral part of any common plan. Cf. Miller, 866
P.2d at 133-34 (evidence of drug dealing relevant to show that
robbery originated in defendant's failure to generate sufficient
funds through drug dealings to finance the purchase of more
drugs).
Under the circumstances of this case, the trial court's
decision to admit Hopson's testimony amounted to an abuse of
discretion.3 Although Hopson's testimony concerning Toomer's use
of cocaine was brief, the testimony introduced an extraneous and
potentially highly prejudicial dimension to Toomer's case. And
although the trial court gave a cautionary instruction to the
jury concerning Hopson's testimony,4 that instruction expressly
allowed the jury to consider Hopson's testimony as evidence of
Toomer's motive for committing the alleged theft; by so doing,
the instruction called the jury's attention to the testimony and
effectively invited the jury to speculate on the nature and
extent of Toomer's cocaine use.
The evidence presented against Toomer at trial was
largely circumstantial, and, while it was not weak, neither was
it overwhelming. In particular, the evidence failed to connect
Toomer directly to any stolen funds and indicated that other UICC
employees routinely had access to the company's petty cash fund
in Barrow. Having reviewed the entire record, we are not
persuaded that the erroneous admission of Hopson's testimony did
not appreciably affect the jury's verdict and impair Toomer's
interest in having a fair trial. Bostic v. State, 805 P.2d 344,
347 (Alaska 1991)(citing Love v. State, 457 P.2d 622, 631 (Alaska
1969)). Because we cannot find that the error was harmless, we
must reverse Toomer's conviction.
The conviction is REVERSED.
_______________________________
1. Hall concluded that UICC in Barrow had collected a
total of $167,392.05, that $12,562.23 had been disbursed from the
petty cash fund, that the petty cash fund had contained $1,600.42
on January 30, 1991, when Toomer took over, and that only
$135,682.11 had been deposited into the bank. Therefore, the
petty cash box should have contained $20,748.13. Instead, the
box contained just $582.87 -- a $20,165.26 inconsistency.
2. As we explained in Miller, 866 P.2d at 133, this rule
recognize[s] that, since 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. For this reason,
evidence that the accused needed money for a
particularly reprehensible purpose such as
the use of drugs, while potentially highly
prejudicial, will add little on the issue of
motive[.]
3. The admissibility of evidence is within the sound
discretion of the trial court. Hawley v. State, 614 P.2d 1349,
1361 (Alaska 1980); Bodine v. State, 737 P.2d 1072, 1073-74
(Alaska App. 1987). The trial court's decision to admit relevant
evidence despite its prejudicial effect is subject to reversal if
shown to be an abuse of discretion. Dorman v. State, 622 P.2d
448, 461 (Alaska 1981).
4. Judge Jeffery instructed the jury as follows:
I just want to instruct the jury that
the evidence you have just heard may not be
considered by you to prove what kind of
character the defendant has or that he has a
disposition to commit crimes. Such evidence,
if believed, may be considered by you only
for the limited purpose of determining if it
tends to show a motive for the commission of
the crime charged. For the limited purpose
for which you may consider such evidence you
must weigh it in the same manner as you do
all other evidence in the case. You are not
permitted to consider such evidence for any
other purpose.
