Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are requested to bring
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PHILLIP D. CALAPP, )
) Court of Appeals No. A-5987
Appellant, ) Trial Court No. 3KN-S95-282CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1590 - May 22, 1998]
)
Appeal from the Superior Court, Third Judicial
District, Kenai, Jonathan H. Link, Judge.
Appearances: Stuart G. Ross, Anchorage, for
Appellant. James L. Hanley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
MANNHEIMER, Judge, concurring.
BRYNER, Chief Judge, dissenting.
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, Raysin'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 Calapp'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.
Investigator 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. [Fn.
1] Calapp explained the statements which he made in his interview
with Investigator Harrison by stating that Harrison was a "long-
term 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.
Second, 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 fact -- 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, Judge, concurring.
I am writing separately to address the concerns raised in
Judge Bryner's dissent.
Judge Coats's majority opinion asserts (slip opinion,
page 6) that "under our past decisions [governing the admissibility
of evidence of a defendant's other crimes], 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 ... or absence of mistake". Judge
Bryner takes issue with this statement. He concludes that the
trial court properly allowed the State to present evidence of
Calapp's prior convictions for theft even in the absence of any
foundational showing that those prior thefts bore a factual
similarity to Calapp's present offense.
Judge Bryner relies on several federal cases which hold
that, when the issue is the defendant's knowledge, evidence of the
defendant's other crimes can be admissible even when those other
crimes are not factually similar to the offense presently charged
against the defendant. These federal cases declare that the
relevant consideration is not the factual similarity of the crimes;
rather, it is whether "the prior act was one which would tend to
make the existence of the defendant's knowledge more probable".
United States v. Ram¡rez-Jim¡nez, 967 F.2d 1321, 1326 (9th Cir.
1992).
To the extent that the majority opinion could be read to
require strict factual similarity of offenses when the issue is the
defendant's knowledge, I agree with Judge Bryner that this would be
a misstatement of the law. The federal cases in this area
correctly point out that even when the defendant's prior crime is
factually dissimilar, the defendant's participation in that other
crime can nevertheless be probative of the defendant's pertinent
knowledge. [Fn. 1]
For example, in United States v. Falco, 727 F.2d 659 (7th
Cir. 1984), the defendant was charged with interstate
transportation of stolen goods. The issue was whether the
defendant knew that the goods were stolen. On this issue, the
trial court allowed the government to introduce evidence of the
defendant's four prior convictions for possession or transportation
of stolen goods. 727 F.2d at 661-62. The Seventh Circuit held (by
a 2 to 1 vote) that this evidence was properly admitted, even
though the government did not attempt to show that the prior crimes
were factually similar to the current charge.
The majority reasoned that evidence of the defendant's
prior convictions was relevant because a reasonable trier of fact
could conclude (1) that people involved in the possession and
disposal of stolen goods would characteristically employ
specialized techniques to carry on their work (techniques to
conceal or misrepresent the origin of the goods, to hamper
detection of the shipment, and the like); (2) that a person who had
previously trafficked in stolen goods would be more likely to be
familiar with these techniques and to recognize these techniques at
work in connection with any particular shipment of goods; so
therefore (3) if the defendant had previously trafficked in stolen
goods, he would be more likely to understand, from the circum-
stances surrounding the present shipment of goods, that the goods
were stolen. Falco, 727 F.2d at 663-65.
The majority conceded that this chain of reasoning might
not ultimately prove convincing to the jury, but the test for
relevance under Federal Evidence Rule 401 (and under Alaska
Evidence Rule 401 as well) is whether the evidence "[has] any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable".
The majority concluded that the defendant's involvement in other
acts of transporting stolen goods was sufficiently probative of the
defendant's knowledge to satisfy Rule 401, even if the goods or the
methods of transportation were dissimilar.
As noted above, the majority's conclusion did not go
unchallenged. Judge Cudahy, in dissent, argued that there was
simply too much variation in thefts and in the methods of
transporting stolen property to draw any meaningful inference from
the bare fact that the defendant had previously been convicted of
transporting stolen property. Judge Cudahy contended that these
prior convictions should have been admitted only if the government
demonstrated that the facts of the prior offenses bore some
pertinent similarity to the present offense. Falco, 727 F.2d at
667-69.
I do not interpret Judge Cudahy's dissent to mean that he
disagreed with the majority in principle. Judge Cudahy seems to
agree with the majority that, when the issue is the defendant's
knowledge, the law does not demand strict "similarity" between a
defendant's past offenses and his present offense. For instance,
it is possible that a defendant's past participation in the
smuggling of illegal aliens across international borders by truck
might provide him with knowledge to facilitate the smuggling of
cigarettes across state lines by airplane. As the federal courts
recognize, the question is not the factual similarity of the acts,
but whether one could reasonably infer, from the defendant's
participation in the prior acts, that the defendant possessed
knowledge pertinent to the present case.
Indeed, the defendant's past activities could be relevant
on the issue of knowledge even when those past activities were
completely legal. For instance, a defendant's past experience
working as an auditor for the government or for a financial
institution could provide the defendant with knowledge that would
facilitate a later act of embezzlement or fraud. Again, the
defendant's activities need not be "similar" in the sense that they
constitute the same type of crime. The question is whether it can
reasonably be inferred that those prior activities provided the
defendant with a pertinent type of knowledge.
I do not read Judge Coats's majority opinion to mean
anything different. Judge Coats speaks of the requirement that the
defendant's past acts "bear a relevant factual similarity to the
charged offense". I interpret this phrase to require "similarity"
only in the sense that the defendant's prior acts must have been
sufficiently analogous to the present offense so that it can
reasonably be inferred that the defendant acquired knowledge that
is pertinent to deciding the present case.
As Falco and Ram¡rez-Jim¡nez point out, this type of
"similarity" can sometimes be inferred from the unelaborated fact
of a conviction. But this is true only when the conviction itself,
whatever the underlying facts, provides a reasonable basis for
inferring the defendant's knowledge. This is not always the case.
For example, in United States v. Vizcarra-Mart¡nez,
66 F.3d 1006 (9th Cir. 1995) (as amended on denial of rehearing),
the defendant was charged with conspiracy to possess, and wrongful
possession of, a chemical (hydriodic acid) that he had reason to
believe would be used to manufacture methamphetamine. The trial
court allowed the government to introduce evidence that the
defendant was found to be in possession of a small amount of
methamphetamine (an amount sufficient only for personal use) at the
time of his arrest. On appeal, the Ninth Circuit agreed with the
defendant "that the fact that he used methamphetamine does not tend
to prove that he was aware that the chemicals he was delivering
would be used to manufacture methamphetamine or that he intended to
participate in a conspiracy [to manufacture this drug]." Id., 66
F.3d at 1014. The court stated:
In order to admit evidence concerning
other "bad acts", the government must prove "a logical connection
between the knowledge gained as a result of the commission of the
[other] act and the knowledge at issue in the charged act."
[United States v.] Mayans, 17 F.3d [1174,] 1181-82 [(9th Cir.
1994)]. Here, there exists no logical connection between the
knowledge that the defendant might have gained by using
methamphetamine and the knowledge that the government must prove
... that is, knowledge of the use to which the hydriodic acid
would be put[,] as well as knowledge of the scope and purpose of
the conspiracy.
We conclude that ... possession of a
small amount of methamphetamine for personal use does not tend to
prove that Vizcarra-Mart¡nez was aware that hydriodic acid could be
transformed into methamphetamine through a complicated
manufacturing process. Viewing the case from "common human
experience" [citation omitted], it is clear that most people who
use drugs indeed, most people who use legal chemical substances,
such as cleaning fluid or paint or medicine do so without having
the faintest idea as to how the substance is produced or what
ingredients are required to manufacture it. We simply cannot
assume, as the government requests us to, that Vizcarra-Mart¡nez's
use of methamphetamine tended to prove that he knew that the
chemical in his possession would be used in the methamphetamine
manufacturing process.
Vizcarra-Mart¡nez, 66 F.3d at 1014-15 (emphasis in the original).
Vizcarra-Mart¡nez, like Falco, was a split decision.
Judge Fern ndez dissented, arguing that the defendant's possession
of methamphetamine "was relevant to undercut his total ignorance
argument". 66 F.3d at 1018. Again, as in Falco, the dispute
between the majority and the minority did not concern the proper
standard of relevance; rather, the dispute was whether a probative
inference could reasonably be drawn from the underlying facts.
Judge Bryner asserts that Calapp's two prior theft
convictions raise a reasonable inference that Calapp knew and
recognized the hallmark characteristics of stolen goods and the
techniques involved in the trafficking in stolen goods. I, how-
ever, agree with Judge Coats that Calapp's theft convictions,
standing alone and unexplained, fail to raise this inference.
There is simply too much variation in theft. A person can steal
repeatedly without ever being involved in the trafficking of stolen
goods.
It is possible that, if the underlying facts of Calapp's
prior thefts were examined, those thefts would prove relevant to
assessing Calapp's guilty knowledge in the present case. However,
the State relied solely on the fact that Calapp had been convicted
of "theft". Because of this, the State failed to establish the
relevance of Calapp's other crimes.
BRYNER, Chief Judge, dissenting.
The majority concludes that Calapp's prior theft
convictions, standing alone, "proved little of relevance except
Calapp's general proclivity to lie and steal" and that specific
proof of factual similarity was required before these prior
convictions could be admitted to prove that Calapp knew of or
recklessly disregarded the stolen nature of the jewelry he
possessed. I disagree. [Fn. 1]
Federal courts, under essentially the same rules that
prevail in Alaska, recognize that a defendant's prior convictions
for crimes similar to a newly charged crime may properly be
admitted to prove that the defendant acted knowingly in committing
the new crime, even if the prior cases are not shown to be
factually similar to the new case: "When offered to prove
knowledge, . . . the prior act need not be similar to the charged
act as long as the prior act was one which would tend to make the
existence of the defendant's knowledge more probable than it would
be without the evidence." United States v. Ramirez-Jimenez, 967
F.2d 1321, 1326 (9th Cir. 1992), quoted in United States v.
Arambula-Ruiz, 987 F.2d 599, 603 (9th Cir. 1993). Accord United
States v. Falco, 727 F.2d 659, 663 (7th Cir. 1984).
Here, the state was required to show that, when Calapp
possessed the stolen jewelry, he knew it to be stolen or
consciously disregarded the risk. No matter what the underlying
circumstances of Calapp's prior theft convictions might have been,
those prior convictions, by definition, entailed Calapp's
possession of property that he knew or suspected to be stolen.
Calapp's prior cases thus necessarily involved the same element of
knowledge as his present case.
This unity of culpable mental state provides the common
thread of relevance joining Calapp's past misconduct to his current
case. That Calapp knowingly or recklessly possessed stolen
property on past occasions made it palpably less likely, in the
current case, that he could have remained naively oblivious of the
fact that he was dealing with stolen jewelry.
Since Calapp's prior theft convictions tended "to make
the existence of the defendant's knowledge more probable than it
would be without the evidence," the prior convictions were relevant
to prove Calapp's knowledge. Ramirez-Jimenez, 967 F.2d at 1326.
See also A.R.E. 401 (defining relevant evidence to include all
"evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence");
Denison v. Anchorage, 630 P.2d 1001 (Alaska App. 1981) (emphasizing
the minimal nature of Rule 401's definition of relevance).
Thus, notwithstanding the majority's assertions to the
contrary, the relevance of Calapp's prior theft convictions had
nothing to do with the prohibited inference of propensity -- the
inference that Calapp had stolen before and thus probably stole
again. Instead, the relevance of the prior convictions flowed from
their logical tendency to show that Calapp, with a solid history of
knowingly possessing stolen property, was in a far better position
than the average person to recognize stolen property when it came
his way.
Nothing in the Alaska cases cited by the majority
precludes the use of prior convictions to prove knowledge or
reckless disregard under these circumstances. And other courts
have not hesitated to admit evidence of prior convictions under
virtually identical circumstances.
A case on point is United States v. Falco, 727 F.2d 659
(7th Cir. 1984). [Fn. 2] The defendant, Falco, was charged with
violating 18 U.S.C. sec. 659, by possessing goods shipped in
interstate commerce that he knew had been stolen. See 727 F.2d at
661. The trial court allowed the government, as part of its case
in chief, to introduce evidence of Falco's four prior interstate
theft convictions. See id. at 661-62. The court required, and the
government made, no showing that the prior convictions involved
facts similar to those of Falco's new case.
On appeal, Falco argued that, without specific evidence
of factual similarity, the prior convictions were inadmissible to
prove his knowledge in the current case. See id. at 662. In
affirming Falco's conviction, the Court of Appeals for the Seventh
Circuit expressly rejected this argument:
The question of relevancy here does not turn
on the "similarity" of prior events in the way it might if
testimony of prior or subsequent acts, rather than certifications
of convictions for the same or related statutory offenses, were
involved. Similarity of the underlying facts of the crimes is not
the only basis on which the prior convictions could be considered
relevant. Rather, extrinsic evidence in the form of convictions
may be relevant on the issue of knowledge if, apart from facts
demonstrating the similarity of the physical elements of the acts
that gave rise to the inference of knowledge in the prior or
subsequent convictions, the extrinsic offenses represented by the
convictions are "of such a nature that [their] commission involved
the same knowledge required for the offense charged."
Id. at 663 (citation omitted).
The court in Falco went on to "recognize that the
probative value of the previous convictions would be enhanced and
their relevance thus more readily established if the facts
underlying those convictions that go to the issue of knowledge were
similar to the facts in this case." Id. The court nevertheless
found that the prior convictions were in and of themselves
sufficiently probative to pass Federal Rule of Evidence 404(b)'s
threshold test of relevance. See id. at 664. In so finding, the
court also observed:
Defendant was free to attempt to undercut the
probative value of the prior convictions, and hence their
relevance, by distinguishing the facts underlying the previous
convictions in response to the government's motion to admit. By
failing to proffer such evidence, however, defendant allowed the
determination of the relevance of the prior convictions to turn
solely on whether the fact that defendant had previously been
convicted of the same or similar statutory offense requiring
knowledge of stolen goods was minimally probative on the issue of
defendant's knowledge in this case.
Id. at 663 (footnotes omitted). Finally, after carefully weighing
the circumstances of Falco's case, the court concluded that the
trial court had not abused its discretion in finding that the
prejudicial potential of the prior crimes evidence did not outweigh
its probative value. See id. at 666-67.
Falco is distinguishable from Calapp's case in only one
significant respect: in Falco, the prosecution was allowed to
introduce the disputed evidence of prior convictions as part of its
case in chief, before Falco advanced any claim of lack of
knowledge; here, by contrast, the disputed evidence came in only on
rebuttal, after Calapp seized the initiative by testifying that he
was ignorant of the stolen nature of the jewelry. This distinction
provides a far stronger justification for admission of the prior
crimes evidence here than was present in Falco, for Calapp's
affirmative claim of ignorance begged for a response.
Nor can a compelling argument be made that the disputed
evidence of Calapp's prior convictions was more prejudicial than
probative. In context, proof of Calapp's prior theft convictions
did little more than lift the deceptive veil of ignorance that
Calapp himself wove around his actions; the evidence thereby
enabled the jury to assess the likely scope of Calapp's knowledge
from a realistic perspective: it allowed the jury to ask whether an
experienced thief like Calapp could plausibly claim ignorance in
the factual setting of this case. This is not an impermissible use
of the prior convictions as propensity evidence. [Fn. 3]
In the specific evidential setting of this case, Falco's
reasoning is sound and should be followed. In my view, the
majority needlessly reverses an essentially errorless conviction.
Accordingly, I dissent.
FOOTNOTES
Footnote 1:
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.
FOOTNOTES (Concurrence)
Footnote 1:
See United States v. Vizcarra-Mart¡nez, 66 F.3d 1006, 1014-16 (9th Cir. 1995) (as
amended on denial of rehearing); United States v. Santa-Cruz, 48 F.3d 1118, 1119-1120 (9th
Cir. 1995); United States v. Arambula-Ruiz, 987 F.2d 599, 603 (9th Cir. 1993); Ram¡rez-
Jim¡nez, supra; United States v. Hyman, 741 F.2d 906 (7th Cir. 1984); United States v.
Falco, 727 F.2d 659, 663 (7th Cir. 1984).
FOOTNOTES (Dissent)
Footnote 1:
I do agree that Calapp's prior forgery conviction was not particularly relevant to
establish his culpable mental state or discredit his claim of ignorance as to the stolen nature
of the property involved in this case. Given my conclusion that Calapp's theft convictions
were properly admitted, however, any error in admitting the prior forgery was clearly
harmless.
Footnote 2:
For another analogous case, see United States v. Arambula-Ruiz, 987 F.2d 599, 603
(9th Cir. 1993) (prior conviction for possessing heroin with intent to distribute ruled
admissible against defendant charged with conspiring to possess heroin with intent to
distribute, since the prior conviction tended to establish defendant's knowledge of
conspiracy's purpose, thus undermining defendant's claim "that he was an innocent bystander
'at the wrong place at the wrong time'").
Footnote 3:
The prohibited inference of propensity deals with proof of conduct, not mental state:
it posits that conduct conforms to character and, thus, that a defendant's conduct on prior
occasions will dictate the defendant's conduct on the current occasion. Here, the likelihood
that Calapp's jury would have viewed the evidence of his prior theft convictions as propensity
evidence -- in other words, as evidence indicating that, because Calapp had acted like a thief
on prior occasions, he probably acted like a thief on this occasion -- seems slim. This is
because Calapp openly admitted possessing and disposing of stolen jewelry, thereby
effectively acknowledging that his actions were those of a thief. Calapp's defense was that
his conduct was not what it seemed to be, since he did not suspect the jewelry to be stolen.
To the extent that the prior crimes evidence eroded this defense, it did not rely on the
prohibited inference of propensity to do so.
 In the Court of Appeals of the State of Alaska
Phillip D. Calapp, )
) Court of Appeals No. A-05987
Appellant, )
v. ) Order
) Withdraw an Opinion and Reissue
State of Alaska, )
)
Appellee. ) Date of Order: 5/22/98
)
Trial Court Case # 3KN-95-00282CR
Before: Bryner, Chief Judge, Coats and Mannheimer, Judges,
It is Ordered, Sua Sponte:
Opinion No. 1587, issued on May 8, 1998 is Withdrawn and Opinion No. 1590 is issued
today in its place.
Entered by direction of the court.
Clerk of the Appellate Courts
Cheryl Jones, Deputy Clerk
cc: Court of Appeals Judges
Central Staff
Trial Court Judge
Trial Court Appeals Clerk
Publishers
Distribution:
Stuart G. Ross
310 K. Street, Suite 200
Anchorage AK 99501
James L. Hanley
OSPA
310 K Street #308
Anchorage AK 99501
