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Cruz-Reyes v. State (7/25/2003) ap-1891

Cruz-Reyes v. State (7/25/2003) ap-1891

                             NOTICE
     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@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


PEDRO CRUZ-REYES,             )
                              )              Court of Appeals No.
A-8207
                                             Appellant,         )
Trial Court No. 3KO-01-336 Cr
                              )
                  v.          )
                              )                       O  P  I   N
I  O  N
STATE OF ALASKA,              )
                              )
                                             Appellee.          )
[No. 1891    July 25, 2003]
                              )


          Appeal  from the District Court,  Third  Judi
          cial  District,  Kodiak, Donald  D.  Hopwood,
          Judge.

          Appearances:   J.  Jake  Ketscher,  Assistant
          Public  Defender,  Kodiak,  and  Barbara   K.
          Brink,   Public   Defender,  Anchorage,   for
          Appellant.   Joseph  S.  Slusser,   Assistant
          District  Attorney, J. Michael Gray, District
          Attorney,  Kodiak,  and  Bruce  M.   Botelho,
          Attorney General, Juneau, for Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.


          On  April 11, 2001, Alaska State Troopers searched  the

Kodiak  residence  of  Pedro Cruz-Reyes and  found  a  black  box

connected  to  his  television set  i.e.,  an  electronic  device

capable  of converting or unscrambling cable television  signals,

thus  allowing  Cruz-Reyes  to view  all  of  the  premium  cable

services  offered  by General Communication, Inc.  (GCI)  in  the

Kodiak  area.  Cruz-Reyes was a GCI subscriber, but he paid  only

for  the  standard  cable package, not any of the  premium  cable

packages  packages which included various movie channels, pay-per-

view events, and other higher-cost television entertainment.

          After   the   troopers  found  the  black   box,   they

interviewed Cruz-Reyes.  Cruz-Reyess native tongue is Spanish, so

the  trooper  leading the investigation (Trooper  Charles  Cross)

questioned Cruz-Reyes through a translator  Trooper Hervey  Ląpez

Ibarra,  whose native tongue is Spanish and who had served  as  a

translator when he was in the military.

          Through  this interpreter, Cruz-Reyes told the troopers

that  he had purchased the black box from a co-worker whose  name

he did not provide, and that the device had been installed on his

television for the past four months.  Ultimately, Cruz-Reyes  was

charged  with third-degree theft of services (services  having  a

value  of  at least $50 but less than $500).1  Following  a  jury

trial  in the Kodiak district court, Cruz-Reyes was convicted  of

this offense.

          In  this  appeal, Cruz-Reyes argues that his conviction

is not supported by the evidence, that the jury was misinstructed

on  the elements of third-degree theft of services, and that  the

trial  judge  committed  procedural and evidentiary  errors  that

prejudiced the fairness of the trial.  For the reasons  explained

here,  we reject Cruz-Reyess various assertions of error, and  we

therefore affirm his conviction.



Did  the charge of theft of services require the  State
to  prove that Cruz-Reyes actually watched the  premium
cable  channels that he had not paid for?  Or  was  the
offense  established by proof that  Cruz-Reyes  altered
his television so that he could view these channels  if
he wished?


          As  defined in AS 11.46.200(a)(1),  a  person

commits  theft  of  services if,  through  the  use  of

deception ... or other means to avoid payment  for  the

services, the person obtains services [which the person

knows are] available only for compensation.  And,  with

respect  to the theft of services, the word  obtain  is

defined    in   AS   11.46.990(12)(B)   as   secur[ing]

performance of the service.

          Cruz-Reyess   appeal  presents   a   question

concerning  the  meaning of obtain in  the  context  of

unauthorized access to cable television channels.  Cruz-

Reyes  asserts that, in this context, obtaining premium

cable  channels means actually watching these channels.

Only  then, Cruz-Reyes argues, can it be said that  the

defendant  has  secured  performance  of  the  service.

According  to this argument, it was not sufficient  for

the  State  to  prove that Cruz-Reyes had modified  his

television so that he might watch the premium  channels

if  he  wished.  Rather, the State was obliged to prove

that  Cruz-Reyes  (or other people, at his  invitation)

had  actually  watched unpaid-for television  shows  on

these channels.

          This legal issue came up at Cruz-Reyess trial

when  the  parties  discussed  the  jury  instructions.

Superior Court Judge Donald D. Hopwood, sitting in  the

District   Court,   ultimately   rejected   Cruz-Reyess

interpretation  of  the word obtains.   Instead,  Judge

Hopwood gave the following jury instruction:

     
          In relation to services, obtain means to
     secure performance of the service.  To secure
     performance  of the service,  a  person  must
     have   access   to,  or  be  able   to   use,
     the  service.   The person need not  actually
     use or benefit from the service.

On  appeal,  Cruz-Reyes renews his contention

that this jury instruction was wrong and that

the  State  was  obliged  to  prove  that  he

actually watched television programs  on  the

premium channels that he was not paying for.

          The statutes dealing with theft  of

services  vary  a  good deal  from  state  to

state;  because  of  this,  there  is  little

pertinent  case law from other  jurisdictions

to  help  us resolve this issue of law.2   We

have  also  examined the  commentary  to  the

Model Penal Codes theft of services provision

(  223.7), but this point is not discussed in

that  commentary.  Nevertheless, we  conclude

that  Judge  Hopwoods interpretation  of  the

statute is correct.

          As  explained above, the definition

of  theft  that  pertains  to  this  case  is

derived  from reading AS 11.46.200(a)(1)  and

AS     11.46.990(12)(B)    in    conjunction.

According  to  these two statutes,  theft  of

services consists of using deception (or  any

other  means  to  avoid  payment)  to  secure

performance  of a service that the  defendant

knows is available only for compensation.

          Cruz-Reyes concedes that the States

evidence   was  sufficient  to  prove   that,

without   notifying  the   cable   television

provider  and paying the appropriate  monthly

fee, he installed a machine that decoded  the

cable  television providers premium  channels

thus  enabling his television set to  display

the   programs   offered  on  these   premium

channels.  The question is whether,  by  this

conduct,  Cruz-Reyes secured  performance  of

the premium cable television service.

          Cruz-Reyes  argues  that  a  person

          does not secure performance of a cable

television service unless the person actually

watches  the programs that are broadcast  via

the  cable.   But  this  is  not  the  normal

understanding  of cable service.   Generally,

people  who  subscribe to a cable  television

service  are  billed a monthly  fee  that  is

based,  not  on how many shows they  actually

watch,   but  rather  on  the  selection   of

channels to which they have access.  With the

exception of special pay-per-view movies  and

sporting  events,  the  subscribers  fee  for

cable  access does not vary according to  how

many television shows the subscriber actually

watches.  Rather, the fee is for access   the

opportunity to watch shows if one wishes  to.

Thus,  the  monthly  fee  remains  the   same

whether  the  subscriber sits  glued  to  the

television  for  hours per day  or,  instead,

vacations for several weeks in the  south  of

France  and  never once turns on  their  home

television.

          We   therefore  conclude  that  the

challenged  jury  instruction  was   correct.

When  Cruz-Reyes installed the equipment that

allowed  him  access to the programs  on  his

cable  television providers premium channels,

he  secured performance of the premium  cable

service, even if he never watched any of  the

programs on these channels.



Cruz-Reyess motion for a judgement of acquittal


     In a related argument, Cruz-Reyes argues that

Judge  Hopwood should have granted him a judgement

of  acquittal because the States evidence was  not

sufficient to support the charge of theft.

     The   first  part  of  Cruz-Reyess   argument

involves  the  issue we have just resolved   i.e.,

whether  theft  of cable services  requires  proof

that the defendant actually watched cable programs

without  paying, or whether the offense is  proved

by  evidence that the defendant obtained access to

these programs without paying.  As we explained in

the  previous section of this opinion,  access  is

sufficient.

     Cruz-Reyes then argues that, even  if  access

is  sufficient,  the State never  proved  that  he

actually had access to the premium channels.  Cruz-

Reyes points out that the troopers who came to his

house  never flipped through the channels  to  see

what  channels  his television  set  was  actually

receiving.   Thus, Cruz-Reyes argues,  the  States

evidence  was  insufficient  to  prove  that   his

television was capable of receiving and displaying

the unauthorized cable programming.

          As  Judge Hopwood noted when he denied  Cruz-

Reyess  motion for judgement of acquittal, the question

is   whether  there  was  sufficient  evidence  for   a

reasonable  jury  to conclude that,  by  attaching  the

black box to his television, Cruz-Reyes obtained access

to  the  programs on the premium cable  channels.   The

judge pointed out that, according to the testimony, the

black  box had been hooked up to Cruz-Reyess television

for  four months.  The judge further pointed out  that,

after  the  troopers seized the black  box  from  Cruz-

Reyess  residence,  technicians at  GCI  connected  the

black box to their system to see what channels it would

decode  and give access to.  They found that the  black

box  permitted  display  of every  channel  that  their

company distributed via cable.

          Based  on  this  evidence, a reasonable  jury

could  conclude  that  the black  box  gave  Cruz-Reyes

access to these same channels when it was connected  to

his   television.   Thus,  the  States   evidence   was

sufficient to establish Cruz-Reyess guilt of  theft  of

the  premium  cable  services.  (As explained  earlier,

Cruz-Reyes was paying for the standard cable service.)



Does   a   witnesss  testimony  concerning  a   persons
statements take on an added layer of hearsay  if  those
statements  are  related  to  the  witness  through  an
interpreter?


          As explained above, Trooper Cross interviewed

Cruz-Reyes   through  an  interpreter   his  colleague,

Trooper  Ibarra.   At  trial, Trooper  Cross  testified

concerning  the statements that Cruz-Reyes made  during

this interview.

          Under  Alaska  Evidence Rule 801(d)(2)(A),  a

criminal  defendants out-of-court  statements  are  not

hearsay if they are introduced by the State.  But  this

rule  assumes  that  the States witness  (the  one  who

testifies about the defendants statements) is  speaking

from first-hand knowledge  that the witness is a person

who  heard the defendant make those statements.  In the

present  case, Trooper Cross heard Cruz-Reyes make  the

statements  at  issue here, in the sense  that  Trooper

Cross  was in Cruz-Reyess presence and could  hear  him

speaking.  But Cross did not understand what Cruz-Reyes

was saying. Cruz-Reyess statements were intelligible to

Cross only because of Trooper Ibarras translation.

          For  this  reason,  Cruz-Reyes  asserts  that

Crosss  testimony contained an extra layer of  hearsay.

That is, Cross was not really testifying about what  he

heard  Cruz-Reyes  say.  Rather, Cross  was  testifying

about  Ibarras version of what Cruz-Reyes said.   Thus,

Cruz-Reyes  argues, Crosss testimony was not admissible

over Cruz-Reyess hearsay objection.

          Whether   an   out-of-court  interpreter   or

translator adds another layer of hearsay to a  witnesss

testimony appears to be an issue of first impression in

Alaska.   The  State  asks us  to  adopt  the  language

conduit  rule  set out in United States v.  Koskerides,

877  F.2d 1129, 1135 (2nd Cir. 1989)  the rule  that  a

translator who acts as a mere language conduit does not

add  an  extra layer of hearsay.  Cruz-Reyes,  for  his

part,   argues   that   the  Koskerides   decision   is

unpersuasive and represents bad law.

          Our research suggests that Koskerides may  in

fact  represent  the majority view.   The  federal  and

state  courts that have addressed this issue in  recent

years have generally held that an interpreter does  not

add  another layer of hearsay  either under the  theory

that   the  interpreter  acted  as  an  agent  of   the

declarant,  or  under the theory that  the  interpreter

acted   merely  as  a  language  conduit  between   the

participants  in the conversation (or some  combination

of the two theories).3

          It  therefore  appears  that  the  weight  of

recent authority favors the rule that a translator   at

least,  a translator who is capable and fair  does  not

add  another  layer of hearsay to a  conversation.   In

Cruz-Reyess  case, Trooper Ibarra was a native  speaker

of Spanish who had previously worked as a translator in

the  military.  Moreover, the defense did not  question

the   accuracy  of  Ibarras  translation  (either   his

translation  of  Crosss  words  into  Spanish  or   his

translation of Cruz-Reyess words into English).   Given

these  circumstances,  there  would  appear  to  be  no

hearsay impediment to having Cross  testify about Cruz-

Reyess statements.

          However,  we  need  not definitively  resolve

this  issue  of  hearsay  law  to  resolve  Cruz-Reyess

appeal.   Cross was not the only witness who  testified

about the conversation with Cruz-Reyes; Ibarra did too.

Because  Ibarras  account of the conversation  was  the

same  as Crosss, and because the defense did not attack

the  accuracy  of  that account, we conclude  that  any

arguable  error  in  allowing  Cross  to  describe  the

conversation was harmless.



The issues surrounding the testimony of Timothy Brady


          During  the  trial, an interpreter  sat  with

Cruz-Reyes and translated the proceedings to him.   The

prosecutor believed that the interpreters presence  was

a  latent attack on the States case:  for if Cruz-Reyes

understood  so  little  English  that  he   needed   an

interpreter  in  court, why would  Cruz-Reyes  want  to

steal cable television programming that was in English?

          To  help  establish  Cruz-Reyess  motive  for

stealing the cable services, the prosecutor decided  to

call  a  witness who knew Cruz-Reyes and could  testify

that  he  was conversant in English.  This witness  was

Timothy  Brady,  an  officer with the  Immigration  and

Naturalization Service.

          Although Brady had dealt with Cruz-Reyes on a

number  of occasions, Brady did not remember Cruz-Reyes

by name.  The prosecutor asked Brady to attend court on

the second day of the trial, to see if Brady recognized

Cruz-Reyes.   Brady  did recognize Cruz-Reyes,  and  he

told  the  prosecutor that he was ready to testify  (1)

that he had spoken to Cruz-Reyes a number of times, and

(2)  that  Cruz-Reyes was able to speak and  understand

English.   At  this point, the prosecutor notified  the

defense  attorney  that he intended to  call  Brady  to

testify about Cruz-Reyess proficiency in English.

          The  defense attorney objected that Brady had

not  been  disclosed as a potential  witness  when  the

State   made  its  pre-trial  disclosure  under  Alaska

Criminal Rule 16(b).  However, when Judge Hopwood asked

the  defense  attorney to explain  how  Cruz-Reyes  was

prejudiced   by  this  late  addition  to  the   States

witnesses, the defense attorney did not claim  that  he

was  prejudiced by the short notice, nor did he ask for

additional   time  to  prepare  for  Bradys  testimony.

Instead,  he switched gears and argued (1) that  Bradys

testimony  was  not relevant, and (2) that  the  jurors

would  be prejudiced against Cruz-Reyes when they found

out  that  Brady  was  an INS officer.   Based  on  the

defense  attorneys response (in particular, the defense

attorneys  failure to claim prejudice),  Judge  Hopwood

ruled  that  Bradys testimony would not be excluded  on

the  ground that the defense had received short  notice

of the proposed testimony.

          On appeal, Cruz-Reyes asserts that he was, in

fact,   prejudiced  by  the  short  notice  of   Bradys

testimony   that his defense attorney did not  have  an

adequate opportunity to prepare to cross-examine  Brady

concerning  Cruz-Reyess proficiency  in  English.   But

this  argument was not presented to Judge Hopwood.   As

this  Court  stated  in Collins v.  State,  [When]  the

defense  claims  a mid-trial discovery  violation,  the

defendant must present the trial court with a plausible

claim of prejudice and request appropriate relief.4

          Cruz-Reyes  also  renews  his  argument  that

Bradys  testimony  was not relevant.   But  Cruz-Reyess

proficiency in English was relevant to his  motive  (or

lack   of   motive)  to  steal  the  cable   television

programming.   Thus, Bradys testimony (that  Cruz-Reyes

could understand and speak English) was relevant to the

issues being litigated.

          Finally,  Cruz-Reyes  argues  that   he   was

prejudiced  by the fact that Brady was an  officer  for

the   Immigration  and  Naturalization   Service.    He

contends that if the jurors knew that Brady was an  INS

officer,   the  jurors  would  infer  that  Brady   was

acquainted  with  Cruz-Reyes  because  Cruz-Reyes   had

committed  other crimes or had violated  United  States

immigration   laws.    But  Cruz-Reyess   argument   is

speculative.

          First,  Brady  was  never identified  to  the

jurors as an INS officer.  When this issue came  up  at

trial,  the prosecutor explained that he did not intend

to  introduce any evidence of Bradys profession or  the

reasons for Bradys acquaintance with Cruz-Reyes.  Brady

would  simply testify that he knew Cruz-Reyes, that  he

had  spoken  with Cruz-Reyes on a number of  occasions,

and   that   Cruz-Reyes  had  no  apparent   difficulty

understanding English.

          Cruz-Reyes suggests that it is possible  that

one or more members of the jury recognized Brady as  an

INS  officer.  But the defense attorney did not ask  to

voir  dire  the  jurors concerning their  knowledge  of

Brady.   Moreover,  even  if one  or  more  jurors  had

recognized  Brady  as  an  INS  agent,  there  was   no

testimony  that  Bradys  acquaintance  with  Cruz-Reyes

stemmed from official business of the INS.

          Finally,  even if the jurors had  known  that

Brady  was  an  INS officer and had surmised  that  his

knowledge of Cruz-Reyes stemmed from official business,

it  is complete speculation that the jurors would  have

further  concluded that this official business involved

misconduct  on  the part of Cruz-Reyes.   Thousands  of

foreign nationals meet with INS officers in the  normal

process  of  obtaining work and/or  residency  in  this

country.  Even if the jurors somehow surmised that Cruz-

Reyes  had spoken several times with an officer of  the

INS,  this  does not lead to the conclusion that  Cruz-

Reyes had broken the law on past occasions.

          For  these reasons, we uphold Judge  Hopwoods

decision to allow the State to present the testimony of

Timothy Brady.



Conclusion


          The  judgement  of  the  superior  court   is

AFFIRMED.



_______________________________
     1  AS  11.46.100(5) and AS 11.46.200(a) (defining  theft  of
services);  AS  11.46.140(a)(1) (defining  theft  in  the  third-
degree).

2 For example, Pennsylvanias theft of services statute, 18
Pa.Cons.Stat.Ann   3926(a)(1)  (West  2003),   contains
language  that  explicitly covers the type  of  conduct
involved in this case:

A  person  is  guilty of theft if he intentionally
obtains services for himself or for another  which
he  knows are available only for compensation,  by
deception or threat, by altering or tampering with
the  public utility meter or measuring  device  by
which such services are delivered or by causing or
permitting such altering or tampering,  by  making
or   maintaining   any  unauthorized   connection,
whether  physically, electrically or  inductively,
to   a  distribution  or  transmission  line,   by
attaching  or  maintaining the attachment  of  any
unauthorized  device to any cable, wire  or  other
component  of  an  electric,  telephone  or  cable
television system or to a television receiving set
connected  to a cable television system,  [or]  by
making    or    maintaining    any    unauthorized
modification or alteration to any device installed
by a cable television system, or by false token or
other  trick or artifice to avoid payment for  the
service.

Similarly, Wisconsin has a statute, Wis.Stat.Ann.  943.46
(West 2003), that is specifically directed toward theft
of  cable television service.  Section (2)(a)  of  this
statute  makes  it a crime to [o]btain  or  attempt  to
obtain  cable  television service  from  a  company  by
trick, artifice, deception, use of an illegal device or
illegal  decoder  or other fraudulent  means  with  the
intent  to  deprive that company of any or  all  lawful
compensation  for  rendering  each  type   of   service
obtained.  And section (2)(d) of this statute makes  it
a  crime  to  [m]ake or maintain a connection,  whether
physical,  electrical,  mechanical,  acoustical  or  by
other  means,  with  any cables, wires,  components  or
other  devices  used  for  the  distribution  of  cable
television services for the purpose of obtaining  cable
television  service  without  payment  of  all   lawful
compensation to the company providing that service.

3  Federal Courts:  United States v. Beltran, 761 F.2d 1,  9
(1st  Cir. 1985); United States v. Lopez, 937 F.2d 716,  724
(2nd  Cir.  1991); United States v. Da Silva, 725 F.2d  828,
831-32 (2nd Cir. 1987); United States v. Nazemian, 948  F.2d
522, 526 (9th Cir. 1991); United States v. Alvarez, 755 F.2d
830,  859-860 (11th Cir. 1985).  See generally,  Beth  Bates
Holliday,  Interpreter or Translator  as  Partys  Agent  for
Purposes  of  Admission by Party-Opponent Exception  to  the
Hearsay Rule (Federal Rules of Evidence, Rules 801(d)(2)(C),
801(d)(2)(D)), 121 A.L.R.Fed. 611 (1994).

State  Courts:  Correa v. Superior Court, 40 P.3d 739,  746-
751  (Cal. 2002); State v. Randolph, 698 S.W.2d 535,  538-39
(Mo.  App. 1985); State v. Patino, 502 N.W.2d 601, 610 (Wis.
App.  1993);  State v. Robles, 458 N.W.2d 818, 821-22  (Wis.
App. 1990).

4 977 P.2d 741, 745 (Alaska App. 1999).