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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).
