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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
| JOHN B. PHILLIPS, | ) |
| ) Court of Appeals No. A-9869 | |
| Appellant, | ) Trial Court No. 3PA-06-266 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2226 July 17, 2009 | |
Appeal from the
Superior Court, Third Judicial District,
Palmer, Eric B. Smith, Judge.
Appearances: Beth G.L. Trimmer, Assistant
Public Advocate, and Rachel Levitt, Public
Advocate, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Juneau, Attorney General, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
John B. Phillips was convicted of five counts of
second-degree forgery,1 five counts of second- and third-degree
theft,2 one count of fraudulently using an access device,3 and
four counts of first-degree criminal impersonation.4 In this
appeal, Phillips argues that the trial court should have entered
acquittals on his charges of criminal impersonation. We agree
that there is insufficient evidence that he damaged the financial
reputation of one of his victims, and that he is entitled to
aquittal on the criminal impersonation counts related to that
victim.
Phillips also argues that the trial court should not
have admitted evidence of credit cards, checks, and other
documents that belonged, or referred, to people other than the
victims in this case. But we conclude that this evidence was
relevant to show Phillipss motive and knowledge, since the crimes
in this case were part of a larger identity-theft scheme.
We further conclude that the conditions on Phillipss
probation were reasonably related to his rehabilitation, but that
the judgment incorrectly suggested that Phillips was ineligible
for discretionary parole.
Background
On December 12, 2005, Palmer Police Officer James
Gipson stopped Phillipss vehicle for traffic violations.
Phillips produced his drivers license and gave the officer
consent to search the vehicles passenger area. During this
search, Gipson noticed an open checkbook containing another
identification card with Phillipss picture on it. Gipson also
saw credit-card checks bearing the name Andrew Gray, a checkbook
apparently belonging to Dondi Sturm, and a credit card issued to
Gwendolyn Brown.
Based on this information, Gipson later obtained a
warrant to search three suitcases belonging to Phillips, and he
found mail and checkbooks belonging to many different people, as
well as computer equipment for printing color photographs. An
inspection of the computer hard drives showed that Phillips was
using the equipment to manufacture fake drivers licenses.
The police also searched Phillipss Anchorage storage
unit and found more stolen mail, additional fake licenses and
state identification cards, and a substantial volume of new
merchandise, some of which was matched to purchases made with the
checking accounts belonging to Sturm and Gray. On February 2,
2006, in an interview with Fairbanks Police Detective Pearl
Holston, Phillips confessed his participation in a large-scale
identity-theft ring.
Phillips was charged with forgery, theft, and
fraudulent use of an access device related to his use of credit-
card checks stolen from Gray for purchases at the Wasilla Wal-
Mart on December 8, 2005. Phillips was charged with forgery,
theft, and criminal impersonation related to purchases at a
Wasilla Carrs on December 9, 2005, using a check stolen from
Sturm. Phillips was also charged with forgery, theft, and
criminal impersonation for purchases he made at a Wasilla Fred
Meyer on December 10, 2005, again using a check stolen from
Sturm. Phillips was also charged with forgery, theft, and
criminal impersonation for purchases he made at the Wasilla Lowes
on December 5, 2005, using a check stolen from Scott Roberts.
Finally, Phillips was charged with forgery, theft, and criminal
impersonation for additional purchases he made at the Wasilla
Lowes on December 6, 2005, again using a check stolen from
Roberts.
At trial, the jury returned guilty verdicts on these
fifteen counts, and found three aggravating factors. Superior
Court Judge Eric B. Smith imposed a composite sentence of 10
years imprisonment with 5 years suspended. Phillips now appeals.
Sufficiency of the Evidence of Criminal Impersonation
Phillips argues that the State presented insufficient
evidence to support his convictions of criminal impersonation in
the first degree. Counts 4 and 7 related to offenses against
Sturm; Counts 10 and 14 related to offenses against Roberts. The
precise issue is whether Phillipss misconduct damage[d] the
financial reputation of these two victims.5 Under the statute,
[f]inancial reputation means a persons (A) ability to obtain a
loan from a financial institution, open an account with a
financial institution, obtain property or services on credit, or
obtain an access device; or (B) creditworthiness in a credit
report.6 Therefore, in order to prove first-degree criminal
impersonation, the State must prove that the alleged victim has
suffered damage to at least one of these alternatives that
signify his financial reputation.
When evaluating the sufficiency of the evidence, we
consider only the evidence and reasonable inferences most
favorable to the verdict.7 We uphold a guilty verdict when a
reasonable juror could have concluded that the defendant was
guilty beyond a reasonable doubt.8
At trial, Phillips argued that the State failed to
prove damage to Sturms financial reputation because Sturms credit
was already affected by bankruptcy and many delinquent payments.
But Sturm testified that he had, nonetheless, suffered several
adverse effects from Phillipss misconduct. For instance, Sturm
testified that the vendors Phillips paid with Sturms checks had
sent the unpaid checks to collection agencies, and that these
agencies had then contacted Sturm thirty to forty times.
Furthermore, Sturm explained that he bounced six checks because
of the money withdrawn from his bank accounts. Sturm also
testified that Phillipss actions ruined his credit.
On cross examination, Sturm admitted that the marks on
his credit report that remained delinquent were related to
financial troubles that arose before Phillips had stolen his
checks. But on redirect examination, Sturm maintained that he
had additional bad marks on his current credit report based on
the checks that Phillips had stolen and forged.
When we review the sufficiency of the evidence for a
criminal conviction, we do not weigh the evidence or try to
evaluate witness credibility.9 Based on the evidence presented,
a reasonable juror could have inferred that Phillipss actions
harmed Sturms creditworthiness in a credit report, a type of
damage to his financial reputation that is recognized in the
statute. The evidence was therefore sufficient to support the
counts involving Sturm.
Phillips also argues that there was insufficient
evidence to support his criminal impersonation convictions
related to Roberts. At trial, Roberts testified that checks
forged by Phillips bounced when Roberts closed his checking
account, and that these checks had since been turned over to
collection agencies. But Roberts testified that he did not know
if Phillipss actions had any effect on his credit report, that he
continued to bank without problems, that he had not attempted to
take out any loans, and that he did not know whether his credit
was adversely affected.
The State did not offer any other evidence that
Robertss creditworthiness had been affected or that his ability
to obtain a loan, open an account, obtain credit, or obtain an
access device had been impaired. The State therefore failed to
offer sufficient evidence from which a reasonable juror could
conclude that Phillips had impaired Robertss financial reputation
in any of the ways that financial reputation is defined. We must
therefore remand this case for entry of judgments of acquittal on
counts 10 and 14.
Evidence of Crimes Against Other Victims
Before his trial, Phillips filed a motion in limine
challenging the admission of any uncharged criminal activity.
When the court heard arguments on this motion, the prosecutor
argued that the documents relating to other victims were relevant
to show Phillipss preparation, plan, identity, knowledge, and
motive. In response to questioning from Judge Smith, Phillipss
attorney conceded that the evidence was relevant to those issues,
but clarified that he was arguing that the evidence was more
prejudicial than probative. Judge Smith denied the motion in
limine, but told Phillips that he could object to individual
exhibits as they were offered into evidence.
Accordingly, Phillips objected when the prosecution
offered testimony that the police found a credit card belonging
to Gwendolyn Brown in the car when he was arrested. In response,
the prosecutor argued that the card was relevant to show
Phillipss guilty knowledge, because Phillips had insisted that
Browns credit card and an assortment of checks were left in his
car when he bought it. The judge ruled that the credit card was
relevant evidence of Phillipss overall plan. Phillips also
objected to several exhibits including checks, checkbooks, or
other forms of paperwork belonging to individuals in addition to
the victims in this case.10
Alaska Evidence Rule 404(b) restricts the
admissibility of evidence of other crimes.11 But evidence of an
ongoing fraudulent scheme may be admissible to show the
defendants motive, intent, knowledge or plan as those terms are
used in Evidence Rule 404(b).12 In the present case the evidence
that Phillips had credit cards, checks, and other documents
referring to other individuals tended to show (1) his overall
plan to steal mail and use it to create false identification
documents, (2) his motive for possession of the documents
referring to Day, Sturm, and Roberts, (3) his knowledge that
those documents were stolen, and (4) his intent to use the
documents he had stolen and created to make unauthorized
purchases.
Phillips argues that this evidence should have been
excluded under Alaska Evidence Rule 403, because it was more
prejudicial than probative.13 However, Judge Smith could
legitimately conclude that the probative value of this evidence
to explain Phillipss identity-theft scheme outweighed the
possibility that the jury would improperly conclude that Phillips
had a propensity to commit this type of crime.14
Furthermore, the record contains a substantial amount
of additional evidence that is not contested in this appeal
evidence suggesting that Phillips was involved in a scheme to
profit from the theft of the identities of dozens of other
people. Consequently, there is not a substantial likelihood that
the jurys verdict was appreciably affected by the evidence that
Phillips now disputes.15
Probation Conditions
A condition of probation must be reasonably related to
the rehabilitation of the offender and the protection of the
public, and must not be unduly restrictive of [the offenders]
liberty.16 Phillips appeals two probation conditions, Special
Condition 4, which requires him to submit to drug and alcohol
testing, and General Condition 13, which requires him to abide by
special instructions from his probation officer.
We have allowed conditions of probation that
authorize warrantless searches for drugs and alcohol when there
is a case-specific basis for the condition.17 For example, a
sentencing judge may impose such a condition when substance abuse
in the defendants background suggests that searches for drugs and
alcohol may further the defendants rehabilitation.18
In this case, the record includes substantial evidence
of Phillipss struggles with substance abuse. Phillipss drivers
license was revoked twice in 2000 for being a minor possessing
alcohol, Phillipss license was revoked again in 2004 for
providing a breath test result in excess of 0.08 percent, and
Phillips was also convicted of refusal to submit to a chemical
test in 2005. In addition, Phillips admitted that he used
nitrous oxide to get high, and nitrous oxide cartridges were
found in Phillipss vehicle after he was arrested in this case.
Furthermore, a man named Marvell Wells told Officer
Kelly Turney that during the period of these offenses, Phillips,
Wells, and two other people stayed at a hotel for about a week,
where they partied and consumed a lot of drugs. This evidence of
substance abuse was sufficient to establish that searches for
drugs and alcohol would be reasonably related to Phillipss
successful rehabilitation.
Phillips also appeals General Condition 13, which
provides that he shall [a]bide by any special instructions given
by the court or any of its duly authorized officers, including
probation officers of the Department of Corrections. Phillips
argues that this condition is overbroad. But this argument
ignores the implicit limitations on a probation officers
authority in other provisions of law. Indeed, we have noted that
defendants have the right to seek court review of any special
instruction from a probation officer.19 We therefore conclude
that this condition is appropriate for effective probation
supervision.
Parole Eligibility
Phillips also appeals the superior courts denial of
his motion to correct a clerical error in the judgment. The
judgment states that: The sentence is . . . all or partially
presumptive. The defendant is ineligible for parole, except as
provided in AS 33.16.090(b) and (c). This language is based on
presumptive sentencing statutes that had been modified prior to
Phillipss offense, and it suggests that Phillips is not eligible
for discretionary parole. However, under current law, as
explained in Judge Smiths post-judgment order, Phillips is
eligible for discretionary parole. On remand, the court should
correct the judgment to read that the defendant is eligible for
parole as provided by statute.
Conclusion
We REVERSE the convictions entered on Counts 10 and
14, and REMAND for entry of judgments of acquittal on those
counts. We AFFIRM the convictions entered on all the remaining
counts. But we REMAND for resentencing on the remaining counts
and for correction of the judgment concerning the defendants
parole eligibility.
_______________________________
1 Counts 1, 5, 8, 12, and 15 were charged under AS
11.46.505(a)(1).
2 Counts 2, 13, and 16 were charged under AS
11.46.130(a)(1). Counts 6 and 9 were charged under AS
11.46.140(a)(1). Count 11, also charging third-degree theft
under AS 11.46.140(a)(1), was dismissed.
3 Count 3 was charged under AS 11.46.285(a)(1)(3).
4 Counts 4, 7, 10, and 14 were charged under AS 11.46.565.
5 AS 11.46.565.
6 AS 11.46.990(10).
7 See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
8 See Sheldon v. State, 796 P.2d 831, 839 (Alaska App.
1990).
9 See, e.g., Ratliff v. State, 798 P.2d 1288, 1291 (Alaska
App. 1990).
10 The exhibits were (by exhibit number): (55) a
photograph of a check with the name of Shirley Winther, (56) a
closeup of the Winther check, (61) a scrap of paper with the name
Andrea, a name shared by Phillipss girlfriend, (64) stolen
checkbooks belonging to Conrad Blatler and a check belonging to
another individual with a Fairbanks address, (65-66) duplicate
copies of Exhibit 64, (67) checkbooks and paperwork belonging to
Conrad Blatler, John and Heather Coghill, Sean Roos, Jennifer
Uhaus, and Evan King, (68-71) closeups of the checkbooks in 67,
and (76) a United States Treasury check in the name of Amanda
Treavor.
11 Alaska Evidence Rule 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is
not admissible if the sole purpose for
offering the evidence is to prove the
character of a person in order to show that
the person acted in conformity therewith. It
is, however, admissible for other purposes,
including, but not limited to, proof of
motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake or accident.
12 See, e.g., Fields v. State, 629 P.2d 46, 50 (Alaska
1981) (Evidence of other offenses or misconduct is often relevant
to show that the charged offense was part of an overall scheme or
plan to defraud.); Miller v. State, 866 P.2d 130, 133-34 (Alaska
App. 1994) (concluding that the defendants drug-dealing
enterprise was relevant to show his motive for a home-invasion
robbery, since the robbery could have provided funds for the drug
operation); DAntorio v. State, 837 P.2d 727, 735 (Alaska App.
1992) (allowing credit cards and records belonging to other
victims because they were relevant to show the defendants
fraudulent credit card scheme); Montes v. State, 669 P.2d 961,
965 n.1 (Alaska App. 1983) (deciding that evidence that the
defendant had fraudulently stolen and sold a number of airplanes
and parts while misleading his business partner was admissible as
proof of a common scheme).
13 Alaska Evidence Rule 403 provides that relevant . . .
evidence may be excluded if its probative value is outweighed by
the danger of unfair prejudice.
14 Cf. Miller, 866 P.2d at 134 (Under the circumstances of
this case, . . . proof of motive and common scheme or plan were
crucial and legitimate components of the prosecutions case . . .
. Because the disputed evidence had direct and obvious bearing
on an actively disputed issue and was actually necessary to the
states case, we conclude that the trial court did not abuse its
discretion in finding the evidence more probative than
prejudicial under A.R.E. 403 and in allowing its admission.)
15 See Wyatt v. State, 981 P.2d 109, 115 (Alaska 1999)
(noting that an evidentiary error is harmless if it did not
appreciably affect the jurys verdict) (quoting Love v. State, 457
P.2d 622, 631-32 (Alaska 1969)).
16 Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
17 See, e.g., Lambert v. State, 172 P.3d 838, 841-42
(Alaska App. 2007).
18 Id. at 840-41.
19 Dayton v. State, 120 P.3d 1073, 1084 (Alaska App.
2005).
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