Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

Judge KOSSLER.

A jury convicted Troy D. Baker of second-degree theft for selling a semi-trailer that did not belong to him. One of the State's witnesses was Vladimir Berezyuk, who bought the semi-trailer from Baker for $200. At the time of his testimony, Berezyuk was facing prosecution for theft in an unrelated case. Baker contends that the superior court erred by ruling that his attorney could not cross-examine Berezyuk about his pending criminal case unless Berezyuk gave trial testimony that was materially different from his testimony before the grand jury. We agree that the superior court erred by limiting the defense attorney's cross-examination of Berezyuk in this manner, but we conclude that the error was harmless beyond a reasonable doubt under the circumstances of this case.

Facts and proceedings

In September 2011, the Fairbanks police received a report that a forty-foot semi-trailer was missing from privately owned property next to Heindl's Automotive. The police investigation eventually led to Vladimir Berezyuk, who told the police he bought the trailer from Baker. Berezyuk produced a sales receipt that Baker had filled out and given to him.

When a police detective interviewed Baker, Baker initially said that he had sold a pickup truck, not a trailer. But when the detective confronted Baker with the sales receipt, Baker admitted to selling the trailer to Berezyuk. Baker said that he thought the trailer might belong to a "Mr. Collette," and he also said that he did not know who owned the trailer. When the detective asked Baker if he had a legal right to sell the trailer, Baker acknowledged that he did not.

The State charged Baker with second-degree theft1 and the case proceeded to trial before a jury. On the morning of the parties' opening statements, the prosecutor moved for a protective order prohibiting the defense from mentioning that the State had recently charged Berezyuk with theft. The prosecutor argued that since Berezyuk had not yet been convicted of this crime, Baker should be precluded from questioning Berezyuk about Berezyuk's criminal case. The defense attorney countered that, regardless of whether Berezyuk had been convicted, the evidence was relevant to establish Berezyuk's potential bias because the pending criminal prosecution gave Berezyuk an incentive to cooperate with the State.

After confirming with the prosecutor that Berezyuk was "going to recite basically the same testimony" he gave to the grand jury, the superior court granted the protective order. The court ruled that it would not allow Baker to inquire about Berezyuk's theft case unless Berezyuk "dramatically testifies against Mr. Baker in a different way" — that is, unless Berezyuk's trial testimony was materially different from his grand jury testimony.

The jury convicted Baker of second-degree theft. He appeals.

Why we conclude that the superior court erred in precluding Baker's attorney from cross-examining Berezyuk about his pending criminal case

Baker claims that the superior court erred by ruling that his attorney could not cross-examine Berezyuk about his pending theft case unless Berezyuk's trial testimony was "dramatically" inconsistent with his grand jury testimony. We agree that this ruling was error.

We addressed this issue in Kameroff v. State.2 In that case, the trial court ruled that the defendant could not inquire into the probation status of a witness unless the witness's trial testimony was inconsistent with his earlier statement to the police.3 After noting that a witness's probation status is a recognized reason that a witness potentially might be biased in favor of the State, this Court held that the trial court erred in precluding any inquiry into the witness's probation status absent a foundational showing of inconsistency.4 We explained that a witness's bias does not always manifest itself in inconsistent statements — a witness "may repeatedly provide the same biased account of events."5 Indeed, it may be "all the more important" to demonstrate the bias of a witness whose statements are consistent, and thus presumptively more credible.6 We further stated that if a witness's first account is untruthful, the witness may have a strong incentive to adhere to that untruthful account at trial because of the potential consequences of admitting to the earlier untruth.7

This reasoning applies equally to Baker's case. A witness's pending criminal charge might bias the witness in favor of the State.8 The superior court should have allowed Baker's attorney to question Berezyuk about his pending criminal case, regardless of whether Berezyuk's trial testimony was inconsistent with his grand jury testimony. Moreover, this error was constitutional in nature because it abridged Baker's right to confront and cross-examine a witness against him.9

Why we conclude that the error was harmless beyond a reasonable doubt

Baker suggests that this abridgement of his constitutional right to cross-examination is per se reversible error. We reject this argument because it is inconsistent with precedent applying a harmless beyond a reasonable doubt standard to deprivations of the constitutional right of cross-examination.10

In assessing whether an error is harmless beyond a reasonable doubt, the question is whether there is a reasonable possibility that the outcome of the jury deliberations would have been different had the error not occurred.11 This assessment requires us to review the evidence at trial in light of the parties' arguments.12

To convict Baker of second-degree theft, the jury had to find that Baker obtained the property of another, that the value of the property was between $500 and $25,000, and that Baker had the "intent to deprive another of property or to appropriate property of another."13 Baker did not contest that he obtained the property of another or that the property was worth more than $500. Instead, his defense focused on the element of intent. He asserted that the location and condition of the trailer led him to believe that the trailer was on the property of Heindl's Automotive, and that it was like other old and junked cars that Heindl's had allowed him to use, sell, or remove parts from. Baker's attorney told the jury that Baker was "[c]areless maybe, negligent maybe, reckless maybe, but it was not [his] intent, it was not his conscious objective to deprive anyone of their ownership in that trailer."

Baker did not testify at trial, so he relied in large part on Berezyuk's testimony to support this defense. Berezyuk testified that he was out driving when he saw an "older, retired K&W trailer" that looked "[e]ither ready to be sold or . . . maybe abandoned" on what appeared to be the property of Heindl's Automotive. When Berezyuk pulled in, Baker came out from the back of the building. Berezyuk assumed that Baker was a Heindl's employee, and he recalled that Baker may have had an emblem or pin on his shirt reflecting that he worked for Heindl's. After Baker confirmed that the semi-trailer was for sale, Bereyzuk offered him $200 for it, which Baker accepted. Baker then got a receipt from inside the Heindl's Automotive building, though the receipt bore no indication that it was a Heindl's receipt.

In closing argument, Baker's attorney argued that Berezyuk's testimony about the location and condition of the trailer supported Baker's belief that the trailer was on Heindl's property and that he had implicit permission to sell it. The attorney also argued that the receipt showed that Baker had not acted deceitfully:

Berezyuk's testimony also gave Baker grounds to argue that the jury should question Berezyuk's honesty and motives. Berezyuk admitted that it was "a miracle" that the trailer was available for $200. And following his purchase, Berezyuk sold the trailer to his landlord for $2000 ("an impressive profit," as Berezyuk acknowledged). And when Berezyuk and his landlord opened the trailer and discovered property inside, Berezyuk did not contact the troopers, Baker, or Heindl's Automotive to tell them what they had discovered. In closing argument, Baker pointed to this testimony and argued to the jury that Berezyuk was "at least as guilty [as Baker]. He's the one that knew this [trailer] belonged to . . . someone else." In its rebuttal to this argument, the State conceded that Berezyuk was not "a saint."

We recognize that other aspects of Berezyuk's testimony were harmful to Baker's case. As Baker points out, Berezyuk personally witnessed Baker's sale of the trailer. In addition, Berezyuk testified that Baker told him that he was selling the trailer for an incarcerated friend who needed the money. The State relied on this testimony when it argued that Baker was dishonest and knew that the trailer was not abandoned property.

But the State also had other compelling evidence establishing that Baker sold the semi-trailer to Berezyuk and knew that he did not have permission to make the sale. As mentioned, Baker filled out and dated a receipt documenting his sale of the trailer to Berezyuk for $200. And when a police detective confronted Baker with this receipt, Baker provided conflicting statements about the semi-trailer's ownership. He told the detective that he thought the semi-trailer might belong to a "Mr. Collette," and he also said he did not know who owned it. When the detective asked Baker if he had a legal right to sell the trailer, Baker acknowledged that he did not. The State drew the jury's attention to these conflicting statements in its opening statement, its initial closing argument, and its rebuttal closing argument.

Given this record, we conclude that even if the defense attorney had been allowed to cross-examine Berezyuk about his pending criminal case, there is no reasonable possibility that the jury would have reached a different verdict. Even if the jury had questioned Berezyuk's testimony because of his incentive to testify in favor of the State, there was ample other evidence that Baker had the intent to commit second-degree theft.

Conclusion

We AFFIRM the judgment of the superior court.