Opinion
A-13319
04-20-2022
MARLON B. GAMAYEN, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Barber Legal Services, Anchorage, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Ruth E. Ptak, Assistant District Attorney, Kodiak, and Clyde Ed Sniffen Jr., Juneau, Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Trial Court No. 3KO-18-00072 CR Third Judicial District, Kodiak, Dawson A. Williams, Magistrate Judge.
Michael L. Barber, Barber Legal Services, Anchorage, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Ruth E. Ptak, Assistant District Attorney, Kodiak, and Clyde "Ed" Sniffen Jr., Juneau, Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
Marlon B. Gamayen was convicted, following a jury trial, of fourth-degree theft for stealing a flashlight valued at $23.99 from a hardware store. Gamayen now appeals his conviction, arguing that the district court erred when it denied his request for a lesser included offense instruction on fifth-degree criminal mischief.
Former AS 11.46.150 (2018).
AS 11.46.486.
Under Alaska's cognate approach to lesser included offenses, a defendant is entitled to a lesser included instruction if, based on the evidence presented at trial, it would be impossible for the defendant to commit the greater offense without also committing the lesser offense. There must also be "some evidence which could lead a reasonable jury to find that the element which distinguishes the greater offense from the lesser has not been proved."
Palmer v. State, 379 P.3d 981, 990 (Alaska App. 2016).
Id. (quoting Wilson v. State, 670 P.2d 1149, 1151 (Alaska App.1983)).
Here, the evidence at trial included security footage that showed Gamayen entering the flashlight aisle of the hardware store and removing a flashlight package from its peg. Gamayen then knelt down for a few minutes with his back to the camera. He subsequently returned the now-empty package to the peg, placing it behind another flashlight package. Gamayen paid for some items but did not pay for the flashlight; the flashlight was not found in the store and was never recovered.
Based on this evidence, the State charged Gamayen with fourth-degree theft. At trial, Gamayen requested that the jury be instructed on fifth-degree criminal mischief as a lesser included offense. The trial court declined this request, in part, because, under the then-existing law, Gamayen would be subject to a higher maximum penalty if he were convicted of fifth-degree criminal mischief than if he were convicted of fourth-degree theft. The court reasoned that, under these circumstances, the fifth-degree criminal mischief offense was not a lesser included offense of fourth-degree theft. The court agreed, however, to instruct the jury on the elements of fifth-degree criminal mischief and to allow the defense attorney to argue that Gamayen was only guilty of this non-charged offense, and the jury should therefore acquit on this basis.
At the time of Gamayen's offense, a person committed fourth-degree theft if, "with intent to deprive another of property or to appropriate property of another to oneself or a third person, the person obtain[ed] the property of another," and the value of the property was less than $250 (adjusted for inflation). Former AS 11.46.150(a) (2018) & AS 11.46.100(1).
A person commits fifth-degree criminal mischief if, "having no right to do so or any reasonable ground to believe the person has such a right," the person "tampers with property of another" with either "reckless disregard for the risk of harm to or loss of the property" or "intent to cause substantial inconvenience to another." AS 11.46.486(a)(1). On appeal, Gamayen argues only that the "reckless disregard" theory of fifth-degree criminal mischief is a lesser included offense of fourth-degree theft under the facts of his case.
Both fourth-degree criminal theft and fifth-degree criminal mischief are class B misdemeanors. Former AS 11.46.150(b) (2018); AS 11.46.486(b). At the time of the crime and sentencing, class B misdemeanors carried a maximum sentence of "10 days unless otherwise specified." Former AS 12.55.135(b)(1) (2018). However, former AS 12.55.135(l)(3) (2018) limited the sentence of a person convicted of fourth-degree theft who had not been previously convicted of similar crimes to no more than 5 days of active imprisonment. Former AS 12.55.135(l) (2018) also restricted the term of probation for fourth-degree theft, regardless of the defendant's criminal history, to 6 months. There was no similar reduced imprisonment or probation restriction for fifth-degree criminal mischief.
Gamayen now appeals, arguing that the court's alternative remedy was inadequate and that he was entitled to an instruction on fifth-degree criminal mischief as a lesser included offense. In response, the State argues that the trial court did not err in refusing to instruct the jury on fifth-degree criminal mischief as a lesser included offense. The State also argues that any error is harmless given the court's alternative remedy and the specific facts of this case.
Typically, a lesser included offense involves less severe penalties than the greater offense. However, we have previously recognized an offense as a lesser included offense when it carries the same penalties as the "greater" offense. But we have never approved a lesser included offense instruction in a situation such as this one where the lesser included offense actually carried a higher maximum penalty than the "greater" offense.
See, e.g., Christie v. State, 580 P.2d 310, 317 (Alaska 1978) ("Most courts require that there be some evidence to support the lesser-included offense, and it is usually required that the punishment be less severe for the lesser-included offense."); see generally 6 Wayne R. LaFave et al., Criminal Procedure § 24.8(e), at 648 (4th ed. 2015) (stating that "regardless of the governing definition of lesser included offense, an offense will not be a lesser included offense if it carries a maximum penalty greater than that carried by . . . the charged offense" (emphasis in original)).
See Nicholson v. State, 656 P.2d 1209, 1212 (Alaska App. 1982) (recognizing second-degree sexual assault as a lesser included offense of attempted first-degree sexual assault under specific facts of the case even though both were class B felonies); Comeau v. State, 758 P.2d 108, 119 n.3 (Alaska App. 1988) (Singleton, J., dissenting) (stating that "[u]nder Alaska law, it is not necessary that a lesser offense have a lesser penalty than a greater offense to be a lesser-included offense" and citing to Nicholson).
Given this, we are inclined to find no error in the trial court's ruling. But in any event, we are persuaded by the State's reasoning that any error was harmless, given the trial court's alternative remedy and the specific facts of this case.
The judgment of the district court is AFFIRMED.