Opinion
Court of Appeals No. A-10731 Trial Court No. 3AN-08-11270 CR No. 5880
09-19-2012
NATHAN GARCIA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Brooke Berens, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge.
Appearances: Brooke Berens, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Nathan Garcia was convicted of second-degree theft and fraudulent use of an access device after a trial where the testimony suggested that he had received a stolen ATM card and used it to obtain cash from an ATM. He now argues that he is entitled to a new trial because the prosecutor misstated the mental elements of these offenses during closing argument. We conclude that any misstatements were adequately cured by the trial judge's instructions to the jury and the defense attorney's closing argument.
Garcia also argues that he should have received a mitigated sentence because his conduct was among the least serious conduct included within these offenses. But we conclude that Garcia's conduct was not among the least serious when one considers all the circumstances, including the fact that, at the time of these offenses, he had recently been placed on probation for a similar offense.
Background
An Anchorage woman and her husband parked their car in a restaurant's parking lot, but forgot to lock the doors. When they returned to the vehicle, the woman's jacket was missing from the back seat. In the pocket of the jacket were credit cards and ATM cards, along with the PIN to one of the ATM cards.
Two days later, the woman discovered that one of her ATM cards had been used to withdraw approximately $300 from an ATM at a Chevron gas station. The $300 was withdrawn in two separate transactions — one for $102 and one for $202. The woman went to the gas station and obtained a copy of the surveillance footage and ATM log which showed that a man tried to use her card eleven times the evening the ATM card was stolen. The woman gave this information to the police.
The police identified Garcia from the surveillance video. When interviewed by the police, Garcia admitted to using the card to withdraw $300, but claimed he was just helping a friend. According to Garcia, a homeless woman had come to his house, had given him the ATM card, and asked Garcia to withdraw $400 from an ATM because she was really drunk and did not know how to use the ATM card.
Garcia was subsequently arrested and charged with second-degree theftand two counts of fraudulent use of an access device. At trial, Garcia's testimony was mostly consistent with what he told the officer during his interview. He stated that he would never have used the ATM card if he thought there was a possibility it was stolen. However, the jury rejected Garcia's testimony and returned guilty verdicts on all three counts.
AS 11.46.130(a)(7).
AS 11.46.285(a)(1), (b)(2).
Discussion
Judge Spaan was not required to grant Garcia's request for a new trial.
During the State's closing argument, the prosecutor argued that Garcia "knew that [the owner of the ATM card] had not authorized him to take money out of her account, or he should have known, because he never talked to [the owner]." The defense attorney objected, arguing that the prosecutor misstated the law when she suggested that Garcia could be convicted if he "should have known" he was not authorized to use the ATM card. The defense attorney pointed out that the State was required to prove that Garcia actually knew he was not authorized to use the card. The judge instructed the jury that the parties' closing summations were only argument and that it was up to the jury to decide whether the attorneys were wrong on the law or the facts.
During Garcia's closing argument, the defense attorney referred the jury to the jury instruction that contained the elements of fraudulent use of an access device and argued that the State was required to prove that the defendant acted with the intent to defraud. The attorney explained that the State was required to prove "what the defendant thought, what he intended to do, what he was doing at the time he got the money out of the ATM." The defense attorney also referred the jury to the jury instruction that defined "intent to defraud" and read the instruction nearly verbatim. The attorney explained that the State was required to prove that Garcia's "conscious objective" was to injure the victim's interest or that Garcia knew that he was committing a fraud.
Following the defense attorney's argument, the prosecutor in her rebuttal argument referred the jury to another instruction describing "culpable mental state:"
[W]hat that instruction says is when a person intentionally, knowingly, or recklessly does that which the law declares to be a crime, the person is acting with a culpable mental state, even though ... he may not know that his act or conduct is unlawful. ... [W]e are looking at the circumstantial evidence. It doesn't really matter that he thinks it's perfectly okay to use other people's ATM cards.
The defense attorney again objected to this argument, and the judge called the attorneys to the bench for a conference and admonished the prosecutor: "You've got to prove both the objective and his subject[ive] state of mind. So, when you say it really doesn't matter, it does matter, because it's the second part of your offense." The judge then instructed the jury as follows:
Ladies and gentlemen, ... in the heat of battle, counsel may [un]intentionally misrepresent the law or facts. And you are not to hold it against either of the parties. It's up to you. There [are] two parts to the mental element. It's the objective, what would a reasonable person do? But there's also a subjective part of it. What did the defendant believe? Thank you.
After the jury returned guilty verdicts on all three counts, the defense attorney moved for "judgment notwithstanding the verdict," arguing that the verdict was improper because the State had confused the jury about the mental states it was required to prove. The judge denied the motion, finding that any misstatements of law had been cured by the court's instructions.
Garcia renews his argument on appeal, contending that misstatements in the prosecutor's argument require us to grant him a new trial. We employ an abuse of discretion standard to review the trial judge's ruling.
Moffitt v. State, 207 P.3d 593, 602 (Alaska App. 2009).
We conclude that Judge Spaan did not commit an abuse of discretion. The judge's remarks to the jurors attempted to clarify the required mental elements and directed the jury to apply the law as stated in the jury instructions. The judge concluded that these remarks were sufficient to cure any prejudice caused by the prosecutor's statements. In addition to Judge Spaan's comments, the jury also received accurate written jury instructions on the elements of the offenses and an instruction telling them to disregard any argument by the attorneys that was inconsistent with those instructions.
Moreover, although the State may have done a confusing job of arguing the mental elements to the jury, Garcia's attorney quoted the definition of "intent to defraud," and she directed the jury to the relevant jury instructions on these issues. We conclude that Judge Spaan did not abuse his discretion when he concluded that his instructions to the jury cured any potential prejudice from the prosecutor's closing argument.
Garcia's conduct was not among the least serious conduct defined by these offenses.
Because Garcia had two prior felonies, he was subject to a presumptive sentencing range of three to five years' imprisonment on each count. Garcia argued that he should receive a sentence below the presumptive range based on mitigating factor (d)(9) because his conduct was was among the "least serious" within the definition of his offenses.
AS 12.55.125(e)(3).
AS 12.55.155(d)(9).
Judge Spaan rejected this mitigator, concluding that Garcia had not proved it by clear and convincing evidence, and found that Garcia's conduct fell "right in the heartland of the offense." The judge stated that it was "remarkable" that someone with Garcia's criminal history would not think twice about taking and using the ATM card. (Garcia's criminal history includes a 2004 second-degree theft conviction, a 2003 second-degree theft conviction, a 2000 theft by deception conviction, and a 2008 shoplifting conviction that had been entered only four months before the offense in this case.) Judge Spaan also noted that the jury had rejected Garcia's version of events and that he agreed with the jury's verdict.
Garcia renews his argument on appeal that his conduct was among the least serious. We must review the superior court's factual findings regarding the nature of Garcia's conduct for clear error, and independently determine whether Garcia established this mitigating factor.
Michael v. State, 115 P.3d 517, 519 (Alaska 2005); Moore v. State, 218 P.3d 303, 305 (Alaska App. 2009).
Garcia argues that he proved by clear and convincing evidence that the conduct underlying his second-degree theft conviction was "least serious" because he did not personally take the ATM card. He argues that he "merely disregarded the risk that the card was stolen." He relies on his trial testimony that a homeless woman gave him an ATM card, that he was only helping to withdraw money for her, and that he did not profit from his actions.
But Judge Spaan found Garcia's account unconvincing, and he concluded that the jury had similarly rejected Garcia's testimony when it reached guilty verdicts on the charges. These finding are not clearly erroneous.
Garcia also argues that his conduct was on the low end of the range of conduct that constitutes those offenses because he used the ATM card to steal only a total of $300. But this argument is not very persuasive with respect to his conviction for theft in the second degree under AS 11.46.130(a)(7) because this offense does not hinge on the value of property. A person commits this crime when he commits a theft of property that is an "access device." The definition of "access device" includes any "card" or "credit card" that is "capable of being used ... to obtain property or services." Garcia's theft of an ATM card appears to be a routine violation of this statute.
AS 11.46.130(a)(7).
AS 11.81.900(b)(1).
Garcia's argument applies more directly to his convictions for fraudulent use of an access device because those convictions required proof that the value of the property he obtained was "$50 or more but less than $25,000." The commentary to the criminal code suggests that the parties may establish aggravating or mitigating factors by showing that the value of stolen property is close to one of these limits. And Garcia's crimes involved the use of the stolen card to make two withdrawals that were at the very low end of this scale.
AS 11.46.285(b)(2).
See Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 161, 1978 Senate Journal 1399.
But the marginal value of property stolen does not necessarily establish this mitigating factor. A sentencing judge may properly determine the seriousness of an offense by considering the totality of the circumstances relating to the defendant's conduct, including factors other than the value of the stolen property, such as a defendant's criminal history and whether the defendant's conduct included other crimes.
See Gant v. State, 712 P.2d 906, 909 (Alaska App. 1986) (holding that the sentencing judge should consider all of the circumstances of a crime and not just the monetary value when determining whether this factor has been proven).
See, e.g., Stanbrough v. State, Mem. Op. & J. No. 4164, 1999 WL 1186234, at *2 (Alaska App. Dec. 15, 1999) (rejecting this "least serious" mitigator for a second-degree theft in which defendant stole an $80 rug because defendant was on probation for two prior thefts); Bulkley v. State, Mem. Op. & J. No. 2991, 1994 WL 16196496, at *2 (Alaska App. Sept. 7, 1994) (rejecting the least serious mitigating factor where defendant was on probation at the time of the theft); Turner v. State, Mem. Op. & J. No. 2176, 1991 WL 11259122 (Alaska App. Mar. 6, 1991).
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Viewing Garcia's crimes in isolation, we might be convinced that his use of the stolen ATM card to withdraw $100 and $200 was among the least serious conduct within the definition of these offenses. But we agree with Judge Spaan that this offense is more serious when one considers that Garcia had recently been placed on probation for a similar theft offense. We therefore conclude that Garcia's crimes were not among the least serious for this type of offense.
Conclusion
We AFFIRM the superior court's judgment and sentence.