Opinion
Court of Appeals No. A-9656.
March 26, 2008.
Appeal from the Superior Court, Third Judicial District, Glenallen, Daniel J. M. Schally, Judge pro tem, and Charles T. Huguelet, Judge, Trial Court No. 3GL-05-107 CR.
Marcia E. Holland, Contract Attorney, Public Defender Agency, and Quinlan G. Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Wilson J. Jainese of two counts of theft in the second degree (theft by deception) for two transactions involving a 1992 Dodge truck. Jainese appeals, arguing that Superior Court Judge pro tem Daniel J. M. Schally erred in allowing the State to introduce evidence of another incident involving a consignment contract for a motor home. Jainese argues that admission of this other act evidence violated Alaska Evidence Rule 404(b)(1) because its sole purpose was to establish his propensity to commit theft by deception. We affirm Judge Schally's ruling. We find that this incident was probative of Jainese's intent to deceive and was not unfairly prejudicial.
AS 11.46.180(a) and AS 11.46.130(a)(1).
Superior Court Judge Charles T. Huguelet imposed two maximum 5-year sentences for the con victions for theft in the second degree. Judge Huguelet imposed these sentences consecutively to each other and consecutive to a 3-year sentence that Jainese received in another case. Jainese appeals his sentence. He argues that Judge Huguelet did not make sufficient findings to justify a sentence that exceeded the maximum sentence for Jainese's most serious offense — i.e., did not find that the sentence was necessary for the protection of the public. We agree and remand for resentencing.
Neal v. State, 628 P.2d 19 (Alaska 1981); Mutschler v. State, 560 P.2d 377 (Alaska 1977).
Factual and procedural background
The Midgett incident
Joseph A. Midgett Sr. testified that he parked his 1992 Dodge truck in his yard with a yellow sticker indicating the truck's year. In late March or early April of 2005, Jainese knocked on Midgett's door and inquired if the truck was for sale. This was the first time Midgett had ever met Jainese.
Jainese told Midgett that he was down from the Slope and in town due to an emergency: his mother was in a coma and about to die. Jainese agreed to pay $8,000 for the truck. They agreed that Jainese would pay $3,000 immediately and the rest over a three-month period.
Midgett and Jainese went to the Department of Motor Vehicles together and registered the truck in Jainese's name, listing Midgett as the lienholder. Midgett and Jainese agreed Jainese would take the truck to retrieve the money for the first payment. Jainese told Midgett he would be back in an hour with the money. That was the last time Midgett saw Jainese.
When Jainese did not return after a couple of hours, Midgett became suspicious. After looking in the phone book, he spoke to someone claiming to be Jainese's son and someone claiming to be Jainese's mother. No evidence indicating the content of these conversations was admitted at trial. But after these conversations, Midgett reported to the police that the truck had been stolen. These allegations form the basis of Count II of the indictment.
The West incident
The next day, according to Marjorie F. West's testimony, Jainese entered the Mentasta Lodge restaurant where West worked as a bartender. Jainese told her that he had a truck for sale. (This was Midgett's truck.) This was the first time West had ever met Jainese. Jainese told West he had a buyer in Tok who was going to pay $2,800 for the truck. This buyer was going to be making payments though, and Jainese would rather sell the truck outright. West paid Jainese $1,800 in cash for the truck. Jainese did not tell West that the truck had a lienholder. He showed West his identification, gave her some papers for the truck, told her he worked on the Slope and had to get back, and promised to send her the title. Jainese never sent the title to West.
After waiting a week for the title, West began to worry. West found a name and phone number on an insurance card inside the truck, and she called someone she assumed was Jainese's father. No evidence indicating the content of this conversation was admitted at trial. But after this conversation, West called the police. The police informed West that the truck had been reported stolen. These allegations form the basis of Count I of the indictment.
The Buchanan incident
Pat J. Buchanan testified that she parked her motor home in her yard in Fairbanks with a "For Sale" sign. In late April of 2005, Jainese pulled into the driveway of Buchanan's Fairbanks residence and inquired about the motor home. This was the first time Buchanan had ever met Jainese. Jainese did not tell Buchanan where he was from or what he did for a living. Jainese did tell her that he was traveling with his daughters (he was accompanied by two young women), explained why he was in Fairbanks, and said that he was looking for a motor home to buy.
According to Buchanan, Jainese told her he had recently sold a motor home, very much like hers, in Homer, for considerably more money than she was asking. Jainese suggested they enter into a consignment contract. Buchanan and Jainese agreed, in a written document, that Jainese would take the motor home to Homer and would have two weeks to sell it. Jainese would keep any amount over $20,000. Jainese showed Buchanan his identification card and drove away in the motor home.
About four hours later, the two women that had been with Jainese returned to Buchanan's residence. According to the prosecutor's offer of proof, the women told Buchanan that they were not Jainese's daughters. They said that Jainese told them that he bought the recreational vehicle from Buchanan and that he got a good deal on it. Jainese moved to exclude the women's testimony on the ground that it would be unduly prejudicial. Judge Schally granted the defense motion and the testimony did not come in during the trial. But Buchanan did testify as to the effect that this conversation had on her: she called the troopers.
In the following days, Jainese called Buchanan twice and left messages for her to let her know things were "going great." At some point, Buchanan contacted her insurance company and made a claim. Within the two-week period agreed to in the contract, Seward police contacted Buchanan and informed her that they had located Jainese and the motor home. These allegations constitute the basis of the 404(b)(1) evidence introduced by the State.
Why we conclude that Judge Schally did not err in admitting evidence of the Buchanan incident
Jainese argues that Judge Schally erred in allowing the State to present evidence of the incident where he obtained Buchanan's motor home on consignment. Jainese argues that evidence of this incident was inadmissible because it was merely evidence of his propensity to commit crimes of deception and was unfairly prejudicial. Jainese points out that, at the time he was arrested, the two-week period that he was authorized under the consignment contract to sell Buchanan's motor home had not yet expired. He contends that the Buchanan incident was not similar to the other incidents, particularly to the West transaction where he sold the truck. He argues that evidence of the Buchanan incident was particularly prejudicial because Buchanan testified that she was a single mother who was trying to raise a son and had to make monthly payments on the motor home, which was now impounded.
The State argues that the evidence of the Buchanan incident was admissible to show Jainese's intent to deceive.
Admission of this kind of evidence is governed by Alaska Evidence Rule 404(b)(1) and Alaska Evidence Rule 403. Evidence Rule 404(b)(1) provides that evidence of other acts by the defendant is not admissible to show criminal propensity. The evidence must be admissible for some other legitimate purpose. Assuming that the evidence is admissible for a legitimate purpose, then under Evidence Rule 403, the court must weigh the probative value of the evidence against its danger for unfair prejudice.
Calapp v. State, 959 P.2d 385, 387-88 (Alaska App. 1998) (citing Lerchenstein v. State, 697 P.2d 312, 315-16 (Alaska App. 1985), aff'd, 726 P.2d 546 (Alaska 1986)).
We conclude that Judge Schally could find that the Buchanan incident was admissible to show Jainese's intent to deceive Midgett and West. Judge Schally pointed out that all three incidents occurred over a short time period. And he could certainly find that all three incidents, taken as a whole, demonstrated Jainese's pattern of deception. Based on the Midgett, West, and Buchanan incidents, Judge Schally could find that the incidents established a pattern of deception.
The State sought to prove that Jainese committed theft by deception by promising performance that he did not intend to perform. The theft by deception statute AS 11.46.180(b) requires that, "if the state seeks to prove that the defendant used deception by promising performance which the defendant did not intend to perform . . ., that intent or knowledge may not be established solely by or inferred solely from the fact that the promise was not performed." The State could not merely show that Jainese had not fulfilled his contracts. The State had to show that, when Jainese entered into those contracts, Jainese had the intent to deprive the owners of the property. Judge Schally could determine that the Midgett, West, and Buchanan incidents, taken together, tended to show Jainese's intent to steal. We accordingly conclude that Judge Schally could properly determine that the Buchanan incident was admissible for a non-propensity purpose.
AS 11.81.900(b)(18)(E).
We also conclude that Judge Schally could properly determine that the probative value of the evidence outweighed the danger of unfair prejudice. Standing alone, the Buchanan incident shows merely that Jainese entered into a consignment contract to sell the motor home for Buchanan. It is only when it is considered together with the Midgett and West incidents that the Buchanan incident tends to show Jainese's intent to use deception to steal the vehicles.
Jainese argues that the Buchanan incident was not relevant because it did not show that Jainese had any intent to deceive. Certainly Jainese's intent to deceive would have been more clear had Judge Schally allowed the testimony of the two women who accompanied Jainese when he obtained the motor home from Buchanan. But even without this testimony, given the other evidence in the case, a reasonable jury could infer an intent to deceive from Jainese's dealing with Buchanan.
Jainese also argues that Buchanan's testimony about the hardship that she suffered because her motor home was impounded was unduly prejudicial. But Jainese never objected to the admission of this testimony. Nor has he argued on appeal that the admission of this testimony was plain error.
We accordingly conclude that Judge Schally did not err in admitting evidence of the Buchanan incident.
Why we remand the case for resentencing
Jainese was convicted of two counts of theft in the second degree, which is a class C felony. Jainese was a third felony offender for purposes of sentencing, and therefore he faced a presumptive term of 3 to 5 years of imprisonment. Judge Huguelet imposed the maximum term of imprisonment for each conviction and imposed these sentences consecutively for a total term of 10 years of imprisonment. In addition to these charges, Jainese faced sentencing on another class C felony for a third-degree weapons misconduct conviction. The parties had agreed that Jainese would receive a sentence of 3 years of imprisonment on that conviction. Judge Huguelet also imposed this sentence consecutively. Therefore Jainese received a term of 13 years of imprisonment. Jainese argues that the sentence is excessive or, at least, that Judge Huguelet did not make sufficient findings to justify the sentence.
AS 12.55.125(e)(3).
AS 11.61.200(a).
Jainese was 46 years old at the time of sentencing. He has an extensive and almost continuous record of prior theft offenses, including multiple prior felony convictions. The author of the presentence report concluded that Jainese was "a thief, a liar, a con artist[,] and he has been what he is his entire adult life." The author concluded that Jainese was one of those relatively rare offenders for whom there appeared to be no hope for rehabilitation.
Judge Huguelet's sentencing remarks are quite brief. He pointed out that the presentence report showed Jainese's extensive record of crimes of dishonesty. He then stated:
And I do find [that] you [are a] worst offender in this case. You're clearly a danger to society and are unable to conduct yourself. You have the mind to do it, obviously, but you seem unable to resist taking other people's property. And the chances of rehabilitation at your age with this kind of history are unlikely.
Jainese points out that the Alaska Supreme Court has held that a sentencing judge who is imposing a composite sentence that exceeds the maximum term for the defendant's most serious crime must expressly find that the composite sentence is necessary to protect the public and that the defendant cannot be rehabilitated or deterred by a shorter sentence. This is the Neal-Mutschler rule. We can infer the finding where it is obvious from the record, even if the sentencing judge does not specifically refer to the Neal-Mutschler rule.
Neal, 628 P.2d 19; Mutschler, 560 P.2d 377; see Degross v. State, 816 P.2d 212, 218 (Alaska App. 1991).
Powell v. State, 88 P.3d 532, 538 (Alaska App. 2004).
This is a close case. Although terse, Judge Huguelet's sentencing remarks succinctly sum up Jainese's extensive prior record and his poor prospects for rehabilitation. The problem we have is that almost any sentencing judge would make these comments about Jainese regardless of the sentence imposed. The parties never argued the applicability of the Neal-Mutschler rule at sentencing. And Judge Huguelet never referred to it. So we are unsure whether Judge Huguelet was truly aware of this requirement and concluded that no sentence short of the 13 years of imprisonment would have adequately protected the public. Faced with this uncertainty, we conclude that we must remand the case for resentencing.
Conclusion
We conclude that Judge Schally did not err in admitting evidence of the Buchanan incident. We remand the case for resentencing.