Opinion
Court of Appeals No. A-9464.
June 13, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge., Trial Court No. 3AN-03-10694 CR.
J. Adam Bartlett, Anchorage, for the Appellant.
W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Craig J. Tillery, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MANNHEIMER, Judge, concurring.
MEMORANDUM OPINION AND JUDGMENT
Jeffrey G. Marrese was convicted of criminal mischief in the third degree after he started a fire in his cell at the Anchorage jail. Marrese argues that Superior Court Judge Larry D. Card erred in denying both his pre-trial motion to dismiss the indictment and his later motion for judgment of acquittal. One of the elements of criminal mischief in the third degree is that the defendant damaged property in an amount of $500 or more.
Department of Corrections (DOC) staff repaired the damage caused by the fire. Marrese's contention on appeal is that the State did not present evidence that the fire caused $500 or more in damage because the State presented no evidence of the fair market value of the cost of repairing the damage caused by the fire either at the grand jury or at trial. We conclude that the State presented sufficient evidence to prove that Marrese caused $500 or more in damage.
Factual and procedural background
Around 5:00 a.m. on June 10, 2003, DOC employees at the Anchorage jail noticed smoke coming from underneath the door of the cell where Jeffrey Marrese was incarcerated. The smoke set off the sprinkler system in Marrese's cell and triggered the fire alarm. Corrections Officers Victor Demoss and Steve Mertz responded to the alarm; Demoss observed that Marrese's cell was filled with heavy smoke to the point that Demoss had trouble seeing Marrese. (Demoss explained that the smoke ventilation system in Marrese's cell was not functioning properly; this was apparently due to the fact that Marrese had clogged the vent with wet toilet paper.) Mertz observed both smoke and flames inside the cell. Demoss and Mertz pulled Marrese out of the cell and commenced fighting the fire with a fire hose. Other officers then arrived and took Marrese away, while Demoss and Mertz extinguished the fire.
After putting the fire out, Demoss observed smoke damage on the walls of Marrese's cell. Mertz also observed that the smoke had damaged the cell walls, and that the cell was full of water and "debris," including Marrese's personal papers, sheets, blanket, and towel. In addition, the entire lower section of the jail facility had been flooded with water as a result of the firefighting efforts. Fire Marshal John Bond determined that Marrese had started the fire using two batteries and a conductor, which ignited a bundle of papers Marrese had assembled in a cone shape.
A grand jury indicted Marrese on one count of criminal mischief in the third degree for intentionally damaging property of another in the amount of $500 or more. Marrese subsequently moved to dismiss the indictment, asserting that the State presented insufficient evidence that the fire caused $500 or more in damage. In a written order, Judge Card denied Marrese's motion to dismiss. Judge Card explained the reasoning behind his decision in a separate, oral ruling.
AS 11.46.482(a)(1).
The primary dispute at Marrese's trial centered on the amount of damage the fire caused. Fire Marshal John Bond testified that one wall of Marrese's cell was heavily sooted, and some paint had bubbled as a result of the fire. Marrese's mattress, bed cover, and various papers were also damaged or destroyed. The fire sprinkler head also had to be replaced.
Joyce Dudley, a DOC supply technician, testified about the value of the items that were damaged by the fire. Dudley testified that three mattresses were replaced at a cost of $45 each, four bedrolls were replaced at a cost of $42.60 each, and four inmate uniforms were replaced at a cost of $16 each. In addition to the mattress, bedroll, and inmate clothing in Marrese's cell, Dudley explained that the mattresses, bedrolls, and inmate uniforms in some cells adjoining Maresse's cell had to be replaced due to smoke damage and fire extinguisher odors that would not come out. Dudley testified that she determined that all these items needed to be replaced after individually examining them. Dudley testified that the replacement cost of these items was based on the original purchase invoices from when she purchased them.
Dudley also testified that the DOC spent $165 on paint, and $85 on other miscellaneous supplies — including mops, mop buckets, cleaning chemicals and supplies, brooms, dustpans, rags, etc. — to repair the fire damage. The replacement cost of the paint and miscellaneous items was also based on the original purchase invoices. In addition, Clifton Reagle, a DOC electronics technician, testified that it cost $65 to replace the sprinkler head in Marrese's cell and that a new smoke detector for Marrese's cell cost $40.
The State's witnesses also testified about the labor expenses entailed in the fire mop-up and subsequent repair work. Demoss testified that, as a result of the fire, he stayed late and was paid $60 in overtime. Bond testified that he put in two hours and twenty minutes of overtime (but did not specify how much he was paid). Dudley testified that she had ten or eleven inmates mopping up the fire and cleaning the damaged jail facilities. In addition to three or four other employees, she testified that the inmates were paid a total of about $50 for their work, and that she earned about $180, but she could not estimate how much the other employees earned. Reagle testified that he put in three hours at $28 per hour, and also worked four hours at the $42 per hour overtime rate replacing the sprinkler head.
After the State rested its case, Marrese's attorney made a motion for judgment of acquittal. Marrese's attorney asserted that the State had not presented adequate evidence of damages in excess of $500. Judge Card denied the motion.
The jury found Marrese guilty of one count of criminal mischief in the third degree.
Why we conclude that Judge Card did not err in denying Marrese's motion to dismiss the indictment
Marrese argues that the State did not present sufficient evidence at the grand jury to establish that he caused damage of $500 or more. Specifically, he argues that the State did not present evidence of the fair market value of the repairs made by the corrections employees and inmates. But Marrese never designated the grand jury transcript for his appeal. Therefore, we are unable to resolve Marrese's challenge to the indictment. Marrese has accordingly waived this challenge.
Bertilson v. State, 64 P.3d 180, 185 (Alaska App. 2003).
From the record that we do have, it appears that Marrese's claim has no merit. We have looked at Marrese's motion to dismiss the indictment, the State's response, and Judge Card's ruling. According to this record, Cheri Hagen, assistant superintendent at the Anchorage jail, testified before the grand jury that the fire caused damages totaling $1,280.76. Of this total, physical damages to the jail facility totaled $684.40. Hagen apparently testified that these damages included the cost of replacing the sprinkler head in Marrese's cell, several bed rolls and prisoner uniforms, and purchasing paint and miscellaneous cleaning supplies. Judge Card ruled that, although it would have been preferable for the State to have presented an itemized list of its costs, the State had met its burden of showing that the damages exceeded $500.
Judge Card's ruling is supported by the record. Even without considering labor costs — which accounted for the remaining portion of the $1,280.76 damage total — the State presented evidence that Marrese damaged property in an amount well over $500.
Why we conclude that Judge Card did not err in denying Marrese's motion for a judgment of acquittal
Marrese argues that Judge Card erred in denying his motion for judgment of acquittal because the State did not meet its burden of proving that the fire caused $500 or more in damage. He argues that the State did not present any evidence of the "fair market value of the cost of repair." Citing Willett v. State, Marrese argues that all of the State's damage estimates — including the costs of replacing mattresses, uniforms, etc. — were insufficient because the State was required to present evidence of both the fair market value of these items and the labor costs of repairing the damage. Marrese places particular emphasis on the overtime wages paid to the DOC employees for the repair work.
826 P.2d 1142 (Alaska App. 1992).
This Court's decision in Willett makes clear that the cost of repair is a permissible method of proving the amount of damages in a criminal mischief case. In Willett, this Court concluded that:
Id. at 1145.
Because damage can be determined by cost of repair and, in turn, cost of repair can be established without determining the value of the damaged property, AS 11.46.980(a) does not apply when the prosecution relies on evidence of cost of repair to prove the amount of damage in a criminal mischief case.
Id. (emphasis added). (AS 11.46.980(a) mandates that, in property damage crimes (among others), the market value of the damage or destroyed property "at the time and place of the crime" is to be used to measure damages.).
Marrese argues that the State should not be allowed to use its own repair expenses rather than showing what a third-party would charge to make the repairs. But in Willett — which addressed the means by which the State can prove the value of damages for purposes of criminal mischief prosecutions — this Court held only that the " reasonable cost of repair" is a proper measure of assessing damages. And Maresse does not argue or otherwise show that the State's repair costs in this case were "unreasonable."
W illett, 826 P.2d at 1144 (citing People v. Dunoyair, 660 P.2d 890, 894-95 (Colo. 1983) (emphasis added)).
Moreover, as the State points out, Maresse offered no evidence at trial of what a third-party would have charged to repair the damage. And in fact, it seems unlikely that a third-party would have charged less, considering that the DOC relied in large part on inmate labor in repairing the dam age. Furthermore, even without taking into consideration any labor costs, the State spent over $500 replacing items damaged by the fire ( i.e., mattresses, uniforms, etc.). In Willett, this Court held that the fair market value of damaged property need not be proven when the State relies on cost of repair to prove the amount of damages in a criminal mischief case.
See Fee v. State, 656 P.2d 1202, 1205-06 (Alaska App. 1982) (in third-degree criminal mischief case, holding that trial judge could rely, in setting restitution amount, on proposed testimony of the owner of the damaged property that Fee had caused $871.20 in damages, "as there was no conflicting evidence of value") (citing Nukapigak v. State, 562 P.2d 697 (Alaska 1977), aff'd, 576 P.2d 982 (Alaska 1978)).
In sum, the State did not have to introduce evidence at trial of the fair market value of the damaged property as part of the repair job. Considering the facts viewed in the light most favorable to the prosecution, the State introduced enough evidence for a reasonable juror to conclude that the fire caused at least $500 in damages.
Why we reject Marrese's argument that his sentence violated Blakely v. Washington
Marrese argues that Judge Card violated Blakely v. Washington in imposing his sentence. Marrese argues that Judge Card erred in finding the aggravating factor that he had a prior felony conviction that was of a more serious class of offense than his present offense. But we need not address this issue. Judge Card separately and properly found the aggravating factor that Marrese had three or more prior felony convictions. Marrese's attorney conceded that Marrese had four prior felony convictions at the sentencing hearing. And Marrese does not challenge Judge Card's finding of this aggravating factor on appeal. In Cleveland v. State, this Court pointed out that a sentencing judge can lawfully impose up to the maximum sentence if the State proves one Blakely-compliant aggravating factor. Because Judge Card found a Blakely-compliant aggravating factor which Marrese does not dispute, Judge Card had the authority, consistent with Blakely, to impose up to the maximum sentence for criminal mischief in the third degree. Therefore, Marrese's contention that his sentence violates Blakely has no merit.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
AS 12.55.155(c)(7).
AS 12.55.155(c)(15).
143 P.3d 977 (Alaska App. 2006).
Id. at 984-85.
Conclusion
Marrese's conviction and sentence are affirmed. The judgment of the superior court is AFFIRMED.
I agree with my colleagues that the evidence presented at Marrese's trial is sufficient to prove that the State's reasonable costs of replacing the items destroyed or damaged in the fire and ensuing flooding, as well as the reasonable costs of repairing the damage to the jail building itself, equaled or exceeded $500.
I write separately to point out that Marrese's argument ultimately hinges on an issue of procedure. Marrese asserts that it was error for the State to fail to present evidence substantiating the reasonableness of its replacement and repair costs. But this argument assumes that it was the State's burden to justify the reasonableness of its costs even in the absence of any evidence suggesting that those costs were unreasonable.
True, the normal rule in criminal cases is that the government bears the burden of proving every element of the crime. Nevertheless, in some instances, the law does not require the government to affirmatively prove a particular fact unless and until the defendant comes forward with some evidence to the contrary.
This is the rule that applies to all of the defenses codified in AS 11.81.320-430. The statutory definition of "defense", AS 11.81.900(b)(19), requires that "some evidence must be admitted which places [the defense] in issue" before the State becomes obliged to disprove the defense.
Likewise, in Trout v. State, 866 P.2d 1323, 1324 (Alaska App. 1994), we recognized and applied "[t]he general rule . . . that a defendant must prove that he or she is within an exception to a penal statute in order to take advantage of it; the State is generally not required to negat[e] those exceptions."
In Willett v. State, 826 P.2d 1142 (Alaska App. 1992), this Court addressed this issue in a context similar (although not identical) to Marrese's case. W illett discusses prosecutions for criminal mischief where the defendant wishes to assert that the cost of repairing the property is an unreasonable measure of damage because the cost of the repairs materially exceeds the market value of the damaged property. In Willett, we indicated that, in such circumstances, the defendant bears the initial burden of coming forward with evidence suggesting that the cost of repairs is unreasonable — and then the State bears the burden of proving the reasonableness of the cost of the repairs.
Willett, 826 P.2d at 1146.
Id.
It is certainly arguable that Willett also governs cases like Marrese's. In other words, Willett may stand for the broader proposition that, in all criminal prosecutions that hinge on the value of stolen or damaged property, the State does not become obliged to defend the reasonableness of its proof regarding the extent of the victim's loss unless and until some evidence is introduced suggesting that the claimed amount is unreasonable.
Marrese does not brief (or even acknowledge) this issue. For this additional reason, I join my colleagues in concluding that the judgement of the superior court should be affirmed.