Opinion
Court of Appeals No. A-8937.
December 13, 2006.
Appeal from the Superior Court, First Judicial District, Ketchikan, Michael A. Thompson, Judge, Trial Court No. 1KE-04-202 Cr.
Michael J. Zelensky, Ketchikan, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Heather A. Simpson and her boyfriend, Levi Graham, broke into a friend's residence and stole electronic equipment, food, and cigarettes. Based on this conduct, Simpson was charged with first-degree burglary and third-degree theft (theft of property valued at $50 or more).
AS 11.46.300(a)(1) and AS 11.46.140(a)(1), respectively.
At Simpson's trial, Levi Graham testified that he had committed these crimes by himself — that Simpson had no role in this episode. However, the State introduced evidence that Simpson, during a pre-trial interview with the police, had confessed to breaking into her friend's residence and stealing food and cigarettes — although she denied stealing the electronic equipment.
Based on the content of Simpson's interview with the police (specifically, her confession that she stole the food and cigarettes, but her denial that she stole the electronic equipment), the State asked the trial judge to instruct the jury on the lesser offense of fourth-degree theft — i.e., theft of property valued at less than $50. Over the objection of Simpson's attorney, the trial judge granted the State's request. The jury ultimately convicted Simpson of burglary and of this lesser degree of theft.
AS 11.46.150(a).
Simpson now appeals her convictions on several grounds.
First, Simpson argues that the evidence presented at her trial was insufficient to support the jury's finding that she participated in the burglary. But Simpson's argument is based on an interpretation of the evidence in the light most favorable to herself, and on the assertion that the evidence supporting the State's case was unconvincing and unworthy of belief. When an appellate court assesses the sufficiency of the evidence to support a jury's verdict, the court must view the evidence, and all inferences that could rationally be drawn from that evidence, in the light most favorable to upholding the verdict. When we view the evidence presented at Simpson's trial in this light, we conclude that it was sufficient to convince reasonable jurors, beyond a reasonable doubt, that Simpson committed the burglary.
See, e.g., Shafer v. State, 456 P.2d 466, 469 (Alaska 1969); Ritter v. State, 97 P.3d 73, 75 (Alaska App. 2004); Tipikin v. Anchorage, 65 P.3d 899, 901 (Alaska App. 2003).
Simpson next argues that the evidence was insufficient to support the jury's finding that she committed fourth-degree theft by stealing food and cigarettes. Simpson asserts that "it is unclear that food or cigarettes were missing" from the residence. Again, however, Simpson's argument depends on viewing the evidence in the light most favorable to herself. Viewing the evidence in the light most favorable to the jury's verdict, it was sufficient to support the conclusion that food and cigarettes were stolen.
Simpson argues in the alternative that, even if the evidence was sufficient to support a finding that she stole food and cigarettes from the residence, these items have "no value" — and, thus, the taking of these items can not constitute the crime of theft. We reject this contention.
Under AS 11.46.100(1), "theft" is the obtaining of another person's property with the intent to deprive the other person of the property or to appropriate the property for oneself or a third person. "Property" is defined in AS 11.81.900(b)(51) as "an[y] article, substance, or thing of value". And AS 11.46.980(a) establishes the general rule that, for purposes of the theft statutes, property will be valued at its "market value . . . at the time and place of the crime".
Although small amounts of food and small quantities of cigarettes may have only a small market value, these items are not valueless. That is, they are "property" under Alaska law. Hence, the unlawful taking of these items, if accompanied by the requisite culpable mental state (intent to deprive or appropriate), constitutes theft.
For these reasons, the evidence presented at Simpson's trial was sufficient to support her conviction for theft.
Next, Simpson argues that, under the facts of her case, the lesser offense of fourth-degree theft was not properly included within the charge of third-degree theft, and thus the trial judge should not have instructed the jury on fourth-degree theft.
Simpson's argument rests on the underlying assertion that, even though the electronic equipment, the food, and the cigarettes were all stolen from the same residence during the same burglary, the theft of the electronic equipment was actually a separate offense from the theft of the food and cigarettes. In other words, Simpson argues that if, during a burglary, the burglars steal several separate items, the taking of each separate item constitutes a separate theft.
Alaska law codifies a different rule. Under AS 11.46.980(c), when the issue is to determine the degree of a theft, "amounts involved in criminal acts committed under one course of conduct, whether from the same person or several persons, shall be aggregated".
Here, various items of property — three items of electronic equipment, as well as food and cigarettes — were stolen during a single burglary. According to the probable cause statement supporting the original criminal complaint, these items had an aggregate value of $315. Because the aggregate value of the property equaled or exceeded $50, the State charged Simpson with third-degree theft.
In her statement to the police, Simpson acknowledged that she broke into the residence and stole the food and cigarettes, but she denied stealing the three pieces of electronic equipment. If the jury believed this, and if the value of the food and cigarettes alone was less than $50, then the proper verdict was the lesser offense of fourth-degree theft.
Simpson argues that the aggregation-of-value statute, AS 11.46.980(c), does not apply to the theft of several items during one burglary, but rather applies only to situations where a person commits a series of thefts at different times and places. But this suggested interpretation of the statute would defeat the legislative policy behind the statute. The point of the statute is to establish (or clarify) the rule that acts of theft committed during a single course of conduct will not be viewed as a series of individual thefts, but rather will be viewed as one continuing theft.
The rule codified in this statute is related to the common-law "single larceny" doctrine: the rule that the taking of property belonging to different owners at the same time and place constitutes but one larceny. It is also related to our supreme court's holding in Nelson v. State, 628 P.2d 884 (Alaska 1981), that a person commits only one act of receiving stolen property if, on a single occasion, the person takes possession of a quantity of property that has been stolen from different owners. Id. at 897.
See Nelson v. State, 628 P.2d 884, 896 n. 15 (Alaska 1981).
Applying this same principle, AS 11.46.980(c) calls for the aggregation of property stolen during a single burglary. If, as in Simpson's case, the State charges a defendant with third-degree theft for stealing a quantity of property worth more than $50, and if the defendant presents evidence that they stole only a portion of this property, and that this portion was worth no more than $50, then it is proper for the jury to consider the lesser charge of fourth-degree theft.
Simpson argues that allowing the jury to find her guilty of fourth-degree theft for stealing the food and cigarettes constitutes a "fatal variance" from the original charge of third-degree theft. According to Simpson, the third-degree theft charge encompassed only the theft of the pieces of electronic equipment, and that this charge "by its terms did not purport to charge Simpson with theft of [the] food and [the] cigarettes".
But contrary to Simpson's assertion, the wording of the third-degree theft complaint did not specify the items of property encompassed within that charge; rather, the complaint referred only to property having a value of $50 or more. Accordingly, the charge of fourth-degree theft did not constitute a "variance" from the charge of thirddegree theft contained in the complaint.
The probable cause statement that accompanied the complaint did identify the property that was stolen. But this probable cause statement expressly referred to all of the property stolen during the burglary (the three pieces of electronic equipment, the food, and the cigarettes), and it declared that "the total value of items taken is $315.00". Thus, Simpson was clearly on notice that the State believed that Simpson stole food and cigarettes during the burglary.
For these reasons, we reject Simpson's argument that the jury should not have been instructed on the lesser offense of fourth-degree theft.
Finally, Simpson points out that, because her convictions rested in part on the content of her out-of-court police interview, the State was obliged to satisfy the corpus delicti rule. Simpson argues that the evidence presented at her trial fails to satisfy this rule because it fails to provide credible corroboration of her participation in the burglary / theft.
There are two flaws in Simpson's argument. First, her argument again rests on a view of the evidence in the light most favorable to herself. Viewing the evidence as a whole in the light most favorable to the jury's verdict, there was credible evidence establishing Simpson's role in these crimes.
But more important, the corpus delicti rule does not require corroboration of a person's participation in a crime. Rather, the corpus delicti rule requires corroboration that the crime occurred. We explained this in Dodds v. State, 997 P.2d 536, 538-39 (Alaska App. 2000): "While corpus delicti requires independent evidence that the charged crime occurred, it does not require independent evidence that the defendant participated in that crime."
Thus, whatever weakness there may have been in the State's evidence tending to prove Simpson's participation in the burglary / theft, this would not raise an issue under the corpus delicti rule.
The judgement of the superior court is AFFIRMED.