Opinion
Court of Appeals No. A-12408 No. 6771
02-20-2019
JEREMY EDAN SMITH, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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 authority for any proposition of law. Trial Court No. 3AN-14-1820 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael R. Spaan, Judge. Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
In February 2014, Jeremy Edan Smith entered the Anchorage J.C. Penney jewelry department, placed two boxed necklaces into his coat pocket, and exited the store without paying. Loss prevention officers detained Smith, and the police subsequently arrested him.
A grand jury indicted Smith on one count of second-degree theft under a recidivist theory — that he committed third-degree theft by stealing property valued at $50 or more, after having been convicted of at least two similar thefts in the previous five years. Following a jury trial, Smith was convicted as charged.
Former AS 11.46.130(a)(6) (pre-July 2014 version).
On appeal, Smith raises four claims. First, Smith argues that the trial court erred in allowing the State to amend the indictment prior to trial. Second, Smith argues that the court violated his due process rights by not ruling on all of the issues he raised in a pro se motion that the court permitted him to file prior to trial. Third, Smith argues that he was unable to properly challenge the value of the necklaces because the police did not collect them. Finally, Smith argues that the trial court did not sufficiently inquire into whether Smith knowingly and voluntarily waived his right to a trial on the prior-convictions element of the second-degree theft charge.
For the reasons explained in this opinion, we reject Smith's claims, and we affirm Smith's conviction.
Smith's challenge to the amendment of the indictment
Under AS 11.46.130(a)(6), a third-degree (misdemeanor) theft is elevated to a second-degree (felony) theft if the defendant has been "convicted and sentenced on two or more separate occasions" of certain offenses within the five years preceding the commission of the current offense. Qualifying prior convictions include inter alia second-degree theft and third-degree theft (if the third-degree theft is based on the value of the property).
AS 11.46.130(a)(6)(A)-(D).
In this case, the original indictment stated that Smith had two convictions for second-degree theft within the relevant five-year period. But the indictment was incorrect: Smith had one prior qualifying second-degree theft conviction and one prior qualifying third-degree theft conviction within that period.
Prior to trial, the prosecutor moved to amend the indictment. The prosecutor noted that the indictment should have asserted that Smith had one prior qualifying second-degree theft conviction and one prior qualifying third-degree theft conviction. The prosecutor explained that the grand jury had received the proper certified judgments of convictions — one for second-degree theft and one for third-degree theft. He surmised that the error in the language of the indictment itself was the result of a computer glitch that the indicting prosecutor had not noticed.
Smith's attorney acknowledged that the grand jury had been provided with the proper judgments, and she did not object to amending the indictment to conform to the evidence presented to the grand jury.
The court granted the State's request, and the prosecutor filed an amended indictment reflecting that Smith had one prior qualifying second-degree theft conviction and one prior qualifying third-degree theft conviction.
On appeal, Smith argues for the first time that the court erred in permitting the State to amend the indictment. But even assuming that Smith can raise this claim for the first time on appeal, Alaska Criminal Rule 7(e) provides that a trial court may allow the indictment to be amended "at any time before [the] verdict . . . if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced." Here, the parties agreed that the amendment did not add to or alter the offense with which Smith was charged. Rather, the amendment simply brought the indictment into conformity with the evidence presented to the grand jury — correcting what was essentially a clerical error. Moreover, Smith did not (and does not) argue that he lacked notice of the charged offense or that he was otherwise prejudiced by the amendment.
Rather, Smith argues that the prosecutor who presented the case to the grand jury failed to (1) instruct the grand jury on the elements of third-degree theft, and (2) instruct the grand jury that only third-degree theft convictions based on value (not based on a recidivist theory) qualify for purposes of elevating third-degree theft to second-degree theft. But Smith never argued in the trial court that the prosecutor failed to properly instruct the grand jury. This is an entirely new argument that Smith was required to raise in a pretrial motion to dismiss the indictment. Absent exceptional circumstances, we will not review a grand jury challenge for the first time on appeal.
Iyapana v. State, 284 P.3d 841, 845-46 (Alaska App. 2012); Alaska R. Crim. P. 12(b) & (e).
Iyapana, 284 P.3d at 846-47.
This is not an exceptional circumstance. We note that the prosecutor informed the grand jury that it needed to determine whether Smith had been "previously convicted of theft II or theft III based on value." While the prosecutor did not instruct the grand jury on the specific elements of third-degree theft based on value, Smith does not contend that the third-degree theft judgment provided to the grand jury was not a qualifying conviction.
Accordingly, we decline to further review Smith's claim regarding the grand jury instructions, and we uphold the trial court's decision to amend the indictment.
Smith's claim regarding the trial court's rulings on his pro se motion
Prior to trial, the court allowed Smith to file one pro se motion. In a letter that the court treated as a motion to dismiss the indictment, Smith raised multiple claims and argued that the court should dismiss his case with prejudice. The trial court issued a six-page written order denying Smith's motion to dismiss. Smith moved for reconsideration, which the court denied.
On appeal, Smith argues that the court violated his due process rights by failing to address all of the issues he raised in his pro se motion. This claim is without merit.
As an initial matter, we interpret the court's rulings as a denial of all of Smith's claims. But more importantly, even if we agreed that the court failed to sufficiently rule on some of Smith's claims, this alone would not entitle Smith to relief. Although Smith contends that he sufficiently preserved the issues raised in his motion by repeatedly demanding rulings on them, he does not argue that any of the claims have merit or constitute a basis for reversing his conviction. Indeed, with the exception of Smith's claim regarding the State's failure to collect evidence (which we address in the next section), Smith does not substantively brief any of the issues he raised in his motion. Thus, Smith has failed to establish that he was prejudiced by any ruling (or lack of ruling) by the trial court.
Smith's claim that he could not meaningfully confront the State's evidence regarding the value of the necklaces
To establish Smith's guilt, the State was required to prove that the value of the property stolen was $50 or more. In his pro se motion, Smith argued that the police's failure to collect the stolen necklaces violated his due process rights and undermined his ability to contest their value. Instead of collecting the necklaces, the responding officer retrieved an itemized receipt from the loss prevention manager. The manager generated the receipt on the day of the incident by ringing up the necklaces on the store's cash register. Relying on the receipt to refresh his recollection, the manager testified at trial that the necklaces rang up as $129.97, which represented the price of the necklaces that day. (The State did not introduce the receipt itself as an exhibit.)
Former AS 11.46.130(a)(6) (pre-July 2014 version).
On appeal, Smith does not argue that the police had an obligation to collect and preserve the necklaces. Rather, Smith argues that the police's failure to collect the stolen necklaces, or to present pictures of the necklaces, prevented him from meaningfully contesting the necklaces' value.
But prior to trial, the State provided the itemized receipt to Smith. This receipt included the prices, sale discounts, product descriptions, and model numbers of the necklaces. The receipt described one necklace as "SS DIA ACCENT PEND" and gave the model number and a price of $83.32. The receipt described the second necklace as "SS HEART PEND" and gave the model number and a price of $116.63, less a sale discount of $69.98 (for a total price of $46.65). Smith's attorney also received a copy of the video surveillance of the incident.
This information would have allowed defense counsel or a defense investigator to locate the necklaces (or identical ones) through an independent investigation. The receipt also provided sufficient information from which the defense could have done research to challenge the fair market value that J.C. Penney attributed to the necklaces.
See AS 11.46.980(a) (defining "value of property," for purposes of the theft statutes, as "the market value of the property at the time and place of the crime unless otherwise specified or, if the market value cannot reasonably be ascertained, the cost of replacement of the property within a reasonable time after the crime").
Instead, Smith's attorney relied on the absence of this evidence to contest the value of the necklaces at Smith's trial. Smith's attorney asked the loss prevention manager to describe the necklaces, and the manager was unable to do so. Besides noting that the necklaces were "silver, top-of-counter jewelry," the manager could not say whether the necklaces had a pendant or stone, nor could he describe their size. In closing, Smith's attorney argued that the absence of any witness from J.C. Penney who could describe the necklaces undermined the State's estimation of value. Smith's attorney also argued that the jury should draw an inference adverse to the State because of the State's failure to present the necklaces, any photographs of the necklaces, or the receipt. At no time did Smith's attorney suggest to the court that she could not locate the necklaces, or that the State's evidence was incomplete or insufficient as a matter of law because the State had failed to introduce the actual necklaces.
In support of his argument on appeal, Smith relies on Hatfield v. State. In Hatfield, we stated that "[i]t is difficult to imagine evidence more material to the charge of theft than the property stolen." We also explained, however, that this was particularly true "when the nature of the stolen property precludes a ready determination of its value by reference to other, similar property." It is this last clause that makes Hatfield materially distinguishable from Smith's case.
Hatfield v. State, 663 P.2d 987 (Alaska App. 1983).
Id. at 990.
Id.
The stolen property in Hatfield was a barrel of scrap copper, which the police did not grade or weigh before disposing of it. Consequently, Hatfield was unable to effectively contest the value of the copper, which could not be determined without an accurate grading and weighing of the metal. Unlike Hatfield, Smith had an itemized receipt which recited the prices attributed to the necklaces by J.C. Penney, as well as information from which Smith could readily research the items' value.
See id. at 988-90.
See id.
For these reasons, we reject Smith's claim that he could not meaningfully contest the State's evidence regarding the value of the necklaces.
The trial court's inquiry into Smith's jury trial waiver
The trial court bifurcated Smith's trial. In the first portion of the trial, the jury would determine whether Smith was guilty of third-degree theft. If the jury found Smith guilty of third-degree theft, then the jury would determine whether Smith had two qualifying prior convictions forpurposes of elevating third-degree theft to second-degree theft.
See Tallent v. State, 951 P.2d 857, 861 (Alaska App. 1997) (holding that the prior-convictions component of AS 11.46.130(a)(6) (second-degree recidivist theft) is an essential element of the crime that the State must prove beyond a reasonable doubt to the trier of fact).
After the jury began its deliberations in the first portion of the trial, but before the jury reached its verdict, Smith's attorney informed the court that Smith was willing to "stipulate to the prior convictions, rather than . . . use any more of the jury's time." The court then personally addressed Smith, telling him, "This [decision] has to come from you." Smith informed the court that he had discussed the decision with his attorney, and Smith directly confirmed that he was waiving his right to a jury trial. The court accepted Smith's jury trial waiver.
The jury subsequently found Smith guilty of third-degree theft. Based on Smith's stipulation, the court then found Smith guilty of second-degree theft because of his prior convictions.
On appeal, Smith argues that the trial court did not sufficiently inquire into whether Smith knowingly and voluntarily waived his right to a jury trial on the prior-convictions element. Having reviewed the record, we conclude that the court adequately inquired as to whether Smith personally waived his right to a jury trial on the prior-convictions element. The court personally addressed Smith, and ensured that he—and not his attorney—had made the decision to waive his right to a jury trial. The court also explained to Smith (and had Smith confirm) that Smith would be "waiving having this jury decide whether or not you have the convictions."
Compare Walunga v. State, 630 P.2d 527, 528 n.6 (Alaska 1980), with McGlauflin v. State, 857 P.2d 366, 368-69 (Alaska App. 1993).
Smith also argues that the court did not clearly determine whether Smith intended to proceed solely on a stipulation to the prior convictions or whether he retained the right to have the trial court decide the prior-convictions element. But this is a false dichotomy. When a defendant stipulates to an element of the offense, this stipulation does not relieve the fact-finder (whether judge or jury) of the obligation to decide that element. Thus, when Smith waived his right to a jury trial, and stipulated to the existence of his prior convictions, the judge still had to decide the prior-convictions element, although he could do so based on Smith's stipulation.
See Marshall v. State, ___ P.3d ___, Op. No. 2627, 2018 WL 6582296, at *3 (Alaska App. Dec. 14, 2018); Tallent v. State, 951 P.2d 857, 864 (Alaska App. 1997); see also Ross v. State, 950 P.2d 587, 591 (Alaska App. 1997) (noting that a defendant's willingness to stipulate to an element of the offense "does not answer the question of who will be the trier of fact on this element of the crime").
We acknowledge that the exchange regarding the prior-convictions stipulation was not as clear as it could have been; this matter was discussed simultaneously with Smith's jury trial waiver. We encourage trial judges to separate out any discussion of the identity of the fact-finder (e.g., a jury-trial waiver) from the discussion of the evidence to be presented to that fact-finder (e.g., any stipulation).
But a review of the record shows that Smith never suggested that he wished to present any evidence beyond the stipulation, and it also shows that the trial judge relied on Smith's stipulation as the basis for finding him guilty of second-degree theft. Accordingly, we reject Smith's claims.
Conclusion
We AFFIRM the judgment of the superior court.