MANNHEIMER
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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge MANNHEIMER.
Shane Stephen McCourt appeals his convictions for first-degree burglary (burglary of a residence) and two counts of second-degree theft (theft of an access device, and theft of property worth $500 or more). McCourt argues that the evidence presented at his trial was insufficient to support any of these three convictions. Specifically, McCourt argues that the evidence does not reasonably support a finding that he participated in the burglary and the thefts. And, with respect to the count charging McCourt with theft of property worth $500 or more, McCourt argues that the evidence was insufficient to support a finding that the property was worth at least $500.
AS 11.46.300(a)(1), AS 11.46.130(a)(7), and AS 11.46.130(a)(1), respectively.
McCourt also argues that the superior court committed error at sentencing when the court rejected McCourt's proposed mitigator, AS 12.55.155(d)(9) (conduct among the least serious within the definition of the offense).
For the reasons explained in this opinion, we conclude that the evidence was sufficient to support McCourt's convictions, and that the superior court properly rejected McCourt's proposed mitigator.
Underlying facts
When a defendant challenges the sufficiency of the evidence to support a criminal conviction, an appellate court must view the evidence (and all reasonable inferences to be drawn from that evidence) in the light most favorable to the verdict. Accordingly, we now describe the evidence at McCourt's trial in that light.
See, e.g., Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
A series of break-ins and thefts occurred in a south Anchorage neighborhood during the early morning hours of September 1, 2010. A resident of the neighborhood, Samantha Faulk, testified that she was awakened at 2:45 a.m. by a noise that sounded to her like breaking glass. She went to her living room window and looked across the street to the house of her neighbor, Keith Haakenson. From her window, Faulk saw a woman standing at the end of her neighbor's driveway. She also observed two men in her neighbor's garage. One of these men stood in the garage, while the other man went in and out of the garage, carrying property out of the garage and depositing it in a pile at the end of the driveway.
(The neighbor's garage was under construction at the time. The garage was attached to the neighbor's house, and it was closed in, but it did not yet have a door in place.)
A bicycle was standing in the driveway next to the pile of items. This bicycle belonged to the neighbor's son, and it had been stored in the garage.
Faulk went back to her bedroom and awakened her husband, David Faulk. Mr. Faulk grabbed a gun, and then he and his wife went outside. Ms. Faulk called 911 as she accompanied her husband.
Mr. Faulk observed a man tampering with the car owned by another neighbor, Chad Gasaway. This man was at the driver's-side door of the car, leaning part way into the vehicle; the man was holding a flashlight, and he was moving things around in the car. At about the same time, Mr. Faulk noticed a woman standing next to another neighbor's van.
Mr. Faulk approached the man who was tampering with the neighbor's car and yelled at him. The man took off running between nearby houses, toward the Old Seward Highway. Mr. Faulk began to chase this man, but then he stopped and returned to the woman standing by the van.
Soon thereafter, the police arrived in response to Ms. Faulk's 911 call. The officers took the woman into custody, and they discovered that she had a cell phone, a backpack, and a flashlight in her possession. The backpack was stolen; it belonged to another resident of the neighborhood.
After the police arrived, Mr. and Ms. Faulk walked back home. When they got to their house, they saw that Mr. Faulk's tool box and many of his tools were lying in the driveway. These items were normally stored in Mr. Faulk's service truck.
In the meantime, the police had dispatched a canine unit to the area to track down the two men that Mr. and Ms. Faulk had described. The police found one of these men — Kacey Fisher — hiding in some nearby bushes. The police also found a portable jump-start kit near Fisher's hiding place.
The officers brought Fisher to the Faulk residence, to see if either Mr. or Ms. Faulk could identify him. Mr. Faulk identified Fisher as the man he had seen rummaging through his neighbor's car.
The police dog located the other man — McCourt—hiding a short distance away, curled up in a small space between a residence and an adjacent dog house. While the police dog was tracking McCourt, the officers who were accompanying the dog found a Carhartt jacket, a backpack, and two wallets lying on the ground. The two wallets belonged to one neighbor (Chad Gasaway), and the Carhartt jacket belonged to another neighbor; it had been stolen from his vehicle.
The officers brought McCourt to the Faulk residence, and Ms. Faulk identified McCourt as the man she had seen going in and out of the garage across the street.
The sufficiency of the evidence
McCourt argues that the foregoing evidence was insufficient to establish his identity as one of the people involved in the burglary of the residence across the street from Mr. and Ms. Faulk, and in the theft of the property belonging to the various neighbors.
McCourt concedes that Ms. Faulk identified him as the man who went in and out of the garage, carrying property to the end of the driveway. However, McCourt argues that Ms. Faulk's opportunity to observe him was "limited and impaired", and he also argues that the identification process was overly suggestive (because the police brought McCourt to the Faulk residence in custody).
McCourt's attorney could properly rely on these factors when arguing the case to the jury. But when an appellate court evaluates the sufficiency of the evidence to support a criminal conviction, we must view the evidence in the light most favorable to the jury's verdict. Even though there may have been potential reasons to doubt the accuracy of the identification, we must assume that the jury resolved these potential doubts in the government's favor.
McCourt also argues that even if he was correctly identified as the man who went in and out of the garage, there was insufficient evidence to connect him to the other thefts that occurred that night — the thefts from the various vehicles in the neighborhood.
As we have explained, the evidence showed that three people were involved in the burglary and thefts. McCourt was charged with the thefts under the alternative theories (1) that he personally committed the thefts, and/or (2) that the thefts were committed by the other two people, and that McCourt was legally accountable for those other people's actions under the provisions of Alaska's complicity statute, AS 11.16.-110(2).
In such circumstances, the State does not need to prove which of the thefts were committed by McCourt personally and which of the thefts were committed by his two accomplices, as long as the evidence supports the conclusion that, beyond a reasonable doubt, (1) McCourt was acting in conjunction with the other two people in one or more of the ways defined in AS 11.16.110(2), and (2) each of the thefts was committed either by McCourt or by his accomplices.
Andrew v. State, 237 P.3d 1027, 1034-35 (Alaska App. 2010); State v. McDonald, 872 P.2d 627, 655 (Alaska App. 1994); Totemoff v. State, 866 P.2d 125, 129 (Alaska App. 1993).
McCourt points to various aspects of the evidence which, if viewed in the light most favorable to him, might create doubt as to whether he was acting in conjunction with the two other people who were apprehended in the neighborhood that night. But, again, we must view the evidence — and the reasonable inferences to be drawn from that evidence — in the light most favorable to the jury's verdict. Viewed in that light, the evidence was sufficient to support the jury's conclusion that McCourt was criminally responsible for all of the thefts.
Finally, McCourt argues that there was insufficient evidence that the stolen property, considered as a whole, was worth $500 or more.
(See AS 11.46.980(c), which declares that, in determining the degree of a theft, the value of different items of stolen property is to be aggregated if the property was stolen during "one course of conduct, whether from the same person or several persons".)
McCourt acknowledges that the testimony presented at his trial supports the conclusion that the property was worth at least $500. But he argues that the witnesses who testified about the value of the property were "speaking off the cuff" — that they "had not researched the current market value of the particular items".
Again, even though there may have been reason to doubt the State's proof of this element, we must assume that the jury resolved this potential doubt in the government's favor.
For these reasons, we conclude that the evidence presented at McCourt's trial was sufficient to support his convictions for burglary and theft.
McCourt's proposed sentencing mitigator
At his sentencing, McCourt argued that his sentences on the three charges should be mitigated under AS 12.55.155(d)(9). This mitigator applies to cases where the defendant's conduct was among the least serious within the definition of the offense.
With respect to the first-degree burglary (i.e., burglary of a residence), McCourt argues that his conduct was among the least serious within the definition of the offense because he did not enter the portion of the residence where people were sleeping; rather, he only entered an attached garage that was under construction. In addition, McCourt notes that he did not have to physically break into the garage — because, even though the garage was walled in, it did not yet have a door.
As the sentencing court conceded, these aspects of McCourt's crime tend to put his conduct at the lower end of the type of conduct encompassed by the crime of burglary. But on the other hand, McCourt committed the burglary in the early hours of the morning, while the homeowner's family was asleep in the adjoining portion of the house. McCourt was a member of a group of three — potentially making the situation more dangerous if a member of the household had awakened and tried to stop the crime. And McCourt was in the residence for a considerable length of time: he repeatedly entered the garage, removed items and carried them down the driveway, and then returned again to steal more.
Moreover, Alaska law no longer requires proof of a "breaking" in a prosecution for burglary. And our legislature has defined the crime of first-degree burglary so that it does not matter whether the burgled residence was occupied or not at the time of the crime.
AS 11.46.310(a) declares that burglary consists of any act of "enter[ing] or remain[ing] unlawfully in a building with intent to commit a crime in the building." As this Court noted Sivertsen v. State, 963 P.2d 1069, 1073 (Alaska App. 1998), "forced entry is not an essential element [of] burglary" under Alaska law.
See Commentary on the Alaska Revised Criminal Code, 1978 Senate Journal Supp. No. 47 (June 12), page 43.
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Given the circumstances as a whole, we conclude that the sentencing court could properly reject McCourt's proposed mitigator with respect to the burglary.
McCourt next argues that his theft of an access device was among the least serious within the definition of the offense because the access device at issue (a credit card) was never used: it remained in the victim's wallet, and the wallet was quickly recovered and returned to its owner, without financial loss to the credit card holder or the issuing bank.
While these things may be true, they are true primarily because of the fortuity that McCourt and his accomplices were interrupted in the middle of their crimes. They ran away, tossing aside the stolen articles, and they were soon apprehended by the police. Thus, in context, the quick recovery of the credit card and the absence of financial loss do not mitigate McCourt's conduct. As the sentencing judge remarked, "If you steal a purse, and you run around the corner and run into a police officer, that doesn't mean it's any less of a crime[.]"
Finally, with respect to the theft of property valued at $500 or more, McCourt argues that his conduct was among the least serious within the definition of the offense for two reasons.
First, McCourt argues that his conduct should be viewed more as an "attempted" theft (as opposed to a completed theft) because he and his accomplices were apprehended quickly, and because the stolen property never left the neighborhood.
But McCourt's crime of theft was complete as soon as he obtained the property — that is, "exert[ed] control" over the property — with the intent to deprive another person of the property or to appropriate the property to his own use or the use of any other person. See AS 11.46.100(1) and AS 11.46.990(12)(A). And, as we have already explained, the quick recovery of the property was due to the fortunate turn of events, not to any mitigated nature of McCourt's actions or intentions.
Second, McCourt argues that the value of the property was close to the $500 lower limit of the second-degree theft statute, and far from the $25,000 valuation that would have made his crime first-degree theft. But even using the lowest estimates given by the victims for the value of the stolen property, the property at issue here was worth about $1100. This figure may be toward the lower end of the $500 to $25,000 range, but it is not merely marginally higher than $500.
Thus, in Gant v. State, 712 P.2d 906, 909 (Alaska App. 1986), this Court affirmed the trial court's rejection of the "least serious" mitigator where the monetary impact of the defendant's crime was $1,200 (compared with the $500 threshold for the offense).
(We also note that in Lee v. State, Alaska App. Memorandum Opinion No. 5639 (September 15, 2010), 2010 WL 3606088, we concluded that, even though the threshold for the crime was $500, property damages costing $1060 to repair did not compel the conclusion that the offense involved "least serious conduct". Lee, 2010 WL 3606088 at
For all of these reasons, we uphold the sentencing court's rejection of McCourt's proposed mitigator.
Conclusion
The judgement of the superior court is AFFIRMED.