Opinion
Court of Appeals No. A-10459.
October 19, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Brian K. Clark, Judge, Trial Court No. 3AN-07-6191 CR.
Caitlin Shortell, Shortell Gardner LLC, Anchorage, for the Appellant. Brittany L. Dunlop, Assistant District Attorney, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
A thief stole an Anchorage woman's purse and her checkbook from her car while she took her dog for an evening walk. The woman reported the theft to the police and to her bank.
The next day around 12:30 p.m., Shawn Davis tried to cash one of the woman's stolen checks, made out to him for $550. The check's memo line read "labor." The teller's computer gave her a warning that the check had been stolen. The teller left her counter to report the situation to her manager and to call the police. Davis waited at the counter during the initial part of this delay, but he eventually left without retrieving the check.
Davis was charged with forgery in the second degree (Count 1), theft in the second degree (for stealing the check) (count 2), attempted theft in the second degree (for trying to negotiate the check) (Count 3), and attempted fraudulent use of an access device ( i.e., the checks) (Count 4).
AS 11.46.505(a)(1).
AS 11.46.130(a)(7).
AS 11.31.100(a); AS 11.46.130(a)(1).
AS 11.31.100(a); AS 11.46.285(a)(1), (b)(2).
The State presented the foregoing evidence at a jury trial before Superior Court Judge pro tem Brian K. Clark. After the State rested its case, Davis moved for a judgment of acquittal, arguing that there was a lack of evidence concerning the circumstances under which Davis received the check and a lack of evidence concerning Davis's intent at the time he presented the check to the teller. Judge Clark denied the motion, and the jury found Davis guilty on all four counts.
At sentencing, the court merged Counts 1, 3, and 4, finding that these criminal charges encompassed a single act: Davis's attempt to negotiate a stolen check to obtain $550. But the judge concluded that Count 2 (for stealing the check) was a separate act that would support a separate conviction. Discussion
On appeal, Davis argues that the judge should have granted his motion for judgments of acquittal on all four counts. To review this claim, we view the evidence in the light most favorable to the verdict and ask whether a reasonable juror could conclude that the defendant's guilt had been established beyond a reasonable doubt. The State can satisfy this standard with direct or circumstantial evidence.
Silvera v. State, 244 P.3d 1138, 1142 (Alaska App. 2010).
See Roussel v. State, 115 P.3d 581, 586 (Alaska App. 2005) ("We apply the same standard of review whether the conviction is based on circumstantial evidence or direct evidence.").
Davis separately argues that his convictions violated the guarantee of due process of law because they were supported by insufficient evidence. The test for this claim is similar to the test when we review an order denying a motion for judgment of acquittal — "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
See generally Jackson v. Virginia, 443 U.S. 307, 315-16 (1979) (stating that due process requires a conviction to be supported by proof beyond a reasonable doubt on each element of the offense), overruled on other grounds by Schlup v. Delo, 513 U.S. 298 (1995).
Id. at 319.
Davis argues that the State presented insufficient evidence about exactly how he had come into possession of the stolen check. In order to prove that Davis committed theft in the second degree, as charged in Count 2, the State was required to show that Davis either intended to deprive another person of property or that he had received stolen property with reckless disregard that the property was stolen.
See AS 11.46.100(1), (4); AS 11.46.190(a). The State was also required to show that the property was an "access device," AS 11.46.130(a)(7), but this element is not at issue in this appeal.
The evidence established that Davis had exclusive possession of a stolen check less than a day after it had been stolen. These circumstances made it very unlikely that the $550 check had been issued to Davis in return for "labor." And if Davis had earned the check through honest means, then he likely would not have left it behind at the bank when the teller went to talk to her supervisor. A reasonable juror could conclude that Davis had stolen the check or that he knew that it was stolen.
See generally Davis v. State, 499 P.2d 1025, 1035 (Alaska 1972) (recognizing that it is permissible to infer, from a person's unexplained and exclusive possession of recently stolen property, that the person participated in the burglary or theft during which the property was stolen), rev'd on other grounds, Davis v. Alaska, 415 U.S. 308 (1974); Snyder v. State, 661 P.2d 638, 641-42 (Alaska App. 1983) (same).
Davis also argues that there was insufficient evidence of his criminal intent to prove his convictions for attempting to negotiate the check. To prove forgery, the State was required to prove that Davis possessed or uttered a forged negotiable instrument with the "intent to defraud." To prove attempted theft in the second degree, the State was required to prove that Davis had the "intent to deprive another of property" valued at more than $500 when he presented the check. And to prove attempted fraudulent use of an access device, the State was required to prove that he acted with "intent to defraud," that he intended to use an access device to obtain property or services, and that he knew the access device was stolen or forged.
See AS 11.46.505(a); AS 11.46.510(a).
See AS 11.31.100(a); AS 11.46.100(1); AS 11.46.130(a)(1).
See AS 11.46.285(a). As noted above, this case does not involve any issue about whether the stolen check was an access device.
Again, the circumstantial evidence suggested that Davis knew the check he presented was stolen and that he presented the check in order to steal funds from the bank (or any other entity that honored the check). The check had been stolen only hours before. The check had been completed by someone other than the account holder. It was very unlikely that the check had been issued for "labor." And Davis likely knew that the check was stolen and forged because he left it behind at the bank when the teller went to talk to her supervisor.
In summary, a reasonable juror could conclude that the State had proven all of these charges beyond a reasonable doubt. The trial court did not err when it denied Davis's motion for judgment of acquittal, and his subsequent convictions did not violate his right to due process of law.
Davis also argues that, at sentencing, Judge Clark should have merged Davis's conviction for stealing the check with his other three convictions that were based on his attempt to cash the stolen check. He argues that merger was required under AS 12.55.145(a)(1)(C) because these offenses were part of a "single, continuous criminal episode."
Davis is relying on the wrong standard. The test in AS 12.55.145(a)(1)(C) determines whether a defendant's prior offenses will constitute a single conviction for purposes of presumptive sentencing. But when a sentencing judge decides whether to merge a defendant's current offenses, the judge must view the offenses in light of the societal interests involved and ask whether any differences in intent or conduct are substantial enough to warrant multiple punishments.
Whitton v. State, 479 P.2d 302, 312 (Alaska 1970).
In a previous case, we determined that the offense of receiving stolen traveler's checks and the offense of forging those checks involved sufficiently separate conduct to merit separate punishment.
See Harris v. State, 678 P.2d 397, 407-08 (Alaska App. 1984), rev'd on other grounds, Stephan v. State, 705 P.2d 410 (Alaska 1985).
The theft statute protects society's interest in preserving ownership in tangible property. Forgery, on the other hand, serves the societal interest of preserving the integrity of negotiable instruments. We note that while the theft injured . . . the owner of the traveler's checks, the forgery and negotiation of the checks injured an expanded set of victims including the financial organizations negotiating the checks.
Id. at 408.
In this case, for similar reasons, we conclude that the sentencing judge properly entered separate convictions for Davis's act of stealing or receiving the stolen check and his attempt to negotiate the stolen check.
We note that there appears to be a clerical mistake in the judgment. When Judge Clark announced his sentencing remarks, he stated that Counts 1, 3, and 4 should merge, and that a separate conviction should be entered for Count 2 (count tracking number 003) on the charge of theft in the second degree. But the judgment shows a separate conviction and sentence for Count 4 (count tracking number 002) on the charge of attempted fraudulent use of an access device. This error should be corrected on remand. Conclusion
We therefore REMAND this case to the superior court for correction of the judgment. We AFFIRM the other aspects of the superior court's judgment and sentence.