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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DOMINIC J. SALVATO, )
) Court of Appeals No. A-2979
Appellant, ) Trial
Court No. 1KE-S87-315 CR
)
v. )
) O P I N I
O N
STATE OF ALASKA, )
) [No. 1145 - July 12, 1991]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Ketchikan, Thomas E. Schulz, Judge.
Appearances: Mary P. Treiber, Assistant
Public Defender, Ketchikan, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Valerie A. VanBrocklin, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Douglas B. Baily, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
ANDREWS, Judge.
On January 22, 1988, a jury convicted Dominic J.
Salvato of one count of theft in the second degree. Superior
Court Judge Thomas E. Schulz sentenced Salvato to three years'
imprisonment, with all but six months suspended, and ordered him
to pay restitution in the amount of $22,500. Salvato appeals,
claiming Judge Schulz erred by not requiring the jury to return a
mandatory special verdict as required by Criminal Rule 31(e)(1).
He also argues that the restitution award is excessive. We
affirm.
In June of 1986, Salvato began forming a corporation,
Seaskin Limited, for the purpose of tanning fish skins, which
would be used in making products such as boots and wallets. At
the first meeting of the corporation in mid-August of 1986,
Salvato and his attorney were the only participants. Salvato,
acting as president, authorized the corporation to pay him an
annual salary of $25,000. Salvato also authorized himself the
payment of 26,000 shares of stock in the corporation in
consideration of the work he had already put into forming it.
Salvato then persuaded several investors to invest in
the corporation to the amount of $63,418.42. At the October
meeting of the corporation, a board of directors was elected,
composed of people who had invested money in the corporation.
Among the business items discussed at that meeting was whether
Salvato should be paid a salary. The board elected to table that
issue until its December meeting. Salvato then requested that
the corporation pay him a per diem for his work. This idea was
also tabled until the December meeting. The December meeting was
postponed because Salvato was not able to attend.
During the next few months, members of the board became
suspicious that Salvato was misappropriating corporate funds.
The total amount of money invested by members of the Board was
$63,918.42, yet, as of the beginning of January, there was only
$7,711.82 in the corporate account, and the only business
equipment purchased was one fish-skinning machine which cost
$7,500. At the February board meeting, board members confronted
Salvato and asked for an accounting of the money he had spent so
far. The board members suggested he reimburse the corporation by
turning over his shares of stock. When Salvato failed to comply
with the board's request, members contacted the state troopers.
The grand jury indicted Salvato for theft in the first degree on
April 17, 1987.
The case went to trial in January of 1988. The jury
received instructions for both first-degree and second-degree
theft. The second-degree instruction read:
Alaska Statutes section 11.46.130
provides in relevant part: A person commits
the crime of theft in the second degree if
the person commits theft as defined in AS
11.46.100 and the value of the property or
services is $500.00 or more but less than
$25,000.00.
During deliberations the jury asked the judge if it
could add a dollar amount along with the verdict. The state's
attorney said that he did not have any problem with that
proposal. Salvato's attorney replied:
Your honor, I don't have any problem, and
I've discussed the question with my client,
I've advised him that they want to know if
they can put a dollar amount with the
verdict, I've told him that I don't see any
problem with it, he agrees. I would like to
put on record, though, that we're certainly
not being held, I mean, I would assume that
the Court is not assuming that it is held,
bound by whatever dollar amount they reach as
far as restitution or aggravation or whatever
in sentencing Mr. Salvato.
Judge Schulz told the jury they could add a dollar
amount. However, the jury had already finished deliberations on
the first-degree theft count at the time it had asked the
question about a dollar amount. Judge Schulz asked the parties
if they objected to taking the verdict before the jury resumed
deliberations on the lesser counts. Both sides agreed. The jury
returned a not guilty verdict on the first-degree count and then
continued deliberations on the second-degree count. The jury
returned a guilty verdict on second-degree theft which did not
include a dollar amount. The court asked if either party wanted
the jury polled; both sides declined. Salvato did not request
that a dollar amount be fixed at the time the verdict was
returned.
A week later, Salvato moved for a new trial or for
acquittal based on Criminal Rule 31(e)(1), which states:
(e) Special Verdicts.
(1) Offenses Against Property. When an
indictment charges a theft or theft-related
offense against property, on conviction of
the defendant the jury shall ascertain and
declare in the verdict the value of the
property that was the subject of the crime.
Salvato argued that Rule 31(e)(1) required the jury to
make special findings in property related offenses, which had not
been done in his case. Judge Schulz denied the motion, finding
that defense counsel failed to raise the issue at trial, and that
when the jury sua sponte requested to include an amount in the
verdict, defense counsel argued that although he would not object
to the inclusion of an amount by the jury, he would not be bound
by it for any purpose.
Criminal Rule 31(e)(1) seems to be a relatively obscure
rule not commonly used in practice. In that regard, the trial
judge stated:
The court was not familiar with, or at least
didn't remember, the requirement of Rule 31
that -- assuming it applies to this case --
that requires the special interrogatory to
the jury in theft cases. I don't know how
many theft cases I've tried, but I don't
remember that we ever submitted that to a
jury. You know, the special interrogatory.
There haven't been that many of them go to
trial in Ketchikan, but out of all of them
nobody has ever asked for that, and I just --
I frankly didn't remember.
In his motion for a new trial, defense counsel
submitted an affidavit stating that he too was unaware of the
requirements of Criminal Rule 31(e). Even though a well-
experienced trial judge and seasoned trial attorney were
unfamiliar with this dormant rule, the rule exists and its
language is mandatory.1 Fowler v. Anchorage, 583 P.2d 817, 820
(Alaska 1978) (use of word "shall" denotes a mandatory intent).
Assuming that error was committed by not requiring the
use of the special verdict in this case, Salvato is still
required to show plain error because he failed to object below.
McBride v. State, 368 P.2d 925, 928 (Alaska 1962); see also Price
v. State, 647 P.2d 611, 615 n.10 (Alaska App. 1982) (plain error
standard applicable when a party fails to object to the court's
failure to give mandatory instruction under Criminal Rule
30(b)(2)). Under the plain error standard of review, this court
must decide if the error in failing to require a special verdict
was obviously prejudicial and affected Salvato's fundamental
rights. Hammonds v. State, 442 P.2d 39, 43 (Alaska 1968); Bowker
v. State, 373 P.2d 500, 505 (Alaska 1962).
In the present case, it was unnecessary for the jury to
ascertain the exact value of property taken by Salvato in order
to convict him. The jury was properly instructed that to convict
Salvato of second-degree theft they had to find that the value of
the property stolen was somewhere in the range of $500 to
$25,000. Salvato cites no authority for the proposition that
each juror must agree to the same amount in order for a theft
conviction to be unanimous. Accordingly, Salvato was not
prejudiced by the fact that the jurors may not all have agreed on
the same value of property stolen.
Additionally, Salvato specifically stated that he did
not want the court to be bound by any decision the jury made
regarding the value of the theft. When the jury returned its
verdict without stating the value of the property, Salvato did
not object. Salvato appears to have made a tactical decision to
forego input from the jury in deciding the amount of the theft.
An appellate court will rarely find plain error if defense
counsel may have had a strategic reason for not objecting.
Clemans v. State, 680 P.2d 1179, 1186 (Alaska App. 1984).
Furthermore, there is authority that the trial court is
not bound by jury verdicts in determining restitution awards. In
Harris v. State, 678 P.2d 397, 408 (Alaska App. 1984), this court
said that "the trial court was free to determine the actual loss
resulting from that crime, independent of the jury verdict, so
long as the trial court's award was based upon substantial
evidence." See also Fee v. State, 656 P.2d 1202, 1205 (Alaska
App. 1982) (upholding a restitution award in excess of the
jurisdictional limit of the statute).
All things considered, Salvato does not appear to have
been substantially prejudiced by the failure to receive a special
verdict. Even with a special verdict, Salvato still would have
been convicted and, assuming the jury returned an amount less
than the $22,500 ordered by the court, case law indicates that
Judge Schulz was not bound to follow the jury's guidance in
ordering restitution. As a result, we conclude that Judge Schulz
did not abuse his discretion by refusing to grant a new trial or
judgment of acquittal.
Salvato also argues that the court erred in setting the
restitution award at $22,500. The amount of money originally
deposited into the Seaskins corporate bank account was
$61,203.42.2 At the time the corporation took Salvato off as
signatory to the account, only $7,711.82 remained. Salvato
provided receipts accounting for money that he spent, much of
which appeared to be for personal expenses unrelated to running
the business. Salvato was unable to account at all for
$34,989.35.
In fashioning the restitution award, Judge Schulz
started from the figure of $35,000 (rounding up $34,989.35),
giving Salvato the benefit of the doubt about the expenses for
which he provided receipts. He subtracted $12,500 from that
figure as six-months' salary, which he determined Salvato may
have believed he was entitled to, even though the board had never
actually authorized paying him a salary. Subtracting the $12,500
from $35,000, Judge Schulz calculated the restitution amount at
$22,500. Judge Schulz ordered repayment to be made in the amount
of $375 per month, beginning sixty days after he completed his
incarceration, or to transfer his remaining shares of stock in
the corporation to the remaining shareholders.
Salvato does not argue that Judge Schulz imposed an
excessive period of incarceration, only that the restitution
amount was excessive. The amount of restitution, which is part
of the sentencing determination, shall be affirmed unless clearly
mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Salvato argues that the jury determination under Criminal Rule
31(e) is meant to guide the court in setting restitution and is
necessary in this case for a proper determination. He also
argues without any supporting authority that the court is limited
to a restitution award of $500, the lower limit of second-degree
theft, because it failed to require the special verdict.
Our decisions in Harris and Fee dispose of Salvato's
claim. The trial court is not bound by the jury verdict on the
question of the amount of restitution, regardless of whether it
includes a Criminal Rule 31(e) finding.
Judge Schulz' restitution award is supported by
substantial evidence. Id. Judge Schulz stated in his findings
that he thought the evidence may have supported a conviction for
first-degree theft, yet he chose to bind himself to the jury's
verdict. He gave Salvato the benefit of the doubt in several
ways: he subtracted $12,500 as salary, even when the board had
not authorized a salary; he deducted any receipts that Salvato
was able to produce, even though the expenses were obviously
personal and not business related; and he allowed Salvato to pay
the restitution in the form of stock, which is the original
arrangement that Salvato had worked out with the board of
directors before they pressed criminal charges. Judge Schulz did
not abuse his discretion in fashioning the restitution award.
We conclude that Judge Schulz did not commit plain
error by failing to require the jury to deliver a special
verdict, and that the restitution award of $22,500 was not
excessive. The decision of the trial court is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1 We recommend that the standing Committee on Criminal
Rules review this rule to determine whether, in light of the
revised criminal code and our decisions affecting restitution,
see Harris v. State, 678 P.2d 397, 408 (Alaska App. 1984), and
Fee v. State, 656 P.2d 1202, 1205 (Alaska App. 1982), the rule
should be amended, deleted, or clarified.
2 Salvato did not deposit all the money originally
collected from the investors.
