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THE COURT OF APPEALS OF THE STATE OF ALASKA
RODNEY L. WILLETT, )
) Court of Appeals File No. A-3565
Appellant, ) Trial Court No. 4FA-S89-2060CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
) (REVISED)
Appellee. )
_______________________________) [No. 1194 - January 17, 1992]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Jane F. Kauvar, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Jill De La Hunt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Rodney L. Willett was convicted by a jury of criminal
mischief in the second degree, AS 11.46.482(a)(1). He appealed,
contending that the state failed to present sufficient evidence as
to the amount of damage he caused and that the trial court misin
structed the jury on the determination of the damage amount. We
affirm.
In July of 1989, Bill Golding drove his girlfriend,
Kathleen Hortsman, to her home in Fairbanks. There, they found
Rodney L. Willett, Hortsman's former boyfriend, waiting in the
driveway. As Golding's car approached, Willett began arguing with
Hortsman. He threw a rock through Golding's windshield, jumped
onto the car, and started to fight with Golding, causing him to
lose control of the vehicle and roll it over an embankment.
As a result of this incident, the state charged
Willett with criminal mischief in the second degree. Under AS
11.46.482(a)(1), criminal mischief in the second degree occurs
when a person intentionally "damages property of another in
an amount of $500 or more[.]" The offense is a class C felony.
AS 11.46.482(b). Under related statutory provisions, the same
conduct is punishable as a misdemeanor if the amount of damage is
less than $500. See AS 11.46.484 (creating the class A
misdemeanor of criminal mischief in the third degree for cases in
which damage amounts to $50 or more); AS 11.46.486 (creating the
class B misdemeanor of criminal mischief in the fourth degree for
cases in which damage amounts to less than $50).
At Willett's trial, the primary issue in dispute was the
amount of damage that Willett caused to Golding's car. To prove
damages, the state presented estimates of repair costs amounting
to between $1,497.50 and $1,517.50. Golding also testified that,
although he was unsure of his car's current blue book value, the
car had been appraised at $1,500 before being damaged. Golding
further indicated that at some time after the incident involving
Willett, the car's engine had broken down. At the time of trial,
he was trying to sell the car for $400, with the engine broken.
At the conclusion of the state's case-in-chief, Willett
moved for a judgment of acquittal, arguing that the state had
failed to prove damages of $500 or more. Willett specifically
claimed that it was incumbent on the state to prove that, as a
result of the damage he inflicted, the fair market value of
Golding's car had decreased by $500 or more. Willett contended
that the state had produced only cost of repair evidence and had
failed to establish either the pre-damage or post-damage fair
market value of the car. On this basis, Willett asserted that the
evidence was insufficient to allow the jury to find the requisite
amount of damage. Acting Superior Court Judge Jane F. Kauvar
denied Willett's motion for a judgment of acquittal and allowed
the jury to rely on cost of repair as a measure of damages.
On appeal, Willett claims that Judge Kauvar erred in
denying his motion for a judgment of acquittal. Willett contends:
Given that the element of criminal mischief
in the third degree required that the state
provide evidence that the market value of the
damage to the vehicle was in an amount greater
than $500.00, Mr. Willett's motion for
judgment of acquittal should have been
granted. Reasonable persons would have to
agree that the state failed to provide any
evidence as to the market value of the 1979
Ford Fairlane at the time of the offense or
that the difference in the market value of the
vehicle before and after the offense exceeded
$500.00. The only evidence which the state
provided had to do with repair and replacement
costs.
Willett's claim is premised on AS 11.46.980(a), which
provides:
(a) In this chapter [chapter 46 of the
revised Alaska criminal code, which
encompasses property crimes], whenever it is
necessary to determine the value of property,
that value is 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.
Willett argues that this provision governs the determination of
damages under Alaska's criminal mischief statutes, requiring proof
of diminution in fair market value unless the state is able to
establish that market value "cannot reasonably be ascertained."
Id.
By its own terms, however, AS 11.46.980(a) requires the
use of market value only when "it is necessary to determine the
value of property" in connection with a property crime. Numerous
provisions in the revised criminal code's chapter on property
crimes specifically require determination of "the value of
property." For example, the various degrees of theft call for a
finding that the "value of property or services" stolen was of at
least a certain dollar amount. See AS 11.46.120(a); AS
11.46.130(a)(1),(4); AS 11.46.140(a)(1); AS 11.46.150(a).
Likewise, the offense of concealment of merchandise is subject to
differing penalties, depending on "the value of the merchandise"
concealed. See AS 11.46.220. As to these provisions, AS
11.46.980(a) would plainly require that value be established
through evidence of the "market value of the property at the time
and place of the crime unless . . . market value cannot reasonably
be ascertained."1
By contrast, Alaska's criminal mischief statutes do not,
on their face, require the jury to determine the "value of proper
ty." The critical element for valuation under these provisions is
not the value of the damaged property but rather the amount of
damage caused by the defendant. Damage, unlike property, has no
fair market value, and determination of the amount of damage thus
does not directly involve calculation of property value. As the
Colorado Supreme Court has stated in construing a criminal
mischief statute similar to AS 11.46.482: "[T]he damage element
in criminal mischief relates to economic loss caused by the
knowing infliction of damage" to the property of another. People
v. Dunoyair, 660 P.2d 890, 894 (Colo. 1983).
One commonly used measure of the amount of damage to
property is the property's resulting diminution in value -- a
measure that involves subtraction of post-damage value from pre-
damage value. To the extent that the prosecution, in a case of
criminal mischief, elects to rely on diminution in value to prove
the amount of damage, then it seems that AS 11.46.980(a) would
apply, requiring that the value of the property be determined by
proof of its market value at the time of the offense.
Yet diminution in value is not the only accepted method
of valuing property damage. An alternative, equally viable, and
perhaps more direct measure of damage is reasonable cost of
repair. See, e.g., People v. Dunoyair, 660 P.2d at 894-95. Both
cost of repair and diminution in value have traditionally been
regarded as acceptable methods of proving the amount of damage to
property. For example, in dealing with harm to chattels, the
Restatement of Torts allows either measure to be used, at the
election of the person whose property has been damaged:
When one is entitled to a judgment for harm to
chattels not amounting to a total destruction
in value, the damages include compensation for
(a) the difference between the value of
the chattel before the harm and the value
after the harm or, at his election in an
appropriate case, the reasonable cost of
repair or restoration, with due allowance for
any difference between the original value and
the value after repairs, and
(b) the loss of use.
Restatement (Second) of Torts 928 (1976).
Section 928 of the Restatement has been interpreted
flexibly, to allow the owner of damaged property recovery based
either on reasonable cost of repairs or diminution in value. See,
e.g., Waseca Sand and Gravel, Inc. v. Olsen, 379 N.W.2d 592, 595
(Minn. App. 1985). In some cases, the provision has been read to
require the use of a combination of cost of repairs and diminution
in value. Where, for example, repairs have not restored damaged
property to its original value, recovery has been allowed for both
cost of repairs and the difference in market value before the
damage and after the repair. See, e.g., Rosenfield v. Choberka,
529 N.Y.S.2d 455, 458 (N.Y. Sup. Ct. 1988). Conversely, when the
cost of repairs would materially exceed the original value of the
property, recovery has generally been limited to diminution in
value. See, e.g., Hartley v. Schwab, 564 S.W.2d 829, 831 (Tex.
Civ. App. 1978); Automated Donut Systems, Inc. v. Consolidated
Rail Corp., 424 N.E. 2d 265, 270-71 (Mass. App. 1981).
For present purposes, these authorities are significant
in that they illustrate that cost of repair is a traditionally
accepted measure of damage to property. Unlike diminution in
value, cost of repair does not require that the value of the
damaged property be determined.
Willett's claim that cost of repair is an impermissible
measure of damage is based on AS 11.46.980(a), which requires that
market value be used to determine the value of property, but only
when "it is necessary to determine the value of property." This
provision does not purport to choose diminution in value over cost
of repair as the preferred method for proving the amount of damage
to personal property. Because damage can be determined by cost of
repair and, in turn, cost of repair can be established without
determining the value of the damaged property, AS 11.46.980(a)
does not apply when the prosecution relies on evidence of cost of
repair to prove the amount of damage in a criminal mischief case.
This conclusion finds support in State v. Ratliff, 730
P.2d 716 (Wash. App. 1986), a decision of the Washington Court of
Appeals in a case factually indistinguishable from Willett's.
Ratliff was convicted of malicious mischief in the second degree,
a felony which, under applicable Washington law, required proof of
damage exceeding $200. On appeal, Ratliff contended that the
trial court erred in allowing the jury to determine the amount of
damage by considering cost of repair. Relying on a Washington
statute defining damages to "include[] any diminution in the value
of any property," Ratliff argued that the legislature "intended
that the only standard for measuring damages should be the
diminution in the value of the property." Id. at 718.
The Washington Court of Appeals rejected this argument
and affirmed Ratliff's conviction. In declining to read the
challenged statute as adopting diminution in value as the sole
measure of damage, the court observed that "cost of repair has
long been allowed as an element of damages . . . ." Id.
Although we conclude that AS 11.46.980(a) does not
prevent the state from relying on cost of repair to prove the
amount of damage in a criminal mischief case, we nevertheless
caution that the statute is not wholly inapplicable to criminal
mischief cases. As we have previously observed, when the state
elects to prove the amount of damage in a criminal mischief case
by showing diminution in value, then AS 11.46.980(a) will require
the prosecution to prove the market value of the property at the
time of the offense.
Moreover, in cases in which the prosecution relies on
cost of repair, there is a secondary aspect of the damage issue as
to which AS 11.46.980(a) may have bearing. It has long been
recognized that the cost of repairing damaged property cannot
materially exceed the value of the property itself. See, e.g.,
People v. Dunoyair, 660 P.2d at 894-95. This principle has been
viewed as implicit in the rule allowing recovery for reasonable
cost of repair; repair costs materially exceeding the value of the
damaged property have simply been deemed unreasonable.2
Accordingly, in a criminal mischief case, when the
defendant places in dispute the question of whether cost of
repairs materially exceeds the value of the damaged property, it
becomes "necessary to determine the value of" the property in
question. AS 11.46.980(a) will apply in such circumstances,
requiring "the market value of the property at the time and place
of the crime" to be shown.
This aspect of the damages issue will have particular
significance in criminal mischief cases involving property whose
pre-damage value falls near the minimum dollar amount for the
particular class of offense charged. In the present case, for
example, AS 11.46.482(a)(1) sets the minimum amount of damage for
second-degree criminal mischief at $500. The state's evidence
indicated repair costs in the range of $1,500. However, if the
pre-damage value of Golding's car had arguably been under $500,
then Willett could have claimed that repair costs exceeding the
value of the car should have been rejected as unreasonable. The
prosecution would then have borne the burden of proving pre-damage
value equalling or exceeding the $500 statutory minimum; in so
doing it would have been required, under AS 11.46.980(a), to
present evidence of market value.
Under the specific facts of Willett's case, however,
this problem did not arise. At trial, Golding testified, without
objection, that his car had been appraised at $1,500 before
Willett damaged it. In response, Willett produced evidence
indicating that Golding's car may have had a lower pre-damage
value. None of Willett's evidence, however, established the value
to be less than $500; the lowest value established by Willett's
evidence was $525.3 Willett's primary theory of defense at trial
was that the state had failed to prove the amount of damages to
Golding's car because it had presented no evidence of post-damage
value. Willett argued that cost of repair did not provide a fair
measure of damages in the case because the estimated costs
exceeded the pre-damage value of Golding's car. Alternatively,
Golding argued that the state had presented unreasonably inflated
cost of repair estimates, thus raising a reasonable doubt as to
whether Willett had caused $500 or more in damages even under the
cost of repair theory. Willett never contended, however, that the
pre-damage value of Golding's car might have been less than $500.4
Since pre-damage value of property is the measure of
damage when cost of repair exceeds value, and since all of the
estimates of value at trial indicated a pre-damage value in excess
of $500, sufficient evidence was presented to the jury to support
a finding that the amount of damage exceeded the $500 minimum for
second-degree criminal mischief, even assuming the jury concluded
that the cost of repairing Willett's damages exceeded the value of
Golding's car. Moreover, given the uncontroverted evidence of pre-
damage value in excess of $500 and Willett's failure to contend
that the pre-damage value fell below $500, the state was under no
obligation to produce evidence of post-damage value.
Because AS 11.46.980(a) did not preclude the state from
relying on evidence of cost of repair, and because the cost of
repair evidence in this case fully supported the conclusion that
Willett caused damages in the amount of $500 or more to Golding's
car, we conclude that Judge Kauvar did not err in denying
Willett's motion for a judgment of acquittal.5
The conviction is AFFIRMED.
_______________________________
1. Other jurisdictions construing the provisions similar to
AS 11.46.980(a) have required the prosecution to offer affirmative
proof that market value cannot be established before allowing the
jury to consider replacement cost or other evidence of value.
See, e.g., State v. Jacquith, 272 N.W.2d 90, 92-93 (S.D. 1978).
2. As indicated in the commentary to Restatement of Torts
928:
If it does not appear to a reasonable person
to be prudent to repair or replace the damaged
part, the damages are the full value of the
subject matter at the time of the tort, less
the junk value of the remains. Ordinarily,
when the cost of repairs would be materially
greater than the exchange value of the chattel
before the harm, it would not be prudent to
make the repairs. If, however, the chattel
has peculiar value to the owner, as when a
family portrait having substantially no
exchange value has been harmed or when there
would be serious delay or inconvenience in
obtaining another chattel, it may be
reasonable to make repairs at an expense
greater than the cost of another chattel. If
the harm consists of causing a chattel to be
inaccessible, as when an automobile is mired
in a ditch or a tool dropped down a well,
damages include an amount reasonably spent to
restore the chattel to its original position.
3. Willett presented evidence that the high bluebook value
for Golding's car was $1,100, while the low bluebook value was
$525. Other evidence of value presented was Willett's admission
on cross-examination that when Golding testified before the grand
jury he had estimated the pre-damage value of his car at $1,200.
Golding also acknowledged that he had obtained the car in trade
for a pickup truck that he had purchased for $1,000.
4. On appeal, Willett contends that he did argue to the
jury that the pre-damage value of Golding's car was less than
$500. Our review of the final argument, however, including the
portion specifically cited by Willett, establishes that he made no
such argument.
5. Willett has separately argued that the trial court
improperly instructed the jury on the determination of damages by
allowing it to rely on either cost of repair or diminution in
market value. As Willett recognizes in his brief, this argument
is based on essentially the same premise as his insufficient
evidence claim: that AS 11.46.980(a) precluded the state from
relying on evidence of cost of repair. Our finding that AS
11.46.980(a) did not bar the state from proving damages by
evidence of cost of repair is thus dispositive of Willett's claim
that his jury was improperly instructed.
