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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RONALD COLEMAN, )
) Court of Appeals No. A-4158
Appellant, ) Trial Court No. 3AN-91-170 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1281 - February 5, 1993]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Rene Gonzalez,
Judge.
Appearances: Suzanne Weller, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Cynthia
L. Herren, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Ronald Coleman was convicted of both second-degree
theft, AS 11.46.130(a)(1), and second-degree criminal mischief,
AS 11.46.482(a)(1), after a jury trial in the Anchorage superior
court. Coleman appeals, contending that his criminal conduct
constituted only one offense under the doctrine announced in
Whitton v. State, 479 P.2d 302 (Alaska 1970), and that therefore
he should have received only one conviction. We affirm Coleman's
convictions.
Coleman stole aluminum beams that were structural
support for a portable building. He planned to sell the beams to
a recycling center for scrap. In order to carry them in his
truck, Coleman cut the beams into shorter lengths. Coleman took
the cut-up beams to a recycling center, but the recycling center
(having been apprised of the theft) refused to accept the pieces
of aluminum. After Coleman left, the recycling center notified
the police of the attempted sale. Coleman returned home,
intending to throw the aluminum away, but the police arrived
first and found Coleman's truck loaded with the cut-up aluminum.
Coleman was convicted of second-degree theft for his
act of stealing the aluminum beams. He was also convicted of
second-degree criminal mischief (intentionally damaging property)
for his act of cutting up the beams, thus destroying their
usefulness. (Even though the beams were recovered, they could no
longer be used as building supports.)
Following the jury's verdicts, Coleman asked the
superior court to rule that his two convictions merged for double
jeopardy purposes under the rule established in Whitton v. State,
that two or more statutory violations may constitute the "same
offense" and thus may support only one criminal conviction. 479
P.2d at 310-12. The superior court denied Coleman's motion. The
court found that Coleman's acts of theft and of damaging the
property had, in fact, occurred at two discrete times (i.e.,
Coleman had first removed the beams from the victim's yard and
had later cut up the beams to transport them to the recycling
center). Moreover, the court found that the theft and the
criminal mischief statutes vindicated discrete social interests.
The court construed theft as an act that deprives a property
owner of possession, while criminal mischief is an act that
destroys the value of the property, whether the property has been
carried away or left in the possession of its rightful owner.
With regard to the superior court's factual finding
that the acts of theft and criminal mischief occurred at two
distinct times, we will reverse only if we are convinced that the
finding is clearly erroneous. Donnybrook Building Supply, Inc.
v. Interior City Branch, First Nat'l Bank of Anchorage, 798 P.2d
1263, 1266 (Alaska 1990). However, with regard to the superior
court's rulings on the construction of the two statutes, the
identification of the social interests they protect, and the
ultimate legal issue of whether Coleman may lawfully be convicted
of both crimes, we exercise de novo review - that is, we decide
this issue independently, without deference to the trial court's
decision. Ford v. Anchorage, 813 P.2d 654, 655 (Alaska 1991);
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Coleman does not dispute that there was a time interval
between his asportation of the beams and his cutting them into
shorter lengths. In fact, Coleman's brief describes his conduct
as "theft of aluminum and ... later cutting the same aluminum".
We therefore uphold the superior court's finding regarding the
separate timing of the two acts.
This brings us to the legal issue: does Coleman's
conduct support two distinct convictions, one for stealing the
property and the other for intentionally damaging the property?
Coleman argues that theft, by itself, necessarily envisions the
victim's total loss of the property, because the crime of theft
requires proof that the defendant intended to permanently deprive
the victim of the property. Thus, Coleman asserts, a defendant
convicted of theft is already being punished for depriving the
victim of the complete value of the property, and there is no
justification for then convicting the same defendant of damaging
the property.
Coleman's argument, however, misapprehends the crime of
theft. Theft requires proof that the defendant intended to
permanently deprive the victim of the property, but it does not
require proof that the victim in fact suffered permanent loss of
the property. A defendant can be prosecuted and convicted for
theft even though the property is promptly recovered and returned
to the victim without any diminution in value. W. LaFave & A.
Scott, Substantive Criminal Law (1986), 8.5(b), Vol. 2, pp.
359; R. Perkins & R. Boyce, Criminal Law (3rd ed. 1982), pp. 332
& 335.1
Thus, Coleman's argument reduces to this: since the
crime of theft requires proof that the defendant intended for the
victim to permanently lose the use or value of the property, the
double jeopardy clause forbids the government from convicting the
defendant for a separate crime when the defendant purposefully
damages the property in an attempt to disguise its provenance or
make it easier to sell. This is essentially the same argument
that the Alaska Supreme Court rejected in Mead v. State, 489 P.2d
738, 740-43 (Alaska 1971).
In Mead, the defendant relied on Whitton to argue that
he could not constitutionally be convicted of both burglary and
larceny in a building (a form of aggravated theft under Alaska's
former criminal code), since the crime of burglary required proof
that he had entered the building with the intent to commit theft.
The supreme court gave two reasons for rejecting this contention.
The first was based on statutory construction: the burglary
statute does not require proof of a completed theft. "The
gravamen of the burglary statute is the breach [of the building]
and entry. The gist of larceny in a building is the theft
itself." 489 P.2d at 741. The supreme court's second argument
was grounded on policy: "If conviction for burglary alone were
permitted, the successful burglar would receive no greater
punishment than the unsuccessful one. If conviction for larceny
alone were allowed, ... private areas where our citizens
historically have maintained reasonable expectations of greater
privacy would receive no more protection against theft than
public halls." 489 P.2d at 741-42.
These two rationales apply to Coleman's case. As a
matter of statutory construction, the crime of theft requires
proof that Coleman carried away the aluminum beams with intent to
permanently deprive the owner of his property, but it does not
require proof that the owner actually suffered permanent loss of
the property. Criminal mischief, on the other hand, does not
require proof that Coleman removed the aluminum beams from the
owner's possession, but it does require proof that Coleman inten
tionally damaged the beams. As to social policy, the gravamen of
Coleman's theft is that the owner was deprived of his right of
possession, while the gravamen of Coleman's criminal mischief is
that Coleman intentionally damaged the property, even though it
was ultimately restored to its owner.
See Catlett v. State, 585 P.2d 553, 558 (Alaska 1978),
where the supreme court upheld separate convictions for grand
larceny and for stealing or removing parts of an aircraft when
the defendant had committed a single act of removing a pair of
landing skis from a float plane. Also see Drahosh v. State, 442
P.2d 44, 49 (Alaska 1968), holding that a person can be
separately convicted for leaving the scene of a motor vehicle
accident and for failing to render aid to persons injured in that
accident.
We recognize that the supreme court's decision in
Hensel v. State, 604 P.2d 222 (Alaska 1979), stands in apparent
contradiction to the result we have reached here. In Hensel, the
defendant was convicted of burglary for breaking into a dynamite
storage bunker and was also convicted of malicious destruction of
property for setting off the dynamite, destroying the structure.
604 P.2d at 226-27. The supreme court held that Whitton
prohibited separate convictions for burglary and for malicious
destruction of property. The supreme court's opinion discusses
and decides this issue in only two sentences:
Hensel's last argument on appeal is that
[separate convictions] for burglary and mali
cious destruction of property are not permis
sible under Whitton v. State, 479 P.2d 302
(Alaska 1970). The state concedes error on
this point, recognizing that "the burglary
and malicious destruction charges constitute
essentially one course of conduct designed to
accomplish one specific objective - the de
struction of the Eagle River bunker and its
contents."
Hensel, 604 P.2d at 239. Ironically, this language mirrors the
words the supreme court used in Mead when it reached the opposite
result: "In Mead's case, we are presented with two different
statutory crimes arising out of a course of conduct which, while
consisting of an integrated series of acts leading to an ultimate
goal, violates different societal interests." Mead, 489 P.2d at
743.
The supreme court failed to cite and distinguish Mead
when it decided Hensel. Moreover, the state conceded error in
Hensel, an indication that the double jeopardy issue may not have
received focused attention. Under these circumstances, we
believe that the decision in Hensel should be limited to its
facts, and that Coleman's case is governed by the decisions in
Mead, Catlett, and Drahosh.
We therefore uphold the trial court's ruling that
Coleman could properly be convicted of both theft and criminal
mischief. The judgement of the superior court is AFFIRMED.
_______________________________
1 Theft is, in fact, a crime against the victim's right to
possess the property, not the victim's right to the value of the
property. This is why theft can be committed against a person
who does not own the property but who is merely leasing the
property or has possession of the property in a fiduciary
capacity. Indeed, if the legal owner, acting with an intent to
deprive, takes the property from another person who has lawful
possession of it, the owner has committed theft. W. LaFave & A.
Scott, Substantive Criminal Law (1986), 8.4(c), Vol. 2, pp. 355-
56; R. Perkins & R. Boyce, Criminal Law (3rd ed. 1982), pp. 296-
98.
