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THE COURT OF APPEALS OF THE STATE OF ALASKA
RONALD YOUNG, )
) Court of Appeals No. A-3946
Appellant, ) Trial Court No. 3KN-S90-733CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
) [No. 1285 - February 26,
1993]
Appellee. )
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Charles K. Cranston,
Judge.
Appearances: Jeffrey D. Mahlen, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Cynthia
L. Herren, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchor-
age, and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Following a jury trial, Ronald Young was convicted of
one count of burglary in the second degree, in violation of AS
11.46.310, and one count of criminal mischief in the second
degree, in violation of AS 11.46.482(a)(1). Superior Court Judge
Charles K. Cranston sentenced Young to four years with one year
suspended
for second-degree burglary and to a concurrent term of two years,
all suspended, for second-degree criminal mischief. Young
appeals, arguing that the trial court erred in denying his motion
to excuse a juror for cause, in failing to grant his motion for
judgments of acquittal, and in entering separate convictions
against him for second-degree burglary and second-degree criminal
mischief. We affirm.
FACTS
On the night of June 8, 1990, a Friday, school
custodian Oma Gilbreth stopped by Chapman Elementary School in
Anchor Point to change tapes in the school video tape machines.
As Gilbreath walked down a hallway inside the school, he looked
through the window to the secretary's office and noticed coins
and a string of keys strewn on the floor; they had not been there
earlier that afternoon.
Gilbreath walked around to the office door. He found
the door open, with its window smashed. A rock was lying in the
middle of the secretary's office. As Gilbreath entered the
office, he saw that the door to the principal's office -- an
inner office -- was open, and he heard somebody rummaging around
in a desk. Yelling in a loud voice, Gilbreath entered the
principal's office and turned on the light. There, he discovered
Ronald Young cowering behind a bookcase. Gilbreath placed Young
in the secretary's office and called the police. By the time the
police arrived, Young, who appeared to be intoxicated, had fallen
asleep.
Alaska State Trooper Corporal Daniel Weatherly
responded to the scene and investigated the break-in. Weatherly
discovered, in addition to the broken window in the door to the
secretary's office, that the door to the principal's office had
been forced open; it was splintered around the door jamb. A
drawer in the secretary's desk and two drawers in the principal's
desk had been opened. Weatherly determined that Young had broken
into the building through the arctic entryway at the rear of the
school: the locked outer door of the entryway had been smashed
open; the window panes of both the outer door and inner door (a
free-swinging door with no lock) had been shattered.
The following Monday morning, June 11, school officials
discovered that the exterior window of the music room, which is
adjacent to the rear entryway, had also been broken, apparently
by a thrown rock.
Young was charged with second-degree burglary for
breaking and entering into the school with the intent to steal;
he was charged with second-degree criminal mischief for the
damage he caused during the break-in.
JUROR CHALLENGE
During jury selection in Young's case, one prospective
juror, Mack Thompson, informed the court that, through his work
as an emergency medical technician, he had become acquainted with
Trooper Weatherly. Thompson vacillated as to his ability to be
fair in evaluating Weatherly's testimony. In response to initial
questioning by the court, he indicated that his acquaintance with
Weatherly was professional in nature and would not prevent him
from treating Weatherly's testimony the same as that of other
witnesses. After inquiry by defense counsel, however, Thompson
indicated that he thought Weatherly to be a trained and highly
competent officer; Thompson acknowledged that it was "possible"
that he "might have some difficulty just evaluating [Weatherly's]
credibility based solely on what [he] hear[d] on the witness
stand."
Young challenged Thompson for cause, alleging that
Thompson would be unable to set aside his acquaintance with
Weatherly in evaluating Weatherly's credibility as a witness.
Further questioning of Thompson by the court, however, ultimately
resulted in the following exchange:
Q:[W]ould you be able to follow the
instruction that the court will give you on
how to judge the credibility of the witnesses
and would you be able to evaluate Corporal
Weatherly's testimony based upon what appears
to you to be reasonable inferences to draw
from courtroom presentations rather than
matters that have occurred outside the
courtroom? Do you understand my question?
A:Yes, I do. I believe I could make a valid
decision on -- on his testimony whether -- if
it conflicted with another testimony, yes.
Q:And based upon matters that occur within
the courtroom?
A:Yes. With the ex -- you know, with the
exception of -- and I think all of -- all
people have a prejudice toward believing
police officers.
Q:Well, in other words, would you give his
testimony more weight solely because he is a
police officer? He'll undoubtedly testify as
to what his background is and you can take
his background into consideration in
evaluating his testimony. That is the
training he has received and so on. But
taking the matter solely because he is a
police officer without any reference to what
background information might be given
regarding him, or what he might actually tell
you on the witness stand, are you going to
simply assume without any further information
that because he's a police officer he's going
to be more credible?
A:No, I -- I -- I don't believe I'd assume
that. I believe I could take his -- his
testimony and treat it without prejudice of
what I -- my previous contact with Corporal
Weatherly.
Based upon Thompson's answers, the court denied Young's challenge
for cause.
Young eventually exercised one of his peremptory
challenges to excuse Thompson. Young exhausted all of his
peremptory challenges in the course of jury selection. He did
not request any additional challenges, and the court offered
none. On appeal, Young claims that the trial court erred in
denying his motion to excuse Thompson for cause.
A trial court's failure to grant a challenge for cause
based on a claim of potential bias is reviewed for abuse of
discretion and will be reversed "only in exceptional
circumstances and to prevent a miscarriage of justice."
Dalkovski v. Glad, 774 P.2d 202, 205 (Alaska 1989)(quoting
Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964)). See also
Sirotiak v. H.C. Price Co., 758 P.2d 1271, 1275 (Alaska 1988).
Young argues that Thompson's preconceived notion
towards believing and trusting police officers in general and his
entrenched bias toward believing and trusting Weatherly in
particular rendered Thompson unfit to sit as a juror. He
contends that the trial court "guided" Thompson to the "correct"
responses. According to Young, the court placed undue weight on
Thompson's statements that he could be fair and impartial.
Young asserts that, when a juror is familiar with a
party or witness, the trial court must view that juror's claim of
impartiality with skepticism. Young relies on Jerrel v. State,
756 P.2d 301, 305 (Alaska App. 1988); Mallot v. State, 608 P.2d
737, 748 (Alaska 1980); Oxereok v. State, 611 P.2d 913, 919
(Alaska 1980); Nelson v. State, 781 P.2d 994, 997 (Alaska App.
1989); Chase v. State, 678 P.2d 1347, 1351 (Alaska App. 1984).
These cases, however, are inapposite: all involved extensive and
potentially prejudicial pretrial publicity -- an exceptional
situation requiring unique attention to the issue of potential
jury bias.
The ordinary rule, applicable here, is that "bias on
the part of prospective jurors will never be presumed and the
challenging party bears the burden of proof." City of Kotzebue
v. Ipalook, 462 P.2d 75, 77 (Alaska 1969). In assessing a
challenge for cause based on bias, the trial court is ordinarily
entitled to take at face value the challenged juror's responses
to questioning on voir dire; the court may deny a challenge when
the juror makes "a good faith statement that he or she will be
fair, impartial and follow instructions." Sirotiak v. State, 758
P.2d at 1277. See also Mitchell v. Knight, 394 P.2d at 897;
Malvo v. J.C. Penney Company, Inc., 512 P.2d 575, 578-79 n.2
(Alaska 1973).
Young in effect asserts that we must reverse the trial
court's ruling if the record provides any indication of potential
bias, and unless it contains absolute and unequivocal assurance
of impartiality. The Alaska Supreme Court has expressly rejected
this view:
First, we conduct our review of the record
looking only for abuse of discretion. To
require the cold record to reflect
"unequivocal and absolute" impartiality
intrudes on the discretion granted trial
courts because the judge is present and
observing proceedings. Second, we doubt the
truly honest juror could state unequivocally
and absolutely that his or her biases will
have no effect on the verdict. All that is
required of a prospective juror is a good
faith statement that he or she will be fair,
impartial and follow instructions.
Sirotiak v. State, 758 P.2d at 1277.
In the present case, despite some degree of
equivocation, Thompson ultimately gave the court his good faith
assurance that he could be fair and impartial in following the
court's instructions. The circumstances of the case provide no
basis for questioning this assurance. The focal point of dispute
at trial was the sufficiency of the evidence to establish that
Young entered the school with intent to steal and that he caused
more than $500 in property damage. Although Weatherly's
testimony was certainly significant to the state's case, his
crime-scene observations were for the most part undisputed, and
the case did not turn on his credibility. We conclude that Judge
Cranston did not abuse his discretion in denying Young's request
to remove Thompson for cause.
SUFFICIENCY OF EVIDENCE
Young contends that the evidence at trial was insuffi
cient to support his burglary and criminal mischief convictions;
he advances separate claims as to each conviction.
1. Burglary -- intent to steal
Young's indictment alleged that he committed second-
degree burglary by breaking into the school building with intent
to steal.1 Young argues that insufficient evidence was presented
at trial to support the conclusion that he acted with intent to
commit theft. Young specifically points to uncontroverted
evidence indicating that there was money on the floor of the
secretary's office and in drawers that he had opened, whereas
Young had no school property or money in his possession and none
was missing.
In ruling on the sufficiency of evidence at trial,
however, we must view all of the evidence in the light most
favorable to the state and determine if "fair-minded [jurors] in
the exercise of reasonable judgment could differ on the question
of whether guilt has been established beyond a reasonable
doubt[.]" Dorman v. State, 622 P.2d 448, 453 (Alaska 1981);
Siggelkow v. State, 648 P.2d 611, 613 (Alaska App. 1982).
In the present case, the evidence, viewed in this
manner, established more than a haphazard or random act of
trespass. From the nature and extent of the damage at the rear
of the school, the jury could properly conclude that Young's
decision to break in was deliberate rather than merely impulsive.
Once inside, Young proceeded by breaking into the secretary's
office and then into the principal's office, rummaging through
desk drawers as he went. These actions, too, could support the
inference that Young's break-in was purposeful and that he was
intent on finding property of value. The fact that Young passed
up money and property of value after entering the school was
countervailing evidence that jurors were certainly entitled to
consider in determining his intent; yet given that Young was
caught in mid-course, while still rummaging through school
property, this was hardly conclusive proof that he did not intend
to steal.
Other courts, reviewing functionally indistinguishable
facts, have not hesitated to find sufficient evidence to support
an inference of intent to steal. See, e.g., State v. Harper, 685
P.2d 850 (Kan. 1984); People v. Patterson, 274 N.E.2d 218 (Ill.
App. 1971). We conclude that, when viewed in the light most
favorable to the state, the evidence of intent to steal was
sufficient to raise an issue for the jury.
2. Criminal mischief -- value of damage
Young was charged with criminal mischief in the second
degree on the theory that he intentionally caused $500 or more in
damage to school property.2 On appeal, Young asserts that the
state failed to prove that the amount of damage he caused
equalled or exceeded $500.
The amount of damage caused by an act of criminal
mischief may be established through evidence showing either
diminution in value or reasonable cost of repair. Willett v.
State, 826 P.2d 1142, 1144 (Alaska App. 1992). To determine
whether sufficient proof has been presented in a given case, we
must view the evidence and the reasonable inferences arising
therefrom in the light most favorable to the state. Dorman v.
State, 622 P.2d at 453.
The state offered into evidence a work proposal and
estimate by Bill's Mobile Glass for $483.46 for the replacement
of the music room window, the arctic doorway windows, and the
secretary's office door window. Other testimony established that
the damage Young had caused to the door of the principal's office
door required that door to be replaced with a door held in stock
in the Homer maintenance shop. New hinges and locking hardware
for the principal's door were also installed; only the old hinges
were usable. A school official estimated that the door with
hardware "easily cost $200.00. That's a very conservative figure
in my opinion." He also estimated that installation took three
hours.
With respect to the $483.46 estimate for glass repair,
Young argues that there was no testimony as to whether the school
ever paid this amount. However, testimony at trial indicated
that the disputed estimate had been sent to the school as the
final bill for glass replacement work that was actually done and
that it had been approved and submitted for payment to the
school's purchasing agent.
Moreover, for purposes of Young's case, the crucial
issue was the amount of damage Young caused, not whether the
school had actually paid for repair. As we have already
indicated, reasonable cost of repair is an acceptable measure of
damage; estimates of repair costs are competent evidence of
reasonable cost. See Willett v. State, 826 P.2d at 1144. Young
cites no authority requiring that actual payment be proved as a
precondition of establishing reasonable cost of repair, and we
are aware of no such requirement.3
With respect to repair costs for damage to the door of
the principal's office, Young argues that the $200 estimated
replacement cost is inflated because it does not offset the value
of hardware salvaged from the old door. Again, however, Young's
approach presumes a view of the evidence favorable to his case.
When the evidence is properly viewed in the light most favorable
to the state, any uncertainty as to the value of replacement door
seems inconsequential.
Viewing the evidence favorably to the state, the jury
could properly have found that Young caused $483.46 in damages as
a result of the windows that he broke. Accordingly, to reach the
$500 jurisdictional limit for criminal mischief in the second
degree, the jury need only have concluded that the damaged princi
pal's door was worth seventeen dollars or more. Despite the some-
what imprecise value attributed to the damaged door at trial, the
evidence of its value, when viewed in the light most favorable to
the state, was certainly sufficient to support such a conclusion.
DOUBLE JEOPARDY
Young lastly contends that the trial court erred in
separately convicting and sentencing him for the offenses of
burglary and criminal mischief. Young maintains that, because
the property damage that supported his criminal mischief charge
occurred during the commission of the burglary for which he was
convicted, separate punishment for the offenses is precluded by
the constitutional prohibition against double jeopardy, as
articulated in Whitton v. State, 479 P.2d 302 (Alaska 1970).
Young's double jeopardy argument is squarely foreclosed
by this court's recent decision in Coleman v. State, __ P.2d __,
Op. No. 1281 (Alaska App., February 5, 1993)(theft and criminal
mischief convictions involving the same property not barred by
double jeopardy), as well as by Mead v. State, 489 P.2d 738
(Alaska 1971)(allowing separate convictions for burglary and
theft of the property for which burglary was committed), upon
which we relied in Coleman.4
CONCLUSION
For the foregoing reasons, Young's judgment of
conviction is AFFIRMED.
_______________________________
1. Young was charged with violating AS 11.46.310(a), which
provides:
A person commits the crime of burglary
in the second degree if the person enters or
remains unlawfully in a building with intent
to commit a crime in the building.
The indictment expressly alleged that the crime Young intended to
commit was theft.
2. Young was charged under AS 11.46.482(a), which
provides, in pertinent part:
A person commits the crime of criminal
mischief in the second degree if, having no
right to do so or any reasonable ground to
believe the person has such a right,
(1) with intent to damage
property of another, the person
damages property of another in an
amount of $500 or more.
3. Young also insists that, since the music-room window
may have been broken by someone else on a different occasion, its
cost should be deducted from the estimate for purposes of
determining whether sufficient evidence was presented. Whether
Young broke the music-room window, however, was a factual issue
for the jury. Assuming the jury found that Young did break the
music-room window -- as we must for purposes of determining the
sufficiency of the evidence -- it could properly include the
cost of repairing that window in its assessment of overall
damages.
4. Young also claims that separate convictions and
sentences are prohibited by the rule of merger articulated in
Tuckfield v. State, 621 P.2d 1350 (Alaska 1981). In Tuckfield,
however, the court concluded that the defendant's convictions for
rape and assault with intent to commit rape, which arose from a
single incident, merged, since, under the circumstances, the
assault amounted to a lesser-included offense of the completed
rape. Id. at 1352-53. See also Rodriquez v. State, 741 P.2d
1200 (Alaska App. 1987). The merger doctrine is inapplicable in
the context of Young's case, since criminal mischief is not an
offense necessarily included in the offense of burglary.
